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The opinion of the court was delivered by
Harvey, J.:
This was an action for damages for an alleged wrongful death. The trial court overruled a demurrer to the amended petition. Defendant has appealed. The sole question presented is whether the petition states facts sufficient to constitute a cause of action against defendant.
. The pertinent portions of the petition may be summarized as follows: Plaintiff is the mother and sole surviving parent of Robert Sroufe, fourteen years of age, who was drowned in a municipal swimming pool maintained by defendant in its city park. The pool is quite large, was constructed of cement, and is about two feet deep at one end and ten feet deep at the other. It has three drain-pipe outlets, through which the water in the pool is drained from time to time. One of these is at the deep end of the pool and there is one about the middle of each side, where the water is about six feet deep. For some time shortly prior to the day of the casualty, September 2, 1937, defendant had been making repairs on the pool and drain pipes, and in doing so had left the iron grating, or covering, off the end of the drain pipe, twelve inches in diameter, at one side of the pool. The pool was open and used in that unfinished condition. There was no life guard on duty, although one previously had been kept there. It is alleged that as the water was being drained from the pool through the drain pipe on one side, which had no grating over it, the water created a suction or swift current, with a downward pull as it entered the drain, and children who frequented the pool for swimming had been attracted to it, and frequently, as thfe water had been drawn from the pool through the drain, had played in the pool in order to experience the pleasure or thrill of the suction or pull of the water; that they had gotten down into the drain, sometimes holding each other’s hands to assist in getting out; that the drain and outflowing water constituted an attractive nuisance; that all these facts were known to defendant, its officers and employees, who permitted the children to play there without doing anything to prevent their getting into the drain pipes; that it would have been easy for defendant to have protected the drain by placing over it a grating of iron bars such as had been placed over the other drains or outlets of the pool. On the date of the casualty water was being drained from the pool from the open and unprotected drain, and plaintiff’s son, with other boys, was swimming in the pool and playing about the drain pipe and the opening, and plaintiff’s son got into the drain pipe and was caught and held there by the force of the outflowing water, or some other cause unknown to plaintiff, and held under the surface of the water until he was drowned.
Appellant contends that in the maintenance of its swimming pool and in respect to the duties of its officers and employees in relation thereto it is exercising its governmental powers and is not liable in damages for casualties such as the one which forms the basis of this action. This position is well taken. (See Warren v. City of Topeka, 125 Kan. 524, 265 Pac. 78, and Perry v. City of Independence, 146 Kan. 177, 179, 69 P. 2d 706, and cases there cited.)
Appellee recognizes the force of the rule above stated, but seeks to distinguish it and its supporting authorities on the ground of allegations in the petition respecting an attractive nuisance. It is conceded in the brief that the maintenance and operation of a municipal swimming pool is a governmental function; “that such a swimming pool with the usual swimming pool accessories, is not in itself an attractive nuisance, although it is attractive to children, and sometimes they are drowned in it; and that the city is not liable for any neglect or even wrongdoing of its officers in the discharge of their duties in connection with such governmental function.”
But it is contended an attractive nuisance may be maintained by the city independent of its governmental functions, or in connection with or incidental to its governmental functions, citing Harper v. City of Topeka, 92 Kan. 11, 14 and 15, 139 Pac. 1018. Without analyzing this contention carefully, we are convinced the doctrine of attractive nuisance is not helpful to plaintiff in this action. (See Gorman v. City of Rosedale, 118 Kan. 20, 234 Pac. 53; Bruce v. Kansas City, 128 Kan. 13, 276 Pac. 284.) More than that, an analysis of the amended petition seems to force the conclusion that plaintiff’s real complaint is the negligence of officers and employees of the city in not placing a grating over the end of the drain pipe, in permitting the pool to be used in that condition, and in not having a guard on duty. Under the authorities above cited the city is not liable in damages for such negligence.
It necessarily follows that the judgment of the court below should be reversed, with directions to sustain the demurrer to the amended petition. It is so ordered.
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The opinion of the court was delivered by
Harvey, J.:
Appellant was charged and found guilty of the crime of embezzlement, tie has appealed and contends: (1) That the court erred in overruling his motion to quash the information, (2) that the evidence was insufficient to sustain the verdict, (3) that the court erred in refusing to give instructions requested, and (4) that the court erred in the instructions given, and (5) complains of misconduct of the court and of the bailiff in charge of the jury while it was deliberating.
The evidence on behalf of the state consisted of the testimony of as many as nine witnesses and a considerable amount of documentary evidence. In preparing his appeal appellant had transcribed and has abstracted only a part of the testimony of two witnesses and none of the documentary evidence. Under the statute relating to appeals in criminal cases (Laws 1937, ch. 274, § 3, G. S. 1937 Supp., 62-1724) it is not essential to his appeal that he have all of the oral testimony transcribed, or, indeed, that he have any of it transcribed. He is required to have transcribed only “so much of the testimony as is needed to present his case on appeal.” The legal questions which he desires to present to the court on appeal may not involve the evidence. If that is true, obviously it is not necessary for him to go to the expense of having the testimony transcribed, or of abstracting the evidence. It is just as obvious that a question which is presented on appeal and which depends upon the evidence cannot be reviewed without it. Appellant, therefore, is in no position to ask this court to pass upon the sufficiency of the evidence to sustain the verdict; neither is he in position to ask this court to pass upon the ruling of the trial court in refusing to give instructions requested, or upon the contention that the instructions given were erroneous, insofar as such instructions, refused or given, would depend upon evidence.
Appellant is entitled to be heard upon the ruling of the court in denying his motion to quash the information. The charging part of the information reads:
“On or about the 30th day of December, 1935, one Harris Harrington, then and there being a duly appointed, qualified and acting clerk in the office of the county treasurer of Wyandotte county, Kansas, did then and there unlawfully, willfully and feloniously, without the assent of his employer, with intent, to convert to his own use, and with intent to defraud the county of Wyandotte, a municipal corporation, and one Frank Zimmer, county treasurer of Wyandotte county, Kansas, embezzle, take, make way with and secrete a certain bank check in words and figures as follows (the check is set out in full ■with defendant’s endorsement thereon) of the value of two hundred and nine dollars ($209.48) and forty-eight cents, lawful money of the United States, . . . , the said bank check being the property of the said county of Wyandotte and the said Frank Zimmer, county treasurer of Wyandotte county, Kansas, and not the property of him, the said Harris Harrington, which said .bank check of the value of $209.48 had come into his possession and under :his care by virtue of his office as clerk in the office of the county treasurer of ■Wyandotte county, Kansas.”
The motion to quash was upon the following grounds;
“1. The information is not direct and certain as to the offense pretended to be charged. 2. The offense therein pretended to be charged is not clearly set forth in plain and concise language without repetition. 3. The offense pretended to be charged is not stated with such a degree of certainty and is not set forth in plain, concise language without repetition, but is set forth in such general terms that the defendant cannot well know what he is required to defend against. 4. The offense pretended to be charged is not stated with such a degree of certainty that the court may pronounce judgment upon conviction, according to the rights of the case. 5. Because of duplicity. 6. The facts stated in said information do not constitute a public offense.”
Appellant in his brief argues that the information should have been quashed because “the accused, as described, was not one of those coming within the statute naming those who might embezzle. . . . The facts which would make the case one of embezzlement were not set out in the information.” This argument is predicated upon appellant’s interpretation of our statute (G. S. 1935, 21-545) relating to embezzlement, which reads:
“Any agent, employee, clerk, apprentice or servant of any private person, or of any copartnership (except agents, employees, clerks, apprentices or servants within the age of sixteen years), or any trustee of an express trust, or any executor or administrator of any estate, or the guardian of the property of any minor, habitual drunkard, or person of unsound mind, or any officer, clerk, agent, employee or servant of any corporation, joint-stock association or other association, or any person employed in such capacity, or any officer of this state or any county, township, city, board of education or school district or road district therein, or any receiver appointed by any court or judge in this state, who shall embezzle or convert to his own use, or shall take, make way with, or secrete, with intent to convert to his own use, without the assent of his employer, any money, bank bills, treasury notes, goods, rights in action, or valuable security or effects whatsoever, belonging to any such person, copartnership, association, corporation, joint-stock association, estate, minor, habitual drunkard, person of unsound mind, state, county, city, board of education, township or school district, or road district, or the beneficiary of such trust fund, or being a part of the funds, assets or property of such receivership, which shall have come into his possession or under his care by virtue of such employment, office or trust, shall upon conviction thereof be punished in the manner prescribed by law for stealing property of the kind or value of the articles so embezzled, taken or secreted; or if any agent shall, with intent to defraud, neglect or refuse to deliver to his .employer or employers, on demand, any money, bank bills, treasury notes, promissory notes, evidences of debt or other property which may or shall have come into his possession by virtue of such employment, office or trust, after deducting his reasonable or lawful fees, charges or commissions for his services, unless the same shall have been lost by means beyond his control before he had op portunity to make delivery thereof to his employer or employers, or the employer or employers have permitted him to use the same, he shall upon conviction thereof be punished in the manner provided in this section for unlawfully converting such money or other property to his own use.”
In this same connection we shall consider appellant’s objection to an instruction of the court stating the substance of this statute, and closing with this language:
“You are instructed that the defendant, Harris Harrington, was, on or about the 30th day of December, 1935, an officer of Wyandotte county, Kansas, within the meaning of the statute stated above.”
Appellant’s contention is that the information did not charge him with being an officer of the county, and that the court erred in stating that he was an officer of the county within the meaning of the statute above quoted.
It will be noted the information charged appellant as “being a duly appointed, qualified and acting clerk in the office of the county treasurer of Wyandotte county, Kansas,” and that the bank check “had come into his possession and under his care by virtue of his office as clerk in the office of the county treasurer of Wyandotte county, Kansas.” The court takes judicial notice of the fact that Wyandotte county is the most populous county in the state. The legislature recognized the fact that several persons are required to perform the official duties imposed upon the treasurer of that county and provided as follows:
“The county treasurer shall receive a salary of $3,250 per annum; his deputy, $2,100 per annum; and for additional clerks, to be appointed by him, with approval of the board of county commissioners, the board of county commissioners may authorize an expenditure of not exceeding $12,000 per annum.” (G. S. 1935, 28-302b.)
The testimony abstracted discloses that appellant had been duly appointed by the county treasurer as one of the clerks in his office, and that the appointment had been approved by the board of county commissioners, and that his official duties there were to receive checks for the payment of taxes which came to the office by mail, to make the proper entries in* books provided for that purpose so that tax receipts could be written, and to place such checks with others constituting the funds of the county. His duties in the office were official duties. The check in question came into his possession in his performance of such duties. Appellant makes a critical examination of the statute above quoted, from which he concludes that no one composing a part of the official force of the county treasurer could be guilty of embezzlement except the county treasurer himself. This analysis does not appeal to us as being sound. We think the instruction of the court on this point was correct, and that the information should not have been quashed for any of the reasons urged.
Counsel on each side have cited and discussed many authorities, all of which we have considered carefully. It will not be necessary to analyze these authorities, for, after all, the question is largely one of statutory construction, and we are convinced that the construction the trial court gave, and which we are giving, to these statutes is correct. A complete analysis of the authorities would lead to the same conclusion.
Appellant complains of misconduct of the bailiff and the trial court. In the motion for a new trial nothing was said about the misconduct of the court. At the hearing of the motion for a new trial it was shown by affidavits that some time after the case had been submitted to the jury they rang for the bailiff. He went to the jury room. The foreman asked him if with their verdict they could recommend leniency. The bailiff said leniency had been recommended in other cases. One of the jurors said he would rather hear the court say that. The bailiff then went to the court and reported what had taken place. The court told the bailiff to tell the jury that it would receive such a recommendation. This was done, and shortly thereafter the jury returned their verdict, with a recommendation for leniency. Appellant argues this was reversible misconduct, and cites Madden v. State, 1 Kan. 340; State v. Snyder, 20 Kan. 306; State v. Brown, 22 Kan. 222; and State v. Lantz, 23 Kan. 728. In some of these cases the misconduct was much greater than here. Others would hardly be approved in the light of our later decisions. It was misconduct and irregular for the bailiff to have any discussion with the jury pertaining to the case, but every irregularity does not constitute reversible error. (See G. S. 1935, 62-1718.) Here the bailiff did not discuss the merits of the case with the jury. In the later cases similar irregularities have been held not to justify reversal. (State v. Borchert, 68 Kan. 360, 74 Pac. 1108; State v. Evans, 90 Kan. 795, 136 Pac. 270; State v. Dunford, 91 Kan. 898, 129 Pac. 430; State v. Richardson, 137 Kan. 38, 19 P. 2d 735.) No prejudicial error is shown in this respect.
Notwithstanding the abbreviated record brought up by appellant, the state — perhaps out of an abundance of caution — had all the testimony transcribed and has prepared and filed a counter abstract of the evidence and containing all the court’s instructions. This we have examined. On the whole, we are convinced appellant had a fair trial and that a proper verdict was returned.
Finding no material error in the record, the judgment of the court below is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in habeas corpus. In March, 1936, a complaint was filed before C. F. Hurrel, a justice of the peace of Holton, charging that Ed Fenske, the petitioner in this proceeding, had threatened to kill his neighbors, G. M. Bone and family, and it was believed he would execute such threat. A warrant was issued, Fenske was brought into court, and a hearing was had, at which several witnesses testified, and the justice of the peace found there was reason to fear the commission of the offense men tioned in the complaint, and required the defendant to enter into a recognizance in the sum of $3,500, conditioned as required by G. S. 1935, 62-203. Fenske did not give the bond and he was duly committed to jail. The justice promptly filed with the clerk of the district court a transcript of the proceedings. In August, 1936, it appears an unsuccessful attempt was made to have Fenske adjudged insane by appropriate proceedings in the probate court. A transcript of the testimony of that hearing has been furnished us. In September, 1936, Fenske, through his attorney, moved to have the amount of his bond reduced. A hearing was had on that motion, and a transcript of this testimony has been furnished. The motion was denied, defendant was ordered to give a recognizance in the sum of $3,500, and in default thereof to be committed to jail. He did not give the bond and was held in jail. In March, 1937, he filed a petition for a writ of habeas corpus in the district court. A hearing was had on this petition, and a transcript of the testimony has been furnished us. The writ was denied and defendant was again committed to jail in default of bond. In May, 1937, upon his motion, the court reduced the amount of the bond to $2,500. The bond has never been given. The petitioner is still being held in jail on the commitment issued by the justice of the peace May 12, 1936, for his failure to give the peace bond required at that time, or to give the bond in the amount as reduced by the district court.
It is not contended by petitioner here that the evidence was insufficient to justify the orders made in the justice court, or in the district court. Neither is it contended that he was unable to give the bond. Respondent represents, and in effect it is conceded by the petitioner, that he at all times has been financially able to give a bond in either of the sums required.
Petitioner’s sole point here is that since the district court could not require him to give a bond in this proceeding for a term longer than one year (G. S. 1935, 62-210), and it has been more than a year since the district court made any requirement for him to give bond, which, had it been given would have expired by its terms, that as a matter of law he cannot be held in j ail for a longer time, when in fact he had not given the bond. We are inclined to concur in this view.
It must be remembered that so far as the matter before us is concerned, the petitioner has not been convicted of any crime. Indeed, he has not been charged with the commission of any crime. To the extent his confinement in jail is authorized, it is by virtue of G. S. 1935, art. 2, ch. 62.- These sections are designed to prevent the commission of threatened offenses, insofar as that reasonably can be done. Briefly stated, these statutes provide that when a verified complaint that a named person has threatened to commit an offense against the person or property of another is filed the magistrate may issue a warrant and have such person brought before him, examine all witnesses produced by either party, and if the magistrate finds there is reason to fear the commission of the offense by the person charged he shall require such person to enter into a recognizance, with surety, to appear before the district court on the first day of the next term, and in the meantime to keep the peace toward the people of this state, and particularly toward the complainant. It will be observed that this procedure, if fully carried out, and the recognizance given, would not be complete insurance that-the one charged would not commit the offense feared. He might commit the offense in this state while at liberty on the recognizance. If so, he and his sureties would be liable on the recognizance and he would be liable criminally, as though that had not been given. (See 9 C. J. 393; 8 R. C. L. 282; 8 Am. Jur. 842; Anno. 54 A. L. R. 388, and 93 A. L. R. 304.) Or, he might commit the offense outside this state without him or his sureties being liable on the recognizance. (State v. Stanley, 104 Kan. 475, 179 Pac. 361.)
The statute apparently contemplates that the recognizance required by the magistrate will be given, but provides (G. S. 1935, 62-204) that if he fail or refuse to find surety, the magistrate shall commit him to prison “until he finds same.” Obviously, the drafters of these provisions thought of this as a temporary commitment until surety could be found, rather than a commitment for life if the one charged was unable or refused to find surety. The next section requires the recognizance to be transmitted to the clerk of the district court. There is no specific direction in the statute for the magistrate to transmit anything to the .district court but the recognizance, or to transmit anything to the district court if the recognizance is not given. In view of the fact the parties may appear before the district court (G. S. 1935, 62-210), irrespective of whether a recognizance was given (and irrespective of whether a complaint had been filed), it was proper for the magistrate before whom the complaint had been made to make and file with the clerk of the district court a transcript of the proceedings before him, as was done in this case, even though the person charged failed or refused to give the recognizance and to find surety. G. S. 1935, 62-208, provides that any person who shall have entered into such a recognizance shall appear before the district court at the next term, again assuming the- recognizance will be given. The only section of the statute which appears specifically to authorize a hearing before the district court in a proceeding of this kind, when the recognizance has not been given, is G. S. 1935, 62-210. This directs the court to examine the evidence, and either to discharge the recognizance taken, or require a new one, as the circumstances may require, “for such time as shall appear necessary, not exceeding one year.”
Now, the record furnished us shows three hearings before the district court. The last of these was in May, 1937. Perhaps technically they were not held under this section of the statute, but the record of these hearings as presented to us shows that evidence was taken at each of them, and collectively there was a full hearing and inquiry into the entire controversy, at which witnesses were called and testified. This evidence on the one side disclosed threats made by the petitioner here against Mr. Bone and his family, and to a certain extent against others prior to the hearing before the magistrate in March, 1936. No threats of that character were shown to have been made since that time. Testifying in his own behalf, the petitioner denied having made some of those threats, and as to others he testified if he made them he did not mean them. At the last hearing in district court the petitioner was required to enter into a recognizance to keep the peace in the sum of $2,500, and upon his failure and refusal to do so to be committed to jail. This was May 4, 1937. The order of the court on this hearing was not in fact written up or signed by the judge of the district court until after this proceeding was brought in this court. No copy of that order, or any commitment based thereon, was ever given to the sheriff. His return shows, as his authority to hold defendant, the commitment isxsued by the magistrate in March, 1936. Perhaps these facts just stated are not of particular importance at this time. The important thing is that the recognizance required by the court on May 4, 1937, if given, would have expired by the terms of the statute (G. S. 1935, 62-210) in one year. That time has expired. The result is, he has remained in jail. By this conduct the assurance that he would keep the peace toward the state, and particularly toward Mr. Bone and his family, has been greater than if he had given the recognizance; hence, it cannot be said that the petitioner has not given to the state and to the individual as great an assurance that he would keep the peace as if he had given the recognizance.
We feel confident the statute never was designed to keep one in jail indefinitely who was unable or refused to give the recognizance contemplated in the statute, although the efforts of diligent counsel and our own research have disclosed no case directly in point. As previously noted, the statute was designed as a preventive measure. The petitioner has not been charged or convicted of a crime. If anything he did prior to March 12, 1936, disclosed by the testimony either before the magistrate or in the district court, constituted a criminal offense, the prosecution of such an offense has become barred by the statute of limitations. (G. S. 1935, 62-503.)
For the reasons stated, we think the petitioner is entitled to his discharge from custody. On behalf of respondent, fear is expressed that if given his liberty the petitioner will carry out the threats made more than two years ago. Of course, if he does, he will be liable to criminal prosecution, just as he would have been had he given the recognizance and then carried out the threats. If upon his discharge from custody he makes new threats of a similar character, perhaps the preventive measures provided by G. S. 1935, art. 2, ch. 62, may again be invoked, but since that point is not before us, obviously it cannot be determined.
The writ prayed for is allowed.
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The opinion of the court was delivered by
Hutchison, J.:
This was a case of larceny, where the defendant was charged with having unlawfully, feloniously and willfully stolen, taken and carried away and converted to his own use on November 1, 1935, in Reno county, Kansas, three thousand dollars, lawful money of the United States, belonging to Mrs. Jennie Wynn.
The complaint was sworn to by' Mrs. Jennie Wynn on April 29, 1936. The defendant waived preliminary hearing and was bound over to the district court of Reno county, Kansas, and gave bond for his appearance in district court. Upon trial had in the district-court of Reno county the defendant was found guilty by a jury. which rendered such verdict on January 18, 1938, and a motion of defendant for a new trial was denied on February 5, 1938.
The appeal taken to this court involves the following questions, as stated by the appellant:
“1. Whether or not the state must prove venue.
“2. Must complaint be drawn and crime charged before complainant subscribes signature and swears to same?
“3. Was competent testimony excluded and incompetent testimony admitted?
• “4. Were the state’s attorneys guilty of misconduct?
“5. Is the verdict contrary to the law and the evidence?
"6. Whether or not the court can refuse to hear counsel for defendant on motion for new trial.
“7. Must the court hear the testimony of the jurors present at the hearing on motion for new trial of their misconduct during the deliberation on the verdict?
“8. Can the jurors permit themselves, in arriving at a verdict of guilty, consider the fact that the defendant did not testify and be influenced by that fact?
“9. Did the court err in overruling motion for new trial?”
The evidence of the state was by Mrs. Wynn, the prosecuting witness, and one other witness, Mr. Gray, the cashier of a bank at Hutchinson, Kan. The evidence of the defendant was by the same Charles Gray, C. 0. Myers and Wm. T. Birzer. Several exhibits were introduced and offered by each side.
The evidence of Mrs. Wynn was briefly to the effect that she was seventy-four years of age, had been a widow for seven years and lived in Lamed, Kan., since 1902; that she first met the defendant in March, 1935, that he came to her house and introduced himself as wanting to buy her house, that she told him she would take $3,000 cash for it, that he came about twice a week after that for some time and told her he had no cash but would trade her other property for it, but she told him she was not interested in any real estate and would take nothing but cash' for it. He then offered to sell her oil leases, which she refused. That in October, 1935, she had some correspondence with a banker in Nebraska about getting some money from that bank in thousand-dollar bills, and at one of the several calls made at her home this correspondence was on her table, and as she returned from the kitchen defendant had one of these letters in his hand, the other lying on the table; that she went to Nebraska and returned therefrom on October 26. Defendant called again on October 28 and wanted to borrow some money. He called three times that week. On the last of these visits he picked up a paper off her table with some writing on it and said it was good security for the loan that he wanted, but she told him she would not loan him any money. He left some papers on the table; she did not pick them up until after she lost the money; they were introduced as exhibits (one a note for $3,000, signed by defendant, and the other an assignment of an oil lease, the latter bearing the date of November 7, 1935); that when he left she started down town on business the first day of November; that he met her down town and insisted on her getting into his car. She refused several times and later consented, and he drove her to Hutchinson over her protests; that they went to the Leon Coffee Shop for lunch, that she went into the ladies’ rest room and looked in her handbag and saw therein the three thousand-dollar bills and other money; that they sat at a table for two only and she placed the handbag on the table where it leaned against the wall; that later the defendant called her attention to something unusual on the street at her back and' she turned her body around so as to see it, but saw nothing strange and turned back; that after lunch they drove around town and the defendant parked the car and excused himself. While he was gone about thirty minutes she opened her handbag and discovered her three thousand-dollar bills were gone. When he returned she asked him if he had taken the money out of her purse and he stated that he had, that he needed it and would pay her eight percent interest. She told him she wanted her money back right away. He started to drive back to Larned, and she asked him to let her out at Kirk’s headquarters in Hutchinson, where she knew the people, but he would not do it and they quarreled all the way back to Larned. She reported the matter to Mr. Allison, at Hutchinson, on November 4. On the 5th of November, after he had taken the money, he came to her place and left his note fpr $3,000, dated November —, 1935. At that time she told him about having reported him to the officers for arrest, and he coaxed her not to arrest him. On October 28 he left on her table exhibits 1 and 2, that she was compelled against her will to sign a receipt for these, that she on the 9th of November recorded the assignment left with her in the office of the register of deeds of Barton county. She also in cross-examination denied having told the register of deeds of Barton county and C. O. Miller that she had loaned the defendant $3,000, and admitted that $250 had been returned to her and she understood her attorneys had collected something additional. She identified many letters written her by defendant during November and succeeding months. There are some inconsistencies and confusion in her testimony as to dates, but the order and succession of occurrences are chronological.
The other witness called by the state was Mr. Gray, the cashier of the bank at Hutchinson, who said the defendant called at the bank on November 1 or 2 and cashed a thousand-dollar bill, the number of which corresponded with one of those owned by Mrs. Wynn, who had furnished the numbers of all three.
The testimony introduced by the defendant was that of the same Mr. Gray who testified as to the good standing of the defendant. Mr. Myers, register of deeds of Barton county, testified as to the recording of the assignment on November 9, 1935, and also as to Mrs. Wynn having told him she had loaned the defendant $3,000. Witness Miller testified as to a similar conversation with Mrs. Wynn. Mr. Birzer testified as to having leased the land for oil and gas to defendant on October 30, and having received the pay therefor on November 2 or 3.
On the hearing of the motion for a new trial the record shows the attention of the court was directed to two matters, although the errors assigned were many more. The first error mentioned in the hearing was the exclusion of exhibit 3, which the evidence shows Mrs. Wynn said she signed against her will and before it was filled out. It is as follows:
“Exhibit 3
“Larned, Kan., Nov. 8th, 1935.
“I have this day received from C. E. Dye an assignment on an Oil & Gas lease on the N % of the SW 16, T. 19, R. 12 Barton Co., Kansas, and agree to assign same back to C. E. Dye upon the pajunent of §3,000 with interest to date. The $3,000 borrowed of Mrs. Jennie Wynn was three §1,000 bills which were my own property, and I herebjr transfer same to C. E. Dye and will sign up for said bills if necessary.
(Signed) Mrs. Jennie Wynn.
The other matter attempted to be shown by the defendant was the misconduct of the jury in arriving at the verdict rendered by considering during their deliberations the failure of the defendant to testify in his own behalf. The twelve jurors that tried the case were called by the defendant and sworn as witnesses, and one of them was asked by defendant’s counsel many questions concerning that matter entering into their deliberations. The court sustained objections to each and all such questions and defendant’s counsel then offered and placed in the record the answers the witness would have given if permitted to answer those questions. The same tender of questions and proffered answers with the same objections and rulings were indicated of record as to the other jurors sworn as witnesses. At the conclusion of such questions, objections, rulings and offered answers counsel for defendant insisted that the court had the duty to make an investigation as to whether or not there had been any violation of the rule or misconduct of the jury, and without the testimony of the jurors there was no way for the trial court to make a finding of fact on that question. To this argument the trial court replied, “I am not making a finding of fact; I am just not permitting the jurors to impeach their own verdict.”
The appellant contends that the several questions asked the jurors, as to their taking into consideration in reaching their verdict the fact that the defendant did not testify in his own behalf, bespoke misconduct on their part, while the state contends that the questions called for answers that would necessarily impeach the verdict. Every question asked on this subject showed the purpose of appellant to produce affirmative proof along the line of considering an improper presumption as strongly as any affirmative answer could have done. No well-trained and careful attorney would ask one of his own witnesses such a question without previous consultation and a right to expect nothing but an affirmative answer. So we have the real question before us, as the trial court had when it sustained the objections to the several questions along this line, viz., whether the attempted information and proof was to show misconduct of the jury or to impeach its own verdict.
Appellant cites the following authorities as to the use of oral testimony instead of affidavits in making this kind of proof on motions for new trial for the misconduct of the jury:
“Whether in this case the prohibition was disregarded, whether the jury or any one of them did consider the defendant’s failure to take the stand in his own behalf — did permit that circumstance to weigh against him, was a question of fact to be determined by the trial court upon oral evidence which was not wholly harmonious and from which different inferences might reasonably have been drawn.” (State v. Brooks, 74 Kan. 175, 179, 85 Pac. 1013.)
“These jurors were not subpoenaed to appear in court on the hearing of the motion for a new trial and give specific information regarding the names of jurors whose vote was influenced by the fact that reference was made to the failure of defendant to testify. It must be remembered that it is the allowing of oneself to be influenced by the failure of defendant to testify, the taking into consideration of the failure, that is forbidden by the statute. On account of the failure of defendant to have the juror in court for examination the court saw fit to deny the motion for a new trial. This amounts to a finding that what the juror stated in the affidavit was not true.” (State v. Taylor, 140 Kan. 663, 670, 38 P. 2d 680.)
So the method pursued to establish misconduct was in line with our previous decisions.
On the theory that the consideration by the jury of the failure of the defendant to testify in his own behalf was only misconduct, the appellant cites the cases of State v. Rambo, 69 Kan. 777, 77 Pac. 563; State v. Brooks, supra; State v. Dreiling, 95 Kan. 241, 147 Pac. 1108; and State v. Taylor supra, in all of which cases except the first, the Rambo case, the trial court either heard the oral evidence or read the affidavits of the jurors and held that the statements made by the jurors were not true. In the Dreiling case the holding-in the Rambo case was neither approved nor extended.
This court has most decidedly taken and maintained the position that no juror should be allowed to impeach his own verdict, and that any testimony of a juror tending to show the consideration by the jury of the fact that a defendant failed to testify in his own behalf is not misconduct of the jury but is an impeachment of the verdict of the jury and should not be received in evidence. Some of the several strong decisions along this line are the following:
“The rule that jurors will not be permitted to impeach their verdicts has been announced in other cases. In State v. Buseman, 124 Kan. 496, 260 Pac. 641, the juror made an affidavit that a statement not introduced in evidence affected the verdict. The court denied the motion for a new trial and this court approved the action, and said:
“ ‘It is a general rule, founded on sound public policy, that jurors are not permitted to impeach a verdict to which they have deliberately agreed under the sanction of an oath. There would be little virtue or finality in verdicts if they could be impeached and overthrown by the evidence of dissatisfied or unduly influenced jurors. It has been said that: “It would result in perjury and bribery and there would be no end of litigation in cases tried before juries.” ’ (p. 499.)” (State v. Taylor, supra, p. 471.)
“After the verdict has been rendered and regularly received in court a juror will not be permitted to say that he did not intend to find a defendant guilty of the number of criminal charges named in the verdict.” (State v. Kearney, 130 Kan. 474, syl. ¶ 2, 287 Pac. 261.)
“His explanation, if it is to be believed, is not creditable to him. To have united in a verdict for such a reason would have been a violation of his oath as a juror and a violation of law. Whatever were the real facts in the case and whatever his motive may have been, the verdict cannot be impeached by a juror upon evidence as to the considerations which actuated him in agreeing to a verdict of guilty.” (State v. Casebier, 130 Kan. 762, 764, 288 Pac. 736.)
“The general rule is that a juror cannot be heard to impeach his verdict by saying he agreed to it upon consideration of matters not in evidence.” (State v. Boller, 147 Kan. 651, syl. ¶ 3, 77 P. 2d 950. See, also, State v. O’Keefe, 125 Kan. 142, 263 Pac. 1052.)
The trial court, in line with these holdings, sustained the objections to questions asked jurors which, if answered, would tend to impeach the jurors’ verdict.
The appellant cites cases holding that all verdicts to be effective must have the approval of the trial court, and to approve it he must hear all the evidence introduced both on the trial and on the hearing of the motion for a new trial, but it must be competent evidence that is sought to be introduced or otherwise the court would not hear or consider it. Appellant insists that his counsel was not permitted to present his argument that the verdict was contrary to the law and the evidence. Our attention is not directed to any part of the record where any such a request was refused.
On the hearing of the motion for a new trial attention was called to an error of the trial court in excluding exhibit 3 from admission as evidence. A reference to a copy of it in the earlier part of this opinion will show that it is in the form of a receipt by Mrs. Wynn, dated November 8, 1935, for the assignment of an oil and gas lease and a transfer of the three $1,000 bills to the defendant. In the opinion, the statement of Mrs. Wynn concerning it was that she signed it under duress by the defendant and before it was filled out. If it had been admitted it would have to be considered along with a lot of other evidence, brought out mostly in cross-examination of Mrs. Wynn, to show that the transfer of these three $1,000 bills was a loan to the defendant secured by the assignment of the oil and gas lease. The question is, Does any such business-like arrangement, made either before or subsequent to the unlawful taking of the money, exonerate or excuse the defendant for the wrongful act with which he was charged, if he is found to have committed such wrongful act? Even if there was a genuine attempt of Mrs. Wynn to recover on account of her loss, that would not affect the question of guilt of a public crime. The two are separate, and any concession or compromise on her part will not excuse the defendant of a crime if he did commit the one charged.
It is said in 16 C. J. 97:
“The public and the person'injured by a crime each has a distinct, although concurrent, remedy, as a criminal act is both a private and a public wrong, and these remedies may operate simultaneously. Recovery in a civil action does not bar a criminal prosecution. And therefore as a general rule the pendency of a civil action cannot be pleaded either in abatement or in bar.”
And on page 92 of the same volume it is said:
“It is beyond the power of a private person to license the commission of a crime. As to the more serious crimes which are purely transgressions of the public right, it must follow that consent thereto of private persons directly injured thereby cannot, to any extent, purge such crimes of their character as public wrongs, nor render those who commit them less liable to punishment.”
The same principles are expressed in 1 Bishop on Criminal Law, 9th ed., page 671, and 1 Wharton’s Criminal Law, 12th ed., page 517. Two cases in Kansas hold the same way, one the case of State v. Newcomer, 59 Kan. 668, 54 Pac. 685, which was a rape case where the girl under eighteen years of age forgave the accused and subsequently married him, and the other, an arson case where the mother of the accused and owner of one-half interest in the building burned, later forgave and ratified the offense, being State v. Craig, 124 Kan. 340, 259 Pac. 802.
There was therefore no error in excluding exhibit 3 because neither it nor the rest of the testimony attempting to show a settlement would be a defense to the charge of the crime, if the one charged was committed by the defendant.
It is further argued that the value of the oil and gas lease assigned should not have been excluded, but that would not help to determine the one question submitted to the jury as to the willfully and unlawfully taking of the property described in the information.
Appellant argues that if any offense at all was committed by the defendant, it came more nearly being obtaining money by fraud, which is a separate statutory offense, and insists that there was not sufficient evidence to convict the defendant of the crime charged. The jury found under proper instructions that the evidence was sufficient and the trial court approved the verdict, and we find no error in such finding and approval.
Appellant urges another reason for the evidence being insufficient, namely, that the evidence did not show that the crime was committed in Reno county. It did show it occurred in the city of Hutchinson. It was said in State v. Atteberry, 117 Kan. 650, 232 Pac. 1020, that—
“On a question of venue, judicial notice will be taken, without evidence, of the fact that the city of Paola and all the public highways leading thereto for some appreciable distance are in Miami county.” (Syl. ¶ 2.)
Several other cases to the same effect might be cited.
Appellant calls attention to the insufficiency of the complaint as described by Mrs. Wynn. This defect, however serious it may have been, was waived by the defendant when he, without objection thereto, gave bond for his appearance at court. (State v. Miller, 87 Kan. 454, 124 Pac. 361.)
Other omissions, errors and alleged misconduct are argued and presented as grounds for reversal. They have all been considered and are held not to constitute any ground for reversal.
It might be further stated upon the main question here involved that the objections to the several questions asked the jurors by the appellant were properly sustained because it would make no difference in the results what the answers might have been, if in the affirmative they would have tended to impeach the verdict which must not and cannot be done by any juror, and if in the negative they would tend only to ratify or confirm the verdict, which required and needed no such support.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action to recover a sum of money which came into the hands of defendant in the course of an exchange of certain Wichita city properties negotiated by him as agent of plaintiff.
Plaintiff’s petition narrated the material facts. Defendant demurred on two grounds: (1) no cause of action stated, and (2) the statute of limitations.
The demurrer was overruled, and defendant answered with a general denial, a plea which gave his version of the transaction out of which this controversy has arisen, and again raising the statute of limitations.
The cause was tried before a jury, which returned a verdict for plaintiff, on which judgment was rendered in plaintiff’s behalf.
The principal error complained of centers about the pertinency of the statute of limitations. This point requires a consideration of the controlling facts, which may be summarized thus:
In 1931 plaintiff resided in Missouri. She owned some real estate in Wichita on which two houses and a store building were situated. She obtained the name of a real-estate firm in Wichita called the D. H. Bane Land Company, and wrote them that she desired to sell her Wichita property. This letter brought on a correspondence with this defendant, in the course of which he informed plaintiff that he could get her an even trade on some other property in Wichita owned by a Mrs. Millar. In one of his letters to plaintiff, defendant wrote—
“We assure you that this [Mrs.'Millar’s property] is an excellent trade for you if it can be made.”
In another letter he wrote to plaintiff:
“In our opinion you would make a good trade for yourself, if you traded property clear for clear basis. . . . What we want to do is to get you the very best trade we can, but there will be no chance to get you any cash difference. We think we can get you an even trade. . . .
“If this is acceptable to you advise us at once and we will put this deal in contract for you.”
The record contains some details about a shifting of mortgages, but these are of no present concern.
The exchange of properties was made ostensibly upon the basis of “clear for clear” as represented to plaintiff by defendant, but in truth and fact defendant obtained $500 to boot from Mrs. Millar, which he converted to his own use, and concerning which he gave no intimation to plaintiff. The exchange of properties was completed late in 1931, at which time plaintiff paid defendant $150 for his services in her behalf.
This action to recover the $500 and interest thereon was begun on October 28, 1937, some six years afterwards. To toll the statute of limitations, plaintiff alleged:
. “That plaintiff did not know and did not learn or discover or receive any information that said defendant had received and collected said $500 boot money until the month of August, 1937, and prior to that time plaintiff had no knowledge or information of the same, nor of the said fraud practiced on her by said defendant, but immediately after learning same she made demand on said defendant for said money, all of which was refused by him and for all of which said defendant is justly indebted to plaintiff, together with six (6) percent interest from December 1, 1931.”
In her second cause of action plaintiff sought a recovery of the $150 she paid defendant as a commission.
Counsel for defendant concedes that if plaintiff’s causes of action were for relief on the ground of fraud, they did not arise until the discovery of the fraud, or, at least, not until plaintiff was in possession of facts which if prudently followed up would have revealed the fraud. This rule is elementary. (G. S. 1935, 60-306, Third, and citations thereunder.)
In Condensing Co. v. Dawkins, 86 Kan. 312, 314, 120 Pac. 356, the defendant agreed to deliver certain machinery at actual cost, which he represented to be $7,500, when in fact its cost was $3,000. Some years later the plaintiff discovered the facts, and sued to recover the difference between the actual and pretended cost of the machinery. On appeal from a judgment for plaintiff, it was argued that the action was for breach of contract, and therefore barred by the statute of limitations. But this court ruled otherwise — that it was an action for relief on the ground of fraud. In our opinion Mr. Justice Porter said:
“As a general rule, where the defendant has made a material representation which he knew to be false, with the intention that the plaintiff should act upon it, and the plaintiff has acted upon it to his injury, an action will lie to recover damages for the fraud.
“ ‘The simplest and perhaps the most frequent case of fraud is that consisting of telling a deliberate and intentional falsehood as to a material fact. Where a person makes such a misrepresentation, intending that another shall act upon it, and the latter does act upon it to his injury, it is perfectly clear that an action of deceit will lie.’ (20 Cyc. 14.)
. . In the present case the cause of action is for the recovery of money paid, which, it is alleged, was paid because of the fraud of the defendants. But for this fraudulent representation, the amount paid, instead of $7,500, would have been the actual cost of the machinery. The plaintiff is not seeking to recover that portion of the payment which by the terms of the contract was justly payable. The cause of action, therefore, is not upon the contract, but to recover the sum fraudulently obtained, and is an action for relief on the ground of fraud. (Cases cited.)”
The law books are laden with cases of multiplied variety where men entrusted with the business transactions of other men have not been content with the agreed or implied compensation to which they were entitled, and have appropriated moneys or other property of their principals to which they were not entitled. Actions for the redress of such misdeeds are generally characterized as actions for relief on the ground of fraud; and the statute of limitations does not begin to run until the principal has knowledge or notice of the agent’s wrong. (Guernsey v. Davis, 67 Kan. 378, 73 Pac. 101; Rafter v. Hurd, 136 Kan. 127, 12 P. 2d 837.)
In Deter v. Jackson, 76 Kan. 568, 92 Pac. 546, certain real-estate dealers negotiated a sale of plaintiff’s land, fraudulently representing that $3,900 was the price. In fact, the price received was $4,000. The brokers pocketed the difference. This court affirmed a judgment in favor of plaintiffs for the $100 and also for the recovery of the amount plaintiffs had paid them as commission. One section of the syllabus reads:
“Where a real-estate broker falsely states the facts and deceives the owner as to the price paid for the latter’s land, and fraudulently retains a part of the selling price, the broker is liable not only for so much of the consideration as he retained but he will also forfeit all claim to any compensation for procuring a buyer.”
In Frowe v. McPheeters, 122 Kan. 420, 251 Pac. 1105, the action was to recover from real-estate agents the difference between the actual and the represented price received in the sale of certain lands of plaintiff. In affirming a judgment in his behalf, this court said:
“Where such brokers make false representations to him [the owner] as to ■ the purchaser and the price paid for the land, and after selling it for a price greatly in excess of the represented price, and in an accounting retain for themselves the excess price for which the land was actually sold, they are liable for so much of the price paid as they retained and forfeit any claim to compensation for procuring a purchaser.” (Syl. If 2.)
To the same effect are our typical and familiar cases, Krhut v. Phares, 80 Kan. 515, 103 Pac. 117, and Avery v. Baird, 106 Kan. 507, 188 Pac. 254.
The defendant cites cases like Railway Co. v. Grain Co., 68 Kan. 585, 75 Pac. 1051, to support his argument that his delinquency, if any, was merely a breach of contract, as to which the statute of limitations would begin to run as soon as the breach occurred. We think the distinction between this case and the typical and analogous cases of fraud we have cited was clearly and shortly stated in Condensing Co. v. Dawkins, 86 Kan. 312, 120 Pac. 356, thus:
“There the alleged fraud consisted in concealing from the plaintiff the fact that the contract was being violated, and it was held that the fraudulent concealment of the fact that a cause of action exists does not change the nature of the action or shift it into the class of actions for relief on the ground of fraud.” (p. 314.)
Breach of contract in this case — what contract? The contract was between plaintiff and Mrs. Millar. No breach occurred therein. The conversion by defendant of part of the quid pro quo which Mrs. Millar gave in exchange for plaintiff’s property was a tort pure and simple — in its civil aspects, of course; and no error occurred in the judgment for its recovery by plaintiff.
In the second cause of action the recovery of the $150 paid by plaintiff as commission was merely incidental to the recovery of the $500 tortiously appropriated by defendant which was the basis of her first cause of action.
The other objections to the judgment have been duly considered, but nothing is discerned therein which would permit it to be disturbed, nor justify further discussion.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, C. J.:
This is a second appeal from a ruling of the district court on the pleadings in an action against the state highway commission for injuries sustained by plaintiff when the automobile in which she was riding collided with another automobile at an intersection of public roads a short distance southwest of Topeka.
State highway K4 runs in a westerly direction from the southwest part of Topeka. It is crossed by a secondary road about a mile west of the city limits. On the night of July 26, 1935, the plaintiff and one Chester Marmon, whose guest she was, came from the south on this secondary road, and as their car entered the intersection of the two roads there was a collision between their car and one being driven westward on the state highway K4. Plaintiff sustained injuries which render her a helpless cripple, and from which she will never recover.
To her original petition, in which she sought to state a cause of action for damages against the highway commission in reliance on G. S. 1935, 68-419, its demurrer was overruled. That ruling was reversed by this court. (Phillips v. State Highway Comm., 146 Kan. 112, 68 P. 2d 1087.) When the cause was remanded to the district court, plaintiff was permitted to amend her petition, which she did with assiduous care — on the assumption that her first petition, whose sufficiency had been the subject of the first appeal, was disposed of by this court on the erroneous idea that the stop sign was located on the secondary road at some slight distance from its intersection with the state highway.
In the amended petition with which we are presently concerned, it was expressly alleged that the stop sign, of whose existence plaintiff’s driver was aware and on which he relied to warn him when he was about to enter the state highway, was located at a point two and one-half feet within the boundaries of the state highway.
Plaintiff’s amended petition continued, in part, thus:
“That said stop sign as placed on highway K4 and two and one-half (2%) feet within the boundary lines of said highway under and by virtue of the authority of section 8-122, General Statutes of Kansas, 1935, was hidden by a dense growth of weeds, the number of which are unknown to the plaintiff, on state highway K4, and which had grown to the height of about five (5) feet and in excess of the height of said stop sign, which completely obliterated said stop sign from view of the traveling public going in a northerly direction upon said secondary road; and that said growth of weeds extended from and in front of said stop sign to the south on said state highway No. K4 and onto the secondary road approaching said stop sign, the number and height of said weeds on said secondary road being unknown to this plaintiff, but extended in a southerly direction from the boundary line of said state highway No. K4. And that said Chester Marmon [driver of automobile' in which plaintiff was riding] did not see said stop sign, which was hidden by said weeds, and was not notified by said stop sign as to where said intersection of the secondary road on which he was traveling and the state highway K4 was located.
“This plaintiff further alleges that said defect on Kansas highway K4 was the proximate cause of this collision and injuries complained of.
“This plaintiff further alleges that the State Highway Commission of the state of Kansas had notice and knowledge of the existence of said defect in said highway hereinbefore mentioned for a period of time of more than five days prior to this accident, as provided for by section 68-419, G. S. 1935.”
To this amended petition defendant lodged a demurrer on two grounds — that the alleged cause of action had become res judicata by reason of our decision in the first appeal; and for the further reason that the amended petition did not state a cause of action.
The trial court sustained this demurrer on the second ground. Hence this second appeal.
Passing the question whether plaintiff’s amended petition contains any allegations which are materially different from those subjected to our judicial scrutiny and decision in the first appeal, we direct our attention at once to the rule of law which governs cases where damages are sought against a governmental agency. That rule is that neither the state nor any of its subdivisions, nor any of its official boards, is liable in damages except where the legislature has expressly so declared. (Asbell v. State, 60 Kan. 51, 55 Pac. 338; Purity Oats Co. v. State, 125 Kan. 558, 264 Pac. 740; Barker v. Hufty Rock Asphalt Co., 136 Kan. 834,18 P. 2d 568; Linderholm v. State, 146 Kan. 224, 69 P. 2d 689.)
In McGraw v. Rural High School, 120 Kan. 413, 243 Pac. 1038, the action was one for damages in behalf of a workman who sustained injuries through the alleged negligence of the defendant school district. Plaintiff was nonsuited, and on appeal the judgment was affirmed in an opinion written by Mr. Justice Burch, who said:
“The question presented is the old one of liability of a governmental agency for tort. ... If the doctrine of state immunity in tort survives by virtue of antiquity alone, is an historical anachronism, manifests an inefficient public policy, and works injustice to everybody concerned (Governmental Responsibility in Tort, by Edwin M. Borchard, 11 Am. Bar Assn. Jrl. 496, August, 1925), the legislature should abrogate it. But the legislature must make the change in policy, not the courts.” (pp. 413, 414.)
Let us see what the statute says as to the liability of the state highway commission for accidents on the highway. In part, it reads:
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge or culvert on, or defect in a state highway, not within an incorporated city, may recover such damages from the state of Kansas . . . [qualifications of this rule omitted] . . . and for any damage so sustained the injured party may sue the state highway commission, and any judgment rendered in such case shall be paid from any funds in the state highway fund on the order of the state highway commission.” (G. S. 1935, 68-419.)
Plaintiff contends that the fact that the stop sign erected to warn travelers coming from the south on the secondary road of their near approach to the state highway, as plaintiff and her escort came on that July night, was hidden from view by a dense growth of weeds, constituted a statutory defect on the highway which subjects the highway commission to liability. While the industry of counsel has brought together for our examination a considerable number of more or less analogous cases, all of which we have studiously considered, we cannot bring our minds to the view that any of them go quite to the extent here contended for. The state highway K4 had no defect which imperiled the traffic passing over it. It was the collision of automobiles on a perfectly good highway that caused the plaintiff’s ■ injuries.
At the time this accident occurred there was another statute in force which directed that warning stop signs should be placed at certain road intersections. In part it reads:
“The state highway commission shall erect at entrances of intersecting state and federal highways signs notifying drivers of vehicles to come to a full stop before entering or crossing such designated highway.” (G. S. 1935, 8-122.)
It will be noted, however, that the statutory provision just quoted only required the erection of such warning signs at the intersecting entrances of state and federal highways, not at the intersecting entrances of all public roads, however desirable such a statutory mandate would be. The intersection at which this accident to plaintiff occurred was that of a state highway and a secondary (county or township) road. We have no right to enlarge the scope of the statute nor to amend it by judicial interpretation. In American Mut. Liability Ins. Co. v. State Highway Comm., 146 Kan. 239, 244, 69 P. 2d 1091, it was said:
“By giving its consent to be sued on certain contracts and for certain damages by an action brought against the state highway commission the state has not consented that it, or the state highway commission, may be sued by anyone and upon every cause of action. . . . (Citations.)
“The consent of a state to be sued, as expressed by an act of the legislature, should be strictly construed so as not to enlarge the privilege granted.”
In Rakestraw v. State Highway Comm., 143 Kan. 87, 53 P. 2d 482, where, among other matters, plaintiff sought to hold the state highway commission liable in damages for injuries sustained by her when her automobile ran into a ditch which crossed the egress from a filling station into the highway, this court said:
"Assuming, then, but not deciding, that a roadside ditch is a defect in the highway within the meaning of the statute, the duty of the state highway commission pertaining thereto was prescribed by statute, the pertinent substance of which is that any person who without contributing negligence sustains damage by reason of a defect in a state highway may recover damage against the state if it is also shown that any responsible officer or employee in charge of the construction or maintenance of the highway had five days’ notice of the defect prior to the time the damage was suffered. (R. S. 1933 Supp. 68-419.)
“It should be apparent that the liability of the defendant commission is statutory. It is not a common-law liability. Actual neglience of the defendant commission or of its responsible employee may appear in the alleged facts which constitute the cause of action stated against the commission, but negligence is not an essential element of the action which the statute creates against' the commission. . . .
“This court has often said that the liability of the state, its counties and townships, for damages caused by a defect in a public road, is not founded on negligence but is based specifically and exclusively on the governing statute. (Citations.)” (pp. 89, 90.)
And since it is clear that the state highway commission committed no breach of statutory duty in respect to the maintenance of the stop sign at the entrance to highway K4, where plaintiff was injured, it becomes immaterial whether our decision in this case on the first appeal (146 Kan. 112, 68 P. 2d 1087) be regarded as res judicata or not; and the judgment of the district court in this second appeal cannot be disturbed. It is therefore affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This was an action by the Liberty Life Insurance Company to cancel a life insurance policy which it had issued and delivered to one Robert Claude Guthrie. The defendant, Cora M. Guthrie, the wife of the deceased and sole beneficiary under the ■policy, answered and cross-petitioned for recovery on the- policy. She prevailed, and plaintiff appealed. We shall refer to appellant as the insurer, and to the appellee as the beneficiary.
It is the insurer’s contention the policy was void for the reason it was not delivered during the good health of the insured as required by the contract of insurance. Trial errors urged will receive our attention in the course of the opinion.
The following are the contentions of the beneficiary: First, a proper construction of the particular application here involved did . not require delivery of the policy during the good health of the in sured, and no such requirement is contained in the policy itself; second, this is not an action by the insurer to be relieved from delivering the policy, but is an action to cancel the policy after delivery and a cross action by the beneficiary to recover on the delivered policy; third, the insured was in good health as that term is understood in the law, and fourth, the insurer waived the question of the good health of the insured, if good health at the time of the delivery was in fact a requirement under the contract. In reply the insurer contends its conduct did not constitute a waiver of the requirement of good health at the time of delivery.
It will serve to clarify the issues to say at the outset the insurer has at no time contended the insured in any manner misrepresented the condition of his health in the application. It relies upon the contract requirement relative to the condition of his health at the time the policy was delivered. The application, examination, and the medical report were made on June 26,1935, and the premium for the first year was paid to the agent of the insurer on the same day by check. These were all received by the insurer at its Topeka office on June 27, and the check was cashed on July 1, 1935. The policy was delivered July 9,1935. The insured died August 12,1935.
The jury made findings of fact, including the question of the health of the insured on the date of the delivery of the policy. The special findings were approved by the trial court. Before we treat that part of the case it is necessary to consider the provisions of the contract pertaining to the good health of the insured on the date of the delivery of the policy. The policy, together with the application, if a copy thereof be endorsed upon or attached to the policy, constitute the entire contract of insurance. (G. S. 1935, 40-420 [2].) The policy contained the following provision:
“This insurance is granted in consideration of the application therefor, a copy of which is hereto attached and made a part of this contract and the payment in advance of one hundred and fifty-seven and 08/100 dollars on or before the 26th day of June, 1935, being the premium for one year’s term insurance, and the legal reserve, if any, ending on the 26th day of June, 1936, and the payment in advance of a like amount on or before the 26th day of June in each policy year after the first until . . . death of the insured.
“This policy is issued and accepted subject to all the conditions, benefits and provisions printed or written by the company on the preceding pages which are hereby made a part of this contract.”
The pertinent portion of the application provides:
“I hereby agree on behalf of myself and every person or corporation who may have or claim any interest in any insurance issued on this application:
. . The company shall incur no liability under this application until it has been received, approved and the policy issued and manually delivered to and received by me, and the full first premium stipulated in the policy has actually been paid to and accepted by the company during my lifetime and good health.” (Italics inserted.)
As previously stated, it is the contention of the beneficiary that this provision in the application, under proper grammatical construction, does not require good health of the assured on the date the policy is delivered. She contends the insurer, in preparing its own policy, carefully chose the language and punctuation it desired and in so doing separated by a comma the provision requiring approval of the application and delivery of the policy from the provision requiring payment and acceptance of the premium during the insured’s lifetime and good health. In support of the construction placed upon the above provision contained in the application, the beneficiary relies upon the following statement of the rule contained in 59 C. J. 985, to wit:
“By what is known as the doctrine of the 'last antecedent,’ relative and qualified words, phrases, and clauses are to be applied to the words or phrases immediately preceding, and are not to be construed as extending to or including others more remote.”
Our attention is also directed to the rule as stated in 13 C. J. 534 and cases under note 61. The beneficiary insists that the insurer intended by this provision to require manual delivery of the policy before it incurred any liability on the application, and that as punctuated by the insurer the only requirement as to good health is that the first year’s premium must actually be paid and accepted by the insurer during the good health of the insured. Moreover, the beneficiary contends this provision according to its own terms and conditions was intended to deal only with the question of liability on the application before delivery of the policy. She insists that intention is clear for the reason the application expressly reads, “The company shall incur no liability under this application until . . .” She urges this action is not an attempt by the insurer to be relieved from the necessity of delivering a policy by virtue of misrepresentations made by the insured in the application, nor is it an attempt by the beneficiary to recover on the application prior to the delivery of the policy, but that it is an action by the insurer to be relieved from its obligation under the policy and an action by the beneficiary to recover on that policy. She says the policy itself expressly provides when it shall become effective and that it does not require the policy to be delivered during the good health of the insured. Subparagraph four of paragraph 19 provides:
“This policy shall not take effect until the first premium hereon shall have been actually paid during the good health of the insured and the risk approved by the company.” (Italics inserted.)
It is not contended by the insurer the first premium was' not paid during the good health of the insured nor that the application was not approved. The beneficiary insists the above provision of the policy is clearly in harmony with her interpretation of the provisions contained in the application. She further contends that if the interpretation of the insurer is adopted, as to the provision in the application, then the contract is definitely inconsistent or at least uncertain and ambiguous, and that in such event she must prevail.
We need not determine, in the instant -case, whether the interpretation placed by the beneficiary on the terms and provisions contained in the application is a proper interpretation. Obviously the application could easily have been so worded as to have removed the question at issue entirely from the realm of uncertainty. It might have been made to read: “The policy shall not take effect until the first premium thereon shall have been paid, the application approved, and the policy delivered, all during the good health of the insured.”
Had the application been so worded the intention of the insurer, as now urged, would at least have been clear. We are persuaded and therefore compelled to conclude the contract with reference to whether the insured must be in good health on the delivery of the policy, is, to say the least, uncertain and ambiguous. In 32 C. J. 1161 the rule is stated thus:
“Where the application is made a part of the contract, effect should be given, if possible, to both it and the policy, but, where their provisions are conflicting and cannot be reconciled, those in the policy will ordinarily control, although a provision in the application is sometimes held to prevail over an inconsistent provision in the policy, as where it is more favorable to insured.”
The insurer prepared its own policy. It was its duty to make its meaning clear. Where it fails to do so, it, and not the insured, must suffer the consequences. In Sebal v. Columbian Nat. Life Ins. Co., 144 Kan. 266, 58 P. 2d 1108, it was said:
“The insurer prepared the rider. If it resulted in ambiguity, inconsistency, or uncertainty, the policy must be construed in favor of the insured. (Bank v. Insurance Co., 91 Kan. 18, 137 Pac. 78.) The law of insurance is that in the construction of policies, if ambiguity or uncertainty exists, the construction must be against the insurer. (Bank v. Colton, 102 Kan. 365, 170 Pac. 992; Evans v. Accident Association, 102 Kan. 556, 171 Pac. 643; Hoskin v. North American Accident Ins. Co., 123 Kan. 731, 256 Pac. 981; Samson v. United States Fidelity & Guaranty Co., 131 Kan. 59, 289 Pac. 427.)” (p. 269.)
Obviously, in view of this conclusion it is unnecessary to consider the factual question of the good health of the insured on the delivery of the policy, or trial errors touching that point, or whether the insurer by its conduct waived the alleged requirement of good health of the insured at the time of delivery.
The judgment must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Thiele, J.:
This appeal is from a judgment denying an injunction.
The abstract does not set forth the pleadings, but only their general nature, and the only specification of error is that the trial court-erred in refusing to grant the injunction. Such an assignment is too general and does not specify an error within the meaning of rule 5 of this court. See, also, Lumber Co. v. Smith, 84 Kan. 190, 114 Pac. 372, syl. ¶ 1.
Insofar as the abstract discloses, plaintiffs and defendants, or some of them, owned adjoining lands, portions of which along their boundary line were rather flat. Surface water seems to have collected on each. Plaintiffs contended that defendant Barnes was digging a ditch which would cast the water on them. There was conflicting evidence as to whether Barnes was digging a ditch or merely cleaning out one which had existed for many years, whether there was a natural flow of water from defendants’ to plaintiffs’ lands or vice versa, etc. After hearing all of this evidence, the trial court rendered judgment in favor of defendants.
If the trial court made any findings of fact, they are not - abstracted. The general judgment for defendants carries with it a finding of all necessary facts in their favor.
No error has been made to appear, and the judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Dawson, C. J.:
The principal legal question presented in'this appeal relates to the propriety of an independent lawsuit in the district court to recover a sum of money allowed and paid by order of the probate court on a claim against an estate still in course of administration.
Antecedent matters necessary to an understanding of this action may be summarized thus:
One Cornelius Shuckrow, a native of Connecticut, left that state in 1875 and never returned. For varying intervals of time he sojourned in Pennsylvania, in Canada, in Kansas, and in Louisiana. He had married, but his wife died several years before him, and they had no children or other descendants. Shuckrow conducted a hotel at Gueydan, Vermilion Parish, in Louisiana, in 1931, but the record does not show how long he lived there.
About January 1, 1933, when Shuckrow was about 80 years old, he came to Johnson county, Kansas, and took up his abode with Mrs. Kate Maloney, a sister of his deceased wife. About July 3, 1934, he left this abode and went to the home of another Mrs. Maloney in Missouri, where he resided for about six months.
About January 15, 1935, he left Missouri and returned to his former home at Gueydan, La., where he died some three weeks later, on February 5,1935.
On March 2, 1935, there was filed in the probate court of Johnson county, Kansas, a petition by John Joseph Maloney, son of the Mrs. Kate Maloney with whom Shuckrow had resided from January, 1933, to July, 1934. In it he alleged that Shuckrow had died a resident of Johnson county; that he had left an estate estimated at $8,000; and that the names of his heirs or other persons interested in his estate were unknown. He prayed that he be appointed administrator. An order appointing the petitioner was made the same day and he qualified forthwith.
Following this appointment, Maloney, the administrator, went to Shuckrow’s former home in Gueydan, La., and among his effects the administrator discovered a will of Shuckrow executed on January 29, 1931. Maloney brought this will back to Johnson county and on March 7, 1935, filed a petition in the probate court asking that it be probated. The court appointed the probate judge of Calcasieu Parish in Louisiana as commissioner to take depositions of the testamentary witnesses; and in due time the account of Maloney as administrator under his first appointment was settled and he was discharged on March 27, 1935; and he was at once reappointed as administrator c. t. a. and the estate was reopened for further proceedings.
While the first administration was still in existence, on March 20, 1935, one Harry Maloney, younger brother of the administrator, filed a claim against the Shuckrow estate for the sum of $1,620 for alleged services to Shuckrow as chauffeur and mechanic from January 1,1933, to July 3,1934, at the rate of $90 per month. The administrator consented that the claim might be heard at any time. On the day Shuckrow’s will was admitted to probate, March 27, 1935, the claim was allowed in full by the probate court. Thereafter, time not shown, Maloney, administrator c. t. a., paid his brother’s claim, and reported the fact in his first annual account filed on February 8,1936.
At this point in our chronicle of happenings, we now turn to look at the contents of Shuckrow’s will. In substance, it named a bank in Louisiana as his administrator (executor) of his estate; bequeathed $1,000 to the brother of his deceased wife and the same amount to each of her sisters, Mary M. Wiggins and Kate Maloney, mother of the administrator. The entire residue of his estate was bequeathed to his own four brothers and three sisters, Julia, Mary and Ellen Shuckrow — all of whom, the testator assumed, were still alive and residents of Connecticut.
On August 8, 1935, the three persons last named filed a motion in the probate court to reopen the hearing on the claim of Harry Maloney for eighteen months’ alleged services to Shuckrow as chauffeur and mechanic. In this motion it was alleged that the moving parties were residuary legatees under the will of Shuckrow, that Harry Maloney’s claim was unjust, exorbitant and not a debt of Shuckrow at the time of his death, that its allowance was procured by working a fraud on the court, that the movants had no notice of the filing, 'presentation or allowance of the claim within time to appeal from its allowance. It was also alleged that evidence had recently been discovered tending to show that the claim was unjust, spurious and not owing to Harry Maloney from Shuckrow’s estate.
The foregoing motion was met by an adverse motion to quash, filed by Harry Maloney, on the ground that it was in effect a request for a new trial filed out of time, and because the court was without .jurisdiction to hear it. The motion of the three movants was heard and denied on August 30, 1935 — the order of the court reciting that as the claim had been allowed “and no appeal having been taken from order during the term or ten days thereafter, the court finds that it is without jurisdiction to hear the motion for a rehearing in said claim, and the motion to quash said motion is therefore sustained.”
Thereafter, on October 18, 1935, this independent action was begun by these three sisters of Shuckrow against John Joseph Maloney, administrator c. t. a., and against Harry Maloney for the recovery of $1,620, being the amount of the claim for alleged services as chauffeur and mechanic to Shuckrow which the probate court had allowed and which the administrator had paid.
In the petition plaintiffs alleged that they were residuary legatees under the will of their brother, Cornelius Shuckrow. Other pertinent facts were alleged as narrated above, and it was alleged that the administrator and the claimant fraudulently filed the aforesaid claim for services to the amount of $1,620, and—
“6. That said false and fraudulent claim was filed on March 20, 1935, in said probate court, was exhibited to John Joseph Maloney on March 19, 1935, and allowed by the court on March 27, 1935. . . .
“8. That the allowance of said claim was procured by the collusion of said defendants in practicing a fraud upon the probate court of Johnson county, Kansas, and by falsely representing to said court that said claim was justly due, owing and unpaid to said claimant from the deceased, whereas in truth said deceased was not indebted to said defendant, Harry Maloney, in any sum at the time of the death of the deceased, which fact the defendants well knew at the time they fraudulently procured the allowance of said claim by the probate court of Johnson county, Kansas.
“10. That the time for appeal from the allowance of said claim expired prior to the discovery of said fraud, and that these plaintiffs have no adequate remedy at law.
“Wherefore, plaintiffs pray that they have and recover of and from the defendants the sum of $1,620, together with interest at six percent per annum from the 27th day of March, 1935, costs of suit and such other and further relief as may be just and equitable.”
To this petition defendants demurred on various grounds — the district court’s want of jurisdiction, plaintiffs’ want of capacity to sue, and no cause of action stated.
This demurrer was overruled, and the defendants then answered with a general denial.
The cause was first tried without a jury. On its own motion the court granted a new trial and called in an advisory jury. Evidence was adduced pro and con on the question whether in fact Harry Maloney had performed any services as chauffer and mechanic for Shuckrow, as represented to and allowed by the probate court and as paid by the administrator. The only question submitted for the jury’s consideration read:
“Were or were not the defendants guilty of collusion or fraud in securing the allowance of the claim of $1,620 in the probate court of Johnson county, Kansas . . .?”
The jury answered this question by returning a verdict for plaintiff. Certain post-trial motions and rulings thereon appear in the record which need no attention unless it be on one order of the district court wherein it made a computation of interest on the sum of $1,620 from March 27, 1935, to December 4, 1937. On the latter date judgment was entered against both defendants for the aggregate amount of $1,863.54.
The administrator appeals, raising various errors, some of which may be technically sufficient to require the appeal to be disposed of thereon, but we prefer to deal at the outset with the main question— Was this independent action maintainable in the district court while the estate was still in course of administration in the probate court and had not yet reached the stage of final settlement?
Counsel for the appellees seeks to justify the action on the ground that where the relief sought is on account of extrinsic fraud an independent action can be maintained. That rule of law is perfectly sound. But where such independent action is sought to be maintained, the question of vital concern is, Was the alleged fraud extrinsic or intrinsic? If the former, an independent action could be maintained to correct it, if brought in time and in conformity with the other provisions of the civil code. But if the fraud alleged was not extrinsic, then the requisite steps to secure redress must be taken in the identical case or in supplemental proceedings in that identical case in which the fraud was perpetrated, not in an independent lawsuit. (Fry v. Heargrave, 129 Kan. 547, 549.) In Huls v. Gafford Lumber & Grain Co., 120 Kan. 209, 243 Pac. 306, the action was to set aside a judgment which was brought about by various fraudulent practices. In its opinion this court said:
“There was no want of evidence to establish the fraud of the prevailing party in the mechanic’s lien case — fraud demonstrated by the record of that case, and by the oral testimony adduced in this case. ... So this court has no trouble in discovering sufficient evidence to support the trial court’s finding of fraud. But that is not enough. Fraud involved in judicial proceedings is or may be of two kinds — intrinsic and extrinsic. And if the fraud which has crept into judicial proceedings is intrinsic, it must be corrected, if at all, by a motion for a new trial filed within three days after the judgment tainted with such fraud is rendered (Civ. Code, § 306), or by a petition for a new trial, if applicable, filed not later than the second term after the discovery of the fraud (Civ. Code, § 308). Whether such new trial is invoked by motion or by petition, such proceedings are supplemental to those of the original action and must be undertaken in that identical case. If the fraud or other miscarriage of justice complained of is intrinsic, the court’s jurisdiction to correct it is not otherwise invocable. (Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 735, 106 Pac. 1079; McCormick v. McCormick, 82 Kan. 31, 36, 38, 107 Pac. 546; Garrett v. Minard, 82 Kan. 338, 108 Pac. 80; Blair v. Blair, 96 Kan. 757, 759, 760, 153 Pac. 544; United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93, and Rose’s Notes thereto at p. 512 et seq.; 1 Black on Judgments, 2d ed., § 292.)” (pp. 214, 215.)
Elsewhere in the same case this court said:
“If, however, the fraud was extrinsic to the issues, it may be subjected to a direct attack in an independent action or special proceeding brought for that purpose. (Blair v. Blair, supra, 762 et seq.; Leslie v. Manufacturing Co., 102 Kan. 159, 169 Pac. 193; James v. Young, 111 Kan. 310, and citations, 206 Pac. 905.) . . . Can the conduct of the lumber company’s attorney be properly characterized as extrinsic fraud? To bring a groundless and unjust suit is a species of fraud, of course, but it is the very opposite of extrinsic fraud.” (pp. 215, 217.)
In the Huls case, supra, familiar Kansas cases are cited to the same effect. In the later case of Potts v. West, 124 Kan. 815, 817, 262 Pac. 569, plaintiff brought an independent action to set aside a judgment in another and prior lawsuit on the alleged ground that it had been procured by fraud. A demurrer to the petition was sustained, and the cause was brought here for review. In affirming the judgment this court, in part, said:
“Falkenberg asks that the petition to vacate be considered a petition in a new and independent suit in equity, to set aside the judgment quieting title on the ground of fraud. That may not be done, because the fraud of which he complains was intrinsic in the determination of the action to quiet title. Equity may set aside a judgment procured by extrinsic fraud, but public policy requires there shall be an end to litigation, and when a party to an action has been duly served, and has not been prevented by actual fraud from defending on the merits, he has had his day in court, and may not appeal to equity to undo the result on the ground the stated cause of action was based on fictitious grounds or was sustained by perjury. [Italics ours.] (Blair v. Blair, supra.) The distinction between extrinsic fraud, which prevents fair presentation of the controversy to the court, and intrinsic fraud, which relates to fair determination of the controversy by the court, was clearly pointed out in the case of Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 735, 106 Pac. 1079. It was there said that equity will relieve against extrinsic fraud, but not against intrinsic fraud, and authorities for the doctrine were collated. The subject was again treated in a recent hard case in which a distressingly fraudulent judgment was rendered in December, 1919, and the petition to vacate was not filed until January, 1923. (Huls v. Gafford Lumber & Grain Co., 120 Kan. 209, 215, 243 Pac. 306.)” (p. 817.)
In the American Law Institute’s recent text on Restitution are simple illustrations of cases of intrinsic and extrinsic fraud where an independent lawsuit may and may not be maintained, viz.: '
“A obtains judgment against B by false testimony at the trial. B pays the judgment. On discovery of the facts, B brings an action at law against A for restitution. He is not entitled to restitution.” (Sec. 72, p. 294.)
A plain case of intrinsic fraud.
“A is sued by B, who kidnaps A's witnesses and causes A to believe that they are dead. As a result of their failure to testify, B obtains judgment, of which A pays one half. Discovering the facts, A brings a separate suit in equity seeking to have the enforcement of the judgment enjoined and asking for restitution of the part already paid. A is entitled to this relief.” (Sec. 72, p. 296.)
A plain case of extrinsic fraud.
See, also, Putnam v. Putnam, 126 Kan. 479, 268 Pac. 797; Williams v. Williams, 138 Kan. 310, 26 P. 2d 258; Brenneisen v. Phillips, 142 Kan. 98, 45 P. 2d 867.
To justify the present action and the judgment entered thereon, the appellees cite the case of McAdow v. Boten, 67 Kan. 136, 72 Pac. 529. That case does sanction an independent lawsuit for relief on account of collusive fraud perpetrated in the probate court by an administrator and one who has a claim against an estate; but in that case the estate had been wound up and the administrator discharged. In the opinion the court cites from Gafford, Guardian, v. Dickinson, Adm’r, 37 Kan. 287, 15 Pac. 175, 177, in which Mr. Justice Valentine said:
“It is true that in the exercise of jurisdiction by the district courts in cases connected with the settlement of the estates of deceased persons, there are some limitations. (Johnson v. Cain, 15 Kan. 532; Stratton v. McCandless, 27 Id. 297; Kothman v. Markson, 34 Id. 542.) Generally, while the estate is in the course of settlement in the probate court the district court will not exercise its jurisdiction, and this for the reason that the jurisdiction of the district court in such cases is equitable only, and the parties have a plain and adequate remedy in the probate court. The jurisdiction of the district court in all cases like this is merely equitable, and therefore it will generally refuse to exercise such jurisdiction in any case where the parties have another plain and adequate remedy. In this case, however, the settlement of the estate is no longer pending in the probate court. According to the records of the probate court, the estate was finally settled about a year before this action was commenced; and therefore, unless the plaintiff now has a remedy in the district court, she has no remedy.” (p. 291.)
In Eaton v. Koontz, 138 Kan. 267, 25 P. 2d 351, three sisters caused probate proceedings to be instituted in Colorado and Kansas for the sale of lands belonging to the estate of their father. They, had a niece, daughter of their dead brpther, of whose existence they well knew. They made the false statement that they, the three sisters, were the sole and only heirs of their father; and the lands of their father’s estate were sold and the proceeds divided on that basis. An independent action was entertained in the district court at the instance of the defrauded niece, and she was adjudged to have an undivided interest in her grandfather’s lands disposed of in the probate proceedings. In affirming the judgment, Mr. Justice Burch stated the substance of appellants’ contentions thus:
“The attitude of defendants is perfectly simple. The probate court of Colorado had jurisdiction over the subject of allowance of claims against the Dodge estate, and allowed them. The Kansas court had jurisdiction over the subject of sale of land to pay debts. Notice of hearing of the application to sell was given by publication, and in contemplation of law, plaintiff had her day in court. The order of allowance of claims by the Colorado court was prima facie evidence of the existence of debts. The Kansas court ordei'ed the land sold, and approved the sale which was reported. The forms of the law having been observed, plaintiff is remediless. True, plaintiff charged fraud; but relief on the ground of fraud may be granted only for extrinsic fraud in fact. If there was fraud, it related to determination of the issues, existence of debts, and necessity to sell land to pay debts. Such fraud is intrinsic, and the district court was powerless to do anything about it.” (p. 271.)
Further along in the opinion it was said:
“The court has distinguished between extrinsic fraud and intrinsic fraud occurring in the course of a proceeding. The distinction is sound, and is adhered to. Extrinsic fraud consists in preventing fair presentation of issues. Intrinsic fraud relates to fair determination of issues. (Potts v. West, 124 Kan. 815, 262 Pac. 569.) Some of the conduct displayed in the proceedings under consideration may be classified as extrinsic fraud, but it is not necessary to catalogue what was extrinsic and what was intrinsic. Practical application of the distinction is often difficult, and the court does not propose to become so involved in rules and distinctions and categories of its own making or recognition that it becomes impotent to deal in a forthright manner, when necessary, with that most persistent of all baleful practices, the practice of fraud.” (p. 272.)
See, also, Leslie v. Manufacturing Co., 102 Kan. 159, 169 Pac. 193; James v. Young, 111 Kan. 310, 206 Pac. 905.
From these instructive cases it will be seen that where an estate has been wound up and the administrator discharged this court has been rather lenient in giving countenance to independent action for relief on account of fraud in the probate proceedings, and has not rigidly measured the aggrieved parties’ right to maintain them on the technical question whether the fraud complained of was extrinsic or intrinsic. As Mr. Justice Burch said in Eaton v. Koontz, supra, “The court does not propose to become so involved in rules and distinctions and categories of its own making or recognition that it becomes impotent to deal in a forthright manner, when necessary, with that most persistent of all baleful practices, the practice of fraud.” (p. 273.)
In the present case, however, the estate of Shuckrow is still in course of administration, and our decisions are many which hold that while the probate court is exercising jurisdiction of an estate not yet settled, the district court has no jurisdiction of any subject matter properly justiciable in the probate court. While in our earlier cases like Gafford, Guardian, v. Dickinson, Adm’r, supra, it was said that the district court “will not exercise” its equitable jurisdiction and “will generally refuse” to exercise it while the estate is still in course of administration in the probate court, in our later decisions we have squarely held that the district court does not have jurisdiction under such circumstances. Thus, in Fry v. Riley, 131 Kan. 252, 291 Pac. 748, the current rule of procedural law is thus stated:
“Where the probate court is already exercising jurisdiction in the settlement of an estate and the matter is still pending in that court, the district court is without jurisdiction to maintain an action under R. S. 22-1001, 22-1002 and 22-1004 by a creditor against the administrators and the sureties on their bonds, for failure to perform their duties as such administrators.” (Syl.)
In Wright v. Simpson, 142 Kan. 507, 51 P. 2d 1, the first paragraph of the syllabus reads:
“The district court does not have jurisdiction, in the first instance, to determine the amount of indebtedness due the estate of a testator from any particular debtor when the will has been admitted to probate and administration of the estate is still pending in the probate court.”
In the recent case of In re Estate of Park, 147 Kan. 142, 75 P. 2d 842, the same question had to be considered, and it was there said:
“The plain intention of the statutes referred to is that the acts of the administrator shall be subject to full and! complete examination and determination upon final settlement. . . . The heirs, on the other hand, had a right to await final settlement and make such claims then against the administrator as they might have because of his acts in the management of the estate.
“. . . That this was the intention of the legislature is evident from the provisions of G. S. 1935, 60-3823, which provides that:
“‘Until the legislature shall otherwise provide, this code shall not affect . . . proceedings under the statutes for the settlement of estates of deceased persons.’” (pp. 149-151.)
See, also, Correll v. Vance, 127 Kan. 840, 275 Pac. 170; Parsons v. McCabe, 127 Kan. 847, 275 Pac. 173.
Of course, it is not difficult for a pleader to state a cause of action for extrinsic fraud; and for the purpose of this appeal it may be conceded without a positive decision that plaintiffs’ allegations touching collusion between the administrator, John Joseph Maloney, and the claimant, his brother Harry Maloney, were sufficient to state a case for relief on the ground of extrinsic fraud. The evidence, however, failed utterly to establish such collusion. True, the administrator did not personally appear in the probate court to resist his brother’s claim. He testified that he knew nothing to offer in opposition to it. But his attorney did appear at the hearing and made some cross-examination of his brother’s witnesses. The probate judge himself testified that ten or twelve witnesses appeared and gave testimony in support of the claim and that he, the probate judge, knew those witnesses personally and that they were all reputable people. Where an array of witnesses swear to one set of facts in the probate court, it does not affect the binding force of the judgment based thereon, that another array of witnesses can be mustered in the district court who will swear to a different set of facts. Otherwise a disputed question of fact could never be adjudicated to a finality.
Manifestly the judgments of one court cannot be successfully attacked and set aside in another court in an independent lawsuit on such a showing as presented by this record.
The other questions raised by defendants need not be treated at length. However, defendants are quite correct in their contention that these plaintiffs, being only three of the seven residuary legatees named in Shuckrow’s will, were not entitled to maintain this litigation on the pleading which they filed. The nonappearance of the other residuary legatees should have been explained at the inception of the proceedings. That it has been informally explained since this lawsuit was tried and decided is no answer to defendants’ timely objection to the sufficiency of their pleading. Another objection to the plaintiffs’ pleading was that its purpose, as explained by their counsel, was to recover for plaintiffs themselves the sum of $1,620. On any rational theory the proceedings should have been brought on behalf of the Shuckrow estate and for its benefit.
Again, we remark that plaintiffs appear to take it for granted that they were excused from seeking redress in the probate court because of lapse of time; and that they had no redress by appeal from the order of the probate court made on August 30, 1935, denying their motion to reopen the hearing on Harry Maloney’s claim for $1,620. Obviously plaintiffs’ motion was intended as a pleading to set aside the order of March 27, 1935, allowing that claim. No existing statute, no citation of authority based on presently existing statute, is referred to which supports the assumption that no appeal would lie from the probate court’s ruling of August 30, 1935. And wherever there is any redress by appeal, there certainly can be none by an independent action in the district court. Indeed, it is far from clear that plaintiffs are even yet completely remediless if they can make good in the probate court their charge of collusion between the claimant and the administrator when the latter presents his final account and asks for his discharge. This latter point cannot be decided at this time, but see In re Estate of Brown, 147 Kan. 395, 76 P. 2d 857. Consult, also, G. S. 1935, 22-901 et seq., 22-1101 et seq., and annotations.
The judgment is reversed and the cause remanded with instructions to enter judgment in favor of appellants.
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The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in quo warranto, authorized by G. S. 1935, 60-1609 et seq., begun in April, 1937, to oust defendant from the office of clerk of the district court of Finney county on the alleged grounds of her willful misconduct in office and of her acts constituting violations of criminal statutes involving moral turpitude. This procedure is civil in its nature, rather than criminal. (State, ex rel., v. Duncan, 134 Kan. 85, 4 P. 2d 443.) After issues were joined the court appointed Hon. W. PI. Russell, of La Crosse, as its commissioner to hear the evidence and to make findings of fact and conclusions of law and report to the*court. This he did. Generally speaking, he found the facts as alleged by plaintiff, but also found that defendant is serving her third consecutive term of office, and that the acts complained of and found to exist were committed in her second term of office. As a conclusion of law he held defendant could not be removed from her present term of office because of grounds of removal which existed in her prior term, and recommended judgment for defendant. Plaintiff took exceptions to a few of the findings of our commissioner and to his conclusions of law and recommendation for judgment. Defendant moved for judgment in harmony with our commissioner’s recommendation.
Pending the hearing of this report and the motions thereon, plaintiff filed an amended and supplemental petition in which defendant was charged with additional willful misconduct within her present term of office, and upon plaintiff’s motion and showing under G. S. 1935, 60-1616, an order was made suspending defendant from performing any of the duties of the office pending the final hearing and determination of the case. The court rereferred the matter to its commissioner to hear further evidence upon the amended and supplemental petition and to make further findings of fact and conclusions of law. This has been done. In his report our commissioner found the facts substantially as alleged by plaintiff, and has recommended that defendant be ousted from office. Plaintiff has moved that the report of the commissioner be approved and his recommendation of removal of defendant from office be followed. Defendant has filed exceptions to the findings and conclusions of our commissioner and has moved for judgment for defendant. The matter has been briefed and argued.
In an original proceeding in this court the findings and conclusions of our commissioner are advisory only. (State, ex rel., v. Buchanan, 142 Kan. 515, 51 P. 2d 5.) It is the duty of this court to examine the record and to find the facts and to reach its own conclusions of law. This we have done, and we agree with the findings of fact made by our commissioner, except as to defendant’s acts or knowledge of the forgery of certain checks and receipts, which will be mentioned. We agree also with his conclusions of law, and differ with him, if at all, on the application of one of these to the facts as here presented.
For brevity, we summarize the facts shown by the record as follows: Defendant has lived in Finney county most of the time since 1879, and since she was 17 years of age has been employed in some clerical or secretarial position. Most of this time she has worked in responsible positions for banks, or a utility company. She is capable and has always borne a good reputation for integrity. In 1932 she was elected clerk of the district court, and began her first term in January, 1933. At the time this proceeding was filed she was serving her third consecutive term. The board of county commissioners had designated the Fidelity State Bank of Garden City as the official depository of all moneys belonging to the office of the clerk of the district court. That fact was known to defendant, and normally she used that bank as such depository. In 1935 defendant decided to improve property she owned, and being unable to borrow money for that purpose she began to take small sums of cash from her office for her personal use. Of course, this constituted embezzlement of those funds. (State v. Gordon, 146 Kan. 41, 68 P. 2d 635.) She testified that she never took more than $15 at one time; that it was her practice to make a memorandum each time of the amount taken and place that in the cash drawer; that she used blank checks for these memoranda, filled out as to the amount taken and signed by her personally, with no payee named, and most of them not dated, and that in this manner she had taken and left memoranda “for more than $800” by the last of December, 1935. In January, 1936, an auditor employed by the county commissioners to audit the books and records of the office of the clerk of the district court found a shortage in the cash of “more than $800.” Defendant frankly told the auditor she had taken the money for her personal use and explained what she regarded as the necessity for doing so, and called his attention to her checks as memoranda of the sums taken. Apparently the auditor criticized her for doing this. She begged him not to report the matter to the county commissioners and promised to put the money back during the year 1936. At her request and on her promise he did not report the facts found to the county commissioners, but made the inaccurate report that she had cash in the office amounting to $877.
A similar audit was made in January, 1937, covering the year 1936. At that time the cash in her office balanced, but the evidence discloses that this balance was brought about in this way: As a result of the sale, in 1931, of real property in a partition action there had been deposited in the office of the clerk of the district court the sum of $105.95 to the credit of one Harrison Thornton, a defendant in the partition action, and the sum of $953.96 to the credit of one Columbus Robbins, a defendant in that action. These sums had been turned over to defendant by her predecessor in office and had been held by her until the latter part of 1936. On October 15, 1936, the defendant drew her official check to the order of Harrison Thornton as payee for $105.96. This check was endorsed with the name of Harrison Thornton, which endorsement was not written by the payee, but is a forgery. On the same day the defendant prepared a receipt for the check, which receipt bears the purported signature of Harrison Thornton, but the signature was not written by him and is a forgery. A receipt for the money was also written on the disbursement docket, and this bears the name of Harrison Thornton, but was not written by him and is a forgery. On October 16, 1936, defendant deposited the check to the credit of her official account in the official depository for such funds. On the 8th of December, 1936, defendant drew her official check to the order of Columbus Robbins as payee for the sum of $953.96. This check was endorsed with the name of Columbus Robbins, which endorsement was not written by the payee but is a forgery. On the same day defendant prepared a receipt for the check, which receipt bears the purported signature of Columbus Robbins, but it was not written by him and is a forgery. On the same day the defendant deposited the check to the credit of her official account in the official! depository for such funds. Defendant herself wrote the name of Columbus Robbins as a receipt of this sum on the disbursement docket of her office. In fact, Columbus Robbins had been dead since 1931, a fact which was known to defendant, she having been told that fact by the attorneys in the action as early as 1933, and had talked with them about how to handle that fund and had been told that when an administrator of the estate of Columbus Robbins should be appointed, and that fact-shown to her, that she might safely pay the money to the administrator. Defendant’s explanation of how she made those payments was to this effect: That each of these defendants had signed a waiver of summons and entered his voluntary appearance in the partition action; that on the day the check was made to Thornton a man came into the office, said he was Harrison Thornton, and had an unsigned copy of this waiver of appearance. She questioned him and thought he was the right man and made the check to him; that after it was made he asked her to cash it, or to identify him at the bank; that she thought she was taking no more risk in cashing the check than she would in identifying the man, and that she cashed it with money she had on hand belonging to the office; and that the check to Columbus Robbins was issued to a man who called at the office and said that was his name, and upon his endorsement of the check she paid him the cash from funds in her office. Normally the cash in her office seldom exceeded $60. She explains having the large amount sufficient to pay these checks by saying that as. she took up her own memoranda of money she had extracted from the office she simply kept the money in the office, and had not deposited it in the bank.
In January, 1937, the books of defendant’s office were again audited and found to be in balance, with the aid of the two checks above mentioned, and it was thought the endorsements of the names of the payees on the checks and the signatures to the receipts were forgeries. The county commissioners called defendant to their meeting in February, 1937, and the matter was discussed. Defendant at that time stated that there were two checks in her office that had been forged. The chairman of the board of county commissioners told her she would have to make the checks good. She said she could not do that immediately. She-was asked to resign. She said if she resigned her office she had no way of making the checks good. She made no direct statement as to whether she would make the checks good or not.
In August, 1937, the administrator of the estate of Columbus Robbins sued the defendant and the surety on her bond for the $953.96 which was payable to him in the old partition action. She filed a demurrer to that petition. This never was ruled upon. On January 8, 1938, she and her codefendant entered into a stipulation with the plaintiff by which it was agreed that if defendant would pay to plaintiff the sum of $700 on or before February 1, 1938, the action would be dismissed with prejudice at the cost of defendant. On January 20, 1938, the sum of $700 having been paid in accordance with the stipulation, an order was made dismissing the action with prejudice, with a judgment for costs ágainst the defendant. This order and judgment was embodied in a journal entry, approved by the attorneys for plaintiff and defendant, and signed by the trial judge. On the same day this defendant entered this journal entry upon the permanent journals of the court in shorthand characters. She took the page out of the judge’s trial docket, placed it with the journal entry which had been approved by the court, and with the papers in the case, and instead of placing them in the usual court file case, locked them up in the steel exhibit cabinet in her office, of which she had the only key. This was not a place where any other court files were kept. Some six weeks later, and on March 3, 1938, on another page of her permanent journal, she copied this journal entry in typewriting, which is the usual method of making such entries in the journal.
There is no contention that the two checks above mentioned were actually delivered to the persons entitled to them. It is conceded the endorsements thereon were forged, also that the names of the respective payees on the receipts given for the checks were forged. Defendant has made no effort to locate, much less to recover from, the persons to whom she said she made those checks and to whom she said she paid the money on them. There is nothing in this record to corroborate her in her testimony that she ever paid any of the money back, or that anyone called at her office in October, or in December, 1936, and asked for the sum due him in the old partition action.
It seems more reasonable, in view of all the circumstances disclosed by the evidence, to believe that all of defendant’s testimony respecting persons calling for payments of their respective shares in the old partition case and of her cashing the checks with money which she had in the office was fabricated, and that what was done by her in that connection was for the purpose of covering up the shortage discovered by the auditor in January, 1936, and admitted to him by defendant. It is true the handwriting expert called as a witness by plaintiff was unable to state definitely that defendant had actually written the forged names on the back of the checks and on the receipts. But we do not regard that as being essential. There is no intimation that anyone else than defendant had any interest in having that done. It appears when the genuineness of these signatures w-as first called to her attention she conceded they were forgeries. When she was asked to come before the county commissioners in February, 1937, she told them of the two forged checks. She made no denial of responsibility for the sums named in them, but said she could not pay them immediately, and could not do so if she were forced to resign. When sued for the amount by the administrator of the Columbus Robbins estate she filed no answer denying liability, but obviously sought to make the best settlement she could and to get a little more time in which to pay it.
Counsel for defendant stresses the point that the taking of the money was in a prior term of office, and he cites those cases holding one cannot be removed from office because of misconduct or defalcations in a prior term. Perhaps at some time it will be necessary to review those cases and point out that the rule stated in them is not of universal application. But there is no necessity of doing that in this case. Here the misconduct continued into the present term of office. There was a duty upon defendant to restore this money on demand of the county commissioners in February, 1937. The stipulation in the action to recover the money by the administrator of Columbus Robbins was an admission of liability, and in that respect was tantamount to a judgment for the money, and was in fact a judgment against her for costs. The recording of the judgment in shorthand is a misconduct which cannot be overlooked. The same may be said of her extracting a page from the trial court’s docket and locking it and other papers pertaining to the case in what amounted to her private file. In short, her serious misconduct, of a character detrimental to the office and its proper functioning, is shown by this evidence to have extended over a period of approximately three years.
The final recommendation of our commissioner that she be ousted from office is approved. It is so ordered.
Hutchison, J., not sitting.
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The opinion of the court was delivered by
Harvey, J.:
This was an action for damages for personal injuries. The jury answered special questions and returned a verdict for plaintiff. Defendant has appealed, and contends that it is not liable to plaintiff in any sum.
The pertinent facts may be stated as follows: During the dry, hot part of the summer of 1936, as an extension of its parking and bathing facilities for its citizens, and particularly the children, defendant for a time operated sprinklers at sixteen different locations in the residence sections of the city. These were sent out by Captain L’Heureux, in charge of the juvenile department. The equipment used belonged to the park department, but the sprays were operated by members of the police department. The equipment consisted of a pipe eight feet long attached horizontally to a fire hydrant, with an upright extension six feet long, with a spray nozzle at the top, and was set up in the parking between the curb and the sidewalk. Children in the vicinity, in their bathing suits, played under the sprays. On July 20, W. H. Cartter, a policeman assigned to this work, set up one of these sprays on the west side of Topeka avenue, a north-and-south street, paved forty feet wide, about fifteen feet south of the south sidewalk of the intersection of Kellogg, an east- and-west street, and Topeka avenue, in the parking five feet west of the west curb of the pavement. The water was sprayed over an area about eight feet in diameter and extending about three feet onto the pavement. Water falling from the spray on the curb and pavement splashed out as far as four or five feet eastward on the pavement. South of the spray about fifteen feet a barricade was erected extending from near the curb out into the street about fifteen feet. North of the spray, and about even with the hydrant, the police car driven by Mr. Cartter was parked at an angle to the pavement so that it extended into the street about ten feet from the curb and served as a partial barricade of that portion of the street north of the place the spray was being operated. About fifteen children of the neighborhood, in their bathing suits, were playing under the spray. Mr. Cartter was supervising the operation of the spray and directing traffic.
Plaintiff, a boy about seven, years of age, and his brother, a little older, and two other boys were on the sidewalk on the east side of the street watching the children playing in the spray. The policeman invited them to join the other children. They replied their parents would not let them go in the spray. He then invited them to come over and watch. Plaintiff’s brother declined the invitation, but plaintiff and two of the other boys went north to the sidewalk intersection and crossed the street and watched the other children. A few minutes later plaintiff was on the pavement between the po lice car and the barricade watching the other children. He suddenly started to run across the street to the east just as a car was coming from the north, which had pulled to the left until a part of it was east of the center of the pavement. The policeman called to plaintiff to look out. Plaintiff undertook to stop, slipped and fell, with his feet forward, directly in front of the oncoming automobile, which was moving very slowly, but which the driver could not stop until the front wheel ran over plaintiff’s leg and broke the bone.
Defendant’s demurrer to plaintiff’s evidence was overruled. Answering special questions, the jury found that defendant was negligent in parking the police car so as to obstruct the vision of drivers of automobiles approaching from the north, also the vision of the children in the protected area, and that defendant did not sufficiently guard children invited to the sprinkler from injury of traffic, especially automobiles, in that it failed to rope off or erect a barrier on the east boundary of the playground area and failed to control traffic through the narrowed passageway caused by the playground. Defendant’s motion for judgment upon the pleadings, opening statement of counsel, the evidence, and the answers to special questions notwithstanding the general verdict, and its motion for a new trial were overruled, and judgment was rendered on the general verdict for plaintiff.
In this court appellant points out that the police car as parked acted as a barrier to protect the playground area to the south of it, and that it did not cut off the vision of the sprinkler system from the drivers of automobiles from the north; indeed, that the sprinkler system in operation could be seen plainly by such drivers, and that there was no evidence to sustain the finding of the jury that the traffic along this protected area was not being carefully and properly directed, and that in fact the automobile which caused the injury to plaintiff was traveling very slowly east of the playground area and in part east of the center of the street. Plaintiff’s sudden effort to stop himself when he attempted to run across the street upon the call of the policeman for him to look out, and his fall in such a way that his feet went forward directly in front of the slowly moving automobile — a circumstance which could not reasonably have been anticipated, perhaps, by anyone who had anything to do with it — was the real cause of the injury.
Touching defendant’s liability, it is pointed out by appellant that there is no contention on plaintiff’s part that the street itself was defective; hence, that there was no liability arising on that score. Appellant next contends that in furnishing sprinkler bathing facilities for the children in the residential districts, under the supervision of its juvenile department and in charge of its police officers, it was acting in its governmental capacity, and that it is liable for injuries which occur while doing so only when specifically made so by statute, and that in this state there is no such statute making the city liable under such circumstances. There is an abundance of authority to support this view:
6 McQuillin on Municipal Corporations, Rev. 2d ed., § 2793; Perry v. City of Independence, 146 Kan. 177, 69 P. 2d 706; Smith v. United Power & Light Corp., 142 Kan. 723, 726, 727, 51 P. 2d 976; Barcus v. City of Coffeyville, 129 Kan. 238, 282 Pac. 698; Bruce v. Kansas City, 128 Kan. 13, 276 Pac. 284; Warren v. City of Topeka, 125 Kan. 524, 265 Pac. 78; Foster v. Capital Gas and Electric Co., 125 Kan. 574, 265 Pac. 81; Gilliland v. City of Topeka, 124 Kan. 726, 262 Pac. 493; Gorman v. City of Rosedale, 118 Kan. 20, 234 Pac. 53; Rose v. City of Gypsum, 104 Kan. 412, 418-420, 179 Pac. 348; Frost v. City of Topeka, 103 Kan. 197, 173 Pac. 293; and earlier cases cited therein.
In support of the judgment of the trial court it is argued on behalf of appellee that the sprinkler, as operated, was an attractive nuisance. The answer to that is that it was not a nuisance at all, either under the authorities above cited, or as a matter of fact. The evidence was to the effect that it was a desirable thing. People asked to have it operated in their block, or in front of their homes, and where their children could use it. Counsel cite Roman v. City of Leavenworth, 90 Kan. 379, 133 Pac. 551, and 95 Kan. 513, 148 Pac. 746, as tending to support an opposite view. But this case was severely criticized in Bruce v. Kansas City, supra, and cannot be regarded as an authority on that point. They also cite Schaubel v. City of Manhattan, 102 Kan. 430, 170 Pac. 984. That decision rested on the unsuitable condition of a street for use, and even as so rested was not well supported by authority. They also cite Osage City v. Larkin, 40 Kan. 206, 19 Pac. 658; Kansas City v. Gilbert, 65 Kan. 469, 70 Pac. 350; and Malchow v. City of Leoti, 95 Kan. 787, 149 Pac. 687. Liability of the city in each of these cases was based upon the fact that the city permitted something dangerous to those who used the street for traffic to be or remain in a street or alley. There is no contention that such was the case here.
Counsel also argue that the city, or its police officer in charge, was negligent in not roping off the east side of the playground and in not properly directing traffic, and the answers of the jury to the special questions indicate this was the basis of the verdict. Passing appellant’s contention that there is no evidence to sustain that view, it is well settled that the city is not liable in damages for the negligence of its peace officers. The result is, there is no substantial basis for any judgment for plaintiff against the city. Defendant’s demurrer to plaintiff’s evidence should have been sustained.
The judgment of the court below is reversed with directions to enter judgment for defendant.
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action to recover on a fraternal benefit insurance certificate issued by defendant.
Payment was resisted on the ground that the insured was under suspension for nonpayment of dues and assessments.
The controlling facts were established without serious dispute. On February 10, 1925, one Robert P. Lashbrook, of Blytheville, Ark., procured from defendant a certificate which insured his life for $1,000 for the benefit of his wife and infant daughter, plaintiffs' herein. Lashbroolc’s membership in the defendant association was in one of its local camps, designated Oak Camp, No. 1172, at Fountain, Ark. The clerk of this camp was J. F. Cooper. He was authorized to receive and issue receipts for dues and assessments paid by local members of the fraternity.
With' sufficient regularity to satisfy the defendant, Lashbrook remitted the requisite dues and assessments to keep his insurance •certificate in force until 1932. Whether he did so subsequently, within the terms of his certificate and the bylaws of the defendant and the pertinent law, requires the facts of such payments during the year 1932 to be stated with particularity.
On March 9, 1932, Lashbrook remitted to Cooper, clerk of defendant’s local lodge, Oak Camp, No. 1172, the sum of $5, and received the clerk’s official receipt therefor, particularized as follows:
“For Sov. Camp Fund Annual Ass’t from 12 to 6
Or Sov. Camp Fund Monthly Installment No. 1, 2, 3, 4, 5..................................... 3.80
Monthly Camp Dues, Jan., Feb., Mar., Apr., May........ 1.20”
On June 12, 1932, Lashbrook similarly remitted $3.03, and received the clerk’s official receipt therefor, which included this recital:
“For Sov. Camp Fund Annual Ass’t from 5 to 9
Or Sov. Camp Monthly Installment No. 6, 7, 8 ......................................... 2.28
Monthly Camp Dues June, July, Aug......................75”
On December 5, 1932, Lashbrook made a similar remittance and received the clerk’s official receipt therefor, specifying as follows:
“For Sov. Camp Fund Annual Ass’t from 7 to 12
Or Sov. Camp Fund Monthly Installment No. 8, 9, 10, 11...................................... 3.04
Monthly Camp Dues Aug., Sep., Oct., Nov............... 1.00”
On February 4, 1933, Lashbrook was stricken with an illness which confined him until February 18, when it caused his dhath. During his illness, on February 9, defendant received a remittance of $2.28 on Lashbrook’s behalf. Proofs of his death were submitted on March 21. On April 4, defendant returned this last remittance and rejected plaintiffs’ claim for insurance on the specific ground that the insured was under suspension at the time of his death for a claimed delinquency in the payment of his dues and assessments for the month of December, 1932.
In a letter to plaintiffs’ attorneys, dated August 14, 1933, defendant’s claim department wrote:
“This decedent became suspended January 1, 1933, by reason of having failed to make payment of the December installment of the 1932 assessment on or before the last day of that month in which the installment was due.
“In specifying the above ground for rejection, the Association does not waive any other defense which it might have against the payment of any claim for benefits under the certificate in question.”
This action to recover on the insurance certificate was begun on October 14, 1933, alleging the pertinent facts, and including the following:
“The said defendant has failed, neglected and refused to pay the said sum of one thousand dollars ($1,000) or any part thereof, and said defendant has based its refusal to pay said amount on the ground that the said Robert P. Lashbrook, deceased, had failed to make payment of the December installment of the 1932 assessment on or before the last day of the month of December, 1932, when in truth and fact the said installment was paid by the said Robert P. Lashbrook, deceased, or some person on his behalf, prior to the 1st day of January, a.d. 1933.”
Defendant filed its answer on January 27, 1936. It contained a general denial and certain admissions. It pleaded its bylaws and the provisions of the insurance contract at much length. It also pleaded:
“15. The defendant, further answering, denies that the said Robert P. Lash-brook made payment of the December installment of the 1932 assessment prior to the 1st day of January, 1933, and denies that said installment was paid by any person on behalf of said Robert P. Lashbrook prior to the 1st day of January, 1933.
“17. The defendant, further answering, says that the said Robert P. Lash-brook became ill on or about the 4th day of February, 1933, and that his illness continued until the 18th day of February, 1933, and that he died on said 18th day of February, 1933, and that the monthly installment of the assessment on his certificate for the month of December, 1932, had not been paid on or before the 4th day of February, 1933, and on or before the date of his said illness.”
The cause was tried on June 28,1937, before a jury. In the course of the trial, plaintiffs introduced the receipts for the payment of dues and assessments for the year 1932, as summarized above. These proved beyond cavil that the insured was not delinquent in the payment of his dues and assessments for December, 1932; but that an indisputable and obvious error had been made in the recitals of the receipt of December 5,1932, where it specified that the remittance received that day paid Lashbrook’s dues and assessments for the months of August, September, October and November, whereas hig dues and assessments for August had been paid by Lashbrook’s remittance of June 12, as specified in the receipt of that date.
To reorganize its lines of defense in the course of the trial, defendant asked leave to amend its answer so as to place its reliance on Lashbrook’s failure to pay his dues and assessments for January, 1933, and that when these were paid on February 9, Lashbrook was ailing from the malady which shortly thereafter caused his death. This permission to amend was denied for various reasons, one of which was that it was so belatedly requested. In defendant’s answer, which was filed 2 years, 3 months, 13 days after the action was begun, Lashbrook’s alleged delinquency in payment of dues and assessments for December, 1932, had been specially pleaded as thé defense relied on. It is familiar law that the allowance or refusal of belated amendments is vested quite largely in the discretion of the trial court. (Wands v. School District, 19 Kan. 204, 207; Bank v. Brecheisen, 98 Kan. 193, 157 Pac. 259; Blashum v. St. Joseph Catholic Society, 140 Kan. 290, 36 P. 2d 957.) But we will not be concerned with the trial court’s refusal to allow the requested amendment for a controlling reason which will presently appear. It is a settled rule of law in actions on insurance policies that when the defendant has plainly stated or pleaded the basis of its denial of liability, it will not be permitted to shift its ground of defense and seize upon another ground which it may deem more tenable. This rule of law is begotten of a broad sense of justice. Where widows and orphans are told that the insurance association cannot pay the insurance certificate or policy of the husband and father for the specific reason that he was delinquent in payment of dues, assessments or premiums, and that his insurance contract had been nullified thereby, the association must stand on that ground. If that ground is legally sufficient, the insurance association is not liable. If it is untenable, its liability is absolute. In Mayes v. Knights & Ladies of Security, 92 Kan. 841, 142 Pac. 290, it was said:
“Where a beneficiary association places its rejection of the claim of a beneficiary upon the distinct ground of forfeiture for failure to pay the dues of a certain month within the time prescribed by the bylaws, it thereby waives any defense it may have arising out of the failure to pay at the proper times the dues of two preceding months, such payments having been received and credited out of time, by the proper officer of the local council.” (Syl.)
In Lucas v. American Yeomen, 105 Kan. 700, 185 Pac. 901, it was held:
“Where, prior to being sued upon a certificate of fraternal insurance, a beneficiary association denies liability and places its refusal to pay solely upon the ground of accord and satisfaction, it thereby waives other defenses, including a failure to demand arbitration.” (Syl. f 1.)
See, also, Mohr v. Women’s Benefit Ass’n, 131 Kan. 132, 289 Pac. 476.
What significance should be given to defendant’s general language denying liability in its correspondence with plaintiffs and with their attorneys, which was to the effect that not only did defendant decline to pay because Lashbrook was delinquent in the payment of dues and assessments for December, 1932, but also that it “does not waive any other defense which it might have against the payment of this certificate”?
We think that that language did not strengthen defendant’s position in the slightest degree. It had chosen its specific ground of defense against liability. Defendant could not be permitted to mystify the plaintiffs by hinting at some other possible defenses it might have “up its sleeve,” which it was holding in reserve until the exigencies of the lawsuit should require their interposition.
The other matters urged in defendant's behalf have been carefully considered, but they are not of sufficient importance to disturb the judgment, and would not justify present discussion.
The judgment is affirmed.
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The opinion of the court was delivered by
Allen, J.:
This was an action to compel the removal of an obstruction to a state highway in Wyandotte county. From a judgment in favor of plaintiff, defendants bring this appeal.
The land in question lies im'mediately north of and abuts on Reidy road, now designated as a part of state highway No. 30, and runs 40 rods east and west and 32 rods north and south.
In 1925 the board of commissioners of Wyandotte county undertook to widen and improve Reidy road. This road runs east and west, and was originally 60 feet in width — 30 feet on each side of the section line. To acquire the additional land for this improvement, formal condemnation was not asked by the county but the affected landowners were allowed to file claims for the land appropriated and damage suffered. Mike Puskarich, the owner of premises now in dispute, filed a claim wherein lie asked for damages for the widening of Reidy road, and stated the tract was about 47% feet wide and forty rods long east and west, that the value of the land taken was and is $1,000, that the value of building thereon and appropriated by said board of county commissioners is $10,500, that the damage to the land left is $1,000, that there were trees on said strip of ground thus taken of the value of about $400 or a total damage to Mike Puskarich of $12,900. The claim was duly verified.
Thereafter, Puskarich filed a suit against the board of county commissioners, the petition containing the same recitals as the claim. On March 11, 1928, judgment was entered for Puskarich in the sum of $3,495.
The petition in the present action sets up the foregoing facts; alleges the payment to Puskarich of the sum of $3,495 “was a clear intention to dedicate the additional 47% feet across his tract to public use, in addition to the 30-foot highway previously existing,” and that the public accepted and has used the additional width since as a public highway; alleges the adoption and designation of Reidy road as state highway No. 30; that defendants maintain a large brick building 60 by 40 feet in size which encroaches a distance of 56 feet upon the highway; that the maintenance of this structure is an unlawful appropriation of public property for private use, interferes with the public use of the highway, constitutes a nuisance, and asks that defendant be compelled to remove the same.
The referee appointed by the court to hear and determine the cause, Hon. Arthur J. Stanley, Sr., returned findings of fact and conclusions of law. The referee found that Reidy road in Wyandotte county, Kansas, on and prior to 1920 was a regularly established public road, extending eastward and westward, and dedicated to a width of sixty feet, thirty feet thereof being on the south side of the section line bounding the Puskarich property, described in admission number two, and thirty feet on the north side of the section line, being the south boundary line of the above-described tract, throughout its full length east and west. In 1925, beginning in August of that year and continuing thereafter until about December [September] the board of county commissioners of Wyandotte county, Kansas, graded the Reidy road along the south side of the Puskarich property and cut the grade thereof at about the center of the south line of the property, nine feet from what it had been prior thereto, and thereafter the roadway was paved, the paving being about the center of the sixty-foot road and completed in September [December], 1925.
In his conclusions the referee found that, “The petition in cause No. 31315-A, entitled ‘Mike Puskarich v. Board of County Commissioners of Wyandotte County, Kansas,’ should be construed an action ex contractu, on the implied contract that the defendant would pay value for the property appropriated for public use. (Smith v. McCarthy, 39 Kan. 308; The Railway Co. v. Hutchings, 78 Kan. 758, 1. c. 672-673; Delaney v. Implement Co., 79 Kan. 126; Douglas v. Loftus, Adm’x, 85 Kan. 720; Isham v. Montgomery County Comm’rs, 126 Kan. 6).”
That in the settlement and judgment of that case the county of Wyandotte acquired the fee title to the 47%-foot strip of ground in question and that such title was acquired for highway purposes, and recommended that “a judgment of the court be entered ousting and ejecting said defendants and all of them from the use and occupancy of that portion of Kansas State Highway No. 30 which is a strip 47% feet in width immediately north and adjoining the original sixty-foot right of way of Reidy road, over and along the south side of the real estate of defendant Puskarich.”
' The report of the referee was adopted as the judgment of the court.
Appellant contends the judgment of the court, based on the conclusion of the referee, is erroneous for the reasons (1) that the action of Puskarich against the board of county commissioners was not a quasi contract action for the value of land appropriated for highway purposes, but a mere tort action for damages to his property, and (2) that permanent appropriation is a prerequisite to an action of an implied contract for the value of the land, and that there was no permanent appropriation of appellant’s land as shown by such proceedings.
It is the settled law in this state that where a corporation, having the power of eminent domain, enters upon and appropriates the land of any person for public purposes, without having acquired the title thereto by formal condemnation or otherwise, the landowner may waive formal condemnation and may sue upon an implied contract for the value of the property taken. In Cohen v. St. L., Ft. S. & W. Rid. Co., 34 Kan. 158, 8 Pac. 138, the rule was formulated as follows:
“Where a railroad company has constructed and is operating its railroad through a piece of land belonging to another, without having obtained a right of way by any formal condemnation proceedings, and without having procured any title to the land, over which it. operates its railroad or any easement therein, the owner of the land may waive formal condemnation proceedings and all formal modes of transfer, and elect to regard the action of the railroad company as taking the property under the right of eminent domain, and may commence an ordinary action to recover compensation for all the damages which he has sustained by reason of the permanent taking and appropriation of the right of way by the railroad company.” (Syl. ¶ 1.)
See, also, Railroad Co. v. Yount, 67 Kan. 396, 73 Pac. 63; K. C. & S. W. Rly. Co. v. Fisher, 53 Kan. 512, 36 Pac. 1004; Hubbard v. Power, 89 Kan. 446, 131 Pac. 1182.
The nature of a cause of action, whether it sounds in tort or implied contract, is to be determined from the allegations of the petition. In case of doubt the words appropriate to an action in tort will be disregarded, and the action will be construed as one on quasi contract. (Railway Co. v. Hutchings, 78 Kan. 758, 99 Pac. 230; Webb v. Crawford County Comm’rs, 127 Kan. 547, 274 Pac. 249.)
In the case of Silver v. Clay County, 76 Kan. 228, 91 Pac. 55, it was said:
“Counties are involuntary quasi-corporations and are mere auxiliaries to the state government and partake of the state’s immunity from liability. They are in no sense business corporations.
“A county is not liable in damages for the negligent or wrongful acts of its board of county commissioners, unless such liability is expressly imposed by statute or necessarily implied therefrom.” (Syl. ¶¶ 1, 2.)
See, also, Isham v. Montgomery County Comm’rs, 126 Kan. 6, 266 Pac. 655.
Under these authorities, to construe the action to be one in tort would challenge the validity of the judgment.
We are clear the action was on the implied contract for the value of the land appropriated, and that the payment of the money and satisfaction of the judgment operated to pass the title to the county for the public use, and that such right or title is now vested in the state highway commission. The nature of the title which passes upon the satisfaction of the judgment in such proceedings is stated in 20 C. J.:
“The general rules in regard to the effect, with respect to the title of the property involved, of a judgment in condemnation proceedings apply also where the action or proceeding is one which is considered as a substitute for condemnation proceedings. Thus in actions for the recovery of the value of the land taken, and in actions for damages where the past, present, and future damages are recoverable, a satisfied judgment operates to transfer such title or proprietary right as defendant is entitled to.” (p. 1216.)
See, also, Restatement, Restitution, § 129, b; United States v. Great Falls Mfg. Co., 112 U. S. 645, 5 S. Ct. 306, 28 L. Ed. 846; Cohen v. St. L., Ft. S. & W. Rld. Co., 34 Kan. 158, 8 Pac. 138.
The contention is made that permanent appropriation is a prerequisite to an action on an implied contract for the value of the land, and appellant insists no such appropriation was made in the proceedings above mentioned. In support of this view Cohen v. St. L., Ft. S. & W. Rld. Co. is quoted wherein it is stated the landowner may -recover compensation for all damages he has sustained “by reason of the permanent taking and appropriation of the right of way of the railroad company.”
In the Cohen case it was determined that “where a railroad grade has been constructed and afterward abandoned, it becomes the property of the owner of the land through which it is constructed.” And in Abercrombie v. Simmons, 71 Kan. 538, 81 Pac. 208, it was held that where land was conveyed to a railroad company for a right of way, and the use was abandoned, the title would revert to the adjoining owners. In other words, as we there held, where a right of way is acquired by condemnation or by a conveyance, the title acquired is not a fee simple absolute, but a fee simple determinable, and limited by the use for which the land is acquired. Compare Restatement, Property, section 44. Under G. S. 1935, 68-413, the state highway commission in the name of the state may acquire by purchase, donation or dedication, or by condemnation; when necessary may convey the same, and when vacated the same will revert. While the title so acquired is not a fee simple absolute it is an appropriation sufficient to support an action on the implied contract for the value.
We conclude the state highway commission has title to the land in question; that the building of the defendants is an unlawful encroachment thereon, and that the judgment of the trial court directing the removal of the same should be affirmed. It is so ordered.
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The opinion of the court was delivered by
Webell, J.:
This was an action on a promissory note. Judgment went for plaintiff, and the defendant has appealed.
Appellee urges the appeal should be dismissed. The court permitted oral arguments on the merits after appellant had amended his abstract to include specifications of error. It gave appellee additional time to file a counter abstract and brief. The latter has been filed. No motion for a new trial was filed by appellant, but the opinion will disclose facts showing no motion for a new trial was necessary. We shall therefore decide the case on its merits. .
The only issue involved is whether the action was hatred. That depends upon whether a certain credit placed upon the note by the owner and holder thereof, together with circumstances and facts to be hereafter narrated, tolled the statute of limitations. The note bore the date of March 1, 1928, and was due March 1, 1930. It contained certain credits which are not disputed. The credit entry endorsed by the holder of the note and here involved was the last one, which reads: “October 1, 1932, paid on int. and principal by credit of acct., $60.10.”
Defendant’s answer denied he had made such partial payment, alleged such credit was endorsed upon the note without his knowledge or consent, and denied the entry by plaintiff constituted a partial payment upon the note. The answer further asserted the claim was barred by the statute of limitations. Plaintiff filed a reply alleging facts designed to constitute ratification of the credit entry, and further alleged such facts constituted an estoppel to the defense pleaded.
A general verdict was rendered for the defendant. Special questions covering the issues of fact thus joined were submitted to the jury. The special verdict was as follows:
“1. Were the defendant, Melvin H. Goff, and one Max Wiedemann in partnership on or about October 1, 1932, and did they have an account, at that time, for $80.10 against the plaintiff, M. A. Gorrill, for repairs (parts) and labor upon his automobile? A. Yes.
“2. If you answered question No. 1 in the affirmative, was a statement of this account presented by Max Wiedemann on or about October 1, 1932, to Mr. Gorrill for payment? A. Yes.
“3. Was there on or shortly after October 1, 1932, an entry made on the partnership books of Wiedemann and Goff, of a charge to the defendant, Melvin H. Goff, of $60.10, for credit by plaintiff, Gorrill, on his note against Gofi? A. No.
“4. Did the defendant, Melvin H. Goff, know on October 1, 1932, or immediately thereafter that the bill of Wiedemann and Goff had been presented, and that the plaintiff had given credit on his note for the sum of $60.10 and paid $20 by check to the partnership of Wiedemann and Goff? A. Only by Wiedemann’s statement.
“5. Did the defendant, Melvin H. Goff, at any time or times go to the office of M. A. Gorrill and examine said note with the said credit of $60.10 endorsed thereon and ascertain the balance due on said note after the application of said credit and state to the said M. A. Gorrill that, ‘I guess it is all right’? A. No evidence that note was examined by Goff.
“6. Did the defendant, Melvin H. Goff, at any time or in any of the conversations had between him and the said plaintiff, M. A. Gorrill, raise any objection or make any protest against the endorsement of said credit upon said note? A.No.
“7. Did the said M. A. Gorrill, at any time prior to the filing of this action, have any knowledge or notice communicated to him, by word or action, of the said Melvin H. Goff, that the said Melvin H. Goff did not acquiesce in or approve of the making of said credit on said note? A. No.
“8. Was the conduct of the said Melvin H. Goff from October 1, 1932, up to the time of filing this suit, such as to cause any ordinary person to believe that he acquiesced in and approved the application of said credit upon said note? A. No.
“9. Did Goff know of the fact that Gorrill had placed a credit of $60.10 on the note? A. Only by Wiedemann’s statement.
“10. If you answer question No. 9 ‘yes,’ then did Goff later ratify such credit by word or act? A. No.
“11. If you answer question No. 10 ‘yes,’ then state what Goff did to ratify such credit. A.-.” (Italics inserted.)
Appellee filed a motion to set aside the general verdict and for judgment in his favor upon the special verdict. He also filed a motion for a new trial. The former motion was sustained and the latter motion overruled. In order that the reader may have a clear understanding of exactly what the pertinent portion of the journal entry contained, we quote the following:
“And the court, after considering all of the evidence and being fully advised in the premises, finds that the motion of the plaintiff to set aside the general verdict in this cause, heretofore rendered by the jury, and to render judgment for the plaintiff upon the special verdict heretofore rendered by the jury should be sustained and that the plaintiff is entitled upon the evidence and said special verdict to a judgment as prayed for and that the motion of the plaintiff for a new trial should be overruled.
“It is, therefore, ordered, adjudged and decreed by the court that the general verdict heretofore rendered by the jury in this cause be and the same is hereby set aside and held for naught, and that upon the special verdict the plaintiff have and recover a judgment against the defendant, . . .”
Appellant’s first specification of error is, the trial court erred in rendered judgment for the plaintiff (appellee) upon the record. The second specification of error is, the trial court erred in overruling the defendant’s (appellant’s) motion for judgment upon the special questions and general verdict. The journal entry does not recite the latter motion. It may have been made orally. The record does not disclose. That such motion was made, appellee does not deny, its brief being silent in that regard.
We shall now discuss the first specifications of error, namely, that the trial court erred in rendering judgment for the plaintiff upon the record. The fact-finding portion of the journal entry is confusing in this regard. It will be observed it first finds plaintiff’s motion to set aside the general verdict and to render judgment for plaintiff upon the special verdict should be sustained. It then follows with the statement, “The plaintiff is entitled upon the evidence and said special verdict to a judgment as prayed for.” (Italics inserted.) In the judgment portion of the journal entry, the general verdict is set aside and judgment is rendered in favor of the plaintiff upon the special verdict alone.
It is appellant’s contention that in view of the fact the special verdict expressly covered the pertinent issues of fact, the general verdict must stand unless the special verdict compels it to fall. He urges the special verdict does not have that effect and that it is in harmony with the general verdict. He contends specific issues of fact were clearly joined by the pleadings and that it was the province of the jury to determine those facts. He urges the jury did determine each of the salient facts relative to both the original right of the plaintiff to credit the payment on the note and whether defendant subsequently ratified such payment. He insists those questions of fact, and especially the question of ratification of the credit, which is the real issue, were definitely submitted to the jury, under instructions not complained of, and were determined in his favor upon a sharp conflict of evidence. He therefore insists he is entitled to judgment on both the special and the general verdicts.
Let us turn to the special verdict. The majority of the court are of the opinion the general verdict was properly set aside for the reason tlie special verdict discloses defendant’s ratification of the credit endorsement. The following are the views of the majority, as the writer understands them, relative to the effect of the special findings.
The answers to questions numbers four and nine are each tantamount to the answer "yes.”' The answers actually made pertain to the method by which defendant discovered that plaintiff had endorsed the credit, and carry with them affirmative answers to those questions. Answer number five is interpreted as an affirmative answer to all parts of question number five, except the portion of that question which pertains to the examination of the note by the defendant after the credit had been endorsed thereon. In other words, it is the opinion of the court that answer number five, combined with the real answers, namely, the answers “yes,” to questions numbers four and nine, means that the defendant knew plaintiff had made the endorsement of the Credit and ratified it. Answers numbers six and seven indicate the defendant made no objection or protest to the credit, and that plaintiff at no time prior to-the suit had any knowledge or notice communicated to him by the defendant that he did not acquiesce in or approve the credit endorsement. Finding number eight is somewhat in the nature of a conclusion and should not be construed as vitiating the effect of the other findings. Finding number ten is inconsistent with the interpretation previously given to finding number five and other pertinent findings. The court, therefore, holds the special verdict discloses ratification of the credit endorsement. G. S. 1935, 60-312, provides:
“In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability,, debt or claim, or any promise to pay the same, shall have been made, an action may be brought in such case within the period 'prescribed for the same,, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.”
From this statute it is apparent three things may toll the statute of limitations. One is a payment. The others are acknowledgment of the debt in writing or a promise in writing to pay the debt, each signed by the party to be charged thereby. A payment obviously may be made otherwise than in writing. A payment, like any other act, may be ratified. The court having interpreted the special verdict as disclosing an express ratification by the defendant, no treatment of the subject of an implied ratification is necessary. Appellant relies upon the following cases: Good v. Ehrlich, 67 Kan. 94, 72 Pac. 545; Shanks v. Louthan, 79 Kan. 363, 99 Pac. 613; Elmore v. Fanning, 85 Kan. 501, 117 Pac. 1019; Wichita Sanitarium v. Bierschbach, 136 Kan. 84, 12 P. 2d 806; Pessemier v. Zeller, 144 Kan. 726, 62 P. 2d 882; First Nat’l Bank v. Signs, 146 Kan. 801, 73 P. 2d 1109. A careful analysis of these cases will disclose they pertain to the question of original authority to make the credit endorsement, or to cases where the debtor had knowledge of the credit endorsement, and did not expressly ratify the endorsement, but simply failed to object to or make protest against such endorsement, and to cases which pertain to the provisions of G. S. 1935, 60-312, which relate to the acknowledgment of the debt or a promise to pay the debt.
In view of the court’s interpretation of the special verdict all that need be determined in the instant case is that a payment may be approved by an express oral ratification. In other words, the court holds that ratification of a payment is.not that kind of acknowledgment of the debt which, under G. S. 1935, 60-312, must be in writing.
Appellant stresses statements from cases such as the statement contained in Elmore v. Fanning, which was:
“A payment, to toll the statute, must be made under such circumstances as to amount to an acknowledgment of an existing liability. (Shanks v. Louthan, 79 Kan. 363, 99 Pac. 613.)” (p. 504.)
That is a correct statement of the law. When, however, a credit endorsement on a note, not originally authorized to be made by the maker, is nevertheless ratified by the maker, it becomes as binding on him as though he had made'the original payment under circumstances amounting to an acknowledgment of the debt. The reason payment tolls the statute is that payment is an acknowledgment of an existing debt and an implied promise to pay the remainder. (Good v. Ehrlich, supra; Pessemier v. Zeller, supra, p. 729.) In most jurisdictions payment is regarded as the best of all acknowledgments. (37 C. J. 1142.) Under G. S. 1935, 60-312, the particular form of acknowledgment, known as payment, is not required to be in writing. The reason is obvious. Payment is an executed acknowledgment and speaks for itself. It requires no writing to establish it.
Appellee directs our attention to the fact defendant permitted the automobile repair account to outlaw without presenting it to plaintiff for payment. He urges that fact showed ratification of the credit endorsement on the note. Such fact did not constitute ratification as a matter of law. Defendant testified and the jury found that the credit of $60.10 was not charged against the defendant on the partnership books. Defendant testified in substance that when the partnership settlement was made it was made without reference to outstanding accounts. Under these circumstances we cannot say, nor could the trial court have said, plaintiff’s account with the partnership became the personal property of the defendant so as to permit defendant to enforce it, in his individual capacity, against the plaintiff. The fact it was not presented to plaintiff for payment was, however, a proper circumstance for the consideration of the jury on the question of ratification, under proper instructions. Appellee does not contend the instructions did not touch that feature of the case, or that the instructions for any reason were inadequate to cover it. The effect of defendant’s failure to present that account is therefore merged in the special findings on the subject of ratification, and also in the general verdict. Appellee does not contend the special findings did not cover the entire record. In fact, he moved for judgment on them alone, and this court is approving the judgment on the strength of those findings. It follows the judgment must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Harvey, J.:
This was an action by affected taxpayers to enjoin . the city from repaving Minnesota avenue from Ninth street to Eighteenth street, and to enjoin the levy of special assessments and the issuing of tax bills and general obligation bonds of the city to pay the cost thereof. The trial court sustained demurrers by defendants to the second amended petition, and plaintiffs have appealed.
In ruling on the demurrers the trial court held that the action was not brought in time, and that the petition as amended did not state a cause of action. In making the improvements the city proceeded under G. S. 1935, 13-1092, which, among other things, provides:
“No suit to question the validity of the proceedings of the governing body of such city shall be commenced after thirty (30) days from the date of awarding the contract for said improvements as provided for in this act.”
The contract was let August 12, 1937, and the petition was filed September 11, 1937. If the day on which the contract was awarded is to be counted the action was filed one day too late. We have examined the cases cited by counsel on this point (Kansas City v. Gibson, 66 Kan. 501, 72 Pac. 222; Hoffmeyer v. Reed, 88 Kan. 363, 128 Pac. 383; Barker v. Kansas City, 146 Kan. 347, 361, 70 P. 2d 5, and cases cited therein), and without analyzing each of them separately we think the correct rule is stated in State v. Sessions, 84 Kan. 856, 115 Pac. 641, at page 858, as follows:
“The rule for the computation of time in certain cases, as announced by this court, is that when the computation is to be made from an act done, or from the time of an act, the day on which the act is done is to be included, but when the computation is from a date or the day of a date the day of the date is excluded.”
It will be observed that the statute above quoted does not fix the time from the awarding of the contract, but “from the date of awarding the contract.” In other words, the computation is to be made from the date the contract is awarded, rather than from the act of awarding of the contract. With this construction the date the contract was awarded should be excluded, and the action was brought in time.
We pass to the question whether the petition, as amended, stated a cause of action. Broadly speaking, plaintiffs attempted to allege two grounds for the invalidity of the action of the city. First, that the pavement was in good repair and did not need improving. That was a matter for the governing body of the city to pass upon, and their action, unless induced by fraud, or unless it was arbitrary or capricious, cannot be inquired into by a court. The original petition attempted to allege arbitrary or capricious action by the governing body of the city, but these allegations were stricken out on motion of defendants as being conclusions and not allegations of fact. No complaint is made of that ruling. The latest amended petition contained general allegations of that character, but there is no contention on this appeal that they are any better than the ones stricken out of the original petition. Indeed, they are nothing more than conclusions of the pleader.
The second ground, and the one chiefly relied upon by plaintiffs, was that the city had outstanding bonds, which were general obligations of the city, in an amount in excess of the sum it was authorized to issue, and that the improvements sought to be enjoined required the city to issue an additional $45,000 of general obligation bonds, and it was alleged that it had no authority to do so. On motion of the defendant city, plaintiffs were required to set up as a part of their petition the list of the general obligation bonds of the city. The list on its face aggregated a sum in excess of the amount of general obligation bonds it was alleged the city was authorized to issue. The list of the bonds set out by plaintiffs described them in such a way that it could be determined — and was in fact determined — by the trial court that there were duplications in the list in a substantial amount. Making the proper deductions because of such duplications disclosed on the face of the petition as amended that the amount of the bonds to be issued by the city for this improvement would make the total amount of general obligation bonds of the city within the limit which plaintiffs alleged it was authorized to issue. In the argument in this court counsel for appellants did not contend that this conclusion was erroneous, but argued that it was a matter of defense and should not have been ruled upon by the court in passing upon the demurrer. The point is not well taken. The result is, the court correctly held that the petition as amended did not state a cause of action.
Some other points are argued, but it will not be necessary to discuss them.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
The question in this appeal is the effect of an ante-nuptial contract on a previously executed will.
In contemplation of marriage subsequently performed between them, Buckner W. Dunsworth and Lucy Meyers entered into an antenuptial contract dated April 4, 1929. Buckner W. Dunsworth had made a will dated November 10, 1902, which had never been revoked unless by the antenuptial contract, and on his death in June, 1936, it was duly admitted to probate. Lucy Meyers Duns-worth died in June, 1937, and her will, not here material, was admitted to probate.
Some of those persons who would have been heirs of B. W. Duns-worth filed their action against others of the same class and against the heirs of Lucy B. Dunsworth (same as Lucy Meyers Dunsworth) and the administrator with the will annexed of her estate, setting up the relationship of the parties, the will of B. W. Dunsworth, the antenuptial contract, and alleging that the contract revoked the will. They sought to have the probate of the will set aside and the property of B. W. Dunsworth partitioned among those persons who would have been heirs had he never married Lucy Meyers. The answer and cross petitions of those defendants who were children and . grandchildren of B. W. Dunsworth prayed for like relief. The answer of those defendants who were heirs of Lucy B. Dunsworth contained a general denial, a general demurrer, and prayed generally that the will be decreed unrevoked and in full force, etc.
At the trial the facts were stipulated. Our summary is based on the stipulation. Some of the facts are stated above. On November 10, 1902, B. W. Dunsworth, in connection with a Masonic Lodge ceremony, made a will under which his estate was to be divided among his legal heirs according to the laws of Kansas. Lucy Meyers was married to B. W. Dunsworth on April 4, 1929, and was his fifth wife. His last previous wife had died in 1925. At the time of the last marriage he was 78 years old and his wife was 64. Both had children by previous marriages, and there was no issue of their marriage. Just prior to the marriage, they executed an antenuptial contract. At that time B. W. Dunsworth owned the property mentioned in the contract. Mrs. Dunsworth owned some real estate which she later lost as the result of a foreclosure. No property was thereafter acquired as the result of their joint efforts. The contract contained three preliminary paragraphs stating the intended marriage, the desire of each party to provide for disposition of his or her separate property, and listed in detail the real estate owned by B. W. Dunsworth and that he had personal property of the aggregate value of $6,500 and that Mrs. Dunsworth had an undivided interest in some described real estate. After stating that each party was fully informed as to the property of the other, and with full knowledge of the rights of each under the laws of Kansas, the parties agreed that “each of them be and continue completely independent of the other as regards the enjoyment and disposal of his or her property owned by him or her at the commencement of the marriage” and that such property should remain his or her separate property, etc., “in the same manner as if the said proposed marriage had never been solemnized.”
Another paragraph read as follows:
“And it is the intention of the parties hereto to mutually release and waive all the benefit of the laws of the state of Kansas, or any other state, relating to husband and wife, dower, homestead or other statutory provision as affects said property, and forever bar each other, respectively, from any action to recover any interest in the property of the other by reason of said marriage.”
■ The parties further agreed with each other that upon the death of either, the other would not assert any claim, interest, estate or title under the laws of any state in and to the property of the deceased party and relinquished to the—
“Legatees, devisees, heirs, administrators, executors, trustees and assigns of such deceased party any and all of his or her claim, distributive share, interest, estate or title that he or she would be entitled to as a surviving husband or wife, respectively, except as hereinafter specified,” etc.
and agreed to make all requisite deeds, etc., to make effective the agreements—
“And in ease of separation or divorce, neither will assert or claim any right, title or interest in the property of the other owned at the date of said marriage.”
Each party was given the right to sell and dispose of his or her property, the other agreeing to join in any conveyance, and “either party hereto shall have the right to dispose of, by will, any or all of his or her separate property owned by him or her at the time of the marriage, to whomsoever he or she may desire, and consent to the same is hereby expressly given by the other party hereto.”
Following the above quotation is a statement that the instrument is intended to reserve to each party all property owned by him or her separately and that neither shall have any right or interest in the property of the other nor in the income thereof, “except as hereinafter specified, nor shall the heirs of one party have any interest in said separate property of the other party.” It is then stated that on account of their age, the parties do not expect to acquire any additional property, except income from presently owned property, but if any is acquired, it shall belong to both and each shall have an undivided one-half interest in the same. And finally, it was agreed that if the parties continued to live together as husband and wife until the death of B. W. Dunsworth, then and in that event Lucy should receive the sum of $1,000 in cash after his death; he agreed after the marriage to convey to her certain described real estate, and that there should be paid to her out of his estate the sum of $50 per month for the time they lived together as husband and wife. This contract was duly executed and acknowledged by the parties and it was also witnessed by two witnesses.
In November, 1931, the parties executed a document headed “Supplemental Contract,” which recited execution of the contract of April 4, 1929, in which they had attempted to define and state their legal obligations to each other and that they had married, but that it was claimed by B. W. Dunsworth that a part of the contract was not according to their original agreement; that it was their desire to live together peaceably and carry out the intent of the contract and after consultation by B. W. Dunsworth with his attorney and Lucy Meyers Dunsworth with her attorney, and after careful consideration and full understanding by all parties, it was agreed the contract of April 4, 1929, be corrected and amended as follows:
“The fourth paragraph on the last page thereof being the paragraph providing for a sum of money calculated per-month to be paid to the said Lucy Meyers Dunsworth by the said Buckner W. Dunsworth shall be changed to read as follows:
“ ‘On the death of the said Buckner W. Dunsworth, if he shall die first there shall be paid unto the party of the second part out of the estate a sum of money equal to $25 per month for the time the parties live together as husband and wife, said sum to be paid as soon as convenient after the death of the party of the first part. If the said Lucy Meyers Dunsworth shall die before the said Buckner W. Dunsworth, then on her death said sum of $25 per month as specified above, shall be paid to her estate, it being understood, however, that the payment of the $1,000 mentioned above and the transfer of the property above described is contingent on the said Lucy Meyers Duns-worth outliving the said Buckner Dunsworth.’
“It is agreed and understood that each and every one of the other conditions and covenants of said agreement shall be and remain as they now are and this shall be an amendment to the same, only so far as specified herein.”
This supplemental contract was duly executed and acknowledged and also bore the signature of two witnesses. It was stipulated that at the time the supplemental contract was executed, B. W. Duns-worth executed a deed to his wife for the real estate described in the original contract, and delivered it to the Citizens Bank in Hutchinson in an envelope, endorsed:
“This deed is to be delivered to Lucy Meyers Dunsworth on the death of Buckner W. Dunsworth. In case of the death of Lucy Meyers Dunsworth before that of Buckner W. Dunsworth, then the deed is to be delivered to Buckner W. Dunsworth. (Signed) B. W. Dunsworth.
(Signed) Luct Meters Dunsworth.”
The Citizens Bank was closed and the deed was transferred to a successor bank, which is now in possession.
It was also stipulated that the various documents were duly executed, witnessed, etc., and that the will, antenuptial contract, supplemental contract and instructions for the delivery of the deed were not revoked, annulled or canceled during the lifetime of B. W. Dunsworth except as the effect of any of said instruments may have accomplished that result.
The trial court held that the antenuptial contract revoked the will and that its admission to probate should be set aside; that the antenuptial contract, as modified by the supplemental contract, should stand; that the deed in escrow should be delivered to the heirs and devisees of Lucy Dunsworth and that her estate was entitled to recover from the B. W. Dunsworth estate the sum of $1,000, and a further sum representing the $25 per month payments under the supplemental contract subject to a payment on account made. Its judgment for partition of all real property of B. W. Dunsworth, not including that in the deed to Lucy, need not be specifically noticed.
Those persons claiming under Lucy B. Dunsworth and the administrator with the will annexed of her estate appeal. The general effect of the assignments of error is that the trial court erred in holding the will of B. W. Dunsworth was revoked by the subsequent antenuptial contract, and in holding that the supplemental contract was legally sufficient.
A determination of this appeal compels consideration of a number of matters. It was early held in this state, and subsequently restated, that contracts, either made before or after marriage, the purpose of which was to settle property rights between the husband and wife, were to be liberally interpreted to carry out the intention of the persons making them. For such contracts to be upheld, it must appear they were fairly and understanding^ made, were just and equitable in their provisions, and that there was no fraud or overreaching, but where the contract withstood such test, it was binding and enforceable. Among our cases discussing such contracts are the following: Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537; Matney v. Linn, 59 Kan. 613, 54 Pac. 668; King v. Mollohan, 61 Kan. 683, 60 Pac. 731, 61 Pac. 685; Casey v. Casey, 84 Kan. 380, 113 Pac. 1047; Henry v. Butler, 87 Kan. 122, 123 Pac. 742; Gordon v. Munn, 87 Kan. 624, 125 Pac. 1; Id., 88 Kan. 72, 127 Pac. 764; Watson v. Watson, 104 Kan. 578, 180 Pac. 242, 182 Pac. 643; Keller v. Keller, 121 Kan. 520, 247 Pac. 433, 49 A. L. R. 113; Pattison v. Pattison, 129 Kan. 558, 283 Pac. 483. In the case before us, it is not contended that the contract was not fairly and understanding^ made. We shall hereafter mention the specific complaints made with reference to the contract, but waiving them for the moment, it may be said an examination of the contract shows that it provided a just and equitable settlement of property rights.
Appellants contend that the antenuptial contract offends against public policy and is unenforceable in that it invites and encourages a separation of the parties and in effect is not conducive to a continuation of the marriage contemplated by the contract. In support they cite Neddo v. Neddo, 56 Kan. 507, 44 Pac. 1. An examination of that case shows the question arose in a suit for divorce and involved a contract materially different from the one now before us. There the contract, set out in full in our reports, made no provision for property rights except in case of separation or divorce, and made no provision as to property rights otherwise save the right to make a will. In the contract before us, it is true that there is a provision that in event of separation or divorce, neither party should make claim to the property of the other, but that provision is consistent with all other provisions of the contract. The provision in the contract before us is an incident to the whole and not the main purpose of the contract. Nor do we have before us a question of rights arising because of separation or divorce. The contract is fully executed and those questions are now immaterial. It would seem that under Sanger v. Sanger, 132 Kan. 596, 296 Pac. 355, appellants cannot here contend the contract is unenforceable.
Appellants also contend that the so-called supplemental contract is not valid, as there was no consideration for it, and therefore, assuming the first contract to be valid, it must stand unchanged. This affects the amount due from the B. W. Dunsworth estate. We do not so construe the supplemental agreement. As we construe it, it means no more than that there was a question as to the first contract’s accurately expressing the agreements of the parties before it was executed, and upon due consideration, both parties agreeing, it was amended by the supplemental contract so as to speak the truth.
The principal question raised by the appeal is whether the effect of the execution of the antenuptial contract was to revoke the previously executed will. Whether this resulted requires consideration of our statute on wills and a review of some of our decisions with reference to revocation. It may first be observed there is no question that the will was executed in a formal manner and was not revoked unless by reason of the antenuptial contract, and as to that contract that it was witnessed in the same manner necessary to the formal execution of a will.
For our purposes, our statute with reference to revocation of a will (G. S. 1935, 22-241) was made as follows:
“A will shall be revoked by the testator tearing . . . with the intention of revoking it . . . or by some other will or codicil in writing executed as prescribed by this act, or by some other writing signed, attested and subscribed in the manner provided by this act for the making of a will . . .”
Appellants direct our attention to Caeman v. Van Harke, 33 Kan. 333, 6 Pac. 620, in which an effort was made to set aside probate of a will for the asserted reason it was revoked by a later will which had been destroyed. It was held that:
“To maintain the issue in such an action, it is incumbent upon the plaintiff to show that the later will, or revoking instrument, was signed, attested and subscribed with all the solemnity and formality prescribed by the statute for the making of a will.” (Syl. ¶2.)
And in Hill v. Kennedy, 134 Kan. 560, 7 P. 2d 88, a quite similar case, a like holding was made. The case before us, however, does not involve a second will, but a contract which appellees contend -was “some other writing signed, attested and subscribed in the manner provided by this act for the making of a will.”
There is no contention here as to the execution of the contract being sufficient under the above statute, but rather the question is whether it was legally sufficient in its terms to constitute a revocation. The contract contained no specific revocation. Doubtless if it had, there would have been no controversy. What must “some other writing” contain to effect a revocation? In Derr v. Derr, 123 Kan. 681, 256 Pac. 800, the testator had made a will. Later he became dissatisfied and executed another will making disposition more favorable to the children of one son than to the children of another whose mother had displeased him. Some months later he became in need of hospital treatment and refused to go until he could destroy the second will. Not being able to get possession of the second will, he signed an instrument in writing to the effect: “I wish my first will to be in effect this date.” It was duly witnessed. In disposing of a contention that this instrument did not have the effect of revoking the second will, this court said:
“It was suggested in the briefs in this court that the trial court was of the view that the instrument of October 26, 1925, did not have the effect of revoking the will of May 19, 1925, because it did not specifically state that the same was revoked. The words used are not so important. The real test is whether the words used are inconsistent with the continued vitality or validity of the will of May 19, 1925. A will may be revoked either expressly or by implication. If a later instrument makes a disposition of property inconsistent with the terms of a will, or uses language from which it is clear that the intention of the testator was that such will should no longer continue to be a valid will, its necessary effect is to revoke such will, even though the word ‘revoke’ is not used.” (p. 685.)
The question of sufficiency of an instrument as revoking a will was also under consideration in Mann v. Haines, 146 Kan. 988, 73 P. 2d 1066, where it was claimed a will offered for probate had been revoked by a subsequently executed, but lost, will. In discussing methods of revocation and sufficiency of the revoking instrument, it was said:
“A will may consist of any number of instruments. (Derr v. Derr, 123 Kan. 681, 687, 256 Pac. 800.) G. S. 1935, 22-241, merely designates the various methods or manners in which a will may be revoked. One of them is by means of a subsequent will. Whether such later will in fact revokes a previous will depends upon its terms and provisions. In order for a will to work a revocation of a former will it must appear the latter revoked the former by express terms or that its provisions are so far inconsistent with the former as to make it impossible for the two instruments to stand together. To the extent they cannot stand together the latter, of course, operates as a revocation of the former, but not otherwise. These principles are not only firmly established in this jurisdiction, but almost universally. (Caeman v. Van Harke, 33 Kan. 333, 6 Pac. 620; Derr v. Derr, supra; Hill v. Kennedy, 134 Kan. 560, 7 P. 2d 88.) See lengthy annotation, 51 A. L. R. 652. In the absence of proof of subsequent revocation, the probated will must stand, as the legal presumption is it continued to exist until the death of the testator. (Caeman v. Van Harke and Hill v. Kennedy, supra.)” (p. 992.)
Under these decisions, the question is whether the provisions of the antenuptial contract are so inconsistent with the terms of the will that the two cannot stand together. If they are absolutely inconsistent, the will must be deemed revoked.
The will is simple in its terms, and had there been no antenuptial contract, under it all property of B. W. Dunsworth would have gone one half to his widow and the other half to his children, regardless of its location or character. Did the antenuptial contract make provision consistent or inconsistent with such a disposition? Insofar as each party is concerned, it is to be observed that he or she agreed not to assert any claim in the property of the other, relinquished to the heirs, devisees, etc., of the other any share he or she would be entitled to as surviving husband or wife, and each agreed to execute to the legatees, heirs, etc., of the other any necessary papers to make his agreement effective. Further, B. W. Dunsworth agreed to pay his intended wife the sum of $1,000 in cash, payable out of his estate at death, a further sum of $25 per month out of his estate as long as they lived together as man and wife if she survived him and if he survived her to pay her estate that amount, in addition to which he conveyed to her certain real estate. Although the method of conveyance was not strictly in accord with the contract, the net result was the same and she became absolute owner of this property. If the will be allowed to stand, the widow would get all the property coming to her by the contract and one half of the property possessed by B. W. Dunsworth at his death. Is the contract susceptible of that interpretation? It is suggested that the portion granted by the contract may be considered somewhat in the nature of an advancement and that the widow would be entitled to one half of all, but charged with what she had received. As we view the matter, to so hold would in effect require us to make a contract for the parties they did not make for themselves.
Our attention is also directed to the provision of the contract that either party had the right to dispose of his or her separate property by will, and that B. W. Dunsworth knew he had a will, and by not specifically revoking it, intended that it should stand. The contract is hardly susceptible of that interpretation. It does not refer to any will already in existence; there is no consent to the terms of any existing will; the language is that “either party shall have the right to dispose of by will,” which in the context of the paragraph of which it is a part and of the whole contract, seems more apt language to use with reference to a will to be made in the future than one then in existence. Had it been the intention to obtain consent of the prospective wife to an existing will, much more appropriate language would surely have been used. And this is especially true when it is borne in mind that the terms of the old will were such that her consent to it, had it been intended it should remain effective, would have been almost an idle gesture.
The contract, as we view it, clearly shows that it was intended that the property rights between the parties to it were fixed by its terms, and by its terms alone. For appellants to prevail, it would have to be said that B. W. Dunsworth intended that his prospective wife should, in event of his prior death, take not only what the contract provided, but under the terms of a will executed over a quarter of a century before, take in addition one half of his remaining estate. The repeated statements of the contract as to the interest of each in the property of the other are not in harmony with the terms of the will. If its probate be upheld, Mrs. Lucy Duns-worth, or her legatees or devisees under her will, as the case now is, would receive property which a mere reading of the contract shows it was never intended she should have.
We are of the opinion that the terms of the antenuptial contract, and the provisions for disposition of property therein, are so inconsistent with the terms of the will of B. W. Dunsworth that the will was revoked thereby, and that the judgment of the trial court to that effect was correct.
In the briefs there is argument and citation of authority on appellees’ contention that if the will was not wholly revoked by the antenuptial contract under G. S. 1935, 22-241, there was revocation under the provisions of G. S. 1935, 22-236 and 22-237. By reason of our conclusions as above stated, it is not necessary we discuss the latter contention nor refer to decisions bearing on it.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by '
Hutchison, J.:
This was an action for the value of land taken and damages to land remaining, arising out of the condemnation of certain lands for highway purposes, the land taken by condemnation proceedings being in addition to that originally purchased and conveyed when it was found more land was necessary for the construction and completion of the road.
The case has been twice tried to a jury. The judgment first, rendered was reversed on appeal to this court because the verdict was necessarily the result of passion and prejudice on the part of the jury, as decided and reported in 143 Kan. 470, 54 P. 2d 971. In that trial evidence was introduced over objection as to flood and other damage to the remainder of the land by reason of the construction of the highway. At the close of the introduction of the evidence of the plaintiffs the trial court struck out all such evidence and on the motion for new trial reduced the verdict by $1,431, and rendered judgment for the balance. On appeal the case was reversed and remanded for a new trial.
A new trial has been had which resulted in a verdict and judgment for plaintiffs for the sum of $4,750, of which amount $1,205.75, as shown by answers given by the jury to special questions, was for land taken, leaving a balance of $3,544.25 as damage to the land not taken. The appeal of the highway commission is from this judgment, claiming that the substantial rights of the highway commission were prejudiced by the admission of evidence of damages not flowing out of the condemnation or directly resulting therefrom. The appellant has in mind particularly the evidence of damage on account of obstructing ingress and egress of the farm.
On this last trial there was no evidence introduced as to damages to the remaining land by reason of floods and none by reason of the construction of the highway unless it was, as appellant contends, as to the matter of ingress and egress of the remaining land.
Appellees contend that this evidence as to ingress and egress was limited to the damage done the remaining land by the taking of the additional land being now and here condemned and not by reason of -the original land conveyed for a highway or the construction of the highway. This damage to ingress and egress and the existence and condition of the borrow pits are the only two elements of damages here involved.
The petition, described the land taken as two tracts, but the evidence shows that the east tract, which is on both sides of Grouse ■creek, was subdivided into four different tracts, three of them adjoining each other and the fourth slightly separated from the three, but all of them immediately north of the originally conveyed right of way of the highway in question and containing a total acreage of 5.37. One of these four tracts contained 4.44 acres, and on the southern end of this large tract was a borrow pit where about four feet of dirt was taken off about one and a half acres. The other tract described in the petition was east of Silver creek and adjoined the right of way on the north. It was 1,050 feet long, east and west, and 200 feet wide, and contained 4.83 acres. It was used only as a borrow pit and was said to be from four to ten feet deep. The total amount of land taken by this condemnation was 10.2 acres. The farm from which this additional land was taken by the highway commission was one and a half miles east and west and a half mile north and south, all immediately north and adjacent to the highway. The amount of land remaining in the farm after the original conveyance and this condemnation was 552 acres.
Appellant cites Marts v. Freeman, 91 Kan. 106, 136 Pac. 943, which holds that damages to the landowner consequent upon an improvement properly made to a highway was paid for when the right of way was appropriated. This decision is in line with the holding of this court upon the former appeal with reference to damage by reason of floods or construction of the highway, and we have no hesitancy in saying that if this damage as to obstruction of ingress and egress was caused by the original construction of the highway nothing could be recovered therefor. There are some border-line cases cited in this connection where there was a change in the construction by the taking of additional land to widen the street, but the landowners base their entire claim in this case for damages on account of obstructed ingress and egress upon the condemning and taking of additional land and not upon the construction or improvement of the highway.
Special questions 6 and 7, answered by the jury, are as follows:
“6. Do you find the ingress or egress to or from appellants’ land has been damaged by reason of the condemnation? A. Yes.
“7. If you answer question No. 6 in the affirmative, state the location of such damage. A. Entrance to feed lot and eighteen (18) acre tract east of Silver creek between Silver creek and bluff. Entrance to 4.44-acre tract east of Grouse creek.”
The evidence shows that east of- Silver creek there is a feed lot of about eighteen acres, and east of the feed lot is a bluff about thirty feet high. The driveway into this feed lot from the house west of Silver creek was on the highway across Silver creek, then to the north and then east along the northern boundary of the right of way. It was a sort of cattle trail about twelve feet wide, and a good, safe driveway past the very large trees and the south end of this high bluff, but when the highway commission condemned this narrow strip north of its original right of way there was not enough room left to drive between the condemned land and the bluff and the large trees on the north. So the entrance to the feed lot was cut off or destroyed by the condemnation of this narrow strip. Instead of the use of this driveway between the highway and the bluff, which was closed by the condemnation of this narrow strip, the commission constructed a private driveway for plaintiffs from the elevated highway down to the feed lot at a grade of about twenty-five percent, which was unfit for use of loaded wagons or the transporting of farm machinery. The question is, Was the obstructing of this private cattle trail or driveway to and from the feed lot, by reason of condemning it, a damage to the land not taken, especially when the substitute attempted to be made by the appellant was unfit for use?
The evidence shows a similar situation as to the three pieces of land condemned near Grouse creek and just north of the original right of way of the highway. The border private driveway had been along the northern line of the highway, and one and a half acres of the largest tract taken was made a borrow pit, which obstructed ingress and egress of land not taken in that vicinity. A possible, but dangerous, route is indicated as being under the bridge on a narrow strip of land at the edge of the creek, but like the new driveway near Silver creek, it was not fit or practicable for loads or machinery.
The evidence is ample as to both private driveways that they were obstructed by the appropriation of land by condemnation, and that the ingress and egress were not disturbed by the original con struction of the highway. If the ingress and egress were disturbed by the original construction of the highway, there can be no recovery in this case, so we must disregard any and all inconveniences caused by the location or original construction of the highway, because that loss, if any, was included in the original purchase and conveyance, and the damages here recoverable must be limited to those alone which were caused by the taking of the land now being condemned. As stated before, appellant cites decisions from this and other jurisdictions, which can be termed border-line cases, where some of the damage or inconvenience can be traced to both takings and constructions, but here the evidence of obstructing the ingress and egress does not go back of the recent taking by condemnation. So those border-line authorities are not applicable.
In the case of Sicks v. Allen County Comm’rs, 126 Kan. 643, 270 Pac. 607, the highway was improved by making it an overhead crossing of a railroad instead of a grade crossing, thereby obstructing the ingress and egress to and from the landowner’s premises for which he was allowed damages to the land not taken. Several railroad cases are cited where the same rule is observed as to the improvements or extensions obstructing the landowner’s ingress or egress of his land.
In the case of Smith v. Wyandotte County, 113 Kan. 244, 214 Pac. 104, it was held:
“Where a strip of land is taken, from an entire tract for the widening and improving of a highway, the owner is entitled to compensation to the extent of the value of the land taken and for injury to and depreciation of the remainder of the tract resulting from the appropriation; and in determining the damages to which he is entitled, consideration may be given to the character of the improvement and its effect upon the part of the tract not taken, including interference with access to the tract and the use to which it is devoted or reasonably adapted.” (Syl.)
In addition to the allowance of damage to the land not taken, which was caused by the obstructing of the ingress and egress of the land, was that claimed by the landowners on account of the alleged obnoxious and offensive character of the two borrow pits condemned. Both of them were adjacent to the highway and the larger one was within 138 feet of the house on the farm. The evidence shows the one near the house did not drain readily and water stood in it much of the time. Weeds grew in it. The stagnant water gave off an offensive odor. Frogs and mosquitoes abounded there. The soil was all removed so it could not be farmed. Its location being so close to the highway and residence seriously affected the value of the farm. The other borrow pit near Grouse creek was not so large, deep nor offensive, but in addition to obstructing ingress and egress, it was said to be unfit for ordinary farming, and otherwise objectionable. The jury was properly instructed as to the use of the borrow pits not being exclusively in the highway commission, but could be used by the landowner when not being used by the commission.
We find no error in the admission of evidence to establish the value of the land taken or to prove the damages to or depreciation in the value of the land not taken, caused by the condemnation of additional land for highway purposes which obstructed ingress and egress to and from different parts of the remaining land, and the depreciation caused by the unsightly appearance and obnoxious character of the borrow pits on said land so condemned.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action by a widow and her minor son, of whom she was the legal guardian, against a brother of the deceaséd husband and father of the plaintiffs, to require the defendant to convey to plaintiffs a certain quarter section of land in Rush county, Kansas, quieting the title thereto in the plaintiffs with full right of possession, and to require the defendant to account to plaintiffs for all income and profits he may have obtained from said real property.
There was a preliminary motion, a demurrer and amendments, and finally a second amended petition and a demurrer thereto. The demurrer was sustained on the first and second grounds, which were the fifteen-year statute of limitations of adverse possession and the one-year statute of limitations as to contest of a will (G. S. 1935, 60-304, sub-div. 4, 22-223). From this ruling sustaining the demurrer to the amended petition the plaintiffs appeal.
The substance of the second amended petition was that Katherine Allbert and Frederick M. Allbert, her minor son, for whom she was duly appointed guardian, were residents of the state of Ohio, and that the husband and father of thesé plaintiffs, Frederick Allbert, Sr., resided in the state of Ohio at the time of his death, October 24, 1934. That said Frederick Allbert, Sr., and plaintiff Katherine Allbert are both deaf mutes. That Frederick, Sr., was wholly without responsibility and lacked business capacity, and trusted his parents, William Allbert and Francis M. Allbert, both of whom are now deceased. “That sometime during the first part of the year of 1915, . . . William Allbert, or Francis M. Allbert, ... or both of them, agreed with Frederick Allbert, Sr., ... to purchase real property with Frederick Allbert, Sr.’s, money; that on or about the 15th day of February, 1915, . . . William Allbert . . . or Francis M. Allbert, ... or both of them, made and entered into a contract to purchase the following-described real estate, to wit: “Northwest Quarter (NW%) of section five (S 5), township seventeen (T17), range nineteen (R19) west of the 6 P. M. in Rush county, Kanses,” from H. L. Baker, of La Crosse, Kan., purporting to be an absolute sale of the aforesaid real property, to the said Francis M. Allbert ... in consideration of the sum of $4,000, which said sum of money, and which consideration was paid by Frederick Allbert, Sr. . . .; that pursuant to said contract, said H. L. Baker made and delivered his warranty deed, purporting to convey said described real estate, to the said Francis M. Allbert, . . . which deed was dated the 15th day of February, 1915, and recorded on the 25th day of February, 1915, in .volume 8 of Deeds, page 599, in the office of the register of deeds of Rush county, Kansas; that the said conveyance was made to the said Francis M. Allbert, without the consent of the said Frederick All-bert, Sr., . . . with whose money the consideration was paid.”
That the mother of Frederick, Sr., executed a will, dated January 4,1933, in which she devised to another son, Edwin Allbert, or E. F. Allbert, this same real property by definite description. This will was admitted to probate June 29, 1934, in. Rush county, Kansas, and the estate was settled and order máde'by the probate judge discharging the executor and holding that Edwin Allbert, or E. F. ■ Allbert, was the absolute owner in fee. simple of that quarter section. The petition further alleged that Edwin Allbert paid no consideration for said real property and is in possession thereof by virtue of the will of his mother. That the mother, in her lifetime, either personally or by agent (her husband, William Allbert), accounted for the income and profits received from said real estate from February 15, 1915, until on or about June 29, 1934, and made remittances to said Frederick for such income and profits.
For a second cause of action the plaintiffs alleged that they are the owners of an equitable estate in the above-described quarter section of land and are entitled to the possession thereof, their title being based upon the statements set forth in the first cause of action, and that the defendant unlawfully keeps them out of possession thereof.
For the third cause of action the plaintiffs alleged that the defendant has kept and appropriated to his own use the rents and profits of said described land since June 29, 1934, and has made no payments of rents or profits thereon or given an account thereof and that he is not entitled thereto for the reasons stated in the earlier part of the petition.
Appellants contend there was error in sustaining the first and second grounds of the demurrer of defendant by applying the fifteen-year and the one-year statutes of limitations to the allegations of the amended petition. From the briefs and reasoning of both parties it can readily be concluded that the main question here involved is whether or not the allegations of the petition constitute a trust of some kind, either implied or resulting, and if those allegations, taken as true, as they must be upon the hearing of a demurrer, do not constitute a trust, the reasoning is strongly in favor of the action being barred by the statutes of limitations, as held by the trial court.
The appellants urge that their action is based upon G. S. 67-406 and 67-408, which are as follows:
“67-406. When a conveyance for a valuable consideration is made to one person and the consideration therefor paid by another, no use or trust shall result in favor of the latter; but the title shall vest in the former, subject to the provisions of the next two sections.”
“67-408. The provisions of the section next before the last shall not extend to cases where the alienee shall have taken an absolute conveyance in his .own name without the consent of the person with whose money the consideration was paid; or where such alienee in violation of some trust shall have purchased the land with moneys not his own; or where it shall be made to appear that by ágreement and without any fraudulent intent the party to whom the conveyance was made, or in whom the title shall vest, was to hold the land or some interest therein in trust for the party paying the purchase money or some part thereof.”
The intervening section 407 does not concern us in this case, as it has to do with the rights of prior creditors. The amended petition asserted that Frederick M. Allbert furnished the consideration for the purchase of this land in the sum of $4,000 upon an agreement with his father and mother to purchase said land, that they did so, but took the deed in the name of his mother without his consent. These allegations are apparently in full conformity with the first part of the above section 408. The petition further alleged that the mother or her agent, her husband, accounted to Frederick, Sr., for the income and profits of the land from the time of its purchase in February, 1915, until her death shortly prior to June 29, 1934. This conduct of the mother would be confirmatory of the alleged agreement to purchase the real estate with Frederick’s money.
In the early case of Kennedy v. Taylor, 20 Kan. 558, it was held as to the allegations necessary under the first part of this section 408 to constitute a trust on the hearing’ of a demurrer to the petition, as follows:
"In an action to enforce a trust, a petition which alleges that B received certain moneys from A ‘for the purpose, and with the express understanding, that he should invest the same for A in a farm, store, or other business,’ and that he purchased certain described real estate therewith, and took the title in his own name, and thereafter denied that A had any right or interest therein, sufficiently charges, as against any objection raised by demurrer, that B took the title in his own name without the consent of A., to bring the case within the first clause of section 8 of the acts of 1862 and 1868 concerning trusts and powers.” (Syl.) (Lyons v. Bodenhamer, 7 Kan. 455; Franklin v. Colley, 10 Kan. 260.)
Similar sections to this one of ours are referred to in Restatement of the Law of Trusts, § 440, comment i, as follows:
"In several states it is provided by statute that when a conveyance of land is made to one person and the consideration is paid by another, no trust shall result in favor of the latter unless the transferee (1) takes the conveyance in his own name without the consent or knowledge of the person paying the consideration. . . .”
Implied trusts are defined in 65 C. J. 221 as follows:
"Implied trusts are more frequently defined as those which, without being expressed, are dedueible from the nature of the transaction as matters of intent, or which are superinduced upon the transaction by operation of law as matters of equity, independently of the particular intention of the parties. However, some definitions disregard the element of intent and define these trusts to be such only as arise by operation of law. By some authorities the term ‘implied trusts’ is used in a sense exclusive of resulting and constructive trusts to designate a form of express trusts.”
On the next page, in distinguishing a resulting trust from a constructive trust, both of which are implied trusts, it is said:
“. . . a resulting trust has been defined to be one raised by implication of law and presumed always to have been contemplated by the parties, the intention as to which is to be found in the nature of their transaction, but not expressed in the deed or instrument of conveyance.” (65 C. J. 222.)
Appellee cites, in order to show that this is not a trust, the case of Brown v. Brown, 62 Kan. 666, 64 Pac. 599. The first paragraph of the syllabus states the action was one to set aside a deed on the ground of fraud, and the fifth paragraph, on which counsel relies, is as follows:
“Where a son purchases a farm with funds furnished to him by his mother for that purpose, and takes title in his own name, without any agreement or understanding as to how the title shall be taken, or as to any interest of the mother in the land, and when the mother, with full knowledge of the facts, speaks of and treats the farm for many jmars as belonging to her son, and makes no complaint to him or to others regarding the title, but acquiesces in that which has been done, it will be presumed, after the death of the son, that the deed conformed to the intention of the parties, and a resulting trust in favor of the mother will not be inferred.” (Syl. ¶ 5.)
The above holding is quoted in full to show that the principal feature in the case at bar is entirely omitted from the Brown case, namely, that the conveyance was made without the consent of the party who furnished the funds for the purchase of the property. This decision, therefore, will not help us to say that the agreement between the son and the mother in the ease at bar was not a trust. Besides, there is no fraud alleged in the amended petition in the case at bar, nor is it particularly argued that it should be inferred. We cannot avoid concluding from the authorities above cited that the allegations of the petition stated a resulting trust.
Now the remaining question is, whether such a trust as alleged in the amended petition can be barred by the fifteen-year statute of limitations for adverse possession or the one-year statute of limitations for contest of wills. On the question of the running of the statutes of limitations the dates of the transactions have been heretofore stated, including the death of the two parties most directly connected therewith. This action was filed February 8, 1937. The appellants contend not only that an implied or resulting trust is shown by the allegations of the amended petition to have existed, but they showed if there was any repudiation of the trust, that it did not occur prior to June 29, 1934, when the will of the mother was admitted to probate and she ceased to remit the income and profits of the farm.
In Cooley v. Gilliam, 80 Kan. 278, 102 Pac. 1091, it was held that—
“Ordinarily the period of time limited for the commencement of an action against a trustee does not begin until he repudiates the trust or denies his liability, and it should appear that the beneficiary had, or ought to have had, knowledge of such repudiation or denial before the statuatory period begins to ran.” (Syl. ¶ 3.)
Appellee insists that this case is not applicable because the question of the statute of limitations was not injected into the case until it reached the supreme court. The opinion does state that "The answer was a general denial and did not raise the question of the statute of limitations. . . . The question was not raised in the district court except by demurrer to the petition and objection to the testimony under it.” The question in the case at bar was raised by demurrer in the district court, the same as it was raised in the Cooley case, and in discussing the question of statute of limitations in the opinion almost the exact language is used there as is copied above from the third paragraph of the syllabus.
It was said in the case of Allen v. Bartlett, 52 Kan. 387, 391, 34 Pac. 1042, that—
“It is well settled that no statute of limitations runs against the beneficiaries to a trust fund so long as the trustee continues to recognize their rights.”
Appellees seriously object to this as being applicable to the facts in the case at bar because it concerns an action by an administrator de bonis non against the former administrator. All through the statutes prescribing the duties of an administrator his duties are frequently referred to as a trust. (G. S. 1935, 22-301 to 22-331.)
In Collamore v. Wilder, 19 Kan. 67, it was held that—
“An administrator is merely the agent or trustee of the estate of the decedent, acting immediately under the direction of the law prescribing his duties, regulating his conduct, and limiting his powers.” (Syl. ¶ 3.) (Aetna Life Ins. Co. v. Swayze, 30 Kan. 118; Crawford’s Adm’r v. Lehr, 20 Kan. 509.)
In 11 R. C. L. 18 and 19 it is said:
. . it has been said that the position of an administrator merely resembles an office, and more strictly speaking, is a trust. . . . Apart from conflicting views as to the foundation of the power of executors, the rule seems to be generally acquiesced in that executors as well as administrators are trustees; that funds of the estate in their hands are trust funds; and that they may be held to the responsibilities and duties of trustees.”
In Woodbury v. Schofield, 131 Kan. 432, 292 Pac. 802, it was said:
“An executor is not an insurer of moneys and properties of an estate which come into his .possession, but with respect to such property he is a trustee, not only for the benefit of the creditors of the estate, but of heirs, devisees, or legatees.” (p. 434.) (See, also, Skintaffer v. Bell, 134 Kan. 101, 4 P. 2d 764.)
We see no substantial difference where an administrator is involved except the duties of the administrator are prescribed by statute.
The cases of Main v. Payne, 17 Kan. 608, and Kennedy v. Kennedy, 25 Kan. 151, are cited to show a different conclusion as to the barring of the statutes of limitations, but they are not actions for the recovery of real property as shown by the opinions, but are actions on the grounds of fraud.
In Hunnicutt v. Oren, 84 Kan. 460, 114 Pac 1059, it was held:
“Where a grantee accepts title to land, without any consideration therefor, under an agreement with the grantor to hold it for her, and without any fraudulent intent, a trust results.
“Where a trust results by implication of law, a recognition by the trustee of the rights of the equitable owner tolls the running of the statute of limitations until the holder of the legal title disavows the trust.” (Syl. ¶¶ 1, 2.)
It is said in volume 17 of R. C. L.:
“A trustee cannot ordinarily plead the statute of limitations until he has previously divested himself of the trust by discharging it, or by denying his liability to discharge it further, and knowledge of this fact has been brought home to the cestui que trust. On the repudiation of the trust, the trustee’s possession becomes adverse, and suit must be prosecuted within the time allotted by the statute of limitations.” (p. 710.)
“If a voluntary trustee does not repudiate the trust, but continues to act under and in harmony with it, the beneficiaries have no right of action against him, and the statute must remain inoperative until the trust is’repudiated.” (p. 794.) (See, also, page 795.)
Many other cases have been cited along this line, but because they contain elements of fraud, either alleged, resulting or constructive, they are purposely not enumerated in this opinion.
We have no hesitancy in concluding that the allegations of the amended petition not only constituted a trust, but especially the one about the taking of the deed in the name of the mother without the consent of the son, coupled with the further allegation that the mother until the time of her death remitted to the son the income and profits of the farm, prevented the statute of limitations from commencing to run. It never was repudiated until after her death.
We also hold that this is not a contest of the mother’s will, and therefore that statute does not apply. The defendant as devisee could not by the will acquire any greater estate than that held by the testator, his mother, and that was a trust. It is said in 9 R. C. L. 89:
“The heir of one who holds real property in trust for another takes the legal title subject to the trust. . . . The rule that the heir of the trustee takes subject to the trust is equally applicable in the case of a resulting trust, as where one purchases land in the name of another and pays the purchase price. The death of the nominal purchaser and the descent of the mere naked legal title cannot affect the trust.”
We conclude that the demurrer should have been overruled. The judgment is reversed.
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages alleged to have been incurred in a collision between a truck and an automobile. Judgment was for defendant. Plaintiff appeals.
The petition alleged that plaintiff was riding with her family in a Chevrolet sedan at about seven o’clock on January 19; that her husband was driving and it was so dark that objects on the highway could not be seen except by artificial light; that as the car turned a rounded corner a Ford truck was parked on the road without any lights showing; that the driver of the truck was guilty of negligence in thus parking his truck without the lights or flares required by statute; that plaintiff was riding in the front seat of the Chevrolet, on the right-hand side, and when the Chevrolet ran into the truck she was thrown against the windshield of the car and injured.
In its answer the defendant pleaded first a general denial, and that if plaintiff was injured it was caused by the negligence of the driver of the car in which she was riding, and that he drove his car at an excessive rate of speed into the intersection, and that this negligence was the cause of the collision.
The reply was a general denial.
The jury returned a general verdict for plaintiff and answered special questions. These questions and answers are as follows:
“1. At what rate of speed was the Frakes car traveling at the time of the accident? A. 20 miles per hour.
“2. Was the Tangeman car parked on the highway at the time of the collision? A. We believe the Tangeman truck had stopped at time of collision.
“3. If you answer question 2 in the negative, at what rate of speed was the Tangeman truck traveling as it rounded the corner, just prior to the accident? A.-.
“4. On which side of the highway do you find the Frakes car was traveling at the time of the accident? A. On center part of traveled highway.
“5. On which side of the highway do you find the Tangeman car was at the time of the accident? A. On the right of the traveled highway.
"6. At what distance could Frakes, by the use of the headlights on his car, see to distinguish objects ahead of him on the highway? A. 100 feet straight ahead.
“7. Within what distance could the Frakes car have been stopped, going at the speed you find it was traveling as it rounded the corner at the scene of the accident? A. Within 25 feet.
“8. What was the proximate cause of the accident? A. Stopping truck on traveled highway without lights.
“9. State what, if any, lights were burning on the Tangeman truck at the time of the collision. A. No lights burning on the Tangeman truck at time of collision.”
The defendant filed a motion for judgment on the answers to the special questions notwithstanding the general verdict, on the ground that findings of the jury were not sufficient to support the general verdict. The defendant also asked in this motion that the answer to question No. 8 be set aside as not supported by the evidence.
The trial court allowed the motion to set aside the answer to question No. 8 and allowed the motion for judgment on the special findings. The journal entry recites that the court allowed the motion for judgment notwithstanding the general verdict, for the reason that the findings of the jury and the evidence in the case were not sufficient to support the general verdict. A motion for a new trial was filed by defendant and later withdrawn. Judgment was entered for defendant.
Plaintiff appeals from that judgment.
It should be noted at the outset that the motion for judgment on the answers to special questions notwithstanding the general verdict did not state any ground for such a motion. The fact that the special questions do not support a general verdict is no ground for setting it aside. It is only when the answers to special questions are inconsistent with the general verdict such a result is had. (See G. S. 1935, 60-2918.) The reason for this is that it might very well be' that some issue vital to the verdict and fully covered by the pleadings would not be submitted to the jury in the special questions. In such a case it would be a manifest injustice to set aside such a verdict on account of the failure of the jury to find such a fact when the findings made were not inconsistent with the general verdict.
In the journal entry the court allowed the motion for judgment notwithstanding the general verdict, partly on the ground that the verdict was not supported by the evidence. The court also set aside the answer to question No. 8, wherein the jury found that the proximate cause of the accident was “stopping truck on traveled highway without lights,” on the ground that is was not supported by the evidence. From these two rulings we have reached the conclusion that the court set aside the general verdict on the ground that the proximate cause of the accident was the negligence of the driver of the car in which plaintiff was riding. Since the trial court ordered judgment for defendant, it is clear that this motion was given the potency of a demurrer to the evidence of plaintiff or of a motion for a directed verdict. On this account we shall examine the evidence of plaintiff. Since defendant asked that the answer to only one question be set aside, we may treat the issues in the other answers as settled. When we do that we find that the car in which plaintiff was riding was traveling twenty miles an hour at the time of the accident; that the track had stopped; that plaintiff’s car was on the center of the highway; that the truck was on the right of the traveled highway; that the driver of the car in which plaintiff was riding could see one hundred feet straight ahead; that plaintiff’s car could have been stopped at the speed at which it was traveling within twenty-five feet, and that there were no lights burning on the truck. It is also undisputed that it was dark enough so that lights were necessary.
This collision happened at an intersection where the corners had been rounded off to avoid a square corner. The truck had not come into the intersection from another road, but was proceeding east from Sabetha. The car of plaintiff was being driven west toward Sabetha. The truck was about two-thirds of the way around the curve toward the east and south. The direction in which the truck was being driven made its right-hand side the outside of the curve. There was evidence on behalf of plaintiff that there was a bank on the inside of the curve about four or five feet high; that it was an oiled road; that a driver of a car could not see around it; that it just unfolded as you went around it.
The driver of the car in which plaintiff was riding testified, among other things, that he could not see around the curve; that there was a ridge of snow extending out from the inside of the gutter; that his right wheels were at the time of the collision about three or four feet from the ridge of snow on the edge of the highway; that when he saw the truck he gave the wheel a little jerk; that he was driving about twenty miles an hour; that there were no lights of any kind on the truck; that his lights showed underneath the truck; that the light of his car hit the corner of the truck bed, his visibility was good; that he saw the truck ten feet ahead of him; that the traveled portion of the highway was about sixteen feet wide where it had been cleared by the snow plow.
Treating the motion in this case as a demurrer to the evidence or as a motion for a directed verdict, this court will take the evidence in its most favorable light for the plaintiff and draw all the reasonable inferences therefrom favorable to the plaintiff. Defendant argues that the case is controlled by Haines v. Carroll, 126 Kan. 408, 267 Pac. 986. There the court held:
“It is negligence as a matter of law to drive an automobile along the highway on a dark night at such speed that it cannot be stopped or turned aside within the distance that objects can be seen ahead of it.
“In an action for damages sustained by plaintiff, the driver of an automobile, when his car collided with another which was standing on an improved highway in the nighttime without lights, the record examined, and held to show such contributory negligence on the part of the plaintiff as to bar a recovery.” (Syl. ¶¶ 1, 2.)
It is not every case of a collision between a car parked without any lights on a highway and a car being driven on the highway that is decided as set out in the second syllabus above. In Sponable v. Thomas, 139 Kan. 710, 30 P. 2d 301, the plaintiff, with his wife, drove into a truck parked on a highway without lights. He recovered damages and the defendant contended that he was guilty of contributory negligence as a matter of law under the above rule. This court noted that there were unusual circumstances in the case, such as the dark, drab, unpainted body of the truck and the snowy weather, and held:
“In determining whether as a matter of law a plaintiff is guilty of contributory negligence which precludes his recovery for injuries sustained, all of the testimony favorable to the plaintiff must be accepted as true, and if the facts are such that reasonable minds reach different conclusions thereon, the question must be submitted to the jury and cannot be determined by the court as a matter of law.” (Syl. ¶ 4.)
See, also, Barzen v. Kepler, 125 Kan. 648, 266 Pac. 69; also, Deardorf v. Shell Petroleum Corp., 136 Kan. 95, 12 P. 2d 1103; also, Hayden v. Jack Cooper Transport Co., 134 Kan. 172, 5 P. 2d 837.
In this case the evidence that the driver of a car could not see around the curve; that the lights of the car in which plaintiff was riding shone straight ahead, but did not shine directly on the truck, and that the driver of the car did not see the unlighted truck, even though the driver was looking for lights and vehicles until he was within ten feet of the truck, taken together make it one where reasonable minds might differ as to whether the driver of the car in which plaintiff was driving was guilty of contributory negligence.
Defendant points out the finding of the jury that plaintiff’s driver was driving down the center of the traveled portion of the highway and argues this was negligence that was the proximate cause of the collision. The answer to that is that the plaintiff’s driver had a right to drive down the middle of the road as long as there was no traffic on the highway. He was only obliged to turn to the right when he saw another vehicle ahead. (See Giles v. Ternes, 93 Kan. 140, 143 Pac. 491.) Here the driver did not see the standing truck until he was within ten feet of it on account of the absence of lights on the truck. As we have said, the roadway was only sixteen feet wide where the snow had been cleared off and there was a bank of snow on the inside of the curve. Under such circumstances this court cannot say that the driver of the car in which plaintiff was riding was guilty of negligence as a matter of law because he was driving down the middle of the traveled portion of the road.
Defendant also argues that the driver of the car in which plaintiff was riding was found by the jury to have been guilty of contributory negligence when the jury found in answer to question No. 1 that he was driving at the rate of twenty, miles an hour at the time of the accident. Plaintiff relies on G. S. 1935, 8-122, which was in effect at that time. That section provided, in part, as follows:
“Upon approaching a railroad crossing or intersection of highways outside of any village or city, or turning corners, the person operating a motor vehicle shall reduce the speed of such vehicle to a rate not exceeding fifteen miles an hour, and shall not exceed such speed until entirely past such crossing or intersection.”
Plaintiff argues- that since the above statute made it a misdemeanor' for the driver to enter an intersection at a greater speed than fifteen miles an hour, and the jury found that this driver was traveling at the rate of twenty miles an hour at the time of the collision, then as a matter of law he was guilty of contributory negligence, which would bar recovery by the plaintiff. The answer to this is that this w-ould only be the case if the failure to obey the statute was the proximate cause of the injuries. (See 42 C. J. 887.) Here we have demonstrated that the speed of the car was not the proximate cause of the injury. There can be no doubt that had the car in which plaintiff was riding been driven much faster than the jury found it was being driven it could have passed the truck easily had it been lighted so that the driver of the car could have seen it.
We have therefore considered that the evidence of plaintiff was not such that the trial court could have sustained a demurrer to it, since the matter of whether the driver of the car was guilty of contributory negligence should have been submitted to the jury; neither should a motion for a directed verdict have been sustained, for the same reason. If the trial court treated the motion for judgment on the special findings notwithstanding the general verdict, on the ground that the special findings did not support the general verdict, as though it had been made on the ground that the general verdict was inconsistent with the special findings, then we hold that as we have demonstrated in this opinion the special findings were not inconsistent with the general verdict. We further hold, as we have demonstrated, that the evidence did not warrant the trial court in holding as a matter of law that the parking of the truck without lights was not the proximate cause of the collision.
From what has been said, it follows that the trial court erred in ordering judgment for defendant.
There remains the question of what order should be made by this court. It is well established that the trial court must approve a verdict before a judgment can be based upon it. It is clear from this record that the trial court did not approve the verdict in this case. The motion for a new trial had been withdrawn and there was no motion for a new trial pending. One of the reasons the trial court did not approve the verdict was because it was not supported by the evidence. Under such circumstances it was the duty of the trial court to grant a new trial. (See Klopfenstein v. Traction Co., 109 Kan. 351, 198 Pac. 930.) In such a case, where the trial court did not order it this court must do so. (See Ratliff v. Railroad Co., 86 Kan. 938,122 Pac. 1023.)
The judgment of the trial court is reversed, with directions to proceed in accordance with the views expressed herein.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to foreclose a mortgage on real estate, and from certain adverse rulings, hereafter mentioned, the plaintiff appeals.
At the trial there was little, if any, dispute as to the facts. It appears the defendant, John Humphrey, inherited the real estate from his mother, but he and his wife never occupied it as a homestead. On July 27, 1927, Humphrey and his wife mortgaged the real estate to the Farmers and Bankers Life Insurance Company of Wichita, hereafter referred to as the insurance company, to secure an indebtedness of $2,000. On October 30,1929, Humphrey and his wife conveyed the real estate to Erna R. Redd by warranty deed, subject to mortgages of record and reserving a life estate to themselves. Con temporaneously they delivered a power of attorney to and executed a contract with Erna R. Redd, the purpose being to permit a refinancing of the indebtedness on the property. That was not accomplished, and on September 27, 1932, Ema Redd and her husband and Humphrey and his wife, by their attorney in fact, conveyed the real estate to James H. Stewart, by warranty deed, the expressed consideration being “a mortgage of $1,719.87 now on lots and one dollars ($1.00),” the deed reciting the premises were free and clear of encumbrances “except, a mortgage to the Fanners and Bankers Life Insurance Company now of record.” Stewart was treasurer and vice-president of the insurance company. Contemporaneously with this deed, Stewart by written document leased the real estate to Erna R. Redd and her husband for a term from September 27, 1932, to December 1, 1933, the lease stating the rent had been fully paid, and acknowledging receipt. As a part of the lease, the lessees were given the right and privilege of purchasing the real estate themselves or selling it to others at any time prior to December 1, 1933, for $1,719.87, plus interest, taxes, repairs and insurance paid by lessor, etc., upon terms set forth, “this right of purchase to expire December 1, 1933.” Later Humphrey made written application, dated October 30, 1933, to the plaintiff corporation for a loan on the real estate. In that application he stated the property was his home and that it was encumbered by mortgage to the insurance company for principal and interest, taxes, and insurance premiums paid in the sum of $2,184. The plaintiff approved the application, and under date of April 16, 1934, Humphrey and his wife executed to plaintiff a mortgage to secure an indebtedness of $2,375.32, which apparently covered the items mentioned in the application, plus some taxes, repairs and expenses not therein mentioned. This mortgage was filed April 25, 1934. On that date Stewart conveyed the real estate to John Humphrey by special warranty deed, the expressed consideration being “one dollar and other valuable consideration,” and there being no exceptions or reservations in the deed. Stewart testified that in all his dealings he had no personal interest, but acted for the insurance company, and that on April 25, 1934, it received from the plaintiff corporation the sum of $2,224.04 in bonds and checks. Under date of April 11, 1934, Erna R. Redd and her husband quitclaimed to Humphrey. The last two deeds were recorded April 26, 1934.
No defendant except the T. M. Deal Lumber Company, hereafter referred to as the lumber company, made any defense to the action filed May 22, 1937, to foreclose the plaintiff’s mortgage. The basis of its claims to liens superior to that of plaintiff is summarized. In five separate actions, involving five pieces of real estate other than that involved in the present action, the Southwest Building and Loan Association, as plaintiff, foreclosed mortgages. In each action Humphrey and his wife, Mrs. Redd and her husband and the above lumber company were defendants. Without specifying the details, it may be said the various properties were sold for amounts insufficient to satisfy judgments against Humphrey and his wife in favor of others and the lumber company. No executions were subsequently issued and three of the judgments became dormant; in June, 1937, however, and within time, each of these judgments was revived, and by appropriate pleading alleging the five judgments against Humphrey, the lumber company claimed a lien superior to that of plaintiff on the real estate presently involved.
After hearing the matter, the trial court rendered judgment for plaintiff against Humphrey for $2,736.02, for the lumber company for $2,966.18, and decreed plaintiff’s mortgage to be a first lien against the mortgaged real estate, subject and inferior to the .lumber company’s lien, and ordered the real estate sold and the proceeds applied in the following order: To taxes, to the lumber company’s judgment, to plaintiff’s judgment, any balance to be paid into court to abide its further order. Notwithstanding the use of terms in the journal entry of judgment, it is apparent the lumber company was given a first lien on the mortgaged real estate and the plaintiff was given a second lien on it.
Plaintiff’s motion for a new trial was denied and it appeals, its specifications of error covering the following: The trial court erred in holding the lien of the lumber company to be superior to that of plaintiff, in not holding the plaintiff’s mortgage to be a purchase-money mortgage and a first lien, and, if it did not err in the above particulars, in not holding that plaintiff was subrogated to the rights of the insurance company under its mortgage of July 27, 1927, with matters incidental to all of the above.
We shall first consider whether plaintiff’s mortgage was a purchase-money mortgage. Although the facts are detailed above, it may be noted that Humphrey had mortgaged the real estate to the insurance company, then he conveyed it to Erna R. Redd, reserving a life estate; then he and Mrs. Redd conveyed it to Stewart, undisputedly representing the insurance company, for the expressed consideration of “a mortgage of $1,719.87 now on lots and one dollars ($1),” covenanting the only encumbrance to be “a mortgage to the Farmers and Bankers Life Insurance Company now of record.” It seems beyond cavil that Humphrey and Mrs. Redd conveyed the property in satisfaction of the mortgage debt to the insurance company, unless by reason of the contemporaneously executed lease by Stewart to Mrs. Redd and her husband. Humphrey was not a party to the lease and had no record or other title from the date of his deed to Stewart until April 25, 1934, when he again got title by quitclaim deed from Mrs. Redd and her husband and by special warranty deed from Stewart. Although appellee argues the lease kept the debt alive, it is to be noted that the lease was to Mrs. Redd and her husband, neither of whom was indebted to the insurance company or to Stewart by reason of being makers of the note secured by the mortgage or by reason of their assuming or agreeing to pay the debt. On the contrary, the lease recognized a relation of landlord and tenant, and under it the Redds, not Humphrey, were given an option to purchase the real estate themselves or to sell it to others. Under that arrangement, and after the option date had passed, Mrs. Redd and her husband conveyed to Humphrey. Without now discussing its moral or legal aspect, Humphrey represented to the plaintiff that the real estate was his home and that he owned it subject to mortgage indebtedness, taxes, etc., and thereby procured the money that enabled him to get a deed from Stewart. While there is some testimony the purpose of the lease was to allow a period of redemption, there is an utter lack of any showing, insofar as either Humphrey or the Redds were concerned, any debt remained; there is no explanation, indeed no attempt was made to show the consideration in the deed from Humphrey and the Redds to Stewart was not the true and actual consideration, or that the previously existing debt was not paid by that conveyance. Until the contrary was made to appear, the legal effect of the instruments was what the face of them showed. (Hoyt v. National Bank, 115 Kan. 167, 222 Pac. 127.) Unless there was a debt remaining, the deed and the lease with option to purchase, taken singly or together, did not constitute a mortgage. (See Hoyt v. National Bank, supra; Jett & Wood Merc. Co. v. Koeneke, 141 Kan. 791, 44 P. 2d 199; Holuba v. Floersch, 142 Kan. 601, 50 P. 2d 1004; Humphrey v. Spencer, 143 Kan. 912, 57 P. 2d 15, and cases cited therein.) The lumber company contends, however, (a) that the plaintiff had no legal authority to make a loan for the purchase price and to take a mortgage therefor, and (b) that a purchase-money mortgage was never intended. In support of the first contention, it directs our attention to 12 U. S. C. A., section 1463 (1), referring to refunding present mortgage indebtedness. Subsection (g) of section 1463, however, authorizes the plaintiff corporation to “exchange bonds and to advance cash to . . . recover homes lost ... by voluntary surrender to the mortgagee subsequent to January 1,1930.” The question would then turn on whether the particular real estate had ever been the home of Humphrey. The evidence shows clearly and without dispute it had not. But Humphrey represented that it had and thus was enabled to acquire title. Obviously Humphrey could not challenge plaintiff’s right to make the mortgage. May the lumber company do so? It claims it may; that it occupied the position of a judgment lien creditor against the property in question, is interested in the subject matter of the action and has a right to question any transaction concerning it. It cites no authorities in support of its contention. We think the appellee may not question whether the making of the loan was an ultra vires act on the part of the appellant corporation. If the plaintiff corporation did not have power to make this particular loan it was the concern of the United States government and not of appellee (Harris v. Gas Co., 76 Kan. 750, 92 Pac. 1123).
The lumber company directs our attention to 1 Jones on Mortgages, 8th ed., § 583, p. 793, to the effect that a purchase-money mortgage is one made by a purchaser to his vendor and not one by a purchaser to some third person to obtain the money paid the vendor; and to 41 C. J., § 472, p. 531, to the effect that there must have been an express purpose and intention the moneys be used in paying the purchase price. It has been settled in this state that where a third person furnishes the purchase money and takes a mortgage to secure the same the mortgage is a purchase-money mortgage. (See Langworthy v. Martin, 129 Kan. 159, 281 Pac. 879; Home Owners’ Loan Corp. v. Torrey, 146 Kan. 332, 69 P. 2d 1096; Home Owners’ Loan Corp. v. Sanford, 147 Kan. 597, 77 P. 2d 937; G. S. 1935, 60-3466.) The lumber company’s contention there was no evidence the moneys advanced on the mortgage were for the purpose of purchasing the property is predicated largely on the proposition that a redemption from the insurance company’s mortgage was in tended. It is true that Humphrey’s application for the loan made such a representation. But if the legal effect of what was done was to purchase a property lost “by the owner by voluntary surrender to the mortgagee” (12 U. S. C. A., § 1463 g), may we ignore it and say that the intention was otherwise? We do not think so.
We conclude that the mortgage sought to be foreclosed was a purchase-money mortgage. That being the case, under G. S. 1935, 67-305, and Noll v. Graham, 138 Kan. 676, syl. ¶ 4, 27 P. 2d 277, the lien of that mortgage was superior to the prior judgment liens of the lumber company.
In view of what has been said, it is not necessary that we discuss the effect of revivor of the three judgments which the lumber company had against Humphrey, nor whether the doctrine of subrogation could be invoked by appellant.
The judgment of the trial court giving priority to the judgment liens of the lumber company over the mortgage lien of the appellant is reversed and the cause remanded with instructions to render judgment giving priority to the mortgage lien of the plaintiff appellant.
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The opinion of the court was delivered by
Smith, J.:
This was an action to foreclose a mortgage and to quiet title to real estate. The state highway commission was named as one of the defendants. It filed a demurrer to the petition. This demurrer was overruled. The state highway commission appeals.
The petition contained the necessary allegations as to the execution of the note and mortgage and that it became in default. It also contained the following allegations:
“That the defendant, state highway commission of Kansas, claims some right, title or interest in and to said described real estate by virtue of a deed for highway purposes, which deed is recorded in the office of the register of deeds of Atchison county, Kansas, in volume 213, at page 31, of the records of said office, but that whatever right, title or interest said defendant may have or claim by virtue of said deed for highway purposes is junior and inferior to the lien of this plaintiff’s mortgage.”
The petition also contained the following:
“That the plaintiff is entitled to have its title quieted against the defendants, John G. Johannes and Tilde G. Johannes, his wife, Evilin G. Johannes and - Johannes, his wife, whose more full and true name is unknown; state highway commission of Kansas, and Delaware drainage district No. 2, Atchison county, Kansas, save and except the right of redemption prescribed by law to said defendant, Evilin G. Johannes.”
The prayer of the petition was that this mortgage be foreclosed and the land sold and the proceeds applied in the usual way, and that the .title of the plaintiff be quieted against all of the defendants, including the state highway commission. The state highway commission demurred to this petition, for the reason that it did not state facts sufficient to constitute a cause of action; that the action was prematurely brought and that the trial court was without jurisdiction of the subj ect matter or of the person of the defendant. This demurrer was overruled, and the state highway commission appeals from that judgment.
The only question argued by the state highway commission on the appeal is that the action could not be maintained because it was in effect against the state, that the state could not be sued without its consent and the state had not consented to be sued in a foreclosure action or an action to quiet title.
The first two propositions are generally conceded; that is, an action against the state highway commission is an action in effect against the state, and such an action cannot be maintained without the consent of the state.
The question with which we shall deal is whether the state has consented to be sued in an action to quiet title where the state highway commission has taken title to land for highway purposes.
At the outset we should note that the first provision in the act under which the state highway commission is now operating is as follows:
“That there is hereby created, a state highway commission which shall be a body corporate with powers to sue and be sued.” (See G. S. 1935, 74-2001.)
The question is whether an action to quiet title is the sort of action contemplated by the above statute.
In McCandliss Construction Co. v. Neosho County Comm’rs, 132 Kan. 651, 296 Pac. 720, an action had been brought against the board of county commissioners of Neosho county and the state highway commission on a balance claimed to have been due the plaintiff under a contract entered into between the plaintiff and the board of county commissioners for the grading and hard surfacing of a road in the county which was a part of the state highway system. The situation arose out of the action of the state highway commission in assuming on April 1, 1929, the rights and liabilities of the various counties on all existing contracts for the construction, improvement and reconstruction or maintenance of state highways. This action was taken by the state highway commission pursuant to the provisions of chapter 225 of the Laws of 1929. The state highway commission contended that the action was against the state and that the state had not consented that it be sued in such an action. In dealing with that contention this court said:
“Here, the state, being authorized by the constitution to do so, has undertaken to construct and maintain a state system of highways and has provided funds for that purpose. In order to carry that work forward it has created a quasi-corporate body and given it the powers, duties and responsibilities necessary for that purpose, and with respect to such work and contracts made in relation thereto it has specifically authorized that unit of government to be sued; hence, if it be an action against the state, the state, by appropriate legislative action, has given its consent to the suit.”
In Rome Mfg. Co. v. State Highway Comm., 141 Kan. 385, 41 P. 2d 761, a replevin action had been brought to get possession of a road grader which had been sold to an individual on payments, with a provision that title should remain in the seller until the payments were made. In some way the grader came into the possession of the state highway commission. When the payments were not made the replevin action was brought and the commission was made a party. The commission demurred to the petition on the ground that the action was in effect one against the state, which the state had not consented could be brought. This contention was upheld. (See, also, Barker v. Hufty Rock Asphalt Co., 136 Kan. 834,18 P. 2d 568.)
The story about the highway amendment to the constitution and’ the enactment of chapter 225 of the Laws of 1929 in pursuance thereof is an oft-told tale in the reports of this court. Pursuant to its enactment the state highway commission is operating in every county in the state and in nearly every town or city. It is doing away with grade crossings, rounding off square corners, leveling off the hills, filling up the valleys, and carrying on in general a program of road construction throughout the state. This, activity causes it to come in contact with the people in relation to the title of land in many cases. G. S. 1935, 68-413, provides as follows:
“That the state highway commission, in the name of the state, may acquire title by purchase, donation or dedication or by the exercise of the right of eminent domain, to any lands or interest or rights therein, to water, gravel, stone, sand or other material, or to spoil banks or to borrow pits necessary for the construction, improvement, reconstruction, maintenance or drainage of the state highway system, or to rights of way giving access to spoil banks or borrow pits or any bed, pit, quarry or other place where gravel, stone, water or other material required in the construction, improvement, reconstruction, mainte nance or drainage of the state highways may be located. The right of eminent domain when exercised as herein provided shall be in accordance with the provisions of article 1, chapter 26 of the Revised Statutes of 1923, and in addition to the notice required therein all lien holders of record of the condemned land must also be notified. The state highway commission may dispose of any real estate, or any right, title or degree or variety of interest therein as it may deem expedient or necessary whenever the commission determines that such real estate, or interest therein, is no longer needed or used for highway purposes, and may exchange the right of way to be abandoned for new and other right of way: Provided, That when any road on the state highway system is vacated the lands or interest or rights therein acquired by the state highway commission for right of way under the provisions of this section, unless disposed of as above provided, shall revert to the present owners of the land of which it was originally a part.” (Italics ours.)
It will be noted that the highway commission may acquire land for highway purposes by purchase, donation, dedication or by the exercise of the right of eminent domain. As a matter of practical application we all know that this statute is often invoked where the commission sees fit to change the location of a portion of the state highway system.
It will be noted the statute provides that the commission may dispose of any land, title to which is taken pursuant to it, as the commission may deem expedient whenever the commission determines that such real estate or interest therein is no longer needed or used for highway purposes. The statute next provides that when any road on the state highway system is vacated the lands or interest therein acquired by the state highway commission, unless disposed of as the statute provides, shall revert to the owners of the land at the time the highway is vacated.
It will be noted the petition in this case alleged that the commission claimed an interest in this property on account of a deed for highway purposes and that the interest thus acquired was junior to the lien of plaintiff. No copy of this deed was attached to the petition.- However, a copy of it is attached to a brief furnished by plaintiff. This deed conveyed about three acres of land to the commission. It also contained the following clause:
“It is understood and agreed that the party of the second part- shall use said real estate in the construction, improvement, reconstruction, maintenance and drainage of the state highway system, and should the road for the right of way of which said real estate or any part thereof is acquired by this deed, be vacated, the lands or interest or rights therein acquired ... by the party of the second part for right of way shall revert to parties of the first part, their heirs, successors or assigns, unless same shall have been disposed of by the party of the second part under the authority of section 14, House bill No. 210, session of the legislature, 1929.”
The deed also warranted the title to be in the grantors, subject to the mortgage sought to be foreclosed in this action.
In this case it appears the commission is acquiring small pieces of real estate in many parts of the state. It is permitted to sell and exchange them whenever in the discretion of the commission that is the expedient thing to do. There is hardly anything more important than the regularity of titles to real estate. Constant vigilance is necessary to safeguard them from becoming clouded.
We are not concerned at this time with the question of the relief to which the plaintiff is entitled. The sole question before us is whether the demurrer should have been sustained on the ground that the state had not consented to be sued. On this question we have concluded that the action is one the state has consented might be brought and the demurrer of defendant highway commission to the petition was correctly overruled.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages for fraud in obtaining a conveyance of mineral rights in certain described real estate. The trial court sustained a demurrer to plaintiff’s evidence, and he appeals, assigning as error the ruling on the demurrer as well as rulings excluding certain evidence and denying a motion for a new trial.
We shall first notice the objections of the appellee to our consideration of the appeal. This is the second appearance of this case in this court. (See Hicks v. Parker, 143 Kan. 763, 57 P. 2d 413, for a full statement of what transpired in the district court prior to that appeal.) It was there contended that because the plaintiff appellant had not appealed within the statutory time from the order striking his amended petition from the files, the dismissal had become final and the matter involved in that appeal had become moot. In disposing of that contention, it was said:
“On behalf of appellee it is contended the order striking the amended petition from the files is a moot question for the reason the trial court subsequently dismissed the action for want of prosecution. The order striking the amended petition from the files is a final order and appealable. (R. S. 60-3302, 60-3303.) Appellant had six months from the date of the order within which to perfect his appeal. (R. S. 60-3309.) The right of appeal was not defeated by the subsequent order made within the period allowed for appellate review.” (p. 765.)
After the mandate in the first appeal had been sent to the trial court, the cause was reinstated. The defendant, by his answer, raised the question that no appeal having been taken from the order dismissing the action, that order had become final and the trial court was without jurisdiction to hear the cause. The trial court held adversely to the contention and the trial proceeded until a demurrer was sustained to plaintiff’s evidence, and the present appeal followed.
The appellee now contends the order dismissing the action for want of prosecution became final and therefore the trial court was without jurisdiction to hear the cause and this court is without jurisdiction to entertain the appeal, and in that connection argues that this court, in its opinion on the first appeal, did not decide the question of the effect of the dismissal.
The question of the effect of a dismissal of a cause on the light of one adversely affected by an order or ruling from which an appeal would lie was under consideration in the case of Kotwitz v. Gridley Motor Co., ante, p. 676, 84 P. 2d 903, this day decided. What was there said need not be here repeated. Under the reasoning of that case, it is clear that the dismissal of the cause, following the making by the court of an order from which an appeal would lie, was necessarily conditional on the final ruling on the appealable order. It may be further remarked that the dismissal for failure to prosecute was without prejudice to a future action (see G. S. 1935, 60-3105, Fourth), and the reinstatement of the original action may well be said to be a future action. The trial court was not without jurisdiction to hear the cause, nor is this court without jurisdiction to entertain the appeal.
A discussion of appellant’s assignments of error calls for a brief statement of the controversy as set up by the pleadings. Plaintiff was the owner of a quarter section of land on which he had given an oil and gas lease to Argus Production Company. On March 22, 1930, the defendant represented to plaintiff that defendant was an agent of the Argus Production Company and had authority to make locations for oil and gas wells, and that if plaintiff and his wife would execute and deliver to defendant a deed for one-half of the mineral rights, defendant, as agent of the Argus Production Company, would locate a well on plaintiff’s land and cause the company to drill thereon. Defendant agreed to and did pay plaintiff $160 as consideration for the mineral deed. The representations of defendant were relied on by plaintiff but were false; that defendant was not the agent of the Argus Production Company for the purpose of locating wells and was not employed by it for that purpose, and had no authority so to do; that plaintiff did not discover the fraud until within the statutory period of two years; that defendant had conveyed the interest acquired by him under the deed and that plaintiff had been damaged in the sum of $12,500. Other allegations of the petition need not be noticed. The answer put in issue the question of the fraud.
Plaintiff’s evidence showed that a well was located on his lands and was subsequently completed. The gist of the fraud claimed was that defendant was not an agent of the Argus Production Company authorized to locate wells, but that in some manner he learned where a well was to be drilled, and falsely represented he was so authorized in order to procure execution of the mineral deed to himself. Unless the representation was false, there was no fraud. It was incumbent on the plaintiff to prove that the representation was false. To accomplish that he attempted to testify that one Hardy had told him defendant had no authority to make locations for wells for the company. An objection the testimony would violate the rule as to hearsay evidence was sustained. Appellant complains of the ruling and cites authority holding declarations of the principal are admissible to prove or disprove agency. The rule is not applicable here. When the question was first asked there had been no showing that Hardy had any connection with the Argus Production Company. After the objection had been sustained, an attempt was made to have the witness state what Hardy’s connection was, and he answered he didn’t exactly know, and an objection was then sustained to his stating what he understood. We do not know what that understanding was. There was no showing otherwise. We may here observe that appellant filed a motion for a new trial, and to support the same filed his affidavit in which he denominated Hardy as vice-president in charge of operations. Assuming the motion for a new trial was proper for any purpose, there was no showing that due diligence had been used. There was no error in the court’s ruling excluding the testimony as to defendant’s agency.
As has been indicated, in order to prove the alleged -fraud, it was incumbent on the plaintiff to prove that defendant’s statements as to agency were false. Even though all other necessary elements were proved, appellant did not prove his cause of action and the demurrer to his evidence was properly sustained. It is therefore unnecessary to discuss other matters presented in the brief.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action by a ward, after reaching the age of twenty-one years, against the sureties on the bond of her guardian during her minority. Judgment was for defendants, sustaining a demurrer to the petition. Plaintiff appeals.
The petition alleged, first, that plaintiff was a resident of Shawnee county, Kansas; that on April 3, 1920, Lawrence J. Fitzpatrick was by the probate court of Pottawatomie county, Kansas, appointed guardian of the plaintiff, Anna Marie Fitzpatrick, and her sister, Alice Ruth Fitzpatrick, minor heirs of Grace Fitzpatrick, deceased, and his bond fixed at the sum of $4,000; that on the 15th day of April, 1920, Fitzpatrick and the National Surety Company executed and filed a guardian’s bond; that the condition of the bond was that if L. J. Fitzpatrick, guardian of the estate of Anna Marie and Alice Ruth Fitzpatrick, minors, should faithfully discharge his duties as such guardian, according to law, account for, pay and deliver all money and property of the estate, and perform all other things touching the guardianship required by law, or the order or decree of any court having jurisdiction, then the above bond would be void, otherwise it would remain in full force; that the National Surety Corporation in May, 1933, assumed liability upon all bonds signed by the National Surety Company, including the bond in this case; that the bond was approved and filed by the probate court of Pottawatomie county on April 15, 1920, and thereafter Fitzpatrick received property belonging to the minors in the amount of $3 ,- 076.52; that during the time Fitzpatrick was guardian of the minors he unlawfully failed to perform his duty as guardian, and dissipated the assets of the estate, and converted them to the use of himself and others not entitled to them and paid out moneys of the estate in violation of law; and violated the trust by unlawful payments out of guardianship funds in the amount of $1,118.57; that he failed to file annual accounts from 1922 to 1934; that he unlawfully loaned guardianship moneys to his father upon insufficient security and for the personal benefit of the guardian; that he invested guardianship funds without approval of the court in stock of an Emporia building and loan association, which afterward failed; that on a day in August, 1934, plaintiff in person and by her next friend, Mrs. R. J. Quigley, filed in the probate court of Pottawatomie county, Kansas, her application to remove Fitzpatrick as guardian, and on August 28,-1934, Fitzpatrick filed in the court his resignation as guardian; that on August 28, 1934, the probate court entered its order accepting the resignation of Fitzpatrick and directed him to file his final account. A copy of the order of the probate court was set out in the petition. It was as follows:
“It is therefore by the court ordered that the resignation of the said Lawrence J. Fitzpatrick as guardian of the said Anna Marie Fitzpatrick be, and the same is accepted, and that the said Lawrence J. Fitzpatrick file his final account as guardian of the said Anna Marie Fitzpatrick on or before the 30th day of September, 1934.
•“It is by the court further ordered that if no objections are filed to the said final account of the said Lawrence J. Fitzpatrick within ten days from the filing thereof, that the said Lawrence J. Fitzpatrick turn over the money and property in his hands to Mrs. R. J. Quigley as said guardian, and that she give him her receipt therefor. If objections are filed to the final account of the said Lawrence J. Fitzpatrick, a hearing shall be held upon the same at such time as may be fixed by the court.
“It is by the court further ordered that Mrs. R. J. Quigley be appointed guardian of the person of the said Anna Marie Fitzpatrick, to take effect immediately, and as guardian of the property of the said Anna Marie Fitzpatrick to take effect upon the settlement of the final account of the said Lawrence J. Fitzpatrick.'”
The petition then alleged that on October 4,1934, Fitzpatrick filed a purported account of his guardianship from 1922 to 1934, and on October 11, 1934, plaintiff in person and by Mrs. Quigley, her next friend, filed objections to the account; that the guardian’s account showed receipts and expenditures from 1922 to 1934, leaving on hand the following:
“Balance on hand ...................................... $0.80
Real-estate mortgage loan, Jerry Fitzpatrick............ 1,536.88
Money in building and loan, Emporia, Kan............. 331.14.”
The petition further alleged that plaintiff, in her obj ection to the final accounting of Fitzpatrick, claimed $2,331.54 to be still due her; that she objected to the final accounting and moved that it be set aside, and that an account set out in her objection be substituted in lieu of it and that Fitzpatrick be directed to turn over to Mrs. Quigley, as guardian, the sum of $2,331.54, with interest; that on April 2, 1935, these objections to the report came on for hearing, were taken under advisement by the court and Fitzpatrick was given permission to amend his report; that thereafter on April 5, 1935, Fitzpatrick filed an amendment to his report; that in this report he stated the amount due from Jerry Fitzpatrick was $1,829.67 instead of $1,536.88, as set out in his former report; that thereafter counsel for plaintiff filed briefs with the probate court upon the objections to the report of guardian, and continuously urged the court to render decision thereon, but that the court had failed to render any decision upon such objections at any time prior to November 7, 1936, or at any time thereafter; that by reason of the fact that the final account of Fitzpatrick as such guardian was never settled the appointment of Mrs. Quigley as guardian of plaintiff to succeed Fitzpatrick never became effective, and he had never turned over any money or property from such guardianship to Mrs. R. J. Quigley or to the plaintiff, either before or after November 7, 1936; that on November 7, 1936, at the time plaintiff became of age, it became the duty of Fitzpatrick immediately to turn over to the said plaintiff the moneys and property in his hands belonging to her, but that he wholly failed to do so and was liable to plaintiff for the moneys received and used by him, with interest thereon at six percent.
Judgment was prayed in the amount of $2,331.54.
Defendants demurred to this petition on the ground the court had no jurisdiction of the defendant or the subject matter of the action; that the plaintiff had no legal capacity to sue; that several causes of action were improperly joined and the petition did not state facts sufficient to constitute a cause of action.
The demurrer was sustained on the ground that it did not state facts sufficient to constitute a cause of action because it showed on its face that no final accounting had been had in the probate court.
Plaintiff appeals from that judgment.
The argument of plaintiff is that in Kansas a final settlement is not a necessary prerequisite to a suit on a guardian’s bond, and that if such were the law the rule would not be applicable; whereas she contends she has made every possible effort to secure a final settlement in the probate court, but has been unable to do so.
This question received the attention of this court in Mitchell v. Kelly, 82 Kan. 1, 107 Pac. 782, and Lohoff v. LaShell, 109 Kan. 515, 200 Pac. 295. In both these cases the decision turned upon the fact that the statute did not require the guardian of the estate of a minor to make a final accounting. There was that distinction between such an action and an action on an administrator’s bond. Subsequent to the decision of the Lohoff case, the legislature enacted G. S. 1935, 38-222. It reads as follows :
“Guardians of the property of minors must account on oath annually, or oftener if required by the court. It may also direct them to give new or additional security, or may remove them for good cause shown, which cause must be entered on the records. Guardians also must make a final accounting and close the estate upon the minor reaching the age of majority. If said guardian should fail to do so the court, by an order, may declare said estate closed: Provided, however, Said estate may be reopened within one year upon written application by said minor therefor.”
It will be noted the above statute requires a guardian to make a final accounting and close the estate upon the minor reaching the age of majority. There is also a provision that if the guardian should fail to make the final accounting the court may by order declare the estate closed. In this respect the statute as to final accounting by guardians is a great deal like the statute with reference to the final accounting by executors and administrators in the clos ing of estates of decedents. (See G. S. 1935, 22-903, 22-904, and 22-906.) .
It has long been the rule that an action cannot be maintained against an executor or administrator or his bondsman until the administrator’s accounts have been settled in probate court. (See Hudson v. Barratt, 62 Kan. 137, 61 Pac. 737.)
Plaintiffs point out that guardians have always had to make annual settlements, but that a ward may bring an action against his guardian or the guardian bondsman after he reaches majority even though the annual settlements were approved. That rule is not of any help here, however, because the question we are considering is not the binding nature of the final accounting but whether the matter can be the subject of litigation in the district court before all steps required have been taken in probate court. If it should be held that the amendment to the statute did not require the final accounting before the action could be brought, then it is difficult to see what was the object of the amendment. Other states with similar statutes have followed this rule. In Wilkins v. Deal, 128 Neb. 78, 257 N. W. 486, the court, in considering this question, said:
“It could not be finally determined that the guardian was in default until there was a settlement of her account at the expiration of her trust, and no action could be maintained on the bond until such judicial settlement was had by the county court, and that court directed the guardian to pay over to the newly appointed guardian such property or funds as the court found due from her.” (p. 85.)
In Vance, Guardian, v. Beattie, Ad., et al., 35 Ark. 93, the court said:
“Before final settlement of the accounts of Malone as guardian, and an order of the probate court for him, or his administrator, to pay over to appellant as his successor in the guardianship, some balance found due his wards on such settlement, appellant had no legal cause of action on the bond of Malone. (Sebastian v. Bryan, 21 Ark. 447; Norton et al. v. Miller et al., 25 ib., 115.)” (p. 95.)
See, also, Rouse v. Payne, 105 N. Y. S. 549, 120 App. Div. 667; also Allen v. Tiffany, 53 Cal. 16.
Plaintiff argues that the above rule should not apply to a case like this where the guardian resigned in 1934, and most of the time since that has been consumed in attempting to secure an adjudication on the objections of the plaintiff here to the final account filed by the guardian. The trouble with that argument is that there is no allegation in the petition that the probate court of Pottawatomie county acted capriciously, arbitrarily or unreasonably in withholding its decision. It is true that the apparent refusal of that court to act is causing vexatious delay. That court should act on the final accounting of that guardian. If it should persist in refusing to act an action in mandamus would be proper to compel action one way or another. We hold, however, that until the matter has been passed on by that court an action such as this cannot be maintained.
The judgment of the lower court is affirmed.
Allen, J., dissenting.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Hutchison, J.:
This action was commenced in the city court to recover a judgment against the defendant for $205.50. After a regular trial a judgment was rendered in favor of defendant and against the plaintiff for costs. From this judgment the plaintiff attempted to appeal within ten days by filing with the clerk of the city court a bond and a notice of appeal, the bond being approved by the judge of the city court, and the clerk of the district court on receiving the transcript and other papers filed the same and docketed the appeal.
The name of an entire stranger to the case followed the notice, as if it were being given by such stranger, although it was signed by the attorney for the plaintiff and the names of the real parties to the action were given in the notice. The first question involved is whether such a notice and bond gave the district court jurisdiction of the case. The plaintiff .moved the district court for leave to amend the notice by attaching the name of the real plaintiff, which motion was overruled. The plaintiff then moved to dismiss the case (not the appeal), which motion was allowed and the case was dismissed without prejudice at plaintiff’s cost. At the next succeeding term of court the defendant filed a motion to set aside the judgment or order dismissing the case on plaintiff’s request because the district court had no jurisdiction of the subject matter on account of no proper notice of appeal having been filed and the motion to amend the same having been overruled. This motion of defendant was sustained because the court found that the notice of appeal was defective, and the court therefore had no jurisdiction of the case, and the appeal on motion of the defendant was dismissed. From this judgment the plaintiff appeals to this court, assigning as error the rulings refusing the request to amend the notice of appeal and in sustaining defendant’s motion to set aside the judgment and dismiss the appeal.
Was the notice of appeal defective or void, or did it, together with the appeal bond, which is not questioned, give the district court jurisdiction of the case? G. S. 1935, 61-1001, requires the filing of a notice of appeal in the court from which the appeal is taken in all appeals from justice of the peace and city and county courts in civil cases within ten days from the date of the judgment or order. The following is a complete copy of the notice of appeal, including the acknowledgment of service of copy thereof, on the attorney for defendant:
“Notice of Appeal.
“Before Harvey J. Emerson., judge of the second district, city'court, of Kansas City, Wyandotte county, Kansas. Bankers Commercial Corporation, plaintiff, vs. Edward M. Markl, doing business as Markl Buick, defendant. No. 18396.
“State of Kansas, County of Wyandotte, ss:
“Appeal from judgment of Harvey J. Emerson, judge of the city court.
“To Edward M. Markl, doing business as Markl Buick, or Russell Hardy, his attorney.
“Take Notice: That an appeal has been taken to the district court of Wyandotte county, Kansas, from the judgment of Harvey J. Emerson, judge of the second district, city court of Kansas City, Wyandotte county, Kansas, rendered on the 22d day of May, 1936, for costs in favor of the defendant, Edward M. Markl, doing business as Markl Buick, and against plaintiff, Bankers Commercial Corporation, a corporation.
“Dated at Kansas City, Wyandotte county, Kansas, this 27th day of May, 1936. Maytag Acceptance Corporation, a Corporation, Appellant,
“By L. L. Watts, Its Attorney.
“Received copy of the above notice of appeal this 27th day of May, 1936.
“Russell C. Hardy, Attorney, for Defendant.”
Prior to the enactment of chapter 229 of the Laws of 1931 (G. S. 1935, 61-1001) there was no requirement to file notice of appeal to the district court from judgments rendered in those subordinate courts in civil cases, but the appeal was then effected by the filing and approval of a bond. Now it requires both. In the case of Brockman v. Bayman, 135 Kan. 238, 10 P. 2d 31, no notice of appeal was filed, and this court held:
“Under the act relating to appeals from 'justices of the peace and city and county courts in civil cases (Laws 1931, ch. 229) a distinct notice must be filed within ten days stating clearly that an appeal is taken from a specified decision or judgment, as a primary and prerequisite requirement to an effective appeal.” (Syl. ¶ 3.)
Referring now to the language of the notice, does it state clearly that an appeal is taken from a specified decision or judgment? If it does, the defendant has not been misled or misinformed. The body of the notice of appeal states that an appeal has been taken to the district court from the judgment of the city court rendered on a definite day for costs in favor of the defendant (naming him) and against “the plaintiff, Bankers Commercial Corporation.” The notice was not over the name of the plaintiff, the Bankers Commercial Corporation, as it should have been, but the name of another corporation appeared at the close of the notice as if put there by the attorney for the plaintiff.
A very similar matter under the statute for the giving of an appeal bond in a condemnation matter was involved in the case of Sheridan v. Phillips Pipe Line Co., 134 Kan. 260, 5 P. 2d 817, and it was there held:
“An appeal bond given by the landowner for the purpose of appealing from the award of condemnation commissioners containing the name of an entire stranger to the record in the obligation paragraph thereof, instead of the name of the corporation instituting the condemnation proceedings, is not void but only irregular, informal and defective, and such as can be amended when the bond contains such references to the parties, proceedings, purposes and obligations of the appellant as are shown in the opinion herein to have been embodied in the appeal bond in this case.” (Syl.)
In the case of Burke v. Missouri-K.-T. Rld. Co., 132 Kan. 625, 296 Pac. 380, which was also a condemnation case, there was one appeal bond given in the name of the owner of ten separate lots that were each for a separate amount condemned, and it was held that the bond was not void but only defective and would give the district court jurisdiction.
In the recent case of Jones v. Kansas City, 145 Kan. 591, 66 P. 2d 579, it was held:
“The notice of claim need not describe the place of accident with precise exactness, but the description of the place of accident must reasonably comply with the statute. It should be sufficiently definite to enable the city authorities, in the exercise of reasonable diligence, to locate the place intended by the notice.” (Syl. ¶ 2.)
In the case of Smith v. Smith, 107 Kan. 628, 193 Pac. 314, an appeal was taken from a ruling of the probate court allowing two separate claims against the estate and giving only one bond, and some of the statutory words were omitted from it. It was there held that the district court obtained jurisdiction.
In the case of Mercantile Co. v. Wimer, 97 Kan. 31, 154 Pac. 216, it was held:
“An appeal bond in a justice of the peace court is not necessarily void because it fails to follow all the statutory requirements, and if defective a proper bond may be filed in the district court.” (Syl. ¶ 2.)
It was held in Hayhurst v. Saile, 130 Kan. 844, 288 Pac. 539:
“One who has notice of such facts as would cause a reasonably prudent man to inquire as to other facts germane to the principal fact in question is chargeable with knowledge of such further facts as he might have learned by diligent inquiry.” (Syl. ¶ 2.)
In Kelchner v. Kansas City, 86 Kan. 762, 121 Pac. 915, it was held:
“An undertaking on appeal from proceedings to appropriate land for park purposes, running to the park board instead of the city as required by law, was not void but was informal, and it was proper to allow an amended undertaking to be filed after the period for taking an appeal had expired.” (Syl. ¶ 1.)
From these and similar decisions it must be concluded that the notice of appeal was not void, but was only defective, and the defect did not deprive the district court of jurisdiction of the appeal, and permission should have been granted plaintiff to amend the notice as requested.
The next ruling of the court was correct in dismissing the case without prejudice at the request of the plaintiff, and the last rulings made setting aside the order dismissing the case without prejudice and dismissing the appeal were erroneous, because they were based upon the contention of the defendant that the district court had no jurisdiction of the case on account of 'the defective notice of appeal. Where, then, does that leave the case? The dismissal of the case without prejudice entirely wipes the slate of the judgment in the city court against the plaintiff for costs and without an adjudication, because an appeal from a judgment in the city court or court of a justice of the peace leaves nothing in the city court or court of a justice of the peace, but takes the whole matter to the district court for trial de novo. This is different from an appeal from a district court to the supreme court, because the appeal in the latter case is only for a review of errors and not for a trial de novo. G. S. 1935, 61-1003, provides for the manner of taking an appeal from a court of a justice of the peace or city or county court, and further states:
“The district court shall try and determine the same as if originally filed therein. . . .”
This statute, before it was superseded in 1931, referred to the case being tried de novo on such appeal (R. S. 61-1003). In Koury v. Rapalino, 124 Kan. 582, 261 Pac. 578, under that old statute it was said that when such appeal is taken the case is to be tried de novo and the rulings of the justice court are no longer important. Substantially the same provision is made by statute for an appeal from a judgment in the probate court (G. S. 1935, 22-1107), and it was said in the opinion in the case of Darnell v. Haines, 110 Kan. 363, 203 Pac. 712, that—
“The decision here, however, turns upon the effect of an appeal from the probate court. If the district court takes the case for trial de novo, then all proceedings in the court below are superseded and the dismissal by the plaintiff of his appeal would leave nothing pending in the probate court. . . . the appeal from the probate court gave the district court jurisdiction of the entire proceedings and the dismissal there left nothing pending in the probate court. Under the statute the appellant had the right to dismiss his case in the district court without prejudice to future action. The court sustained the motion, as the statute requires, and the appellant paid the costs. The court had no more authority to set aside the order at the request of the administrator than it would have had in the first place to deny the motion.” (p. 364.)
Since the notice of appeal was sufficient, together with the appeal bond, to give the district court jurisdiction of the case for a trial de novo, there was nothing left of the city court judgment for costs or anything else, so the dismissal of the case in the district court by the plaintiff without prejudice left no judgment or proceedings in either court. We find error in the setting aside of the earlier judgment of dismissal, and direct'that such judgment setting aside the order of dismissal of the case be reversed. It is so ordered.
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The opinion of the court was delivered by
Hutchison, J.:
This action was commenced in Nemaha county to recover upon a judgment rendered in favor of the plaintiff and against the defendant in Buchanan county, Missouri.
The principal, question is whether the matter involved was res judicata. The appellant states the question involved in the following language: “May fraud or imposition in the recovery of a judgment in a sister state be set up as an equitable defense to defeat a recovery upon said judgment?”
The defendant in this action brought a suit in Missouri against the plaintiff in this action to recover on a note given by McNergney to Harrison for $1,000. He got personal service on McNergney in Buchanan county, Missouri, and McNergney filed an answer and cross petition alleging the connection of Harrison with the Citizens State Bank of Sabetha, which in the early part of 1928 claimed to hold a note for $3,200 given to the bank by the mother of McNergney, for which note, through threats of the bank, McNergney, believing the same to be genuine, gave his own note for $3,200 and saw the alleged note given by his mother torn up. He further al leged that from time to time he reduced the $3,200 to $1,000, and at that time gave to Harrison a note for $1,000, having paid on the original and the second note the total sum of $2,500; that thereafter McNergney learned for the first time that the pretended note of his mother was forged and was without consideration, and that she had never been indebted to the bank, and that such forgery was known to Harrison, and that McNergney thereafter refused to make any further payments on the note. For a second count or cross petition McNergney alleged that Harrison had fraudulently and unlawfully, as the holder of the note, received from him the sum of $2,500, and prayed that Harrison take nothing by the action, and that he, McNergney, recover the $2,500 he had paid on the notes.
No reply was filed to this answer and cross petition, but the case was continued two or three times, and when attorneys for Harrison asked for further continuance, which was opposed by McNergney and denied by the court, the attorneys for Harrison dismissed the action and withdrew therefrom, and judgment was rendered, on February 24,1937, for McNergney by default. Later the same day evidence was introduced by McNergney, in the absence of attorneys for Harrison and in the absence of Harrison, and judgment was rendered thereon to the effect that Harrison take nothing and Mc-Nergney recover judgment against Harrison for $2,500, with interest and costs. Within four days thereafter Harrison, by his attorneys, filed a motion to set aside this judgment, alleging at length the poor health of Harrison and his wife, the distance he would have to travel from Bern, Kan., the inclement weather, and the bad roads which made it impossible for him to be present at St. Joseph on the day of the trial, and further setting out and alleging that he was not in any way connected with the Citizens State Bank of Sabetha, and that he purchased the note in question for the full face value in 1926, before its maturity, without any knowledge of any infirmities. He further alleged that the pleading upon which the court rendered judgment for McNergney on his counterclaim was insufficient to constitute a cause of action and that there was no competent evidence upon which the court could render a judgment for $2,500 against the plaintiff Harrison. He attached to the motion the affidavit of himself and wife setting forth therein the testimony given by the defendant, McNergney, at the hearing, which he alleged was perjury, and prayed to set aside the judgment dismissing his action and also the judgment rendered against him in favor of defendant McNerg ney. This motion to set aside the judgment was overruled by the circuit court of Buchanan county, in which the action was pending, and the plaintiff Harrison immediately appealed from the ruling to the Kansas City court of appeals, which latter court, in considering the appeal, stated:
“The question presented in the assignment of error and in points and authorities is, Did the court ‘exercise an unfair discretion’ in dismissing plaintiff’s action and in overruling the motion to set aside the judgment on the counterclaim? Neither the assignment of error nor points and authorities challenge the sufficiency of the answer to the petition, nor the sufficiency of allegations of the counterclaim, nor the sufficiency of the evidence introduced in support of the counterclaim.”
And the court concluded the consideration as follows:
“We must accept and consider the record as we find it. When thus considered, we cannot say the trial judge ‘exercised an unfair discretion.’ ”
Thereafter McNergney brought this action in the district court of Nemaha county, Kansas, alleging at considerable length the details of the proceedings had in the circuit court of Buchanan county, Missouri, leading up to the judgment rendered in his favor therein, and the appeal therefrom to the Kansas City court of appeals, where the circuit court judgment was affirmed, and later the further appeal to the supreme court of the state of Missouri, where the writ of certiorari was by that court denied. He attached to his petition exhibits A, B, C, D and E, being, respectively, the petition in the Missouri court, the answer and cross petition in the Missouri court, the motion of Harrison to set aside the judgment in the Missouri court, the opinion of the Kansas City court of appeals, and the mandate of the Kansas City court of appeals.
The defendant Harrison filed an amended answer and cross petition in the case in Nemaha county, alleging the giving of the note for $3,200 by the plaintiff, McNergney; the reduction of the principal and the payment of interest thereon; the giving of the new note for $1,000 on April 1, 1930, and the payment of interest thereon, setting up a copy of the note as an exhibit; the failure of the plaintiff, McNergney, to pay interest thereon after April 1, 1934; the attempt of Harrison to collect the same from plaintiff in Nebraska; the filing of the action in Buchanan county, Missouri, in November, 1935, attaching a copy of the petition; the filing of an answer and cross petition thereto in Buchanan county by McNergney and attaching a copy thereof as an exhibit,, and calling attention to the fact that the signing, executing and delivering of the $1,000 note was admitted in McNergney’s answer; reciting allegations contained in that answer with reference to the giving of the note as the result of fraud, misrepresentation, misunderstanding, collusion, connivance and other undue and illegal acts and things; that the note was not legal, no valid consideration being given for its execution and delivery, and then alleged in this answer and cross petition that all such allegations were false and untrue and were known to Mc-Nergney to be false and untrue and that there was a valid consideration for the execution and delivery of the note.
The answer and cross petition then recited and referred to the allegations in the cross petition of McNergney in the Missouri case concerning the bank, its officers and its failure, alleging that Harrison was a stockholder and director therein, also alleging conspiracy to defraud the mother of McNergney and the forging of her • name to a $3,200 note and the delivery of that note to Harrison. It further alleged that all of said allegations were and are false and untrue, that there was no conspiracy to embezzle and no forgery as alleged by McNergney, that said answer of McNergney in the Missouri court did not contain sufficient allegations of fact to constitute a defense to that action in Missouri or a cause of action in favor of McNergney, and that the answer showed upon its face that if Mc-Nergney had any action whatever against Harrison it was barred by the statute of limitations, and that by reason thereof the circuit court of Buchanan county, Missouri, was without jurisdiction to render any judgment in said action against Harrison. The answer and cross petition gave the dates of the filing of the pleadings in the Missouri court and the continuance of the case, some of which continuances were requested by McNergney.
The answer and cross petition further alleged the ill health, age, sickness in the family, impassable roads and other reasons preventing the attendance of Harrison and his wife at the time the case was called for trial in Missouri; that the change of venue taken by Harrison to the other division of said court gave a continuance but not as long as usual or as expected; that the attorneys for McNergney refused to consent to a further continuance and the court refused to grant further continuance, which ruling is here alleged to be arbitrary and unjust, and that on account of the absence of Harrison his attorneys dismissed his petition and withdrew as attorneys in the cause and that the attorneys for McNergney stated to attor neys for Harrison that the claim of McNergney in the case would be taken up at a later date, upon which Harrison relied, but it was taken up the same day without notice to Harrison or his attorneys, and the evidence was submitted to the court by McNergney and judgment was rendered for him against Harrison. It is further alleged that in the hearing McNergney testified falsely and gave perjured testimony concerning the $3,200 note and the $1,000 note, whereas in truth and in fact defendant Harrison was not connected with the Citizens State Bank and never had any connection therewith.
The answer and cross petition further alleged that Harrison filed a motion in the Missouri court to set aside the judgment and grant him a new trial, but said motion was heard and arbitrarily and unjustly overruled, and he took an appeal to the Kansas City court of appeals, but the judgment was there affirmed. It is further alleged that Harrison had exhausted his legal remedies and has no adequate remedy at.law, the said judgment rendered in Missouri against him being unjust, inequitable, unconscionable and void, and therefore McNergney should be enjoined and restrained from, enforcing the same.
A second cause of action, or cross petition realleged the facts and circumstances about the $1,000 note and prayed for judgment against McNergney for $1,060, with interest thereon from April 1, 1934.
The plaintiff, McNergney, then filed a demurrer to the amended answer and cross petition of the defendant Harrison, which answer and cross petition is detailed above. The demurrer, in addition to being general as to failure to state facts sufficient to constitute a cause of defense or action, raised the question of res judicata, want of jurisdiction, full faith and credit, the statute of limitations and estoppel. The trial court sustained the demurrer and rendered judgment for plaintiff, McNergney, against defendant, Harrison, for $2,500 and interest and costs. The defendant, Harrison, after the sustaining of the demurrer to his amended answer and cross petition, announced he would stand upon his pleadings, and served notice of appeal.
Appellant argues the following three questions involved:
“1. May fraud or imposition in the recovery of a judgment in a sister state be set up as an equitable defense to defeat a recovery upon said judgment?
“2. Does the appellant’s amended answer allege and set forth facts constituting such extrinsic fraud and imposition in the recovery of the judgment as will constitute an equitable defense to the appellee’s suit upon the judgment?
“3. Does the appellant’s amended cross petition, in conjunction with his amended answer, allege sufficient facts to constitute a valid cause of action in favor of the appellant and against the appellee upon the promissory note, as alleged and set forth in said amended answer and cross petition?”
Appellant argues on these questions that the defendant Harrison has never had his day in court, that accident, misfortune, absence of counsel and sickness make an equitable defense to give the defeated party a day in court, especially where it is alleged that fraud and imposition prevented one from having his day in court, citing the following Kansas cases, in addition to text authorities: Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079; Huls v. Gafford Lumber & Grain Co., 120 Kan. 209, 243 Pac. 306; and Bleakley v. Barclay, 75 Kan. 462, 89 Pac. 906. The first case cited was where the trial court sustained a demurrer to the petition because the allegations thereof only went to the extent of asserting that the former judgment was based upon incompetent, false, fraudulent and untrue testimony, and the opinion in affirming the ruling on the demurrer makes the clear distinction between things occurring in the trial of the case and those outside, one being intrinsic and the other extrinsic, and held:
“The fraud which will authorize a court to vacate a judgment in an action brought for that purpose under section 570 of the code of civil procedure must be extrinsic or collateral to the matter involved in the former action, and sufficient to justify the conclusion that but for such fraud the result would have been different.” (Syl. ¶ 2.)
The section 570 of the code, mentioned in the syllabus above quoted, is G. S. 1935, 60-3011.
The Huls case was one where an attempt was made by petition to obtain equitable rights for minors in a subsequent action where their interest in property had in a foreclosure action been lost by reason of the plaintiff, who was the material-lien party, getting the attorney for the guardian ad litem to sign a document used in the foreclosure action, and it was then alleged that the procuring of such signature was unfair and fraudulent. The court held in that case — •
“. . . that whatever fraud there was in the earlier action was intrinsic, not extrinsic, and consequently that judgment could only be corrected by appropriate supplemental proceedings in that case — by a motion for a new trial, or by a petition for a new trial, or by an appeal . . . .” (Syl. ¶ 1.)
In the last case above cited appellant quotes the following from a quotation from Black on Judgments used in the opinion:
“ ‘The doctrine of res judicata does not rest upon the fatít that a particular proposition has been affirmed and denied in the pleadings, but upon the fact that it has been fully and fairly investigated and tried — that the parties have had an adequate opportunity to say and prove all that they can in relation to it.’ ” (p. 472.)
The conclusion reached in the case is expressed in the following paragraphs of the syllabus:
“A party to a judgment cannot impeach or set it aside in a collateral proceeding on the ground that it was obtained by perjured testimony.
“Upon a plea of former adjudication a matter will 'be held res judicata, although not raised as an issue by the pleadings in the former action, if from the record it appears that it formed one of the premises upon which the judgment necessarily rested.
“A judgment rendered by a superior court of another state having jurisdiction of the parties and the subject matter will be given in this state the samé' faith and credit to which it is entitled in the state where it was rendered.” (Syl. ¶¶ 1,2,4.)
The fraud and imposition in the case at bar, relied upon by the appellant, is the unfair action of the Missouri trial court in refusing to grant a further continuance of the trial because of the age and infirmity of the plaintiff Harrison and members of his family, bad condition of the roads, and absence of his counsel. All these matters were before the Missouri trial court when it overruled the motion to set aside its ruling and judgment, and were intrinsic and not extrinsic. If the imposition of the ruling was fraud, it, like the matter of perjury or false swearing alleged to have been done in obtaining the judgment in Missouri, was before the trial court in Missouri and was not extrinsic or collateral fraud, and as said in the opinion in the Plaster Company case, supra:
“The general rule is that an act for which a court of equity will set aside or annul a judgment between the same parties, rendered by a court of competent jurisdiction, has relation to fraud extrinsic or collateral to the matter tried by the first court, not to fraud in the matter on which the judgment was rendered.” (p. 735.)
It is said on this subject in 34 C. J. 467:
“Equity will refuse to interfere by injunction, when the grounds presented for its action have been already considered and held insufficient on a motion made in the trial court to open or vacate the judgment or for a new-trial.
“A bill for an injunction cannot be maintained on the grounds which were presented and overruled on a motion for a continuance, or on the ground that the refusal to continue forced the party to trial at a disadvantage.”
In the case of Jackson v. Chesnut, 151 Mo. App. 275, 131 S. W. 747, cited by appellant, it was held that accident and surprise were alone sufficient grounds for setting aside a judgment rendered, but the court took particular pains to say that there was no pretense of any fraud or unfair means taken in procuring the judgment, and an accident, preventing defense, unmixed with any fault or negligence of the party litigant, was the ground for relief.
It was held in Potts v. West, 124 Kan. 815, 262 Pac. 569, thaU—
“Fraud consisting in stating a fictitious cause of action and in supporting the stated cause of action by false testimony is intrinsic fraud.” (Syl. ¶ 2.)
It was held in Littlefield v. Paynter, 111 Kan. 201, 206 Pac. 1114:
“A judgment of a sister state not challenged upon jurisdictional grounds cannot be impeached upon the ground that the successful party obtained the judgment by giving perjured testimony.
“The truth or falsity of the testimony produced was a matter for the determination of the court rendering the judgment, and that matter, not being extrinsic or collateral to the issue involved, must be regarded as adjudicated and not open to inquiry in another action.
“The demurrer to the defendant’s pleadings setting up that the judgment was fraudulently obtained by perjured testimony was rightly sustained.” (Syl. ¶¶¶ 1, 2, 3.)
In Smolinsky v. Federal Reserve Life Ins. Co., 126 Kan. 506, 268 Pac. 830, it was held:
“Full faith and credit must be given to the judgment of a court of a sister state and the same effect in all respects as is given it in the state where it was rendered.” (Syl. ¶ 3.)
We have no hesitancy in holding that the alleged accident, surprise, old age, ill health, family illness, absence of counsel and the alleged false testimony, resulting in the recovery of the Missouri judgment, were all intrinsic matters and not extrinsic, and therefore had already been considered and determined by the Missouri courts and were res judicata, and there were no new matters contained in the amended answer and cross petition in the case at bar which would make the case an exception to the full faith and credit rule as to judgments rendered in the courts of sister states. We think the demurrer to the amended answer and cross petition was properly sustained, and this extends to the cross petition, because the journal entry of the Missouri circuit court definitely stated “that the plaintiff take nothing by this petition.”
The judgment is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action for money. Judgment was for defendant sustaining a demurrer to the petition. Plaintiff appeals.
The petition alleged that plaintiff was a resident of Topeka and that Topeka was a city and had a population of more than 50,000 and less than 90,000. It further alleged that plaintiff became an employee of the city in 1912 and that he continued in such employment until April 12, 1937, at which time he retired on account of being disabled by disease contracted by him while in the performance of his duties as an employee of the city. ■ The petition described the disease and disability from which plaintiff suffered and alleged that he was permanently disabled from performing his duties.
The petition then alleged that at the time of his disability plaintiff was receiving $215 per month and that by virtue of chapter 124 of the Laws of 1931 he was entitled to receive fifty percent of this monthly wage during the remainder of his life.
The petition then alleged that on April 9, 1937, plaintiff filed his application for such pension in writing and that on April 16, 1937, the city commission disallowed the claim and refused to pay it.
Plaintiff prayed judgment against the city in the sum of $107.50 per month, to continue during the remainder of the life of plaintiff.
The city answered by a general denial and a further allegation that the disability of plaintiff was not due to disease contracted by plaintiff while in the performance of his duties as a city employee.
Just as the cause was ready for trial the city requested permission to withdraw its answer and file a demurrer in lieu thereof. This permission was granted and defendant demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action and on the ground that the court had no jurisdiction to determine the issues raised in the petition. The court sustained this demurrer on the ground that the petition did not state sufficient facts to constitute a cause of action.
Plaintiff appeals from that judgment.
Chapter 124 of the Laws of 1931 is now G. S. 1935, 13-1481 to 13-1487, inclusive. These sections read as follows:
“Any city having a population of more than 50,000 and less than 90,000 in habitants is hereby authorized and directed to provide funds for the relief and pensioning of all city employees, other than members of the police and fire departments, in accordance with the provisions of this act.” (G. S. 1935, 13-1481.)
“The governing body of any city coming under the provisions of this act may pay monthly to any employee who shall become physically disabled by reason of injuries received by him, or disease contracted by him, while in the performance of his duty and attributable thereto, a sum equal to fifty (50) percent of the monthly wages such person was receiving at the time of such injuries or disability, during the time such employee is unable to perform his duty: Provided, That the governing body at any time may compel such employee to submit to an examination by a physician or physicians selected by the governing body, and refusal by such employee so to do shall prevent him from receiving any further sum of money under this act.” (G. S. 1935, 13-1482.)
“Any employee more than sixty-five (65) years of age and having served thirty (30) years or more in such city, of which the last two years shall have been continuous, may make' application to the governing body to be retired, and upon such application being granted the governing body shall pay monthly to such employee so retired a sum equal to fifty (50) percent of the salary or wages which such employee was receiving at the time of his retirement. All payments to cease at the death of said employee.” (G. S. 1935, 13-1483.)
“The governing body of any city operating under this act may at any time it care's to do so retire any employee after he has reached the age of sixty-five (65) years or over, providing said employee has served the city for twenty (20) years or more. Upon such retirement the governing body shall pay monthly to such employee so retired a sum equal to fifty (50) percent of the salary or wages which such employee was receiving at the time of his retirement; all payments to cease at the death of said employee.” (G. S. 1935, 13-1484.)
“In all cities coming under the provisions of this act there shall be levied annually at the time' of the levy of taxes for city purposes, and in addition to taxes heretofore or otherwise authorized, for the purpose of paying such relief and pensions, a tax not to exceed one fifth (%) of one mill on all taxable property within the limits of the city.” (G. S. 1935, 13-1485.)
“No employee who at any time subsequent to the time this act takes effect, and while not physically incapacitated, shall refuse or omit to perform the duties of his employment, without the written consent of the governing body of the city, shall be entitled to receive any of the payments herein provided for.” (G. S. 1935, 13-1486.)
“All payments made or to be made as provided in this act shall be absolutely inalienable by any assignment, sale, execution or otherwise, and they shall not be subject to garnishment or attachment.” (G. S. 1935, 13-1487.)
It is the theory of plaintiff that under the above sections it was mandatory on the city to provide the funds as directed by G. S. 1935, 13-1481, and that it was also mandatory on the city having made the levy to proceed to make payments to members of the various classes of employees named in G. S. 1935, 13-1482, 13-1483 and 13-1484. Plaintiff contends that once he placed himself within one of these classes he became entitled to the payments. It should be noted here that plaintiff does not contend that the city commission acted unreasonably or arbitrarily in passing on his claim. His only contention is that he became permanently disabled by disease contracted by him while in the service of the city and is therefore entitled to be paid fifty percent of the wages he was receiving at the time of his disability, for the remainder of his life.
Defendant argues that the decision turns upon whether in the absence of any allegation of fraud, caprice or arbitrary or oppressive action on the part of the governing body of the city in the exercise of its discretion, the finding of the governing body is conclusive so that no judicial tribunal will substitute its judgment for that of the governing body.
In this connection two pension cases are brought to our attention. The first is Penquite v. Dunn, 123 Kan. 528, 256 Pac. 130. In that case the board of trustees of the firemen’s pension fund had denied the application of the plaintiff to be retired from active service and to be granted pension benefits. The trial court made findings of fact and allowed the writ. On appeal this court examined the findings and reached the conclusion that the action of the pension board in denying the application of the plaintiff was arbitrary and oppressive. The decision of the trial court was affirmed. This court in considering the case referred to the fact that the statute creating the board of pensions made no provision that the action of the trustees should be final and conclusive.
The next case is Garrety v. Cottman, 138 Kan. 789, 28 P. 2d 756. That was also a case where the board of trustees of the firemen’s pension fund had denied the application of the plaintiff to place him on the retired list. Between the time when the Penquite case had been decided and the filing of the Garrety case the statute had been amended to the effect that the action of the board should be final and conclusive. The proceeding was one in mandamus to compel the board of trustees to put him on the list. The trial court allowed the writ, but on appeal this court reversed the judgment. The decision turned largely upon the fact that the statute made the action of the board final and conclusive. The plaintiff in that case argued that such a construction was a holding that the board had arbitrary power and such power has never been granted in this state. This court agreed with the contention that arbitrary power is never granted, but pointed out that the allegations were the board acted “arbitrarily and capriciously” and that as these words were used in the petition they were merely the expression of the pleader’s conclusions. Naturally each time a person is placed on such a pension list, as is provided here, a question of fact must be determined. He must be found to have been physically disabled by reason of injuries received by him, or disease contracted by him, while in the performance of his duty, or he must be found to have reached the age of 65, and have served thirty years, the last two years of which must have been continuous or he must be found to have reached the age of sixty-five years, and have served the city twenty years or more.
This statute is unlike the one creating the firemen’s pension fund at Wichita, in that in the firemen’s statute it provided for the creation of a board of trustees of the firemen’s pension fund and gave this board authority to make the necessary findings. (See G. S. 1935, 13-718 to 13-729, 13-735 and 13-739 to 13-744.)
In the statute we are considering, no provision is made for such a body. Perhaps the city governing body could create such a body and provide rules for the conduct of its business and for the hearing of applications. We have not found it necessary, however, to reach such a conclusion in the decision of this case.
It is plain, however, that the governing body of the city must make the levy and may make the payments. It is plain, too, that the governing body of the city may compel a person retired for disability to submit to an examination at any time and refusal by such employee to submit shall prevent him from receiving more payments. (See G. S. 1935, 13-1482.) Undoubtedly this provision is to enable the governing body to take him off the pension list if he recovers from his disability. We conclude from all these provisions in the statute that the governing body has the duty or power to make the necessary findings as to the facts. While it might not necessarily make formal findings it must reach a conclusion based on facts found. This entails, of necessity, a hearing where an applicant has an opportunity to be heard.
Having reached this conclusion we shall be able to decide the case by rules announced many times by us that a court will not substitute its judgment for that of a body such as a governing body of a city on a matter within the discretion of the governing body, as long as it does not appear that the action of the governing body was arbitrary or capricious. In City of Emporia v. Railway Co., 88 Kan. 611, 129 Pac. 161, the railway company attacked an ordinance of the city directing it to open a street where to open it would require the building of a subway. This court said:
“The courts have no supervisory power over the policy of municipal legislation. They can only interfere to curb action which is ultra vires because of some constitutional impediment or lack of antecedent legislative authority, or because the' action is so arbitrary, capricious, unreasonable and subversive of private right as to indicate a clear abuse rather than a bona fide exercise of power.” (p. 614.)
While the board making the finding was not a governing body of a city, the above case was followed in Photo Play Corporation v. Board of Review, 102 Kan. 356, 169 Pac. 1154. In that case the statute required moving picture films to be submitted in a board of review before being shown in the state. A film was exhibited to the board which withheld its approval on the ground that it was immoral and not fit for exhibition. The plaintiff alleged that, as a matter of fact, the film was not obscene, indecent or immoral. The action was in the nature of an appeal from the action of the board. This appeal was provided for by the statute. The trial court overruled a demurrer to the petition. In considering the appeal from that judgment, this court examined the statute that allowed the appeal from the action of the board. This court then said:
“Wliat is the redress provided? Manifestly, it is such redress as a court can give, and not an exercise of executive or administrative power. A reexamination of the picture to determine whether it was moral and fit for exhibition would be an exercise of administrative power, and that discretion and power was specially conferred upon the board. It would result, in the substitution of the judgment of the court for that of the board in a pure matter of administration, which the legislature could not and evidently did not intend to confer upon the district court. It is fundamental that courts cannot be required or permitted to exercise any power or function except those of a judicial nature.” (p. 358.)
The judgment was reversed.
To the same effect is Drainage District v. Drainage District, 104 Kan. 233, 178 Pac. 433; also, Decker v. City of Wichita, 109 Kan. 796, 202 Pac. 89.
It will be remembered that there is no provision in the statute we are considering for an appeal to the courts. In this connection the holding of this court in In re Chicago, R. I. & P. Rly. Co., 140 Kan. 465, 37 P. 2d 7, is of interest. In that case the railway company had filed with the state tax commission an application for a refund of taxes. This' application was denied and the railway company filed an appeal from that decision with the district court. Motions to dismiss the appeal were sustained and the company appealed. This court said:
“Apart from the general appellate jurisdiction of the district court over all inferior tribunals exercising judicial powers conferred by the civil code (R. S. 60-3301), that court has no inherent appellate jurisdiction over the official acts of public boards or public officers. Where the latter do not transcend their statutory powers nor act fraudulently or oppressively their official acts cannot be challenged in court except where the legislature has made some special provision for a judicial review.” (p. 467.)
See, also, National Bank of Topeka v. State, 146 Kan. 97, 68 P. 2d 1076, also, Union Pac. Rid. Co. v. State Tax Comm., 145 Kan. 715, 68 P. 2d 1. Other courts have considered the very question of whether the action of a board in refusing a pension may be reviewed by the courts.
In McCarthy v. Couzens, 214 Mich. 501, the question was whether a fireman had died from injuries received in the discharge of his duty. The fire commission denied the application of his widow for a pension. She brought mandamus. The court said:
“In passing upon the issue of fact before the commission at its hearing of April 20, 1916, its action is not shown to have been fraudulent, arbitrary or capricious. In the absence of such showing the action of the commission must be deemed final and we have no right to interfere by mandamus, no right to substitute our judgment or discretion for that of the commission.” (p. 506.)
McColgan v. Board of Police Commrs., 130 Cal. App. 66, 19 P. 2d 815, was a case where the widow of a policeman sought a pension. It was denied. She brought mandamus. The court said:
“Still assuming that the defendant board did render a decision, that decision is under the facts res judicata. The general rule on the subject is quoted with approval in Mogan v. Board of Police Commrs., 100 Cal. App. 270, at page 273 (279 P. 1080, 1081), as follows: ‘As a general rule, whenever any person or persons have authority to hear and determine any question, their determination is, in effect, a judgment having all the incidents and properties attached to a similar judgment pronounced in any regularly created court of limited jurisdiction acting within the bounds of its authority. Hence, whenever any board, tribunal or person is by law vested with authority to decide a question, such decision, when made, is res judicata, and as conclusive of issues involved in the decision as though the adjudication had been made by a court of general jurisdiction.” (p. 68.)
The cases are cited and approved in 6 McQuillin on Municipal Corporations, 2 ed., § 2582, p. 518.
Plaintiffs argue here that the word “may” as used in G. S. 1935, 13-1482, should be construed to mean “shall” and that it is the duty of the governing body to proceed to pay pensions as provided for in the act. Just what we would hold on the question of whether the statute is mandatory, making it the duty of the governing body to proceed to pay pensions to those entitled thereto pursuant to the statute, we are not called on to answer here. The only question we have is whether one particular individual, the plaintiff in this case, is entitled to a judgment for the payments. On that question we hold that the decision of the governing body was final since neither arbitrariness nor caprice on the part of the governing body was alleged in the petition and the court may not substitute its judgment for the judgment of the governing body.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action to recover benefits for per manent total disability under the provisions of a life insurance policy, a copy of which was attached to the petition as an exhibit, it being what is called a converted policy because it automatically succeeded a five-year term policy, the provisions of both policies being nearly the same.
The defendant insurance company appeals from an order of the trial court striking from its answer the following defense:
“. . . said disability commenced prior to December 8, 1927, at which time defendant’s policy of insurance attached hereto as exhibit ‘A’ and its successor, policy No. 1736196, became effective, and has been continuous since prior to said date.”
No question is raised as to this being an appealable order, both parties evidently so concluding under such rulings as were made in the following Kansas cases: Norman v. Railway Co., 101 Kan. 678, 168 Pac. 830; Van Deren v.Heineke & Co., 122 Kan. 215, 252 Pac. 459; and McKenzie v. Ruggles Construction Co., 129 Kan. 759, 284 Pac. 407.
The appellant expresses the question involved in this appeal in the following terms:
“Is a provision in a clause of a life insurance contract providing for the periodical payment of specified benefits for permanent total disability that such disability must have commenced subsequent to the payment of the first premium under the policy, in conflict with the one-year incontestable clause?”
The appellee supports the ruling of the trial- court by argument under the following headings:
“The defendant is estopped to claim that the total and permanent disability of the plaintiff was not covered by the policy.
“By the issuance of the second policy the defendant waived the defense now made.
“The incontestability clause prevents defendant from raising the question here involved.”
The first policy issued by defendant to plaintiff, No. 1381683, became effective December 8, 1927. It was called a term policy because it was subject to automatic renewal at the end of five years. The second policy, No. 1736196, called a converted policy, was issued and became effective December 8, 1932. Both policies contained the same provisions concerning permanent 'total disability. The plaintiff attached to his petition, filed June 5, 1937, a copy of the second policy, and the defendant attached to its answer a copy of the first policy. There was no new application for the second policy.
Appellant calls our attention to the use of the following words in the disability clause of the first policy which do not appear in the second policy, viz., “since the payment of the initial premium upon this contract,” and argues therefrom the force and effect of the defense which was stricken out, to the effect that the disability in this case commenced before the first policy became effective. Of course the first policy containing those specific words about becoming wholly disabled “since the payment of the initial premium” limited the policy to subsequent disabilities, but why did the defendant company eliminate that clause from the second policy? The disability clause in the second policy is as follows:
“Upon due proof that before a default in the payment of any premium upon this contract . . . the company will pay . .
After a contract has been in force for five years it would not be usual to refer back that long to fix the- liability after the payment of the initial premium, but to refer, as the company here did, to the disability being before a default in the payment of a premium.
The allegations of the petition are that long prior to the issuance of the second policy the plaintiff was totally and permanently disabled and made proof thereof to the defendant before default in the payment of any premium, and that the defendant accepted the proof and paid the plaintiff $50 per month under the terms of the second policy and its predecessor until September 5, 1936, at which time the defendant failed and refused to make further payments and has made none on said policy since September 5, 1936.
Another difference in the wording of the two policies is in the incontestable clauses thereof. The language in the second policy, the one on which this action is based, is as follows: “This contract shall be incontestable from its date of execution except for nonpayment of premiums.” In the original policy the language is as follows: “This contract shall be incontestable after it shall have been in force for a period of one year from its date of execution except for nonpayment of premiums . . .” The difference was that the first policy was incontestable after one year from its execution, while the second, the automatic conversion policy issued five years later, to take the place of the original policy, was incontestable after its execution.
Appellant very properly asserts that insurance policies do not apply to acts which have already occurred, but they are contracts based upon some contingency or act to occur in the future, quoting such language in substance from the case of Clardy v. Grand Lodge of Oklahoma, A. O. U. W., 132 Okla. 165, 269 Pac. 1065. With this view of the general nature, intention and purpose of insurance no one will disagree if it stands alone in the insurance contract. The purpose of obtaining the policy is to be insured against something which may occur in the future. But an insurance contract, like most written contracts, must be considered from its four corners, and that includes other provisions therein and possible restrictions or limitations, among which may be the incontestable provision.
Appellant calls attention to the conversion clause contained in the first policy, under which the insured could have compelled the issuance of a converted policy at the end of the five-year term policy and that without evidence of insurability, and reasons therefrom that the converted policy is but a continuation of the first policy, with the same restrictions and limitations, citing the cases of Aetna Life Ins. Co. v. Dunken, 266 U. S. 389, 45 S. Ct. 129, 69 L. Ed. 342, and Silliman v. Ins. Co., 131 Tenn. 303, 174 S. W. 1131. In the first case it was held that the conversion clause made the second policy simply a continuation of the term policy and limited to the provisions and restrictions of the original policy. However, the contention in the case arose over a difference in the laws of the states where the insured was residing at the two different periods, the first policy being delivered to the insured when he was a resident of Tennessee and the converted policy executed and delivered to him when he resided in Texas, and the court held that the Texas laws and requirements should not control or be applicable as to interest and attorney fees, but the rights of the parties should be limited and controlled by the laws of Tennessee. The second case was one where the suicide clause was involved. The converted policy was issued four years later than the term policy, and the suicide occurred six months after the date of the second policy. In the term policy the company limited its liability to the amount of the premiums paid on the policy “in case of suicide committed while sane or insane within one year of the date hereof,” but the converted policy provided that in case of suicide “within one year from the date on which this insurance begins.” The court considered the language used in the two different policies and held that the two policies were in effect one and the same contract, and that the insurance began, within the meaning of the suicide clause in the second policy, at the time of the issuance of the original policy. The specific language used certainly justified the ruling that it related back to the begin ning of the contract relationship. Both of these decisions were based upon special features rather than on a general principle, to the effect that a converted or substituted policy must relate back in all its features to the time and to the provisions of the term or original policy.
We are of the opinion that the change of language in the new policy and the elimination of certain provisions contained in the original policy must be regarded as having been made intentionally and a meaning must be given to the language contained in the new policy. The insurer made these changes, and it alone is responsible for the modifications so made, and we can see no good reason existing why the language of the new or substituted contract should be ignored and that of the original held to be controlling where there is a difference.
In 13 C. J. 595 it is said concerning contracts in general:
“An agreement, when changed by the mutual consent of the parties, becomes a new agreement, which takes the place of the old, and consists of the new terms and as much of the old agreement as the parties have agreed shall remain unchanged . . .”
Reference is made in the converted policy to its being made to take the place of the old, but nowhere does it adopt the provisions of the original policy.
In 6 Couch, Cyclopedia of Insurance Law, 4653, it is said:
“If a term policy stipulates for renewal upon its expiration, and also that it may be exchanged for a new policy without a medical examination, and insured makes an application for a ‘new contract or policy,’ which is issued, and is not a restatement of the contents of the term policy, but in its terms differs essentially therefrom, and expresses no dependence on the term policy, or connection therewith, said new policy is an independent contract. . . .”
In the recent decision by the circuit court of appeals, tenth circuit, in the case of Nielsen v. General American Life Ins. Co., 89 F. 2d 90, handed down March 24, 1937, it was held:
“Where original life policy gave insured right to exchange it for any other nonparticipating policy used by insurer at time original policy was issued, and provided that new policy should bear same date and be written at same age as the original, but at insured’s request new policy was issued at insured’s attained age so as to permit correct increased rate of premium, payment of existing loan, and release of entire cash value in excess of loan, new policy, which was not one issued by insurer at time original policy was issued, constituted separate and distinct contract.” (Headnote, f 1.)
There is no element of fraud involved in this review, which is limited to the matter of striking out the part of paragraph seven of the answer that alleged a different time of the beginning of the disability, which if established, would not come within the disability provisions of the original policy and would not in any way concern the disability provision of the converted or new policy which by its express terms must occur “before a default in the payment of any premium upon this contract.” We think the language of the new or converted policy is controlling rather than any disability provision contained in the original and omitted from the new policy, and that this alone will justify and affirm the ruling of the trial court in striking out the last part of paragraph seven of the answer.
Both parties have carefully briefed this case also as to the effect of the incontestable provisions in both policies. In the original, or term policy, it was stated to be. incontestable after being in force for one year from the date of its execution; the converted or second policy provided that it would be incontestable from its date of execution. Appellant cites two Kansas cases, Myers v. Liberty Life Ins. Co., 124 Kan. 191, 257 Pac. 933, and Moore v. American Insurance Union, 135 Kan. 311, 10 P. 2d 1084. The first one was a suicide case, where the policy provided that there should be no liability for death by suicide within two years from date of policy, and also had an incontestable provision covering one year only. The suicide occurred after one year, but before the end of the second year, and the court held that the two provisions were separate and each entitled to full consideration, and that the exemption of the company from liability under the suicide provision was not cut off or limited by the incontestable provision, and held further that the claim of the company under the suicide clause was not a contest, but simply a claim of limited liability. The last Kansas case above cited was where the insured was killed by the beneficiary and there was a special provision in the policy that such a risk was not assumed by the company, and the court held:
“. . . that the incontestable clause does not prevent the insurer from contesting liability for death at the hands of the beneficiary, a risk expressly excepted from the insurance contract.” (Syl.)
In that case the decision referred to the matter involved as a.contest, although the incontestable clause was held not to be controlling.
Two other cases are cited by appellant, both concerning the effect of the incontestable clause upon the disability provision and a claim thereunder. In the case of Mills v. Insurance Co., 210 N. C. 439, 187 S. E. 581, it was held:
“. . . The ambiguity created by the conflicting provisions of the policy and the disability rider as to whether the incontestable clause should apply tq the disability insurance, must be resolved in favor of the insured.” (Syl. If 2.)
. . The incontestable clause precludes insurer from attacking the validity of the disability insurance on the ground of fraud, but does not preclude insurer from denying the genuineness of the disability claimed or asserting that the alleged disability is not covered by the terms of the policy.” (Syl. J 3.)
In the opinion it distinguished between denial of coverage and a defense of invalidity. Another case cited along this line is John Hancock Mutl. L. Ins. Co. v. Hicks, 43 Ohio App. 242, 183 N. E. 93, where a similar ruling was made as to the effect of the incontestable clause on the disability provision. In this case last cited the disability clause fixed its application after the payment of the first premium, which is very similar to that provision in the term policy in the case at bar, and it was held that the defendant company had the right, without respect to the incontestable clause, to put the plaintiff upon proof of the commencement of the disability. Many other cases along this line are cited by appellant.
The case of Kansas City Life Ins. Co. v. Hislip, 154 Okla. 42, 6 P. 2d 678, decided by the supreme court of Oklahoma in 1932, was one very similar to the case at bar, and it was there held:
“The language admits of no reasonable construction other than the company reserves to itself the right to ascertain all the matter and facts material to its risk and the validity of its contract for one year; and that if within that time it does not ascertain all the facts, and does not cancel and rescind the contract, it may not do so afterwards upon any ground then in existence.” (Syl. ¶ 5.)
In the case of Coodley v. New York Life Ins. Co., 9 Cal. (2d) 269, 70 P. 2d 602, decided by the supreme court of California in August, 1937, it was held:
“The provision in a life insurance policy, to- the effect that after being in force a specified time it shall be incontestable, precludes any defense after the stipulated period on account of false statements warranted to be true, even though such statements were fraudently made, unless by the terms of the policy fraud is expressed or impliedly excepted from the effect of such provision.” (Syl. H 1.)
Many cases are cited in the opinion to show the conflicting views as to the extent of modification or control of the incontestable provision over the disability clause in'life insurance policies.
In the recent case of Stroehmann v. Mutual Life Co., 300 U. S. 435, 57 S. Ct. 607, 81 L. Ed. 732, the supreme court of the United States affirmed the ruling of the district court, holding “that as more than a year had elapsed since the policy took effect the limitation was applicable and controlling.” The opinion shows that no exception to the incontestable clause was used, as could have been used, to exclude the disability feature of the policy from its limitation, and that the insured is entitled to any such omission or resulting doubt.
The recent decision by the United States supreme court in the case of United States v. Patryas, 58 S. Ct. 551, 82 L. Ed. 585, was concerning a war risk insurance policy and a reinstatement thereof by act of congress as a converted policy, and involved the force and effect of the incontestable clause in relating to the disability clause, and it was said in the- opinion:
“This converted policy of insurance provided protection against loss from two causes: namely, death and total permanent disability. A provision making a policy ‘incontestable’ except for certain clearly designated reasons, is wholly meaningless and ineffective if, after proof of the loss insured against, the policy can be contested upon grounds wholly different from those set out in the exception. The object of the provision is to assure the insured that payment on his policy will not be delayed by contests and lawsuits on grounds not saved by the exceptions. Here, it has been established that the veteran is totally and permanently disabled. Yet his policy is contested on the ground that it does not insure against this disability because it existed before the policy was issued. If this defense can be interposed, his policy has never actually protected him against total permanent disability. Since permanent total disability is one of the two risks insured against in the policy, any contest (not based on the exceptions) which may prevent the policyholder’s recovery for such admitted total permanent disability — existing while the policy is in force — is a ‘contest’ forbidden by the ‘incontestable’ provision.” (p. 587.)
These opinions, said to be conflicting, are not particularly so when applied to limitations of the incontestable clause over disability clauses. A defense against a disability claim is generally a contest. It is not like the suicide question involved in the Myers (Kansas) case, and if no exception is incorporated in the incontestable clause it will naturally apply to the disability clause. The decision in the case of Priest v. Kansas City Life Ins. Co., 119 Kan. 23, 237 Pac. 938, requires an actual contest to be commenced within the limitation of time in the incontestable clause where such limitation is applicable. But as stated earlier in this opinion, we think the ruling of the trial court was correct as based on the change of language used in the converted policy from that used in the term policy, and was fortified by the application of the incontestable clause to matters concerning the disability clause.
We hold that there was no error in the trial court’s striking out the closing portion of paragraph seven of the answer.
The ruling is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This was an action to quiet title to a half section of land in Kingman county. Judgment went for plaintiff, and defendants have appealed.
The question here is whether the trial court erred in sustaining appellee’s motion for judgment on the pleadings.
Appellee, Oklahoma City University, instituted this action under the provisions of G. S. 1935, 60-1801, and alleged it was the owner of the land and in the possession thereof. It also stated appellants claimed some interest therein, the exact nature of which was to the appellee unknown, and then asked to have its title quieted.
Appellants filed an amended answer and cross petition. Appellee filed a reply.
Facts admitted under the pleadings were, that such title as plaintiff had, if any, was obtained by virtue of the will of Mary C. Dunn, who died testate in the state of Oklahoma and devised to appellee the fee title to the land subject only to a life estate in her son-in-law, Sidney Ray Warden, and by virtue of a warranty deed from the life tenant dated May 9, 1933, which was recorded in Kingman county, Kansas, May 10, 1933. The pleadings admitted that such title as appellants had, if any, resulted from the facts that Thomas A. Dunn owned the land during his lifetime and that Mary C. Dunn was his sole heir at law. She died testate in 1930, owner in fee of the land. She left no parents, husband, children or adopted children, and appellants were her heirs at law, and if Mary C. Dunn had died intestate they would be the owners of an undivided nine-tenths interest in the land. The other interest holder made default.
Facts, fully and unconditionally admitted by the pleadings and a stipulation, were: Mary C. Dunn, a resident of Oklahoma county, Oklahoma, died testate May 28, 1930. Her will was duly proved and admitted to probate in the- probate court of her residence, in June, 1930. At her death she was the owner of the land in fee simple. Sidney Ray Warden, her son-in-law, was named in her will as executor. He was appointed, qualified, and the estate was fully settled, the executor discharged and all federal estate, gift and state inheritance taxes had been fully paid. At all times since June 30, 1930, the will has been on file in the probate records of the court of probate jurisdiction in Oklahoma county, Oklahoma. The deed from the life tenant to the appellee was recorded in the office of the register of deeds of Kingman comity, Kansas, on May 10, 1933, which was less than three years after the death of the testatrix. Appellee had been in possession of the land through tenants for a period of four or five years prior to the commencement of this action, which was October 14, 1937. Duly authenticated copies of the will, codicils thereto, the order admitting the will and codicils to probate in Oklahoma, certificates of its probation, the order approving the final accounting of the executor and a decree of final distribution and discharge of the executor, were duly admitted to probate in the probate court of Kingman county, Kansas, on November 2, 1937.
Appellants contend the appellee had knowledge of the will and had the power to offer it for probate in Kingman county, Kansas, or to have it recorded in that county during a period of over three years after the death of the testatrix. The pleadings admit appellee did not do so. Appellants contend such failure rendered the foreign will ineffective to pass title to the real estate situated in this state.
In support of appellants’ contention our attention is first directed to the following sections of the General Statutes of 1935:
“No will shall be effectual to pass real or personal estate unless it shall have been duly admitted to probate or recorded as provided in this act.” (G. S. 1935, 22-232.)
“No lands, tenements or hereditaments shall pass to any devisee in a will who shall know of the existence thereof, and have the same in his power and control for the term of three years, unless within that time he shall cause the same to be offered for or admitted to probate; and by such neglect the estate devised to such devisee shall descend to the heirs of the testator.” (G. S. 1935, 22-233.)
“If any real or personal estate shall be devised or bequeathed by the last will, the executors of such will or any person interested therein may cause the same to be brought before the probate court of the county in which such estate may be, and the court may, by citation, attachment or warrant, or, if circumstances require it, by warrant or attachment in the first instance, compel the person having the custody or control of such will to produce it before the court for the purpose of being proved.” (G. S. 1935, 22-208.)
“If the person having the custody or control of a will shall without any reasonable cause neglect or refuse to produce the same for probate after being duly cited for that purpose, he may be committed to the jail of the county, there to be kept in close custody until he shall produce the will; and he shall be further liable to the action of any party aggrieved for the damages which may be sustained by such neglect or refusal.” (G. S. 1935, 22-211.)
Construing the two sections, first above quoted, together, we have no doubt the lawmakers had in mind the original probate of do mestic wills and not the ancillary probate of foreign wills. Were this not true then no title to real estate in Kansas could ever pass to a devisee by virtue of a foreign will where the will was executed and duly probated in a state in which the law permits probation more than three years after such devisee thereunder had knowledge of its existence and power and control thereof. Appellee urges the construction contended for by appellants clearly violates the full faith and credit clause of the federal constitution, which provides:
“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.” (Sec. 1, art. 4.)
We need not pass on that particular contention of appellee in the instant ease. It is sufficient to say in our opinion the limitation contained in G. S. 1935, 22-233, refers to the probation of domestic wills and not to foreign wills.
In view of the foregoing we need not discuss the other pertinent conditions named in G. S. 1935, 22-233, namely, whether appellee also knew of the existence of the will and had the same under its power and control for a period to exceed three years after the death of the testatrix. It will be noted G. S. 1935, 22-233, does not say a foreign will shall be offered for or admitted to probate in Kansas, within three years. It simply says, “shall cause the same to be offered for or admitted to probate.” The instant will was admitted to probate in Oklahoma within thirty days from the death of the testatrix.
In the instant case, not only is the proper authentication of the will admitted, but it is also admitted that before judgment, properly authenticated copies of the probate of the will in Oklahoma, and all such proceedings had thereunder in Oklahoma as were necessary to pass title to the devisees, were recorded in the office of the probate court of Kingman county, Kansas. G. S. 1935, 22-203, provides:
“A last will and testament executed without this state in the mode prescribed by the law, either of the place where executed or of the testator’s domicile, shall be deemed to be legally executed, and shall be of the same force and effect as if executed in the mode prescribed by the laws of this state: . . .” (G. S. 1935, 22-203.)
This section is a part of the uniform wills act. Appellants’ contention would completely vitiate the effect of that section and also the provisions of G. S. 1935, 22-227, which specifically provide for the admission to record in the probate courts of this state, properly authenticated copies of foreign wills and that such authenticated copies so recorded shall have the same validity as wills made in this state in conformity with our laws. The limitation contained in G. S. 1935, 22-233, obviously was intended to apply only to original probate and not to ancillary probation, as otherwise some limitation would have been placed upon the recording of authenticated copies of foreign wills.
Returning now to the last two sections cited by appellants, G. S. 1935, 22-208 and 22-211, it seems clear they also refer to the original probation of domestic wills and not to ancillary probation of foreign wills. Obviously a probate court of this state has no jurisdiction to compel the probation of a foreign will while it is in the custody and control of a nonresident.
In 68 C. J., Wills, section 697, the rule is stated thus:
“Where the will of a nonresident has been admitted to probate in .the jurisdiction of the testator’s domicile, ancillary probate in another jurisdiction may be had after the expiration of the statutory period beyond which a resident’s will would not be admitted to probate in the latter jurisdiction. It is otherwise, however, where the will has not been first probated in the state of the testator’s domicile.” (p. 948.)
See, also, Johnson v. Bard, 54 S. W. (Ky.) 721; Morrison, &c., v. Fletcher, 119 Ky. 488, 84 S. W. 348; Carpenter v. Demon et al., 29 Ohio St. 379. In the Morrison case it was held:
“Where the will of a nonresident is legally admitted to probate in the state of her last residence, ancillary probate in this state, in order to complete the title to lands in this state, is not subject to the ten-year statute of limitations.
“A judgment of the county court admitting either a foreign or domestic will to probate cannot be attacked in a collateral action or proceeding.” (Syl. ¶¶ 14, 5.)
We are reminded our code of probate procedure was taken from Ohio. (Citizens B. & L. Ass’n v. Knox, 146 Kan. 734, 747, 74 P. 2d 161.) In the Carpenter case the Ohio court said:
“The neglect of a devisee for three years to cause a known will to be offered or admitted to probate, whereby the devise lapses under the thirty-fourth section of the act of 1840, refers to the original probate, and not to the admission to record of an authenticated copy of a probated will.” (Syl. ¶ 3.)
We have examined various cases from this and other jurisdictions cited by appellants, but they deal with the probation of domestic wills and are therefore not helpful here. Appellants emphasize the decisions in Henderson v. Belden, 78 Kan. 121, 95 Pac. 1055, and Benson v. Nyman, 136 Kan. 455, 16 P. 2d 963. The Henderson case was an ejectment case. It was there held the petition was demur rabie, as the petition was based solely upon the original probation of the foreign will in the foreign state and contained no allegation of a supplemental probation and recording in this state. The Benson case involved a domestic will which had been probated in Neosho county, Kansas, but not recorded in Allen county, Kansas, in which latter county the land was situated and on which the life tenant under the will attempted to collect oil and gas lease rentals. Plaintiff offered in evidence a copy of the will and the order of the probate court of Neosho county, under which the will was probated and admitted to record in Neosho county. On that specific point this court held:
“A certified copy of a will and the order of court probating and admitting it to record in one county of this state is admissible and competent evidence to establish the right of a beneficiary under the will to maintain an action in another county of the state to collect rent under a contract, made by the 'deceased, for the use of lands in such other county, without first being placed on record in such other county. (R. S. 60-2854.)” (Syl. ¶ 1.)
That case cannot control the decision in the instant case.
Appellants suggest, although they do not strenuously urge, the instant action was prematurely brought for the reason the 'authenticated copies of the will and order of probate in Oklahoma had not been recorded in the office of the probate court of Kingman county at the time this action was commenced. Such authenticated copies were recorded in the probate court of Kingman county on November 2, 1937, and were made a part of plaintiffs reply. Defendant filed its original answer after November 2, 1937. The stipulation conceded such recording on November 2, 1937, and in the stipulation it was also agreed that such proceedings and files in the probate court of Kingman county might be treated as a part of the pleadings in the action and be considered by the court in connection with the motion for judgment on the pleadings. In view of these circumstances this court obviously will not disturb the judgment on the theory the action was prematurely brought.
The judgment is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This was a controversy between two farmers over a line fence. One asked for an injunction to restrain the other and her tenants from tearing down or in any way interfering with the fence of the plaintiff and from trespassing upon any of the land of the plaintiff.
The defendant, in her answer, admitted that her tenants did tear down the fence described in plaintiff’s petition and threatened to tear down any other fences the plaintiff might build upon her land, describing the land owned by her, and she further alleged that a recent survey showed that the original partition fence was a few feet west of the east line of the land conveyed to the plaintiff. Then she described this deviation between the original fence and the surveyed line in detail, showing it to be a narrow strip varying in width from eight feet in width at the north end to 2.3 feet in width at the south end, on the north bank of the Republican river, which amounted to something less than a half acre, which she alleged she owned irrespective of where the actual legal line might be as surveyed, because of her having been in open, exclusive, notorious, continuous and adverse possession of the narrow strip since 1918. She therefore prayed that no injunction be allowed the plaintiff and that her title to this narrow strip be quieted. The plaintiff, in his reply, admitted the description of the narrow strip to be correct, but denied all other allegations of the answer.
After hearing the evidence the trial court made findings of fact and a conclusion of law. The first finding described the land conveyed by Edward E. Hill, the admitted original owner of all the land owned by both parties, on April 23, 1907, to the plaintiff. The second finding described the land the same general owner, Hill, on July 1,1908, conveyed to John J. Luthi, it being directly east of that con veyed to the plaintiff. The third finding shows the conveyance by Luthi in 1917 to S. A. Bardwell, and by Bardwell, on March 18,1918, to the defendant’s husband, now deceased. The fourth finding is as follows:
“Between April 23, 1907, and July 1, 1908, the plaintiff and Edward E. Hill, each owned a number of horses, and in order to keep them apart, built a double fence along the north part of plaintiff’s land, which consisted of a fence on plaintiff’s land and about three feet west of his east line, and one on the land of Hill about three feet east of his west line, and the plaintiff continued said fence south to the Republican river, keeping the same approximately three feet west of plaintiff’s east line.”
The fifth finding is to the effect that before Hill conveyed the east farm to Luthi a survey was made locating the boundary line about midway between the two fences, and markers were placed at the north and south, the former being there continuously ever since, and the latter being in place a part of the time. The sixth finding is that Luthi, Bardwell and the persons who have occupied the defendant’s premises supposed that the fence constructed by the plaintiff and extending to the river was the line between the two farms. The seventh finding is as follows:
“The said John Luthi and the defendant and all of the persons who have been the owners of defendant’s premises since the original conveyance thereof from Hill have occupied the land as described in the deed from Hill to Luthi, and also the narrow strip of plaintiff’s land lying immediately east of the fence by him constructed and running south to the Republican river. This occupation has been open, notorious and exclusive, and has been under the mistaken belief that said fence constituted the true boundary between the plaintiff’s and the defendant’s premises.”
The eighth finding is that another survey has been regularly made since the commencement of this action, which conforms to the original survey and established that all of the disputed tract was a part of the land conveyed by Hill to the plaintiff. The ninth finding is concerning the tearing down of the fence built by the plaintiff, as admitted in the answer. The tenth and last finding is as follows:
“There has never been any agreement between the plaintiff and the successive owners of this land that the fence constructed by the plaintiff should be taken as the boundary line between the premises of the plaintiff and the defendant.”
The one conclusion of law made by the trial court is as follows:
“Plaintiff should be allowed a decree permanently enjoining the defendant from tearing down or in any way interfering with the fence now on the east line of plaintiff’s premises, or that may thereafter be erected thereon. And the defendant should be adjudged to be without any right, interest or estate in any portion of the premises described in finding No. 1 [land conveyed to plaintiff].”
After hearing and overruling motions for a new trial and to set aside and vacate the findings of fact and the conclusion of law, the trial court rendered judgment in favor of the plaintiff enjoining the defendant from tearing down or interfering with plaintiff’s fence and holding that defendant is without any right, interest or estate in any portion of plaintiff’s land. From this judgment the defendant appeals, specifying as errors the failure of the trial court to vacate the findings and conclusion, in not finding the defendant had adverse possession of the strip of land for more than fifteen years, and quieting her title thereto, and in overruling defendant’s motions to vacate the findings of fact and for a new trial.
On this appeal it is admitted by the appellant that the narrow strip of land in controversy is embraced in the description contained in plaintiff’s deed. Therefore, the sole question here involved is whether the possession of this strip of land by the defendant was adverse. The trial court found that the defendant’s occupancy thereof had been “open, notorious and exclusive.” Did the evidence and the legal inferences warrant a finding and conclusion that such occupancy and possession was adverse? Or, in other words, did the finding of the trial court that such occupation was open, notorious and exclusive carry with it a necessary finding or conclusion that it was adverse? The theory of the appellant is fully expressed in her third question involved, which is as follows:
"3. Whether an owner of land who knows that an apparent line fence is three feet or so on his own land can successfully defend against a claim of adverse possession against one who has been in open, notorious and exclusive possession of the strip of land for twenty-nine years claiming to own the same, merely because said person supposed the fence to be on the true lines, and held the mistaken belief that the fence on the apparent boundary line constituted the true boundary line.”
Appellant did not request an additional finding of adverse possession after the findings omitting it were made. The request was that the findings as made be vacated. Great reliance is placed upon the acquiescence of the plaintiff and his failure to claim the strip of land belonging to him. The argument of appellant is based largely upon such acquiescence of the plaintiff and the mistaken belief of the defendant that the fence constituted the true boundary. Nothing is said in the findings about the extent of such acquiescence on the part of the plaintiff or the intent of the defendant under the mistaken belief as to the true boundary. These, matters were involved in the issues and were either proved or not proved, “that defendant is now the owner of said 250-acre tract, and that she and her deceased husband have been in open, exclusive, notorious, continuous and adverse possession of all of said land east of said original partition line fence, since the year 1918, claiming to own the title thereto irrespective of where the actual legal surveyed line might be.”
The burden was upon the defendant except it might shift to the plaintiff'for explanation after the establishment of adverse possession.
• Reference is made by the appellant to the holdings in two Kansas cases where there was a mistaken belief as to the boundary line and the encroachment was held to be adverse. They are Peterson v. Hollis, 90 Kan. 655, 136 Pac. 258, and Long v. Myers, 112 Kan. 395, 211 Pac. 109, but both of them were where the owners entered into an agreement to use the fence in one case, and the hedge in another, as the boundary line. The court in the case at bar specifically found in finding No. 10 that there never was any agreement in this case that the fence constructed should be the boundary line. So we cannot apply the ruling in these cases to the case at bar.
Counsel for appellant cite in absolute fairness several Kansas decisions holding contrary to the view they claim should be applied in this case, thus recognizing a diversity of opinion as to adverse possession and intention of party holding occupation to a mistaken boundary line, and they submit that there are only two points left in this case, namely, “Did defendant and her predecessors in title claim to own the strip of land in question?” and "Was that claim the kind that was hostile?” These questions are certainly in point. Counsel add that the trial court “did not find that otherwise defendant and her parties did not claim to own the property. They did claim to own it.” As stated before, intention and adverse or hostile possession were within the issues and were issues made by the defendant requiring proof sufficient to justify findings thereon, and without such findings or conclusion the appellant’s case would seem to be lacking. Sometimes findings of fact are placed in the conclusions of law, but if the conclusion of law in this case is considered in that connection it would amount to negative findings thereon. Both such matters needed affirmative findings to sustain the contention of the appellant.
Appellant cites the following from 2 C. J. S. 634:
“The generally accepted view is that possession under absolute claim of title up to a supposed boundary is adverse, although the claimant’s possession originated in a mistaken belief that the supposed boundary was the true boundary.”
In the same volume, under the same title, but on page 637, stress is placed on the necessity of intention of the possessors as follows:
“The claim must be as broad as the possession, and it is essential to acquisition of prescriptive title under this doctrine that the possessor have an absolute and not a conditional intent to claim title to all the land within a specified boundary, whether such boundary shall or shall not eventually prove to be correct, and that the true owner have notice of such hostile intent, although oral declarations of hostility are not essential where the adverse character of the possession is shown by visible, physical facts.”
It will thus be observed that mistaken belief with an absolute claim of title may make the possession adverse, but that claim of title must be absolute and not conditional, and the true owner must have notice of the hostile intent. The findings in the case at bar contain none of these elements except possession and mistaken belief. There is nothing in them about claim, intent or notice of hostile intent. The record shows some evidence about claim, and some reasonable inferences about acquiescence or apparent notice, but the court may not have given such testimony and inferences sufficient credence to support a finding where the record also shows the positive language of the deeds, the presence of boundary-line markers and the setting of telephone poles to the contrary.
It was said in Hinnen v. Artz, 99 Kan. 579, 163 Pac. 141, that—
“Of course, a possession held up to the fence in the belief that it followed the surveyor’s line would not be adverse (Winters v. Bloom, 96 Kan. 443, 151 Pac. 1109; 4 R. C. L. 128), nor would acquiescence in its maintenance on that supposition create an estoppel (4 R. C. L. 130).” (p. 584.)
In Park Construction B. & S. Corp. v. Emmett, 145 Kan. 604, 66 P. 2d 379, it was said:
“For instance, one regarding the fence as the boundary line, when later it was determined it was not on the line, cannot claim his possession and use of the extra space between the true line and the fence was adverse or hostile. The possession must be with the intention of being adverse to the real owner.” (p. 610.)
In Wiburg v. Stevenson, 134 Kan. 530, 7 P. 2d 512, it was held:
“In an action involving the title to a strip of land between a boundary line and a fence, in which plaintiff claimed title to the strip by adverse possession, a finding by the court that he did not have adverse possession of the tract in question is not inconsistent with a finding that the occupants of the property occupied the same to the fence. Adverse possession, to ripen into title, means more than mere occupancy.” (Syl.)
In Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836, it was held:
“The real test as to whether or not possession of real estate beyond the true boundary line will be held adverse is the intention with which the party takes and holds the possession. It is not merely the existence of a mistake, but the presence or absence of the requisite intention to claim title, that fixes the character of the entry and determines whether the possession is adverse.” (Syl. ¶ 1.)
It was further held in the case last cited that if—
“. . . there is a clear intention to claim the land up to the fence, whether it be the correct boundary or not, the possession will be held adverse.” (Syl. ¶ 3.)
The findings in this case are very different from the one at bar, but it recognizes and discusses in the opinion the conflict in the authorities generally respecting the effect of possession of real property taken and held under a mistake as to the true location of the boundary line, concluding that—
“ ‘It is not merely the existence of a mistake, but the presence or absence of the requisite intention to claim title, that fixes the character of the entry and determines the question of disseizin.’ ” (p. 659.)
In the case of Kinne v. Waggoner, 108 Kan. 814, 197 Pac. 195, while the facts are not exactly like those found in the case at bar, yet the legal principles expressed in the fourth and fifth paragraphs of the syllabus are applicable generally, and are as follows:
“The facts touching the erection of a boundary-line fence between two farms, which the respective owners amicably and for many years regarded as located on the boundary line of their farms, and that the encroaching owner long possessed and enjoyed the strip of land between the true boundary line and the supposed boundary line, and that the owner of the land encroached upon had laid no claim thereto, examined, and held, that such facts are not sufficient to give rise to a claim of right by adverse possession in favor of the encroaching owner, where there was no evidence that the boundary line had been fixed by agreement, and when there was no evidence of the encroaching owner’s intention to claim adversely to his neighbor, and no evidence that his neighbor encroached upon had notice of such adverse claim.
“Adjacent landowners are not estopped to dispute the accuracy of a boundary line which by mistake they have long treated as such, nor does the occupancy of land beyond the true boundary line by an encroaching owner form a basis for adverse possession, unless the encroachment is made with intention to claim and hold adversely.” (See, also, Scott v. Williams, 74 Kan. 448, 87 Pac. 550, and Crawford v. Hebrew, 78 Kan. 401, 96 Pac. 348.)
Counsel for appellant cite and quote liberally from the very comprehensive and exhaustive opinion in the case of City of Rock Springs v. Sturm, 39 Wyo. 494, 273 Pac. 908, which has been printed in full in 97 A. L. R. 1, together with an unusually long and complete annotation. In that opinion it was said that the main point in dispute in the law of adverse possession was the rule that possession must be taken and held under a claim of right or title of ownership, and especially where possession has been taken under a mistake, holding that “the intention.to claim adversely need not be manifested by words but may be inferred from acts,” quoting with approval from 33 L. R. A., n. s., 930, that “the trend of opinion is against disturbing him whose visible boundaries have existed for the period of the statute of limitations.” The opinion also holds that the title owner has acquiesced in the possession of the encroacher when the possession is adverse. It is stated in the opinion that “an undue prominence seems at times to have been given to the mental or psychological process involved in the claim of right or intent to claim.” (p. 510.)
In the case at bar we are at a loss for findings of fact as to the possession being adverse, as to the intent to claim adversely or as to notice and acquiescence. The opinion just discussed is mostly to the effect that some of these may be inferred from others. There were no findings made in that case, but judgment was rendered by the trial court in favor of the one claiming by adverse possession. There were also unusual facts as to the possession being notice to the plaintiff. The land there in dispute was a substantial addition to the lot of the defendant by the change of the bed of a stream which bounded his lot on one side. The opinion stated that the defendant filled up the added land to the level of his lot, built a board fence around that part of it, and later built thereon a chicken house, and still later erected thereon a substantial building costing several thousand dollars. This fact is consistently mentioned in the opinion as being more of a notice and acquiescence than the occupancy of less valuable vacant or prairie land.
Notwithstanding the logical reasoning in the opinion last cited, and the alleged trend of decisions in favor of one occupying land under a mistaken belief as to boundary line for the period of the statute of limitations, we adhere to our earlier expressed views that the possession of land must be adverse or hostile and with the intent to claim title thereto, unless acquiesced therein by the title owner, before the encroaching claimant can recover title thereto under the statute of limitations. These matters not being found nor coming within a reasonable ground for inference, the occupying claimant cannot recover.
The judgment is affirmed.
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action to recover an attorneys’ fee alleged to be due from defendant on account of professional services rendered to her by plaintiffs.
Defendant’s answer contained a general denial, and an allegation that “she has paid the claim . . . before the action was commenced.” She further answered that in the lawsuit (a divorce case and its incidents) in which plaintiffs’ professional services had been rendered in her behalf, it had been adjudged that her adversary should pay them.
The cause was tried by the court without a jury, and judgment for $500 was entered in favor of plaintiffs.
Defendant appeals, and specifies error as follows:
“1. The court erred in not sustaining defendant’s demurrer to the evidence.
“2. The court erred in admitting in evidence plaintiff’s exhibit 1.
“3. The court erred in overruling defendant’s motion for new trial.”
Touching the first of these, the facts of the litigation, in which the alleged services were rendered and the attorneys’ fee sued for was earned, it appears that some- three or four years ago Ralph W. Beaty and this defendant, Eva D. Beaty, were husband and wife and resided in Kearny county. They were people of considerable means, consisting chiefly of western Kansas lands and cattle. Their marital relations had developed into discord to such an extent that Ralph W. Beaty sued the present defendant for a divorce in the district court of Kearny county.
To defend against the action Mrs. Beaty employed Ray H. Calihan, Esquire, of Garden City, and about the same time she made the long journey to Jewell county and employed Messrs. Stanley and Weltmer, attorneys of Mankato, to assist Mr. Calihan. Following this employment, these three attorneys, plaintiffs herein, filed an answer and cross petition in Mrs. Beaty’s behalf. It would serve no purpose to narrate in detail the history of that lawsuit, which culminated in a complete victory for Mrs. Beaty. She, and not her husband, was granted the divorce; she was given the custody of their minor child; she was awarded $6,400 in alimony, and given a specified division of personal property, together with the Beaty homestead with 4,400 acres of land pertaining thereto. In addition to the foregoing, provision was made to save her harmless from many heavy obligations to which she was bound by her signature in various transactions in which her husband was interested. The aggregate of property values and moneys accorded to her by the judgment was about $46,000. To protect this general judgment from being vitiated by the meddling of some federal functionary under color of the Frazier-Lemke act, and certain bankruptcy proceedings, recourse had to be had in the United States district court; and the plaintiffs also had to give some professional concern to the protection of certain water rights appertaining to the lands awarded to Mrs. Beaty in the divorce decree.
In that decree the husband was required “to pay to her and reimburse her [Mrs. Beaty] for attorneys’ fees, attorneys’ expenses and suit money in the aggregate sum of one thousand dollars ($1,000), in addition to the sum heretofore paid by him [Mr. Beaty].”
In behalf of plaintiffs, Mr. Stanley testified as to the value of the services of himself and his associates. After telling of three automobile trips back and forth from Mankato to Garden City and Lakin in connection with the divorce case — two of them of 600 miles each and one of 740 miles, his testimony, abridged, reads:
“Based on results which approximate §48,000 or §49,000 just on that alone, I wouldn’t hesitate to justify §5,000 or §6,000 attorney fees. I am satisfied that our joint offices, I mean yourself, Mr. Weltmer and myself, are entitled to, over and above what we have received, which has gone to expense, §3,000.”
In view of the foregoing it cannot be said that the judgment for $500 in favor of plaintiffs was not supported by the evidence, and that defendant’s demurrer thereto should have been sustained.
The next error urged pertains to the admission in evidence of plaintiffs’ exhibit 1, which was a letter from Mrs. Beaty to plaintiffs Stanley and Weltmer, in which, after protesting against the tone of a letter she had received from them, she said, in part:
“I certainly did not expect to be notified of my bill in such a manner. . .
“I want to and will gladly pay you for your services, but could we not come to an agreeable and reasonable settlement in a more friendly and genteel way?
“All I want is a chance to pay you, and I am willing to turn over to you the §2,000 I am to receive in January. Also Mr. Beaty is to pay you §1,000, and' in view of the fact that I paid your expenses at the beginning of the case I think that is a more than reasonable settlement.”
This exhibit was offered and admitted in evidence over objection of defendant’s counsel. The record reads:
“Mr. Calihan: We will offer this exhibit 1 in evidence.
“Mr. Bullock: To which we object as being incompetent, irrelevant and immaterial, not tending to prove any issue in the case. The letter, if anything, is an offer to compromise the suit or claim.
“Mr. Calihan: It isn’t for that purpose.
“Mr. Bullock: It is objected to for the reason it isn’t pled.
“Mr. Calihan: It is offered for the purpose of substantiating or corroborating the testimony of Mr. Stanley that Mrs. Beaty had been informed that the allowance made by the court would not pay the bill, and she answered and realized that situation.
“The Court: I will receive it in evidence.”
Whether the letter also constituted an offer “to compromise the suit or claim,’’ it certainly did contain an express acknowledgment that she owed a bill for services which she declared she would “gladly pay,” and the letter was competent evidence on the latter point. Since there was no jury to be misled by possible misinterpre tation of the purpose of its admission in evidence, the error urged on this point does not appear.
There was no convincing evidence adduced to show that the plaintiffs employed by Mrs. Beaty were to look exclusively to whatever amount, if any, the trial court in the divorce decree might require the.husband, Ralph Beaty, to pay to Mrs. Beaty to compensate them for their professional services. The evidence to which the trial court gave credence was clearly to the contrary.
The motion for a new trial raised no question of importance, and there is nothing further in this appeal to justify discussion. The judgment is affirmed.
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The opinion of the court was delivered by
Wedell, J.:
This was an action to determine the rights of the plaintiff, Harold H. Malone, and of the intervenor, M. P. Sanderson, to an interest in and to oil and gas under certain lands in Sumner county, and to oil and gas which had been produced therefrom by the defendant, R. H. Young, a purchaser at a mortgage-foreclosure sale, and by his record successors in title. Plaintiff and intervenor claimed, respectively, an equal undivided one-sixteenth and one-twentieth interest. No question is here presented concerning the exact fractional interest of each. The real issue is whether either of them was entitled to any interest under the facts pleaded. Demurrers of various defendants were sustained to the amended petition of plaintiff, and to the intervening petition of Sanderson. From those rulings they have appealed.
The demurrers against plaintiff’s amended petition were as follows :
“Plaintiff’s amended petition fails to state a cause' of action in favor of plaintiff as against these defendants and that said amended petition shows on its face that plaintiff’s alleged claim, if as a matter of fact plaintiff ever had a legitimate equitable claim, is now barred by plaintiff’s laches, lack of diligence, waiver, and the applicable statute of limitations of the state of Kansas.”
The demurrers to the intervening petition were upon the same grounds.
The alleged rights of the plaintiff and the intervenor are based primarily on theories of cotenancy with respect to oil and gas in place, which rights they and the principal defendant, R. H. Young, and others, had acquired by separate deeds, and on the legal effect of the acquisition of a sheriff’s deed by R. H. Young at the mortgage-foreclosure sale. Other theories are also urged, all of which will be noted in the course of the opinion. We shall first consider the ruling sustaining the demurrer to plaintiff’s amended petition. The amended petition will be referred to as the petition. It is rather voluminous, and before stating the facts pleaded and in order to assist the reader in more readily understanding the general situation as therein set forth, we shall first relate the facts pertaining to the acquisition of the title by plaintiff, the intervenor, and the defendant, R. H. Young, and others to the oil and gas in place, which titles were acquired prior to the mortgage-foreclosure sale, but subsequent to the execution of the two mortgages which were foreclosed in a single action. In the petition reference was frequently made to the mortgage-foreclosure action. That action, including the judgment and sheriff’s sale, must therefore be considered in determining the correctness of the ruling on the demurrer. For the convenience of the reader it should be noted that statements hereafter contained in parentheses are facts which appear from records in the foreclosure action, in which the cotenant R. H. Young purchased at sheriff’s sale. Touching the question of the plaintiff’s, the intervenor’s and defendant Young’s title to the oil and gas in place prior to the foreclosure action, we find the following facts disclosed in substance by the petition:
The source of the fee title so far as this action is concerned was in one Baumgartner. On November 10, 1921, he mortgaged the land to the Federal Land Bank of Wichita for the sum of $8,000. In February of 1929 he executed a warranty deed to the land to G. A. Edminster, who assumed and agreed to pay the existing mortgage. In March of 1929 Edminster conveyed by warranty deed the land to Frank A. and Anna J. Erker, subject to the first mortgage. (Frank and Anna Erker will be referred to as the Erkers.) In December of 1929 the Erkers executed and delivered to G. A. Edminster a note and a mortgage on the land for the sum of $2,638.39. In December of 1929 the Erkers executed and delivered to the plaintiff, Malone, a conveyance covering an equal undivided one-sixteenth interest in and to all of the oil and gas and other minerals in and under the ground. The conveyance was marked exhibit “A.” The pertinent portion thereof provides:
“Sale of Oil and Gas Royalties
“Know all men by these presents, That Frank A. Erker and Anna Erker, of Sumner county, state of Kansas, for and in consideration of the sum of one dollar and other considerations ($1) cash in hand paid by Harold H. Malone, hereinafter called grantee, the receipt of which is hereby acknowledged, have granted, sold, conveyed, assigned and delivered, and by these presents do grant, sell, convey, assign and deliver unto said grantee an undivided one-sixteenth interest in and to all of the oil, gas and other minerals in and under, and that may be produced from the following-described land situated in Sumner county, state of Kansas, to wit: (here follows description).
“ . together with the right of ingress and egress at all times for the purpose of mining, drilling and exploring said lands for oil, gas and other minerals and removing the same therefrom, with the right at any time to remove any or all equipment in connection therewith.
“Said land being now under an oil and gas lease executed in favor of W. E. Witt and assigns, it is understood and agreed that this sale is made subject to the terms of said lease, but covers and includes one sixteenth of all the oil royalty, and gas rental or royalty due and to be paid under the terms of said lease.
“It is understood and agreed that one sixteenth of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease is to be paid to the said grantee and in the event that the above-described lease for any reason becomes canceled or forfeited then and in that event an undivided one sixteenth of the lease interests and all future rentals and bonuses on said land for oil, gas and other mineral privileges shall be owned by the said grantee owning one sixteenth of all oil, gas and other minerals in and under said lands, together with a one-sixteenth interest in all future events.
“To have and to hold the above-described property, together'with all and singular the rights, appurtenances thereto in anywise belonging unt.o the said grantee herein, his heirs and assigns for a period of fifteen years from date or as long thereafter as oil and gas or either of them is produced thereon, and does hereby bind himself, his heirs, executors and administrators to warrant and forever defend all and singular the said property unto said grantee herein, his heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, and agree that the grantee' shall have the right at any time to redeem for grantors by payment, any mortgage, taxes or other liens on the above-described lands, in the event of default of payments by grantors, and be subrogated to the rights of the holder thereof.”
In February of 1930 the defendant, R. H. Young, purchased nine-twentieths of the oil, gas and other minerals in place from the grantees of the Erkers, his immediate grantor being M. P. Sander-son, who at that time held an undivided interest in one half of the minerals in place. The conveyance from Sanderson to Young is identical in form with exhibit “A,” heretofore mentioned, except as to the names of the grantor and grantee. R. H. Young conveyed a one-twentieth interest in the minerals to J. A. Conrad and Howard V. Baker, respectively.
The petition further alleged in substance:
The Erkers defaulted in the payment of the mortgage liens, but through no fault of plaintiff. At the time of the sale under mortgage foreclosure, the defendant Young was a cotenant with the plaintiff in the oil and gas in place. In the foreclosure action by the Federal Land Bank of Wichita, all cotenant owners of the oil and gas in place, including the plaintiff, Malone, were made parties defendant. (The foreclosure action was filed April 28, 1931. Judgment was rendered July 27,1931, and an order of sale was issued September 1,1931.) The property was sold to the defendant, R. H. Young, on October 5, 1931, and the sale was confirmed on October 21, 1931. The sale price was $8,061.40. Due to the mortgage moratorium and extensions thereof, the sheriff’s deed was not issued to R. H. Young until May 1,1934. •
The petition in substance further stated:
The judgment foreclosing the mortgages ordered the property sold to satisfy the liens. No rights or claims between plaintiff and his co-party defendants in said action were adjudicated, nor justiciable therein. The petition of the Federal Land Bank of Wichita, in the foreclosure action, specifically set forth the record interests 'of all cotenants to the oil and gas in place, including that of the plaintiff Malone, and that of the intervenor Sanderson, in the instant case, as well as that of the cotenant Edminster' and that of the defendant R. H. Young. It alleged in substance that each and all of such interests were junior and inferior to the interest, equity and title of the plaintiff mortgagee. The plaintiff Malone, in the instant case, and his wife appeared and moved for additional time within which to plead, but later defaulted. Publication service was had on Sander-son, the intervenor, in the instant case. Edminster foreclosed his second mortgage on this land in that case against the Erkers. He and the plaintiff in the foreclosure action prayed for a decree foreclosing and forever barring the right, title, estate or interest of all other parties defendant. The foreclosure judgment directed the land be first offered for sale subject to certain oil and gas leases and subject to certain royalty interests obtained 'under mineral deeds, and that in the event the land did not bring a sufficient amount to satisfy the judgment, interest, taxes and costs, it should be sold clear, free and discharged of every oil and gas lease and mineral rights. The judgment further provided:
“It is further considered, ordered, adjudged and decreed by the court that upon the confirmation of the sale of said described real estate, the sheriff of said county issue to the purchaser at said sale a good and sufficient certificate of purchase for said real estate as by law provided; and in ease said described real estate' is not redeemed from said sale within eighteen months from the date thereof, that the then sheriff of said county shall upon the surrender of said certificate of purchase issue and deliver to the purchaser, or his assigns, or its successors or assigns, as the case may be, good and sufficient deed or deeds to said described real estate; and that he put such purchaser or purchasers in the full, quiet and peaceful possession thereof as against said defendants and each and every of them, and any and all persons claiming by, through or under them, or either or any of them; and that said defendants, and each and every of them, and any and all persons whomsoever claiming by, through, or under them, or any of them, upon the confirmation of said sale be, and they are hereby by the court forever barred, foreclosed and precluded from having or claiming to have any right, title, interest, estate, equity or lien in or to said described real estate; or any part thereof, except only that in the event said real estate is sold subject to the oil and gas leases of the defendants, Slick, Pryor & Lockhart, Inc., and the Darby Petroleum Corporation, as recorded in Book E-10, at page 180, and Book E-10, at page 179, and the royalty interests of the defendant, Carl Pursel, as acquired under and by virtue of the mineral deed or grant recorded in Book F-4, at page 496, then and in that event the said defendants, Slick, Pryor & Lockhart, Inc., and the Darby Petroleum Corporation, and Carl Pursel shall not be barred, foreclosed or precluded from their respective interests in and to said real estate as acquired under and by virtue of said oil and gas leases and said mineral deed or grant.”
No sufficient bid was received under the first offer of sale subject to the oil and gas and mineral rights, and the land was sold to R. H. Young, free and clear of such rights. That sale was confirmed as having been made in conformity with law and equity and the judgment of confirmation barred all rights of each and all of the defendants. The period of redemption was fixed at eighteen months. (None of the defendants redeemed.)
The petition, in substance, further stated:
The defendant, Young, was the only party at the foreclosure sale and he bid the amount of the first-mortgage lien and received a purported certificate of purchase. Young knew plaintiff was his cotenant but did not notify plaintiff of the transaction. Plaintiff had no knowledge thereof whatsoever, and plaintiff and Young well knew plaintiff had no knowledge thereof. The Erkers were also cotenants in the oil and gas in place, and have at all times been and now are in possession. At the time of the purported foreclosure sale and at all times thereafter said lands had and have a value for oil and gas development greatly in excess of the mortgage liens and foreclosure judgments, which fact was at all times well known to the Erkers and the defendants, R. H. Young, George Young and E. B. Shawver, but was not known to plaintiff. The development of the land for oil and gas was hindered, delayed and postponed because of the unsatisfied mortgage liens and the foreclosure sale and redemption rights, which facts were also well known to the defend ants, but not to the plaintiff. The oil and gas lease referred to in exhibit “A” became canceled and forfeited on or about May 1, 1934, and in a manner and at a time unknown to the plaintiff but known to the defendants. By virtue of the forfeiture of the lease plaintiff’s interest in the oil and gas in place became and is an undivided one sixteenth, including both the royalty and lease interests. The foreclosure judgment lien and the bid of plaintiff’s cotenant, Young, were satisfied out of the lands, and in substance a redemption was accomplished through the following plan, devices and arrangements, entered into before and conditioned upon the issuance of the purported sheriff’s deed. Such transactions and coincidence of events as hereafter related, all constituted and formed a single transaction by and between plaintiff’s cotenants, R. H. Young, George Young, and the defendant, E. B. Shawver, to wit:
(a) On March 31, 1934, the Erkers filed a motion in the foreclosure action for additional time in which to redeem, in which they represented that they believed themselves able to redeem the lands from foreclosure sale. The journal entry on such motion was filed May 1,1934, and recited that the Erkers and R. H. Young appeared in court and that the motion was overruled and the sheriff directed to forthwith execute and deliver to R. H. Young a sheriff’s deed.
(b) The foregoing motion and order and the following instruments, all dated May 1, 1934, and May 2, 1934, were prepared, executed and delivered before and simultaneously with the execution and delivery of the sheriff’s deed. All of the instruments were filed for record at the same time, namely, May 2, 1934. First, sheriff’s deed recorded 8 a. m.; second, a purported oil and gas lease to J. M. McMorrow, recorded 8:05 a. m. On May 3, 1934, this lease was assigned to E. B. Shawver, and the assignment was not recorded until April 27,1935; third, a purported conveyance by R. H. Young to George Young was recorded at 8 a. m., conveying an undivided three fourths of the minerals subject to the lease. Since the discovery of that transaction, plaintiff has learned that George Young is the son and partner of R. H. Young, and that the conveyance was without valuable consideration and to the use and benefit of R. H. Young and was made for the purpose of concealing from the record the true ownership of the estate and to deprive plaintiff of his interest therein. Fourth, a purported warranty deed from R. H. Young, to the defendant Doretta Erker (nee Shuck), was recorded at 8:15 a. m. Since the discovery of that transaction plaintiff has learned that Doretta Erker (nee Shuck) is the daughter of the Erkers, and that the conveyance to her was for the use and benefit of the Erkers and was without consideration from her and was made for the purpose of concealing the true grantee, and was a part of the plan to deprive plaintiff of his estate and for the purpose of preventing the record title from vesting in the Erkers in such manner as to inure to plaintiff as an after-acquired title by virtue of warranties contained in exhibit “A”; fifth, a purported mortgage was executed by Doretta Erker (nee Shuck) to the defendant E. B. Shawver, on the land, for $7,000, reciting an intention against merger with the oil and gas lease referred to herein as “second,” was recorded at 8:20 a. m. Plaintiff has learned since the discovery of that transaction and alleges this mortgage was executed by the grantor as agent for and to the use and benefit of the Erkers, and in furtherance of the plan of concealment and for the purpose of depriving plaintiff of his estate in the property; sixth, a purported assignment of oil and gas runs by Doretta Erker, to E. B. Shawver, as further security for the mortgage to E. B. Shawver, was recorded at 8:25 a. m., and was executed by the maker as agent for and to the use and benefit of the Erkers. (This assignment covered all oil and gas royalty to be paid from the undivided one fourth of the minerals, as additional security for the $7,000 mortgage. It was executed May 1,1934, and recorded on May 2,1934.)
The petition further alleged in substance:
On or about December 30, 1935, the defendant E. B. Shawver caused to be formed the defendant The S'telbar Oil Corporation, in which he owned and controlled a majority of the stock and of which he was the president and general manager. On or about December 30, 1935, E. B. Shawver caused to be assigned to that corporation the purported oil and gas lease without consideration and that the corporation had full knowledge and notice of all of the transactions herein and of the manner in which E. B. Shawver acquired the lease and of plaintiff’s interest and estate therein. (The assignment purports a consideration of one dollar.) The corporation was formed for the purpose of developing the land for oil and gas and in furtherance of the plan to deprive plaintiff of his interest. The corporation and E. B. Shawver, with full knowledge of plaintiff’s equities, have developed the lands for oil and gas, and that a great amount of oil and gas has been produced therefrom. The Crude Oil Pipeline Company, and the Kanotex Refining Company, with full knowledge and notice of plaintiff’s interest and estate, have taken a large amount of oil and gas from the premises, and plaintiff has received no part thereof.
That on or about March 19, 1937, the arrangements heretofore mentioned as of May 1, 1934, were consummated by the conveyance and delivery of a warranty deed from Doretta Erker (nee Shuck), to the Erkers, and by the satisfaction of the $7,000 mortgage, out of the lands and by the release of that mortgage by E. B. Shawver, and by the reassignment by him of the oil and gas runs to the Erkers. (The records referred to in the petition disclose that the assignment of oil and gas royalty by Shawver to the Erkers was made on April 21, 1937, which was after Doretta Erker had conveyed the land to the Erkers on March 19, 1937, for one dollar and other good and valuable considerations. At the time Shawver assigned the oil and gas royalty to the Erkers, which royalty he had theretofore held as part securitj^ for the mortgage debt, the $7,000 mortgage had been paid in full.)
That the foregoing transactions were not entered into in good faith by the defendants, and were planned and consummated by plaintiff’s cotenants, for the purpose of removing from the lands the -mortgage-foreclosure liens and the rights of redemption in such manner as to deprive plaintiff of his estate and interest therein to the unjust enrichment of the defendants, and at the cost and expense of the plaintiff. Plaintiff had no actual knowledge or notice whatsoever of the transactions herein alleged subsequent to and other than the summons of said foreclosure action and did not discover the facts herein stated until about June 21, 1937, when he was requested by his cotenants to execute a quitclaim deed. The fair and reasonable market value of the seven-twentieths interest of R. H. Young, in the oil and gas in place, which he held prior to the mortgage foreclosure were, together with the $7,000 received by him as the proceeds of that mortgage, greatly in excess of the amount R. H. Young bid for the property at sheriff’s sale. The defendant, R. H. Young, has been fully reimbursed for the amount of his bid and R. H. Young and George Young have in fact paid no consideration for the undivided mineral estates belonging to their cotenants. The defendant, E. B. Shawver, well knew the value of the interest of R. H. Young, and that plaintiff was entitled to the benefits of the satisfaction of the first-mortgage foreclosure lien. Shawver has paid no consideration to plaintiff for plaintiff’s interest in the leasehold estate and that he and his assignee, the Stelbar Oil Corporation, hold plaintiff’s interest for the use and benefit of plaintiff. By reason of the warranties contained in the mineral deed marked exhibit “A,” from the Erkers to this plaintiff, the plaintiff is entitled to have the interest in the minerals conveyed by such deed for the reason that the Erkers subsequently acquired the title thereto and are now estopped from claiming title to such interest adverse to this plaintiff. The defendants, or some of them, have expended money in developing plaintiff’s portion of the mineral rights by the payment of taxes and liens chargeable against plaintiff’s interest, and other expenses unknown to plaintiff. He believes the amount expended for the development of his interest does not exceed $25,000. An accounting should be required and that while plaintiff does not know the exact amounts of moneys due him after the payment of all necessary amounts, he believes his just and proper share for his one-sixteenth interest is in the'amount of $50,000. Plaintiff is willing and tenders into court his proportionate part for the satisfaction of the mortgage and judgment lien.
Were the demurrers to the petition of the plaintiff, Malone, properly sustained? The parties have written able briefs on the general subject of the effect of a redemption or purchase by a cotenant, at foreclosure sales. They have argued the general rule on those subjects and the exceptions thereto. We do not deem it necessary to treat those subjects in the instant case. The question of plaintiff’s laches and the statutes of limitation would still remain unanswered, and we prefer to go directly to those issues.
Did the doctrine of laches bar his claim? How long could the plaintiff Malone delay the assertion of his rights in view of the circumstances in this case? A summary of a few pertinent facts will be helpful. That the interests of the mortgagees were paramount to plaintiff’s interest, and that such fact was adjudicated in the foreclosure action to which plaintiff was a party, is clear. It is not contended that plaintiff could not have protected his rights by purchasing the property at sheriff’s sale. That he might have redeemed the property and that he could have been subrogated to the rights of the mortgagee under the terms of his mineral deed, exhibit “A,” is obvious. He saw fit not to avail himself of these rights but now insists, as a matter of equity, he is entitled to share in the subsequent benefits, which have accrued by reason of the efforts of his cotenant Young, and his successors in interest. The foreclosure action was filed April 28, 1931. The property was sold on October 5, 1931, in an action to which he was a party and in which he had personally appeared and later defaulted. According to his petition he did at least know that R. H. Young was his cotenant. He permitted that cotenant to purchase the property with his own money, not with the money belonging to plaintiff or other cotenants. Plaintiff made no bid. .He knew from the judgment of foreclosure rendered on July 27, 1931, that his rights would be cut off at the sheriff’s sale unless he protected them. The sale to R. H. Young was confirmed on October 21, 1931, as having been made in accordance with law and equity. In that judgment of confirmation plaintiff’s rights were cut off and the sheriff was directed to execute and deliver a certificate of purchase to R. H. Young, plaintiff’s cotenant, free and clear from plaintiff’s interest. The plaintiff did nothing. Due to the mortgage moratorium and extensions thereof, the period of redemption was extended and no sheriff’s deed was executed until May 1,1934. During the period of two years and almost seven months between the date of sheriff’s sale and the delivery of the sheriff’s deed plaintiff made no offer to redeem or to contribute his portion of the purchase price. The first offer to contribute was made in his petition, which was not filed until July 14, 1937. That offer was not made until after his interest, according to the allegations of his petition, had been developed and enhanced by the expenditure of much money and the efforts of R. H. Young and his record successors in title, to the handsome net value of $50,000. The petition contains no allegation of any development of the property for oil and gas prior to the purchase by Young at sheriff’s sale on October 5, 1931, but it does state in effect that the lease to which plaintiff’s mineral deed, exhibit “A,” was made subject had become forfeited on or about May 1, 1934. From October 5, 1931, the date of sale, and the offer to contribute on July 14, 1937, constituted a period of five years and approximately nine months during which plaintiff sat idly by and did absolutely nothing to assert or protect his rights against a cotenant who had acquired title at a foreclosure sale and in an action to which he was a party and for his own reasons defaulted. During this period the land was being developed for oil and gas in plain open view. Plaintiff’s excuse for failure to act sooner was that he had no knowledge of the value of the land for oil and gas purposes and that he did not know R. H. Young had purchased the property at sheriff’s sale. No reason is stated why he did not know these facts ox* why he could not have discovered them in the exercise of ox-dinax-y diligence. Plaintiff also pleads in substance that the various transactions of May 1, 1934, constituted a single transaction and that they and the various conveyances made at that time and after the delivery of the sheriff’s deed were xxot made in good faith but were planned by the cotenant R. H. Young and his purported successors in title as a device and for the purpose of removing the mortgage liens, defeating the rights of redemption, concealing the true title to the estate and finally for the purpose of depriving him of his estate and interest.
Assuming, without deciding, that the purchase by Young, under all the circumstances, constituted a redemption, the plaintiff, as a cotenant, was obliged to assert his rights within a reasonable time. (Moon v. Moon, 107 Kan. 466, 192 Pac. 840; Rutland Savings Bank v. Norman, 125 Kan. 797, 802, 266 Pac. 98; Hayden v. Hughes, 147 Kan. 511, 77 P. 2d 938; Starkweather v. Jenner, 216 U. S. 524, 30 S. Ct. 382, 54 L. Ed. 602; 62 C. J. Tenancy in Common, § 77, p. 459, § 112; Annotation, 54 A. L. R. p. 910.) In the Starkweather case it was said:
“Appellant did not act with that degree of promptness which equity demands. He has slumbered over the question of whether he should elect to let Jenner hold on to his purchase or require him to give the benefit of his bargain to his cotenants. A delay of not less than four years, during which there has been a large appreciation in the value of the property, is unreasonable.” (p. 530.)
What constitutes reasonable time within which a person may assert his claim generally depends upon the circumstances in the particular case. (Campbell v. Warnberg, 133 Kan. 246, 299 P. 2d 583.) The doctrine that a person claiming an interest or a right may be required to assert it promptly is especially applicable to oil and gas properties which are subject to rapid fluctuation in value. That he will not be permitted to engage in speculative delay until the value of such property has greatly appreciated, is definitely established. (Kirk v. First National Bank, 132 Kan. 404, 407, 295 Pac. 703; Campbell v. Warnberg, supra; Hanley v. Federal Mining & Smelting Co., 235 Fed. 769; Starkweather v. Jenner, supra; 21 C. J., Equity, Speculative Delay, § 220.) Of course, mere delay in asserting title will not ordinarily defeat an action on the ground of laches unless there has been a change in the value of the properties or in the relation of the parities which would cause prejudice to the adverse pax’ty. (Spradling v. Hawk, 133 Kan. 545, 550,1 P. 2d 268.) In the instant case, however, the property had been developed and its value established as a result of large expenditures of money and the industry and enterprise of others while plaintiff remained utterly passive. So long as the risks were being taken by others the alleged breach of a trust relation by his cotenant, Young, and the fraudulent plan and device of Young and others to deprive him of his interest was of no apparent concern. When, however, those risks were transformed into profits, principles of equity underlying the relation of cotenants, and the principles of equity which guard against the bad faith and the fraudulent plans and devices of others became dominant and controlling considerations. Under such circumstances equity will not grant the relief sought. (Kirsch v. City of Abilene, 120 Kan. 749, 244 Pac. 1054.) Plaintiff pleaded he had no knowledge of the value of the land for oil and gas and that he did not know that Young, his cotenant, had purchased the property at sheriff’s sale. Such ignorance alone did not excuse his delay. Bogert, in his work on Trusts and Trustees, under the subject of laches, says:
“But mere proof of ignorance is not enough to excuse delay. The ignorance must have b.een reasonable — must have existed despite the exercise of due care to learn the facts and to protect the cestui’s rights. A cestui que trust cannot sit idly by and close his eyes to what is going on around him. ‘One who would repel the imputation of laches on the score of ignorance of his rights must be without fault in remaining so long in ignorance of those rights. Indolent ignorance and indifference will no more avail than will voluntary ignorance of one’s rights.’ As a Pennsylvania court has said: ‘Laches is not excused by simply saying: “I did not know.” If by diligence a fact can be ascertained, the want of knowledge so caused is no excuse for a stale claim. The test is not what the plaintiff knows, “but what he might have known, by the use of the means of information within his reach, with the vigilance the law requires of him.” ’ ” (Vol. 4, p. 2747.)
What about the statutes of limitation? That plaintiff, a party to the foreclosure action, had such notice of the fact that Young purchased the property at sheriff’s sale as would set in motion the statute of limitations, is no longer an open question. (Smith v. Rector, 135 Kan. 326, 10 P. 2d 1077; Kittel v. Smith, 136 Kan. 522, 16 P. 2d 538; Bluff City v. Western Light & Power Corp., 137 Kan. 169, 19 P. 2d 478.) Plaintiff also asserts numerous instruments of conveyance were recorded on May 2, 1934; and that these conveyances were likewise a part of the general plan and device to conceal the true title of the property, and to divest him of his interest. The constructive notice resulting from their recording was, of course, sufficient to start the running of the statute of limitations. (Keys v. Steele, 143 Kan. 826, 829, 57 P. 2d 28, and cases there cited.) In order to obtain relief from the alleged fraudulent conduct, plaintiff was required to move within two years under the provisions of G. S. 1935, 60-306, third, and did not have fifteen years within which to bring an action for the recovery of real estate under the provisions of G. S. 1935, 60-304, fourth. (Main v. Payne, 17 Kan. 608; Kahn v. Klaus, 64 Kan. 24, 67 Pac. 542; New v. Smith, 86 Kan. 1, 110 Pac. 380; Foy v. Greenwade, 111 Kan. 111, 206 Pac. 332; Pinkerton v. Pinkerton, 122 Kan. 131, 251 Pac. 416; Bell v. Bank of Whitewater, 146 Kan. 901, 906, 73 P. 2d 1059, and Herthel v. Barth et al., post, p. 308, 81 P. 2d 19, this day decided.) While the statute of limitations does not begin to run until the discovery of the fraud, plaintiff, under the general rule heretofore stated and under the repeated decisions of this court, is not relieved from such discovery by simply alleging ignorance of the fraud, but is required to plead facts which disclose inability to discover the fraud by the exercise of ordinary diligence. (Dusenbery v. Bidwell, 86 Kan. 666, 677, 121 Pac. 1098; Foy v. Greenwade, supra; Bluff City v. Western Light & Power Corp., 137 Kan. 169, 176, 10 P. 2d 478.) The public records of Young’s purchase and the conveyances recorded on May 2, 1934, were constructive notice to plaintiff of the alleged fraud. Exercise of reasonable diligence required an examination of those records, which necessarily would have disclosed the alleged fraud. (Bluff City v. Western Light & Power Corp., supra, pp. 175, 176.)
In the event Young’s purchase at sheriff’s sale as a cotenant, and his later conveyance of title to others, be regarded as a breach of an implied trust, plaintiff’s action is nevertheless barred by both laches and the statute of limitations, as both defenses are applicable to implied trusts. (City of Clay Center v. Myers, 52 Kan. 363, 35 Pac. 25; Kahn v. Klaus, 64 Kan. 24, 67 Pac. 542; Bell v. Bank of Whitewater, 146 Kan. 901, 906, 73 P. 2d 1059; 37 C. J. Limitations of Actions, Implied or Constructive Trusts, § 270; Restatement, Restitution, §§ 148, 179.) See, also, Herthel v. Barth et al., post, p. 308, 81 P. 2d 19 (this day decided).
In view of what has been said, it also follows the title of R. H. Young’s successors cannot be disturbed.
Plaintiff further urges he is entitled to a one-sixteenth interest in the oil and gas in place, and that produced, under the theory of after-acquired title. The contention is untenable. When he bought his interest in the mineral rights he received from his grantors, the Erkers, what that deed intended to convey. He is entitled to receive no better title now. The mortgages on the land were both of record when plaintiff obtained his mineral deed, exhibit “A.” The deed when considered in its entirety cannot be construed to constitute a warranty against encumbrances. Clearly it was in the contemplation of both the Erkers and the plaintiff, that the land was encumbered with mortgages or a mortgage. The parties saw fit to insert an express provision in the deed to the effect that the grantee, this plaintiff, should have the right to protect his interest in the minerals at any time by redemption and subrogation to the rights of the mortgage holder. Mortgages existed prior to the execution of the mineral deed and the rights of the mortgage holders were paramount to those of plaintiff under the mineral deed. This court had before it for consideration the same provision in substance in the case of Crum et al. v. Oil Co., 117 Kan. 54, 230 Pac. 299. The question there involved the effect of such a provision in a contract for the sale of an oil and gas lease. It was said:
“The lease apparently contemplated the possible existence of mortgages on the' real estate and defined the rights of the lessee under such circumstances. The lease provided:
“ ‘Lessor hereby warrants and agrees to defend the title to the lands herein described, and agrees that the lessee shall have the right at any time to redeem for lessor, by payment, any mortgage, taxes or other liens on the above-described lands, in the event of default of payment by lessor, and be subrogated to the rights of the holder thereof.’
“It will be noted that while the lessor agreed to defend the title, he did not warrant the real estate to be free from encumbrances; the lessee was given the right to redeem from any and all such encumbrances and was to have subrogation therefor. This provision in the lease contract precludes the idea that the land was warranted to be free from encumbrance; and certainly such a contract stipulation did not render the' title unmerchantable, since the lessee acquired precisely what he bargained for.” (p. 56.)
So, in the instant case, plaintiff obtained by his royalty deed what he bargained for and no more. He is in no position to contend, after he permitted the rights which were deeded to him and the remaining rights of his grantors to be cut off at mortgage-foreclosure sale, that he is now entitled to receive a better title than that which was intended and granted .in the first instance. Moreover, plaintiff is not only claiming in this case the so-called after-acquired title of his grantors, but he is in fact claiming title to oil and gas produced by others over such a period of time arid under such circumstances as preclude him from asserting an interest therein, both under the doctrine of laches and the statute of limitations.
What about the ruling sustaining the demurrers to the intervening-petition of the cotenant, Sanderson?' His royalty deed was in terms identical with that delivered to the plaintiff, Malone, except that Sanderson claimed a one-twentieth interest. Sanderson, with one exception to be noted presently, was in the same general position as the plaintiff, Malone. His first offer to contribute likewise was not made until he filed his intervening petition in July of 1937, and laches and the statute of limitations have barred his claim as well as that of the plaintiff.
The intervenor, Sanderson, however, claims that he, R. H. Young, and others were together engaged in the business of purchasing royalty interests under an oral agreement. They were functioning under that agreement prior to the filing of the foreclosure action. Sanderson purchased his royalty interest from one Anderson. Sanderson pleads, in substance, that in conformity with the oral agreement he was to, and did, convey a certain interest in that royalty to R. H. Young, and that Young had orally agreed to protect his (Sanderson’s) interest against encumbrances. The deed from Sanderson to Young was executed February 10, 1930. It nowhere contains any provision that as a part of the consideration for that deed, or as a consideration for Sanderson’s efforts in the purchase of royalty interests for the group, Young agreed to protect Sanderson’s interest against encumbrances. The deed does, however, contain a provision which, in effect, is inconsistent with the oral agreement claimed by Sanderson, in that it grants to Young the right to redeem for the mortgagors and to be subrogated to the rights of the mortgage holders, just as does exhibit “A.” Let us pursue the effect of that provision. It meant that Young had the right to pay off the mortgages and, if he did so, he had the right to foreclose those mortgages and cut off Sanderson’s rights unless Sanderson in turn protected his rights by paying the mortgage debt. Obviously, had Young elected to pay off the mortgages and to foreclose the same in his own name, Sanderson would not have been permitted to defend against the foreclosure of his interest on the ground that Young had orally agreed to protect his, Sanderson’s, interests against the mortgage foreclosure. Moreover, assuming such oral agreement existed, if Young breached the alleged oral agreement, it was breached when he failed to pay the mortgage debt and permitted the land to be sold on mortgage foreclosure on October 5,1931. That was over five years and nine months before the intervenor filed his petition on August 11, 1937. Clearly Sanderson’s action was barred. (G. S. 1935, 60-306, Second.)
In view of what has been said it will be unnecessary to discuss other contentions of plaintiff and intervenor. We have examined all authorities cited by them, but they do not require or support a conclusion contrary to that herein expressed. The order sustaining the demurrers of the various defendants is therefore affirmed.
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The opinion of .the court was delivered by
Smith, J.:
This was an action to enjoin the defendant from interfering with the plaintiff’s harvesting certain wheat. A company claiming an interest intervened. Judgment was for the defendant, finding 'him to be the owner of the wheat. Certain liens were declared to be in effect against the wheat. Intervenor appeals from a judgment with reference to one of these liens.
The facts are simple. The petition alleged that the plaintiff was the owner of real estate and that there was a crop of wheat growing on it which was the property of plaintiff, and that the defendant prevented the employees of the plaintiff from harvesting this wheat. The plaintiff alleged that the defendant was insolvent and judgment for damages against him would be unenforceable. An order was asked to prevent defendant from interfering with the employees of plaintiff.
The defendant answered, admitting that plaintiff was the owner of the land in question. He alleged, however, that he was the tenant of plaintiff because of an instrument in writing which recited that plaintiff had furnished to defendant certain seed wheat to be planted on the land in question as he should be instructed by plaintiff or his agent, and that the understanding was that plaintiff could either pay defendant 50 cents an acre for preparing the ground and 25 cents an acre for drilling the wheat, or he could collect from the defendant the amount expended for seed wheat. The answer alleged that the plaintiff had elected to have the defendant take the wheat crop and pay for the seed wheat.
The reply was that both the defendant and plaintiff had agreed that defendant should be paid for his work and that defendant was not to be a tenant.
On October 13,1936, before the above answer was filed the brokerage company filed an application for leave to intervene, claiming to have a chattel mortgage on the wheat superior to the lien of plaintiff, and that this chattel mortgage had been given by defendant.
The answer and cross-petition of intervenor alleged that on June 4, 1936, the defendant gave intervenor a note for $162, payable August 1, 1936; that this note was secured by chattel mortgage on the wheat in question; that the consideration therefor was payment for hail insurance on this wheat; that by this chattel mortgage the defendant mortgaged to the intervenor his 75 percent interest in the wheat in question; that this mortgage was recorded on June 12, 1936; that the note and mortgage were unpaid and that the mortgage was a first lien on the wheat harvested on this land for the year 1936.
The court ordered that the wheat be sold by the plaintiff and the proceeds paid into court.
The case was submitted to the court and the issues determined in favor of the defendant. A final judgment of the court ordered the sum in the hands of the clerk of the court to be divided.
In the first place, plaintiff was allowed from the proceeds of the wheat $8.02 on account of.the delivery of his own share of the wheat to market, that being the amount of 401 bushels and 10 pounds at 2 cents a bushel, and the further sum of $217.91 paid as a commission on the sale of the wheat, also $141 for storage.
This left a balance in the hands of the clerk of $1,305.64. Of this, one fourth, or $326.41, was ordered paid to the plaintiff for rent, $237.99 was ordered paid to the plaintiff as the balance due him for seed wheat furnished to defendant, and $375' was ordered paid the plaintiff for harvesting the wheat, or a total amount of $947.43 to be paid the plaintiff.
The court then allowed the intervenor a judgment against the defendant upon its cross petition for $185.58, with interest, and ordered that this judgment should be a lien upon any balance of the proceeds of the wheat then in the custody of the clerk of the court by virtue of its mortgage. The court further ordered that the plaintiff should pay the costs of the action except certain costs adjudged to be paid by defendant, and that counsel for defendant should have an attorney’s lien for $250 upon the balance of the funds belonging to the defendant, and that this lien should be prior to the mortgage lien of the intervenor.
The intervenor filed a motion for a new trial, which was denied. The notice of the attorney’s lien was filed on December 13, 1937, which was subsequent to the entering of the judgment described above. The intervenor appeals from that part of the judgment which made the lien of counsel for defendant prior to the lien of the chattel mortgage.
Our attention is called to the fact that on November 18, 1937, the judgment was entered, and on November 19,1937, the 'attorney’s fee was paid from this fund. Counsel calls our attention to the fact that no stay bond was furnished by the intervenor to stay the judgment of the court ordering the payment of this money to counsel.
. Counsel argues that the failure of the intervenor to furnish a bond to stay" proceedings under the judgment of the trial court precludes the intervenor from further contending for this fund. G. S. 1935, 60-3322, is relied on as authority for this contention. We have examined this section and do not find that it requires a stay bond in a case of this sort where the money has been paid into court and is being held awaiting final judgment for its distribution. Furthermore, this money was paid out the next day after judgment was entered and before the motion for a new trial had been heard. The intervenor was under no obligation to act with such speed in order to save its right to appeal.
It is the theory of counsel, who claim the lien, that had it not been for the services rendered by .counsel for defendant the intervenor would have had no mortgage rights at all, since the wheat would have been adjudged to have been the property of plaintiff, and if this had been the result of the lawsuit defendant would have had no right in the wheat so that he could have mortgaged it. They ask us to treat this fund as a court of equity, and hold that since they preserved the fund they should be paid out of it.
One answer to this is that the intervenor was on the ground before defendant was. It is reasonable to presume that the services of counsel for intervenor were of some value to the court, that is, counsel for defendant did not, like the marines, win the war alone. The fact is, the mortgage of the intervenor was in force against this wheat and on record at all times during which counsel performed services for defendant. The general rule is announced in 6 C. J. 787, as follows:
“An attorney’s lien covers only the interest of the client in the property charged, and is subject to any rights in the property which are valid against the client at the time the lien attaches.”
In this case the only right the defendant had in this wheat was inferior to the chattel mortgage on it at the time services were performed by counsel.
See, also, Columbia Insurance Co. v. Artale, 112 N. J. Eq. 505, 164 Atl. 864, where the court held in substance:
“Statutory lien given attorney on client’s interest in judgment held acquired subject to existing and known equities.
“Where insured’s attorney knew that insurer had purchased mortgage under subrogation agreement in fire policy containing standard mortgagee clause, attorney’s lien on judgment recovered for insured against insurer held subject to insurer’s right to have mortgage satisfied out of insurance money.” (Headnote, ¶¶ 1, 2.)
G. S. 1935, 7-108, provides the means by which an attorney may secure a lien upon a fund in litigation. (See Ahalt v. Gatewood, 109 Kan. 328, 198 Pac. 970.) The lien is in effect from the time of the serving of the notice in writing. The notice in this case was served more than a year after the recording of the chattel mortgage. Ordinarily liens take priority in the order of their effective dates. Counsel have not pointed out any reason why such should not be the rule in this case. We hold that the chattel mortgage was superir"’ to the attorney’s lien.
The judgment of the trial court is reversed.
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The opinion of the court was delivered by
Allen, J.:
This appeal is from certain orders in a condemnation proceeding.
On March 16, 1936, the state highway commission filed a petition in the district court of Wyandotte county, instituting proceedings to condemn certain land of appellee, Michael Puskarich, in accordance with R. S. 1933 Supp. 68-413.
The district court found that the petitioner was vested with the power of eminent domain, and that the lands described were necessary for the petitioner’s purposes, and appointed certain appraisers who subsequently filed their report awarding $12,865 to appellee, Michael Puskarieh, as damages for the taking of the land.
The appellant, pursuant to said proceedings and the statute, on May 12, 1936, filed the report of the appraisers with the clerk of the district court, and on May 26, 1936, appellant deposited with the clerk of the district court the total amount of such appraisement, together with the court costs and the fees of the appraisers, and on May 12, 1936, the appellant obtained an order in the district court ordering the filing of the condemnation proceedings with the register of deeds of Wyandotte county, Kansas, to be recorded in the same manner as other conveyances of title, as provided in G. S. 26-101, and the court so found.
Subsequent to obtaining the order of the trial court ordering the filing of the condemnation proceedings with the register of deeds, and depositing the total amount of the appraisement, together with court costs and fees of the appraisers, the state highway commission and the defendants each filed a notice of appeal from the appraisement.
While these appeals were pending, the state highway commission discovered that in the prior proceedings between Puskarieh and the board of county commissioners of Wyandotte county, the county had acquired title to a strip of land 47% feet wide, in addition to the thirty feet previously dedicated for road purposes. The present condemnation proceeding was to condemn a strip of ground 107.62 feet wide, exclusive of the existing highway. The highway commission concluded as they already owned 77% feet, extending parallel to the center of the Reidy road, and as this strip of land was sufficient for the improved highway, the condemnation proceedings should be abandoned.
On motion of the highway commission the deposit of the award with the clerk of the court was withdrawn. A motion of the highway commission to abandon the proceedings was overruled, and a motion that the amount of the award be redeposited with the clerk was sustained. It is from the rulings of the district court on the motion to abandon and on the order to redeposit the award that this appeal is taken.
Should the order of the trial court overruling the motion of appellant to abandon the proceedings be sustained?
In Stewart v. Marland Pipe Line Co., 132 Kan. 725, 297 Pac. 708, it was held that the right of the condemnor to abandon the proceedings was governed by the code of civil procedure. Under our statute, G. S. 1935, 60-3105, the plaintiff may dismiss his action before the final submission of the case to the jury, or to the court, and we have held that the condemnor is the plaintiff in these proceedings.
The question received careful examination in the recent case of State Highway Comm. v. Phillips, 146 Kan. 78, 69 P. 2d 12. In that case the condemnors had not paid into court the award made by the appraisers, and had not become entitled to the possession of the property. It was held in that case the condemnor had the right to abandon. In the Stewart case it was said:
“It will be noted that the above section provides that the title goes to the corporation at once when it pays the amount named in the appraisers' report to the treasurer. In order for it to get this title nothing more needs to be done. Now, if the landowner sees fit to take the amount named by the appraisers, he is entitled to it at once when it is paid in. No one would say that in cases where this had happened and the money had been paid to the landowner that at some subsequent time the corporation could conclude to abandon the proceedings and demand this money back.” (p. 729.)
In the instant case the money had been paid to the clerk, but had not been paid to the landowners. On the contrary, on motion the district court directed the return of the money to the plaintiff. As no appeal was taken from that order of the court, it might fairly be said that the parties, after the money had been refunded upon order of the court, were in the same situation they were before the money was paid to the clerk. We do not think the mere act of paying the amount of the appraisement to the clerk vests an indefeasible title in the condemnor, and fixes the rights of the parties in all cases, regardless of fraud or equitable considerations. Until the money was paid to the landowner it was in the custody of the court and subject to the court’s orders. It was so considered by the court when the order to repay the money to the condemnor was entered. This being true, the motion of appellant to abandon the proceedings should have been sustained, and the motion of appellees to compel the redeposit of the funds should have been overruled.
The judgment is reversed, and the cause remanded with directions to enter an order sustaining the motion of the appellant to abandon the proceedings and denying the motion to redeposit the award.
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The opinion of the court was delivered by
Dawson, C. J.:
Defendant was convicted of two felonies charged in separate counts in the same information. The first count was a charge of burglary in the first degree. The second count was a charge of larceny of a Hamilton watch committed in the course of the burglary alleged in count one.
Upon conviction defendant was sentenced on count one to penal servitude for a term of ten to twenty-one years, and upon count two to penal servitude for a term of one to five years “in addition to the punishment prescribed for burglary in the first degree.” Defendant appeals, urging three points on our attention — venue not proved; burglary not proved; and no evidence of the value of the Hamilton watch.
Touching these points in order, the house where the incidents occurred which were relied on for conviction was occupied by the witness Thompson. The record reads;
“Q. And where do you live, Mr. Thompson? A. Approximately two and three quarters miles south of the Silica.
“Q. Is that particular place in what county? A. Rice county.
“Q. And how close do you live to the road? A. Well, around 100 yards, something like that — three or four hundred yards.
“Q. Now, on the 26th day of August (date of alleged offenses), were you at your home? A. Yes, sir.”
The court holds that this evidence was quite sufficient to lay the venue in Rice county. (State v. Bell, 121 Kan. 866, 869, 250 Pac. 281.) Moreover, it does not appear that this question of venue was raised in the trial court. If not, it is not entitled to consideration here. (State v. Shehi, 125 Kan. 110, 263 Pac. 787; State v. Toelkes, 128 Kan. 293, 278 Pac. 20.)
Touching the evidence to prove the crime charged, the significant facts were briefly these: Thompson and wife, who were the prosecuting witnesses, lived, with their baby, in a farmhouse. On the night of August 25, 1937, they retired late. The husband and wife slept together. Their baby’s crib was in the same room, so placed as to catch the breeze. The bedroom led into a front room which had a door leading to the outside. That front door was locked when the Thompsons went to bed.
About 3 o’clock a. m. Mrs. Thompson was awakened by being touched by some person whom she dimly saw in the moonlit bedroom. She awoke her husband. The intruder, who was later identified as defendant, rushed from the bedroom into and through the front room and out through the front door, which he had already opened before the family was aroused. In his flight from the bedroom he ran against the baby’s crib, knocking it to one side, so that it impeded Thompson’s pursuit by the same exit. To save time, Thompson climbed out of the bedroom window, and the chase was on.
Defendant contends that this evidence did not show a breaking and entering so as to bring his offense within the definition of first-degree burglary according to the statute. How came he to be inside that dwelling house at that unseasonable hour of the night, while its master and his family were a'sleep within it? The outside door — and the only outside door, so far as shown by the record — was locked when the family went to bed at a late hour that night. It was a fair inference for the jury that he effected an entrance in the only apparently feasible way, by forcing or picking the door lock (G. S. 1935, 21-513).
It has always been the rule of appellate review that it is the jury, not the supreme court, which has to draw the inference of guilt from the circumstances. It is the jury which has to be convinced beyond a reasonable doubt. The industrious student of our reports will find scores of cases, ranging from murder and burglary down to bootlegging, where the evidence to support the verdict of conviction seemed very slim when set down in cold type for this court to read, but in every such instance the jury’s verdict was respected. Typical of these cases were State v. Dull, 67 Kan. 793, 74 Pac. 235; State v. Lister, 121 Kan. 524, 247 Pac. 846; State v. Lawellin, 125 Kan. 599, 264 Pac. 1035; State v. McKee, 131 Kan. 263, 291 Pac. 950; and State v. Williams, 134 Kan. 125, 4 P. 2d 453. In the Dull case the jury returned a verdict of guilty because they concluded that no one else could have murdered Doctor Roland. In the Lister case defendant was convicted on a liquor charge because on his farm there was a hole in the hedge fence through which people could enter his field and help themselves to his supply of liquors, leave the price, and go on their way. In the Lawellin case defendant was convicted of chicken stealing. He had been seen on the premises of a farmer while the owner and his family were absent. On their return the farmer discovered that a number of his chickens had been stolen. A little girl testified that she heard chickens flopping around in the “turtle-deck” of defendant’s coupé as he passed her on the highway. In the McKee case the defendant was convicted of stealing a red hog, where the evidence chiefly consisted of the discovery of red hog bristles in his Ford coupé some two months after the-larceny. In the Williams case the evidence showed that the sheriff caught the defendant in a field of kafir corn about 40 feet distant from a sack containing intoxicating liquors.
The suggestion is now made that defendant might have entered the house through an open bedroom window. The loaos in quo was very hazily revealed by the witnesses, but there is not a hint that the distance from the ground to the open window through which Thompson leaped to pursue the intruder was such that the latter could have made an entrance in that fashion. A majority of the court holds that the circumstances were sufficient to take the question to the jury on the manner of defendant’s entrance to that occupied dwelling house.
The next error urged pertains to the state’s failure to prove the value of the stolen Hamilton watch. However, where “any larceny” of property is committed in a dwelling house in the nighttime, the offense is a felony, irrespective of value (G. S. 1935, 21-537). So, too, where the larceny is committed in connection with a related crime of burglary, evidence of value of the property larcenously taken is not required by the statute. (G. S. 1935, 21-524.)
There is no error in the record, and the judgment is affirmed.
Hutchison and Wedell, JJ., dissenting.
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The opinion of the court was delivered by
Valentine, J.:
The plaintiff in error, defendant below, raises five questions in this court.
As to the first, we would say: “ It is not substantial error for the district court to discharge a juror during the time the jury are being impanneled, although the juror may be discharged for an insufficient reason, where an unexceptionable jury is afterward obtained, and where the party complaining has not exhausted his peremptory challenges.” Stout v. Hyatt, 13 Kas. 232; Atlas Mining Co. v. Johnston, 23 Mich. 36; Grand Rapids, &c., Co. v. Jarvis, 30 Mich. 308; People v. Ferris, 1 Abb. Pr. (N. S.) 193.
It is unnecessary to discuss the second, third and fourth questions raised by counsel for plaintiff in error, for we can hardly suppose that counsel expect that the judgment of the court below will be reversed because of any decision that may be given on these questions.
The fifth question is a difficult one, and except for certain decisions made by the supreme court of Indiana we should be inclined to decide the question in favor of the plaintiff in error. The facts upon which this question arises, are as follows: The case was tried before the court and a jury. At the close of the introduction of the evidence, the case was argued by counsel — first by the plaintiff’s counsel, who made the opening argument; then by the defendant’s counsel; and then by the plaintiff’s counsel again, who made the closing argument. While the plaintiff’s counsel were making their closing argument — but at what point of time therein the record does not show — the defendant requested the court in writing to charge the jury in writing. During the argument, the court reduced a portion of its charge to writing, which it gave at the conclusion of the argument.
“After the court had prepared this much of its instructions, the argument closed, and it announced that as the request to instruct in writing had not been asked a sufficient length of time prior to the close of the argument to allow them to be reduced to writing, and was not asked prior to argument as was the usual custom of the court, it would give the remainder of the instructions orally, and would afterward reduce them to writing; none of the parties at the time requesting the court to further delay the trial to give time to the court to reduce the instructions to writing, and while it was the custom of the court it was not a rule of the court to so require such written request to be made prior to the argument. To the giving of said written general instructions by the court, and to each and every one of them, and to each and every part and clause thereof, the defendant then and there and at the time excepted.
“The foregoing were all the written general instructions given by the court to the jury on its own motion. That thereupon the court proceeded to orally instruct, and not in writing, the jury further on the law of the case; which oral instructions so given by the court were afterward reduced to writing, and filed in said cause. To the giving of said oral instructions, and each and every one of them, and each and •every part thereof, the defendant then and .there excepted.”
Both the written and oral instructions are incorporated in ■the record brought to this court. The statute of this state with reference to giving or refusing instructions by the district court in civil cases and reducing the same to writing, reads as follows:
' “Fifth, When the evidence is concluded, and either party ■desires special instructions to be given to the jury, such instructions shall be reduced to writing, numbered and signed by the party, or his attorney asking the same, and delivered to the court.
“Sixth, When the argument of the case is concluded, the •court shall give general instructions to the jury, which shall be in writing, and be numbered and signed by the judge, if required by either party.
“Seventh, When either party asks special instructions to be given to the jury, the court shall either give such instructions as requested, or positively refuse to do so; or give the instructions with a modification, in such manner that it shall ■distinctly appear what instructions were given, in whole or part, and in like manner those refused, so that either party may except to the instructions as asked for, or as modified, •or to the modification. All instructions given by the court must be signed by the judge, and filed, together with those asked for by the parties, as a part of the record.” (Civil Code, § 275; Comp. Laws 1879, pp. 637, 638.)
This statute was first adopted in 1868. (Gen. Stat. 1868, pp. 681, 682, § 275.) It contains all the law we have upon ■the subject. It is precisely like the statute of Indiana upon the same subject, and is not like the statute of any other ¡state, so far as we are informed. Our statute was evidently taken from the statute of Indiana, and therefore any decision made by the supreme court of Indiana prior to 1868, construing its statute, is necessarily a controlling decision construing our own statute. (Bemis v. Becker, 1 Kas. 226, 248, 249; Stebbins v. Guthrie, 4 Kas. 353, 364, 365; Drennan v. The People, 10 Mich. 175-177.) “Where one state adopts a law from another, the judicial construction given to the statute in the state where it originated follows it to the state of its adoption.” (4 Kas. 364.)
The supreme court of Indiana, in construing its statute, has decided that where a party desires that only written instructions shall be-given to the jury, the party so desiring must make the request therefor within such reasonable time before the charge is to be given that the court may have sufficient time to prepare such written instructions, and that such reasonable time for making the request is generally at or before the close of the evidence. See Newton v. Newton, 12 Ind. 527; Boggs v. Clifton, 17 Ind. 217, 218; Manning v. Gasharie, 27 Ind. 400, 410; McJunkins v. The State, 10 Ind. 140, 143. The court held in the first two cases above cited, that if the request is not made until after the argument of the case is concluded, and at a time when the court is about to give oral instructions to the jury, the request is made too late, and is not available; and the court further held in the third case cited, that if the request is not made until about five minutes before the conclusion of the argument, the request is not made in time; and also held in this same case, that the request should be made at or before the •close of the evidence. And the court then say: “ This seems to us to be a reasonable rule. It imposes no hardship on the parties or counsel, and is no more than just to the court.” (27 Ind. 410.) The rule also seems reasonable to us; for while it imposes no hardship upon either the parties or the counsel, a different rule might impose great hardship or great inconvenience upon both the court and parties in other cases waiting for their cases to be heard. If counsel may wait until the close of the argument before making the request, it would necessarily cause great delay in the proceedings of the court, and materially increase costs and expenses. Generally, it would require an adjournment of the court to enable the judge to prepare his written instructions.
The foregoing decisions of the supreme court of Indiana were all made prior to the year 1868, when our statute was adopted, and the first three of said decisions construe a statute of which ours is a- literal copy. The fourth decision cited is a decision in a criminal case, construing a statute similar to ours.
We would think that a request made at the close of the evidence and before the commencement of the argument, would always be in time; but the request might be made earlier, and we would think that there might be cases where the request might be made during the argument. But still it would always be safer for counsel to make the request at least as early as the close of the evidence, and before the argument is commenced. In the present case, the request was not made until after the concluding argument was commenced. But whether it was made one minute, or five minutes, or one hour before the conclusion of the argument, is-not shown. ' It is shown, however, that it was not made in time to enable the court to reduce to writing all its instructions before being called upon to give them to the jury. Therefore, following the Indiana decisions, we must say that the request was not made in time.
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 on a transcript of a judgment rendered by a justice of the peace of Tuscarawas county, Ohio; and the principal question involved in the case is, whether said judgment, from the showing made in the court below, is valid or not. During the time within which the action was pending in Ohio, and at the time when said judgment was rendered, the defendant was a resident of Kansas, and was not within the jurisdiction of the state of Ohio. No summons was served on the defendant, either actually or constructively, and he made no appearance in the case. The plaintiff however claims that said judgment is nevertheless valid, because of an appearance in the case by a supposed agent and a supposed ratification of such appearance by the defendant himself. The evidence upon this subject is as follows: Said judgment recites that “Wesley M. Tracy, agent for defendant, appeared and acknowledged service of summons, order of attachment and notice to garnishee.” Tracy himself was the garnishee. The record also recites: “ Wesley M. Tracy, agent as aforesaid, appeared, and asked for a continuance for the purpose of procuring foreign testimoúy. Continuance granted without affidavit,” etc. The defendant testified in this present action as follows:
“I formerly lived in Ohio. In 1874 I left there and came-here to Kansas. At the time of leaving, I placed in the hands of W. M. Tracy some notes of mine for collection. He was then a justice of the peace. This is all the business I gave him to do. I never at any time authorized him to-appear for me in any suit, or to accept service of process for me, or to waive any service of the same. I never sanctioned or ratified any act of his in appearing for me in this or any suit in Ohio. [ Upon cross-examination : I do remember now of appearing before an officer here in Great Bend, Kansas, and giving evidence in the case by deposition to be used in Ohio.”
J. C., a witness introduced by the plaintiff, testified that in a certain conversation —
“The defendant used language which left the impression very strongly on my mind that he knew of this suit having been commenced against him in Ohio, and said that he knew Tracy had appeared for him there, and was a d — d fool for doing it.-”
There is nothing in the record before us showing that the-justice of the peace in Ohio had jurisdiction of the defendant in this case. ‘ It does not appear that Tracy was an attorney at law, and probably he was not; but even if he was, he did not make any appearance in the case as an attorney at law. There is nothing to show that he was in fact an agent of the defendant for the purpose of making an appearance for him in that case, or in any other case; but, on the contrary, it was clearly shown that he had no such authority; and there is no-presumption in favor of appearances by agents, or supposed agents, such as there is in favor of appearances made by attorneys at law: Even if the defendant knew that said suit in Ohio had been commenced, and was progressing against him, such knowledge could not give to the court jurisdiction over his person. Jurisdiction is not obtained in that manner. Jurisdiction in personam can be obtained only by service of process, or by voluntary appearance; and the defendant’s giving testimony (of which testimony we know nothing, it not having been brought to this court, or even shown in the court below) by deposition, in Kansas, to be used in the case in Ohio, by some unknown person, for some unknown purpose, does not give or prove jurisdiction. Such testimony might have been taken for the plaintiff’s use, of it might have been taken to be used by the defendant on a motion to dismiss the action for want of jurisdiction, or it might have been taken for some other purpose not tending to give or to recognize jurisdiction; but however this might be, it does notappear that it was ever used in Ohio, or elsewhere. What the object of said testimony was, or what it proved or disproved, no one can tell. It does not appear that the deposition was ever filed in the case in Ohio, and what became of it is not shown.
We think said judgment is void so far as it was intended to affect the defendant personally. The court had no jurisdiction over the person of the defendant, and could not render a judgment in personam against him. Hence, the plaintiff cannot maintain the present action on said judgment. As to appearances without authority, see Moore v. Wade, 8 Kas. 380, 385; as to judgment rendered without jurisdiction, see Chambers v. Bridge Co., 16 Kas. 270; Litowich v. Litowich, 19 Kas. 451; Mastin v. Gray, 19 Kas. 458, 461, et seq.
The judgment of the court below will be reversed, and cause remanded for a new trial.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
It would seem from the record of this case as brought to this court, that the plaintiff below, who is now plaintiff in error, could not have had an exceedingly fair trial in the court below; and this want of fairness seems to have arisen from a variety of causes, such as mismanagement on the part of plaintiff’s counsel, misconduct on the part of the defendant, misconduct on the part of a certain witness who failed and refused to attend the trial, and errors of law, which seem to have moulded and shaped the rulings of the court below to the prejudice of the plaintiff in this case. The record as brought to this court is in an extremely bad condition. It was intended to be a case-made for the supreme court, and for the purposes of the case the defendant has consented that it may be considered as such, although in fact it has. not been properly attested or properly authenticated. But, considering it as a duly attested and authenticated “case-made” for the supreme court, still it is very informal and defective. From the number of amendments which were made to it at the time it was settled and signed, from the number of things which were stricken out of it, or modified, and from the number of omissions supplied, it would seem that it was prepared by some person wholly un familiar with the proceedings in the case as they actually transpired therein. We shall not, however, comment any further upon this record, nor shall we comment to any great extent upon the facts that may be shown by it, for fear the record does not state the facts correctly, and for fear we might do injustice to some person. It may certainly be doubted whether the record shows the true facts as they actually occurred. We shall, however, decide the case as best we can upon the record as it is presented to us.
The action was for malicious prosecution, with imprisonment, money expended, etc., alleged in aggravation. It would seem from the record in the case, that up to the day on which the trial was had the second defense of the defendant’s answer admitted substantially the plaintiff’s entire case, except that it alleged that the prosecution, supposed to be malicious, was commenced by the defendant by the advice of counsel, and was with probable cause, and not malicious. Hence, with these admissions, the plaintiff did not need to subpena any witness to prove the defendant’s connection with the prosecution. The plaintiff, however, from over-caution, as it would seem, had a subpena issued for the justice before whom the prosecution was commenced, who resided in Missouri, just across the river from Atchison, where the trial of this case was had. The following words were indorsed on the bottom of said subpena, and said justice signed his name thereto. Said words were as follows: “ Service of the above hereby waived.”
The justice also promised to attend the trial, which was to be on March 19,1877. On the day set for the trial, the parties appeared. The court then, on motion of the defendant, (which motion had been previously filed,) struck out of the defendant’s answer all of said second defense, to which ruling of the court the plaintiff excepted. The case was then called for trial, and the trial was proceeded with for some time, the plaintiff introducing evidence to prove his case. Said justice, however, did not appear at the trial as he promised, as a witness or otherwise. The plaintiff then procured a short recess, to enable him to procure the.witness. One of the. plaintiff’s attorneys then went across the river to see why the witness did not attend the trial. He saw the witness, and the witness again promised to attend. The attorney afterward sent a hack for him, but the witness was nowhere to be found; he had taken his gun ostensibly to go hunting. The defendant had also seen the witness during the recess; and it would seem that the defendant and witness were connected together as partners in a store. The witness did not at any time appear at the trial. After the recess, the case was again called for trial, and the plaintiff then asked for a continuance of the trial, because of the absence of said witness, and in an affidavit made by his attorney he set forth the foregoing facts and others, and also set forth the facts which he expected to prove by said witness, and stated all other things necessary to be stated in such an affidavit. The facts set forth in the affidavit, which the affiant stated that said witness would prove, were unquestionably material in the case. But the court below overruled the motion for a continuance, upon the following grounds, as shown by the following quotation, to wit:
“The defendant then and there objected to the presentation, and the reading of said affidavits, [there were two of them,] and offered to show by competent evidence that the same were untrue, and that the said defendant had in no manner interfered with the attendance of said Wells as a witness in said case, and objected to the court considering any application for a continuance, or considering said affidavits. The court held that it could not consider the same, as the matters upon which such continuance was asked were not sufficient, and that it had not been shown that E. C. Wells had ever been subpenaed, but that he had only signed his name to the following indorsement, on the bottom of the subpena referred to in affidavit of W. R. Smith: ‘Service of the above hereby waived. (Signed) E. C. Wells;’ and that this was done in Winthrop, Buchanan county, state of Missouri, and not within the jurisdiction of this court.”
To this ruling the plaintiff excepted. The trial was then proceeded with to its conclusion. After the trial, and on a motion made by the plaintiff for a new trial, the parties filed additional affidavits. Said witness and the defendant both filed affidavits stating that the defendant did not prevent said witness from attending said trial. This may possibly be true; but from a full consideration of all the facts, as shown by the record and as stated in detail in the various affidavits filed, it requires a marvelous stretch of credulity to believe that the defendant did not have anything to do toward influencing said witness to keep himself away from the trial. The witness, in his affidavit, stated, “ that the reasons this affiant did not attend as a witness, were, that he was under no legal liability to attend, and because no fee of any kind whatever was ever paid this affiant, or tendered him, and because this affiant had other business of his own to attend to; that when affiant wrote his name on said pretended subpena, said Smith promised to pay the expenses of this affiant as a witness, which he never did, and never at any time offered or tendered him,” The witness also stated that said things were all done in “ Missouri; ” that the subpena did not state “on whose behalf” he was to testify; that it “was directed to the sheriff of Atchison county, Kansas; ” that it “was never read to” him, nor “any copy” delivered to him, etc., etc. It does not appear that Smith promised to pay the expenses of the witness “as a witness,” until they were incurred. Smith sent a hack for him, and no expenses “as a witness,” or otherwise, were incurred by the witness. But when did this witness learn “that he was under no legal liability to attend ” ? and why did he make the promises to Smith that he would attend? He probably learned said want of “legal liability,” after he had the second time promised Smith to attend, and just before he left with his gun, and directly or indirectly from the defendant.
We think the court below erred in overruling said motion for a continuance. Up to the time that the second defense of the defendant’s answer was stricken out, the plaintiff did not need said witness, for up to that time the admissions of the defendant, in said second defense, supplied all the sub ■stantial facts which the testimony of the witness would have tended to prove, and after that time the plaintiff did not not have sufficient time to take the deposition of the witness. Up to the morning of the day on which the trial was had, it was admitted by the defendant that he was the prosecutor in said alleged malicious prosecution. There was no issue, at that time, on that fact, and there never had been any such issue; but on that day the defendant withdrew all his admissions, leaving only his general denial to stand, which put in issue all the allegations of the plaintiff’s petition. The issue, then, as to whether the defendant was the prosecutor in said suit, or not, (with many other issues which we might name,) was raised for the first time on the very day on which the plaintiff was required to try such issue. Now parties are never required to try an issue on the very day on which it is first made up or presented, unless they are ready with their witnesses. We think the plaintiff exercised sufficient diligence in this case to get his witnesses. Ordinarily, the service of ■a subpena out of the state where it is issued, or the mere promise of a witness to attend the trial, is not sufficient; but under the circumstances of this case, we think the plaintiff might very properly rely upon such a service and such promise. As we have before stated, if the defendant had not changed the issues on the day of the trial, the plaintiff would not have needed said witness.
The court also refused to permit the plaintiff to prove, by ■evidence dehors the record, who, in fact, acted as the prosecutor in said alleged malicious prosecution. In this we are inclined to think the court also erred. We are also inclined to think that the court erred in rejecting secondary evidence ■of the contents of papers sufficiently shown to have been lost. The court also erred in overruling the plaintiff’s motion for a new trial.
The judgment of the court below will be reversed, and cause remanded for a new trial.
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The opinion of the court was delivered by
Horton, C. J.:
This was an action instituted in the district court of Bourbon county, by Lewis H. Mylius, against Cynthia Copes, R.F. Copes, John A. Copes, Edith O. Adair, nee Copes, Emma L. Copes and Thomas Copes, on a note alleged to have been executed and delivered by the defendants to plaintiff, on June 19, 1876, for $1,200, payable on or before June 19, 1881, and to foreclose a mortgage on a quarter-section of land, also alleged to have been executed by the defendants to secure the payment of the note. At the commencement of the action, an affidavit was filed by the plaintiff, alleging that all the defendants, except Thomas Copes, were non-residents of the state, and that the mortgaged real estate was insufficient to pay his claim. An order of attachment was issued and levied on other and additional lands, as the property of all the defendants, save Thomas Copes. All the defendants except Thomas Copes, filed answers duly verified, denying the execution of the note and mortgage. The case was tried to the court, a jury being waived. Judgment was rendered for the full amount of the note, interest and taxes; but the court ordered that only the mortgaged premises should be sold to satisfy the judgment, and denied execution to plaintiff for any balance after the mortgaged property was exhausted. The attachment was also discharged.
Two petitions in error have been filed — one, in behalf of plaintiff) asking to have the judgment so modified that plaintiff shall have execution after exhausting the mortgaged property; that the attachment lien be preserved, and the attached property sold to satisfy any balance remaining unpaid after sale of the mortgaged property; the other, a cross-petition of Cynthia Copes, R. F. Copes, J. A. Copes and Edith O. Adair, alleges that the trial court erred in rendering judgment against any one of said persons. The note and mortgage are copied into the transcript, and show that the same are signed for said defendants by Thomas Copes, as the attorney in fact for all the defendants except himself. The authority under which Thomas Copes executed the note and mortgage sued on was a certain power of attorney executed to him by Cynthia Copes, Edith O. Copes, Emma L. Copes, Robert F. Copes and John A. Copes, October 16, 1875, and filed for record June 19, 1876. It gave Thomas Copes authority “to enter upon and take possession of several pieces of real estate (among others the piece described in the mortgage deed), and to sell and dispose of said lands upon such terms and for such prices as he may deem just and proper, and to make, execute and deliver to the purchaser or purchasers good and sufficient deed or deeds for the same, and to receive the payment or payments therefor; or, in case he cannot sell said property, to lease or mortgage the same for the purpose of procuring money thereon, and giving and granting unto our said attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises as fully to all intents and purposes as we might or could do if personally present, with full power of substitution and revocation.”
The contention is over the authority conferred by the words “to mortgage the same for the purpose of procuring money thereon.” This language, in our opinion, authorized Thomas Copes to procure (i. e., to obtain or borrow) money thereon — that is, on the land, or on the mortgage. It is immaterial in this case which of the two, but we think the principals meant on the land. They intended to give, and simply gave their attorney power to procure money on the security of the land, and had no intention of extending the authority for a loan on their personal responsibility, or even partly on such responsibility. When a loan is procured on a note and a mortgage of real estate, the mortgagee has personal security and land security. If not paid when due, he is not required to foreclose the mortgage, but may bring his action on the note alone wherever he may find the maker of the note. Again, if money is procured solely on a mortgage on land, or the land is taken as the only security, an execution cannot issue against the other property of the makers of the mortgage, even if the loan or debt be not made in full from the security. Hence, there is a wide difference between conferring authority upon an agent simply to mortgage land for the purpose of procuring money thei’eon, and giving authority to an agent to borrow money and then as the security therefor to execute the note of the principal and a mortgage on his realty.
The instrument conferring the power was in writing, and of record, and therefore was of notice to the plaintiff of the extent of the authority given.
Counsel for defendants makes the point that the power to mortgage being conditional, it was incumbent upon plaintiff to show the land could not be sold, and further, that it could not be leased, and therefore, under the proof offered, the mortgage was unauthorized. The record does show that efforts were made under the direction of the agent for over & year after the execution of the power of attorney to sell the land, and no purchaser for the property could be found who would take it at a fair price. As the agent was given authority to lease or mortgage the land to procure money thereon if he could not sell, and as he could not sell at a reasonable price, he had the discretion to lease or mortgage. He chose the latter mode to raise the money. His action was in excess of the powers granted, but not void, and the' ■orders and judgment of the trial court will be affirmed;
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
Earnshaw brought ejectment against Crout, the owner, and Nall, his tenant, to recover possession of the west half of the southeast quarter of the northeast quarter of section thirty-four, township twelve, range thirty-four, in Johnson county, in the district court of said county, his peti tion being filed December 27, 1877. The defendants answered by a general denial, and in addition alleged a mutual mistake in the deed of conveyance from Solomon Houck (from whom both plaintiff and defendants claim title in this action) to James W. Lewis, and from Lewis to plaintiff in error Earnshaw. The deed from Houck to Lewis was dated March 1, 1863, and purported to convey in the language of said deed “ a certain piece or parcel of land, situated, lying and being in Johnson county, Kansas, to wit, the S.E.¿ of the N.W.J and the W.-½- of the S.E. -¼- of the N.E.¼ of sec. 34, T. 12, S., and R. 24, E., containing 60 acres.” The land as above described will more readily appear by reference to the following diagram:
Diagram of Section 34, Township 12, Dange 24, Johnson County, Kansas.
The testimony shows that William Holmes, of Kansas City, Mo., was the scrivener who drew both deeds — that is to say, from Houck to Lewis, and from Lewis to Earnshaw — and that, in drawing the latter deed, he merely copied the description from the former.
Houck sold and conveyed to Jacob Pearson, November 23d, 1866, by warranty deed, all of the said northeast quarter of said section 34, except the west half of the south-wesi quarter thereof, being one hundred and forty acres, and Pearson took immediate possession. Pearson sold and conveyed to Nicholas C. Crout, the present owner, all of said northeast quarter, except said west half of thé south-west quarter thereof, May 18th, 1868, and Crout took immediate possession of all of said land, and has been in the quiet, peaceable, exclusive and undisturbed possession of all the land so conveyed — including the twenty acres in dispute— until the commencement of this suit, and is now in possession.
The deed from Lewis to Earnshaw is dated February 24, 1872, and under said deed Earnshaw swears he took possession of and improved the sixty acres (being in a compact form) which he supposed he purchased and intended to purchase from Lewis. The deeds were all recorded shortly after their execution. The land was all vacant and unoccupied at the time of the deed from Houck to Lewis, and so remained until the deed from Houck to Pearson, when he took possession of the tract described in his deed. Lewis never occupied any of the land, and the sixty acres which Earnshaw supposed he was buying remained unoccupied until his purchase, when he took possession. The possession so held by plaintiff and defendant of the respective tracts remained unchallenged until the commencement of this action, in December, 1877. At that time plaintiff finding a tax-title ■outstanding on the west half of the southwest quarter of the northeast quarter of section 34, the east twenty acres of the land occupied by him, purchased such tax title and commenced an action to quiet the title of the heirs of Solomon Houck, and at the same time this action to recover possession ■of the west half of the southeast quarter of the northeast quarter of section 34, the tract in dispute. As to taxes, defendant Crout testified that he had paid all the taxes since the date of his purchase, on all the land in his deed, including the tract in dispute, and had the receipts therefor in his possession; while Lewis testified that he paid the taxes on the disputed tract from 1864 to 1872 inclusive, except during the years 1865, 1866, 1867, 1868, and 1869, and that for those years some person without his knowledge or consent paid them.
The court found' for the defendants, that Crout was the owner and entitled to the possession; that he had been in actual possession since November, 1866; that plaintiff had never had actual possession and never claimed a right thereto, •till the commencement of this action; that there was a mistake in the description of the land intended to be conveyed in the deed from Lewis to plaintiff, and that plaintiff acquired no title by virtue of said deed to said land as against the defendants. It then rendered judgment that defendant Crout was the owner, and entitled to possession, and that the defendants recover costs.
It seems to us that there is one principal question: Does the evidence sustain the conclusions of the court? Upon the record, clearly plaintiff had the better title. Houck’s deed to Lewis was prior in date and first of record. There was no actual possession at the time by any one, and therefore no constructive notice of any equities. Of course, a mutual mistake is a mistake by each. If either party intended the tract actually described, there was no mutual mistake; and in the absence of fraud the conveyance must stand as of the land described. Now, of the three parties to the two deeds under which plaintiff claims, the plaintiff testifies that he intended to purchase, and supposed he was purchasing, the west half of the southwest quarter, and not the disputed tract. On the other hand, Lewis deposes that he intended to purchase from Houck, and to convey to plaintiff, the very land described; and Houck was dead, and could not be heard as to his intentions. Nevertheless, there is evidence tending, to show that both Houck and Lewis intended the west half of the southwest quarter, and that there was simply an error on the part of the scrivener in drawing the deed. Lewis does not claim that he examined and selected from personal observation the two tracts described. The land was all vacant. Ordinarily, a party purchasing would prefer land in one body, rather than in two tracts with an intervening forty acres. If such separate tracts were in fact selected, there must have been some reason — something in the character of the tracts, or their location, which caused the selection. If such facts existed, Lewis could have named them, and thus, by the reasons therefor, have sustained the fact of an actual selection. This, it is true, is-but negative evidence, but is entitled to weight. We are justified in assuming that these men did act as men will ordinarily act; and if the act be a departure from ordinary conduct, special reasons must exist therefor, and the absence of any such special reasons casts a doubt as to the existence of the alleged act. Further, the deed itself carries strong internal evidence to the contrary of Lewis’s testimony. It commences the description thus: “A certain piece or parcel of land,” and closes with, “containing sixty acres.” Now if the disputed tract was intended, there were two certain pieces or parcels. We use the term “ one certain piece or parcel ” to describe a single body of land, and contiguous tract, and not two distinct tracts, separated by intervening land held under different ownership. It will be noticed that there was no unity of use, for the lands were vacant, and not simply two parts of one farm. There was no unity in situation — no unity in fact at all — nothing from which a oneness in description- could be aptly implied. Further, this one piece or parcel is described as containing sixty acres. These words close the description, and add some force to the implication of an intentional unity in the tract, for if two separate tracts were intended, we should ordinarily look for the quantum of acres to be added to each description, the one here of forty, and the other of twenty acres.
Again, as evidence of the understanding of Houck, the grantor, it appears that three years later he conveyed this •disputed tract to Pearson. The description in this deed is of the entire quarter except twenty acres, the west half of the southwest quarter thereof. This of course tends to indicate his. understanding of what he had conveyed to Lewis, for it will not be' presumed that he was acting dishonestly in these transactions; and that he did not, appears also from the fact that he never conveyed this west half of the southwest quarter, and plaintiff’s action to quiet title was against his unknown heirs.
Further, it should be noticed that Lewis was a resident of Howard county, Missouri, remote from the land, so that his dealings with it and understanding of it would be more likely based upon records and deeds than upon actual knowledge and selection. Still further, the long-continued occupation and acquiescence is a circumstance to be considered as throwing light upon remote transactions like this. Taking .all these matters into consideration, we are unable to say that there was not testimony from which the court could fairly hold that there was a mutual mistake in the description in the two deeds under which plaintiff claims, and that the tract in dispute was never intended to be conveyed by them.
These conclusions obviate the necessity of any inquiry into the proposition discussed by counsel for plaintiff and fortified with many citations, that if Plouck or Lewis intended the •disputed tract in the first deed, that tract passed by the deed to plaintiff, notwithstanding his mistaken supposition that •the latter could, notwithstanding his intention, avail himself •of all of Lewis’s rights, and take the very land he owned and in fact conveyed, for if the mistake runs through the •entire chain of title, there is nothing back of his own deed upon which plaintiff can rest. Further, the failure to make Lewis a party cannot cut off defendant from all defenses, legal or equitable, which he may have to plaintiff’s claim of possession. The judgment,does not attempt in terms to reform any deeds, but simply adjudges defendant’s title and right of possession to be good. Whether Lewis is bound by this judgment or not, and what effect it may have upon plain tiff’s liability to him for the balance of the purchase-money not yet paid, are questions not before us. All that this judgment attempts to do, is to establish defendant’s right of possession as against plaintiff’s claim. The effect of this adjudication upon those not parties to this action must be considered in other actions.
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 to compel the specific performance of a contract to convey certain real estate, situated in Osage county. The plaintiff in his petition prayed for a judgment ordering the defendant to execute to him a good and sufficient deed for the premises, and that the defendant and all persons claiming under him be barred of all interest in the property, and that on failure of the defendant to execute such deed, the judgment stand in lieu thereof and operate as such deed. The service of the summons was made by publication in a newspaper. The petition and the publication notice were amply sufficient, but it is claimed that the affidavit for such notice was defective and void. Said affidavit reads as follows:
“William Thomson, of lawful age, being first duly sworn, doth upon his oath depose and say, that he is one of the attorneys in the above-entitled cause for said plaintiff; that said defendant is a non-resident of the state of Kansas, and that service of summons cannot be had in said action upon said defendant within said state of Kansas; that said action relates to real property in said county of Osage, in the state of Kansas, in which property said defendant claims and has an interest; that the relief demanded (among other things) is the exclusion of said defendant from his interest to said real property. And further deponent saith not. William Thomson.”
Judgment was rendered in the case by default against the defendant and in favor of the plaintiff, in accordance with the prayer of the plaintiff’s petition. Afterward, the defendant moved to vacate said judgment and to set aside said service, because of said defective affidavit. The court overruled said motion, and the defendant now as plaintiff in error brings the case to this court for review.
We think the said affidavit is defective in not stating the plaintiff’s cause of action more specifically and correctly. But still we do not think that it is fatally defective. We think that it is sufficient with the petition and notice to give the court jurisdiction, and the defendant could not possibly have been misled' by it. All that such an affidavit is required to show is, that personal service cannot be made on the defendant within the state, and that the action is one in which service by publication may be had. (Civil Code, Comp. Laws of 1879, p. 610, §73.) The statute does not require that the affidavit shall make it “appear that a cause of action exists against the defendant” as the Wisconsin statute does, and hence the Wisconsin decisions referred to are not applicable to this case. Nor is the affidavit made for the purpose of giving information to the defendant as to the nature and character of the action brought against him. He must seek for such information in the notice and petition — especially in the latter.
We think that the affidavit in this ease stated all that was necessary to be stated, although it did it very informally.
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 the Weed Sewing Machine Company against James B. McGonigal as. principal, and T. C. Henry, T. L. Bond, S. M. Palmer and C. W. Jones as sureties) on a certain penal bond, previously given by the defendants to the plaintiff. Judgment was rendered in the court below in favor of the plaintiff for $196.30- and costs, and three of the defendants, to wit, T. L. Bond,, S. M. Palmer and C. W. Jones, now bring the case to this court, making the plaintiff below and the other defendants below, defendants in error.
The only question presented to this court by the plaintiffs in error is, whether the petition below states more than one cause of action, or not. It purports to state only one cause of action, but the parties differ in opinion as to whether it states-only one or more than one. The question was properly raised in the court below, and the court below held that it stated only one cause of action. The plaintiffs in error say in their brief that “the allegations objected to are that the defendant McGonigal received from the sewing machine company divers sewing machines, and divers sums of money and notes (which he guaranteed and indorsed to them), for machines, and repairs furnished, etc., and thereby became indebted,” etc.
The petition with its exhibits states and shows substantially as follows: McGonigal was the agent of the plaintiff below at Salina, to sell and lease sewing machines and to collect and pay over to the plaintiff all moneys due on such sales- and leases, and to guarantee such collections; and said bond was given to secure the faithful performance by McGonigal of all his duties as such agent. Under this agency, McGonigal received several machines from- the plaintiff, and sold and leased them to various parties, receiving various sums of money and notes therefor, and paying over to the plaintiff such sums of money at various times. The plaintiff in one of its exhibits attached to the petition states their transactions-in the form of an account. In this account various items, both of debit and credit, are stated. The debit items amount to $940.75, and the credit items amount to $580.25, leaving a balance due to the plaintiff of $360.50. The court, however, found a balance due of only $196.30. It will therefore be seen that this action is on a penal bond for the recovery of a balance due on an account. Probably the only breach of the bond was the failure to pay this balance due; and this constituted only one cause of action. We think it is universally held that the failure to pay a balance due on an account constitutes only one cause of action. (Bliss on Code Pleading,. § 118.) And generally it is held that all the several breaches of a single and entire contract, where the several breaches affect all the parties plaintiff alike and all the parties defendant alike, constitute only a single and indivisible cause of action. (Comm’rs v. Plumb, 20 Kas. 147, 149, and cases there cited. See also Secor v. Sturgis, 16 N. Y. 548, et seq.) In some cases all the several breaches constitute only one cause-of action, in others they constitute one or more causes of action, at the election of the plaintiff, and in others they constitute several causes of action, and neither party alone has any election to the contrary. All this depends upon the nature of the contract, the nature of the breaches, and how they affect the various parties. Of course, when a breach occurs the plaintiff is not bound to wait until it may be known whether another breach will occur or not, before he brings his suit;, but he may immediately commence his action, and in this way he may have a separate action for each breach. But generally, all the breaches existing at the time he brings his suit,. ■constitute only one cause of action. It may be more logical to say even then that each breach constitutes a separate cause ■of action, but the law, which abhors a multiplicity of suits, will generally find some way of uniting or blending them all together into one cause of action, so that neither party will be at the great inconvenience and expense of prosecuting or defending a separate action for each separate breach. Mr. Justice Strong, in delivering the opinion of the court in the case of Secor v. Sturgis, ante, uses the following language:
“In respect to contracts, express or implied, each contract affords one and only one cause of action. The case of a contract containing several stipulations, to be performed at different times, is no exception. Although an action may be maintained upon each stipulation as it is broken, before the time for the performance of the others, the ground of action is the stipulation which is in the nature of a several contract. Where there is an account for goods sold or labor performed, where money has been lent to or paid for the use of a party .at different times, whether one only or separate rights of action exist will in each case depend upon whether the case is covered by one or by separate contracts. The several items may have their origin in one contract, as on an agreement to ■sell and deliver goods, or perform work, or advance money; and usually in the case of a running account, it may be fairly implied that it is in pursuance of an agreement that an account may be opened and continued, either for a definite period or at the pleasure of one or both of the parties.” (16 N. Y. 558.)
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 is an action brought by two of four parties, liable upon negotiable paper against one of the others, in which the plaintiffs claim that they were simply sureties, and the defendant the principal debtor, and that they had been compelled to pay and take up the paper, and that they seek to recover from the principal debtor the amount which they had paid for its benefit. Verdict and judgment were in their favor, and defendant alleges error.
The first question is, as to the sufficiency of the petition. It alleges the execution of the note by the various parties, that the defendant was in fact the principal debtor, and that the plaintiffs, though only sureties, were compelled to pay, and did pay and take up the note. The note, a copy of which is attached to the petition, reads as the joint promise of plaintiffs and C. C. Hutchinson & Co. to S. W. Campbell, cashier, and is indorsed, “Water Power company, by C. C. Hutchinson, president.” The petition further alleges, that thé note was thus prepared and signed by the three parties as apparently principals, and by the defendant as guarantor, for the reason that C. C. Hutchinson, the president, was not present when the same was given, and that he afterward signed the name of the company on the back of the paper, the same being simply a renewal of one before given by the company, with plaintiffs as sureties. We do not think this latter matter affects the sufficiency of the petition, or prevents inquiry into the true relations of the parties severally liable on the paper to each other. Whatever may be the rule as between them and the holder, we understand that neither .the form of the paper, nor the time at which the several signatures were affixed, prevents parol evidence as to who between themselves is principal, and who simply surety, (Rose v. Madden, 1 Kas. 445.) The objection to the petition was properly overruled. In this connection we may remark, in reply to a criticism as to the scope of the inquiry permitted by the trial court, that where there have been several renewals of paper it is competent to go back to the original inception of the indebtedness and show who then was the beneficiary of the loan, and that changes in the form of the paper at these renewals do not prove any change in the relations inter .sese of the parties liable thereon. These changes, are subject to explanation, and are simply like other facts to be considered in determining who is in fact the principal debtor, and who simply sureties. And as to the general scope of the testimony in this case, we cannot say that it was beyond proper limits. Some particular matters we may notice hereafter.
Defendant in its answer alleged that C. C. Hutchinson & Co. were the principal debtors, and that said Hutchinson & Co., to induce plaintiffs to sign as sureties, executed to them the following contract:
“Hutchinson, Kansas, June 29, 1877.
8. W. Campbell, Cashier: This is to authorize you to hold in your possession the four thousand dollars of road bonds-belonging to us which you have; and in case we fail to pay the $3,000 note due you, then the said bonds are to be turned ■over to E. Wilcox and Brown & Bigger, of this place, to reimburse them in case they pay said note. If they do not pay said note, that the sáid bonds are to be returned to us. They however agree to renew with us the said note, so long as the bank shall be willing to do so.
“C. C. Hutchinson & Co.”
Plaintiffs, after paying the note, took the bonds, sold them, and applied the proceeds on their-claim.
Defendant claims that this contract conclusively proves that C. C. Hutchinson & Co. were the principal debtors, and also that plaintiffs’ sole recourse in case they were compelled to pay the note was on the bonds; that out of the bonds they were to reimburse themselves, and that therefore they were to look to them alone. It also contends that the court should have put this construction upon the contract as a matter of law, and not left it to the jury to determine its meaning. We cannot agree with counsel in these views. The contract does not say that the debt is the debt of Hutchinson & Co.; neither is there in its language anything inconsistent with the fact that the defendant was, as to all the parties to the paper, the principal debtor. There is nothing strange in one of several sureties being so much interested in the principal’s securing the loan as to offer his own property as collateral security to-the other sureties for the use of their credit, or to become himself an additional principal as to them. In this very case it appears that C. C. Hutchinson & Co. owned 497 out of a total of 500 shares in the capital stock of defendant. Such an interest in the defendant is ample reason for their personal promises to their co-sureties, and the pledge of their private property. Indeed, the line of demarkation between the real interests of defendant and C. C. Hutchinson & Co. is a little shadowybut whatever may be the reason therefor, a private arrangement between co-sureties for the distribution of liability inter sese, does not, unless expressly so stipulated, release the liability of the common principal to them all. Now this contract does not imply or suggest such a release. It would be hard to construe it as even making Hutchinson & Co. personally liable to plaintiffs in case of their payment of the note. It amounts to nothing more than a pledge of certain personal property belonging to Hutchinson & Co. Neither can we regard this contract as estopping plaintiffs from recourse upon the defendant, and for two reasons. It is no contract between plaintiffs and defendant, or to which the latter is a party, and does not purport any release of the latter. If it effects a release of anybody, it is of Hutchinson & Co., and from a liability which they may have assumed to plaintiffs to induce their signature. Again, we do not think the word “reimburse,” as used in this connection, has that excluding sense which counsel would give to it. Among the definitions of the word given by Webster, are “to payback; to restore; to indemnify;” and the natural understanding of the expression would be, that to the extent of their value, the bonds were to indemnify plaintiffs against any payment which they might be compelled to make on the note. Suppose plaintiffs were compelled to pay but a-hundred dollars on the note, could it be contended that they were entitled-absolutely to the bonds, or that they had no interest in them because they had not paid the entire note? Such a contract must be construed in relation to the surrounding circumstances and the situation of the parties, and where words are used which may have two meanings, it is proper for the -court to submit as a question of fact to the jury to determine the meaning in which they were used by the parties. Under the circumstances of this case, we can see but one answer which the jury could fairly have returned, and that is the one they did.
Counsel also complain that plaintiffs did not proceed to collect the bonds instead of selling them, and claim that negotiable paper, when put up as collateral, cannot be sold, but must be collected by the pledgee. But we think counsel overlook the distinction between bonds and other negotiable paper. Bonds have usually a long time to run, and -are bought and sold in the market like stocks. Mr. Edwards, in his work on Bailments, (2d ed., §222,) states the law thus:
“Negotiable notes, bills of exchange, and-bonds issued by government or by private corporations, in a negotiable form, are usually pledged as collateral security, by a delivery of the instrument, so indorsed, where that is necessary, as to vest the title in the pledgee, and the circumstance that the title is in form transferred to the pledgee does not materially affect the contract of pledge. The pledgee takes the title in trust to sell the bonds, they being usually bought and sold like stocks, and to oolleot the negotiable notes or bills when they become due and apply the proceeds on the debt to secure which they were given.”
It is very clear that stocks, when pledged as collateral, may be sold — that being the only way to realize on them; and bonds are of so similar a character, that they are dealt with in the same manner when pledged as collateral. The plaintiffs therefore had a right to sell the bonds and apply the proceeds in satisfaction of the debt to secure which they were put up. It is objected, however, that they sold without giving notice. To this, two answers may be given. The defendant does not claim that the bonds belonged to or were pledged by it. If improperly sold, the owners can recover for any loss sustained thereby. Further, the court instructed the .jury, that if the bonds were not sold for their market value, they should give the defendant credit for that value. So that even if the bonds belonged to it, there is no room for complaint.
We come now to that which is really the most serious question in the case, and that is the testimony admitted of declarations of the officers of the company made after the execution of the paper. These group themselves into three classes: first, statements of the president to one of the plaintiffs made after the maturity of the paper, and in requesting him to protect it; second, statements of the president and secretary to one who was an employe of the company and of Hutchinson & Co. as to the debts he should include in a list he was by them directed to prepare for use by them in an attempted sale of the property; third, statements made by W. E. Hutchinson while either secretary or president — and we are not certain which — in connection with efforts to work up a company to buy defendant’s property.
As to the first, there can be no serious question. The statements were part of the res gestee; they were made by the president while negotiating concerning this paper. The fact that the conversation took place after the inception of the paper and while the parties were negotiating for a renewal or protection, makes it none the less a part of the res gestee. That paper was the subject of negotiation, and declarations concerning it during such negotiations were part of the res gestee.
With regard to the other two matters, these things should be noticed. They were not mere volunteer statements, made irrespective of any act and resting for their value simply on the fact of the declaration, but they accompanied certain acts which they qualified and explained. If, therefore, the acts themselves were competent testimony, the accompanying declarations also were. Now would not a list of the company’s debts made by the officers and managers be proper evidence that one included in such list was in fact a debt of the company?
Again, both W. E. and C. C. Hutchinson were witnesses on the trial — the latter, it is true, testifying only by deposition, but the former was present on the witness stand. The attention of W. E. Hutchinson was called to the list and his declarations, and such explanations as he had to make were given. Now would not the reverse order of inquiry have been unquestionably proper, i. e., if he had on his direct examination testified that this was not the company’s debt, to have asked him if he had not used a list showing this to be one of the company’s debts, and so stated to parties to whom he had shown the list? This might have been simply imr peaching testimony, and given him an opportunity for denial or explanation. The opportunity he in fact had, and the explanation he desired to give, was given. Now even if the testimony was not strictly competent as direct and original evidence, was the order and manner of its admission such an error as compels a reversal?
Again, when a party is not merely agent and officer, but substantially the owner and principal, and in fact the general manager, (as in this case C. C. H., the owner of 496 out of 500 shares,) courts may fairly open a wider door to the admission of the statéments of such party. Technically, he is not the party to the suit, the nominal defendant, but he is so nearly the real party in interest, that what he says comes almost up to an admission of the defendant. We would not ignore the distinction between corporation and stockholder, principal and agent, nor disregard the rule that the declara tions of one, who is merely an agent, bind the principal only when made-pending the act in respect to which he is agent, or, as the phrase is, dum fervet opus; yet having regard to substance and real ownership, we are not prepared to hold that here there was such a disregard of the rule as compels us to reverse the judgment. (Durham v. C. C. & M. Co., 22 Kas. 232.) If an admission against interest is good against the party making it, an admission by the owner of 496 out. of 500 shares in a corporation binds nearly all the property interests represented by the corporation.
Again, a corporation, like an individual, may ratify unauthorized acts of its agents. And how can such ratification be shown ? May it not be by evidence of the acts and statements of its directors, its managing officers, which imply and assert that the act is a company act, or adopted and recognized by it as such ? How can a corporation make a showing of its indebtedness except as such showing is made by its officers, and if the showing is made by them, is it not evidence against the corporation ? Here, a list of debts is prepared with the knowledge of a majority of the directors (for the two Hutchinsons made a majority), for the purpose of aiding in negotiating a sale and used in such negotiations. Would an entry ordered by.these two directors to be placed on the records of the corporation be stronger evidence than a list made under their direction and used by them ?
We are aware that the suggestions we have made might not be appropriate in many cases, and where the relations of the parties, to the corporation were different from those of the Hutchinsons to the defendant, but in this case, taking all the circumstances together,'we cannot think the defendant suffered any substantial wrong by their admission. So far as the instructions are concerned, we think they fairly presented the law to the jury. We see none requiring special notice.
We have examined this record with care, and. upon the whole case, we do not think any substantial error was committed to the prejudice of the plaintiff in error. The judgment will therefore be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The questions in this case are as to the validity of a sheriff’s deed, and upon the statute of limitations. The action was ejectment, brought- by the judgment debtor against a grantee of the purchaser at a sheriff’s sale. The deed is challenged upon three grounds: first, that the sale was made by the sheriff of the wrong county; second, that there was no proper and sufficient advertisement of the sale; third, that the sale was never confirmed.
Of these in their order. In reference to the first ground, it appears that the judgment upon which the execution was issued was rendered November 16, 1858, in the district court of Shawnee county. On April 16,1861, execution thereon was issued to the sheriff of Shawnee county, by whom the land was sold. At the time of the judgment and the sale, the land was situate in Osage county, the name of which at first was Weller county. The right of the sheriff of Shawnee county to levy upon and sell lands in Osage county is denied. At the date of the judgment the boundaries of Weller county were defined, but the county was without organization, and attached to Shawnee county for judicial purposes. At that time service of process, whether mesne or final, within the limits of Weller county by the sheriff of Shawnee county, was unquestionably right. (Laws 1855, ch. 30, §§ 12, 34.) Prior to the issue of the execution, however, Osage county had become organized. (Laws 1859, ch.100; Laws 1860, ch. 41.)
The evidence shows the meeting of the board of county commissioners and the canvass of the votes for the various county officers. True, as counsel says, the evidence does not show that the officers, other than the commissioners and clerk, ever qualified or acted. But the existence of the county organization did not depend upon the whim of any single county officer. The presumption is, that where an officer is elected he serves, especially where the office is one •of emolument. But suppose the party declared elected to the office of sheriff failed or refused to serve: such failure or refusal did not prevent the organization of the county. It was like any other case of official vacancy, to be filled iu the manner appointed. The organization of the county did not, by these statutes, depend on the qualification of certain officers, as in the case of The State v. Ruth, 21 Kas. 583. More than that, the act of 1860, above cited, is entitled “An act perfecting the of organization of Osage county,” and in the eleventh section that county officers were acting, is plainly recognized, for it provides that those acting shall hold only until their successors are elected at the special election ordered. We think it may be taken as a fact established, that the county was an organized county prior to the issue of the execution.
Whether there was, prior to the sale, any provision for transferring this judgment from Shawnee to Osage county, may be doubted. The sections to which we are referred by counsel as granting such provision are not entirely clear. Sec. 5, ch. 100, Laws of 1859, requires the county clerk of Osage county, who was then ex-offieio clerk of the district court, to obtain from the clerk of Shawnee county a “transcript of all deeds, mortgages and liens of every description upon real and personal property lying in Osage county, together with all cases pending in the courts of Shawnee county, and put the same .upon record in his office; . . . and all said cases now pending as aforesaid in the courts of Shawnee county shall be finally prosecuted to judgment in the courts of the county of Osage.” In reference to this section it may be remarked that the action was already in judgment, and not pending; that a judgment was only a lien in the county in which it was rendered. (Laws of 1859, p. 148, § 433.) And it does not appear that any execution had been issued and levied prior to the one upon which sale was made. Sec. 2, ch. 41, Laws of 1860, provides simply for the transfer of “all papers and certified transcripts of all the records in all cases therein pending,” and that “ said cases shall be prosecuted to completion as though originally commenced in Osage county.” Sections 2 and 10, ch. 23, Laws of 1861, which went into effect May 22, 1861, are as follows:
“Sec. 2. The county of Osage is hereby detached from the county of Shawnee, and the clerk of the district court in said county of Shawnee shall make out and deliver to the clerk of the district court for said county of Osage, a full and complete transcript of the records of all process and proceedings pending, and-of cases tried and determined in the district court of said county between parties and against defendants resident in said county of Osage, and deliver to the clerk of said county the same, together with all papers on file in his office belonging to or pertaining to such cause, which transfer shall be indorsed and verified on the court record of the said district court of the said county of Shawnee, by the person receiving the same. . . . Upon the receipt of such transcript and papers the said clerk of the county of Osage shall file such papers and enter at large such transcript upon the court record of his county, and thereupon such papers and records and the causes to which they pertain shall be treated in all respects, and have the same legal force and effect, as if such papers had been originally filed and said causes had been originally commenced in said county.”
“Sec. 10. When a county is attached to another for judicial purposes, the jurisdiction of the county to which it is attached shall be the same as if it formed a part thereof; and when the county attached has an organization and officers of its own, all writs, subpenas and process of whatever kind shall be directed to and served by the sheriff, or his deputy, of said county attached.”
Now it nowhere appears that either plaintiff or defendant in that original action was a resident of Osage county,- nor is there any evidence when the transfer provided for in § 2 was in fact made, or that any transfer of this judgment was ever' attempted to be made. We therefore think it may be considered as established by the testimony that this judgment remained, at the dates of the execution and sale, a valid judgment of the district court of Shawnee county, with power in that court to enforce it by execution to any county in the state; and also, that the county of Osage was an organized county. Under those circumstances, had the sheriff of Shawnee coünty power to execute the process issued to him by a levy and sale of the real estate situated in the county of Osage? We think not. A sheriff is an officer of the county, and in the absence of express provision his powers do not go beyond the territorial limits of his county. It is not necessary to rest this lack of power in the sheriff • of Shawnee county upon the language of § 10, just quoted. It grows out of the general doctrine that the powers of any officer are limited to the territory of which he is an officer. He who affirms the existence of powers beyond such limits must show a grant of such powers; it is not enough to show that there is no express denial of them.
So far as the second point is concerned, it is enough to say that probably there is a clerical mistake in the deed, which will be made clear upon the production of the execution and return.
As to the third point, the deed recites a confirmation, but the testimony of the clerk of the district court is, that there is no order of confirmation on the record. The deed by the statute is evidence “until the contrary be proved;” but when the records of the court contain no order of confirmation, the contrary is proved. And surely an officer who attempts to sell a tract of land which he has no power to sell, cannot by a deed reciting an order of confirmation, which was never in fact made, validate a void sale. We conclude, therefore, that the deed offered in evidence was inoperative as a conveyance of the title away from the judgment debtor.
There remains the other question, that arising on the statute of limitations. The deed was of record more than five years prior to the commencement of the action, but the defendant had not been present in the state for that length of time. Upon-this counsel contends that the question of presence in or absence from the state has no effect upon the operation of the statute, so far as it is based upon the record of a deed. We cannot concur in this view. The arrangement of the sections of the statute forbids any such construction. The various sections prescribing periods of limitation in actions real and personal, and including in the former cases in which the record of a deed is material, are grouped together, and then follow exceptions to those general clauses of limitation. To hold that those exceptions do not apply to all the clauses of limitation to which they are in their nature applicable, is to engraft upon the statute something not placed there by the legislature. One of those exceptions relates to the disability of the plaintiff. By what authority shall the courts say that this applies to ordinary actions for the recovery of real estate, but not to those brought by a judgment debtor against one holding under a recorded sheriff’s deed? There is nothing in the language or in the arrangement to indicate any intention in the legislature to make the exception applicable in the one case and not in the other. It certainly can apply in both cases. It would be legislating,.for us to distinguish. Just so where there is a disability on the part of the defendant. If his situation is such that he may not invoke the protection of the statute in the one case, it is for the legislature alone to say that when similarly situated he may invoke it in any other case. That the defendant was absent from the state his own testimony shows; that in an ordinary action to recover the possession of real estate, such absence would prevent the running of the statute, is conceded, and we see no reason to doubt its efficacy in the present case. .We see no force in the argument that because the cause of action accrues from the taking of possession, and not from the recording of the deed, therefore there is no exception to the running of the statute after the record. The truth is, the record of the deed shortens the general statute, and the fact that that is shortened in certain eases is no reason why there should be- no exception in those cases. We think, therefore, that under the testimony the defendant Edward Ingle’s plea of the statute of limitations was unavailing. But counsel further contends that if Edward Ingle’s absence from the state avoids this plea, still the evidence shows that his wife and children resided upon the land continuously for over five years before the commencement of this action, that it was their homestead, and she is joined as defendant with him in this action. Hence, she can plead the five-year statute, and, being a homestead, her possession inures to his benefit, and neither can be removed. This is ingenious, and if it could be sustained would suggest many curious inquiries concerning the potency of the homestead provisions. The fallacy is here: she has,independent of her husband, no right save that of occupancy, and that must exist fifteen years. Mere possession, even though that possession be as a homestead, does not bar the true owner unless continued for fifteen years. She does not hold under the sheriff’s deed, but simply as the wife of him who does. Although the homestead exists, and she may assert and defend her homestead rights, yet when she does, she asserts her own rights, and not his. She may not unite his title and her occupancy and found thereon a right which neither his title nor her occupancy alone would give. Of course, if either his title or 'her occupancy alone would bar the plaintiff, such protection inures to the benefit of both, but the right which she must assert independent of his title must be one perfect in itself.
The judgment must be reversed, and the case, remanded with instructions to grant a new trial. Of course if on such trial defendants fail, they can avail themselves of the rights recognized in Claypoole v. King, 21 Kas. 602.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
This was an action for divorce. After the testimony had been received, and the case taken under advisement, the plaintiff moved the court for. leave to dismiss her action without prejudice. Defendant objected, and insisted that judgment be rendered upon the merits,.but the court sustained the motion, and permitted the plaintiff to dismiss without prejudice. Was this error? We have not before us the testimony upon which the court, acted in sustaining this motion. We must therefore presume it sufficient, if the court had the power to grant such a motion. It will be conceded that after the final submission of the case, the plaintiff had no right to a dismissal without prejudice. Up to that time she had such right, and could exercise it of her own option^ without the consent of the defendant or the permission of the court. At that time her rights in that respect' ceased. But has not the court the power in its discretion to permit, a plaintiff, even after the final submission, to recall that submission and dismiss without prejudice? It would be both strange and harsh, if such power did not exist. ■Oftentimes, by some oversight or forgetfulness, the plaintiff omits some essential portion of his testimony. Is the court powerless to afford - him relief? It is constant practice to open a case for additional testimony. Even after a jury has retired to consider of its verdict, the court may recall it, and open the case for future evidence. All this, it is true, rests within the discretion of the court, and is not a right of the party. Here the court exercised its discretion, and we cannot say that there was any abuse of such discretion. The case of Schafer v. Weaver, 20 Kas. 295, is in point. The question there arose, it is true, after a demurrer to the evidence had been sustained, but the principle is the same.
The judgment will be affirmed.
All the Justices concurring.
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The opinion of the court was delivered by
Brewer, J.:
The question in this case is as to the right to a rebate upon the taxes on railroad property in the unor ganized counties. We had before us some two or three years ago, the question of the validity of such taxes, and after considerable hesitation decided that §37 of the tax law of 1876, which provided for them, was constitutional. (Francis v. A. T. & S. F. Rld. Co., 19 Kas. 303.) Now the railroad company insists that if such taxes are binding upon its property, then it is entitled to the same rebate for prompt payment as other tax-payers, paying taxes on property within the organized counties.
Section 37, above referred to, contains all the provisions having special reference to said taxes, or the manner of their collection. It provides that after the assessment by the state board, it shall be the duty of the state auditor to make the levy of the state tax upon the railroad property in the unorganized counties, and place the same' in the hands of the state treasurer for collection, and if said taxes are not paid by January 1, then the treasurer is to issue his warrant to any sheriff in the state, commanding him to levy for such taxes, with the additional per cent, thereon, together with his fees for collecting. Nothing is said about any rebate^ no provision made for a semi-annual payment, and the time of payment differs from that fixed for other taxes. The general tax law provides that one-half the taxes must be paid by December 20th, and the other half by the 20th of the following June. If the tax-payer chooses to pay the entire tax by December 20th, a rebate of-five per cent, on the latter half is allowed him. And if no part of such tax is paid, the whole becomes due on December 21st, and a penalty of five per cent, is added. These provisions are, of course, to induce prompt payment. The section authorizing these rebates .and penalties closes with this proviso: “Provided, All penalties shall be credited, to the county fund, and all rebates charged to the same fund.”
The argument against the right to a rebate is, that the legislature has failed to authorize such rebate, and that therefore the courts may not interpolate into the law a permit therefor; that if the law as it stands is valid, the courts must uphold it; if invalid,they must declare its invalidity; that if deficient, they may not supply the deficiency, and if its deficiency be such as to render it invalid, they may not add the provision needed to render it constitutional, but must declare its status according to its present terms, and leave to succeeding legislatures to take such action as shall be deemed best. Further, the argument goes that no rebate is in fact ever made upon the state tax; that the state always receives its taxes entire, and that any rebate authorized is a deduction from the county tax; that if this claim for rebate is sustained, the railroad company will pay by 2½ per cent, a less state tax in the unorganized than in the organized counties.
The argument on the other side is, that while the court may not legislate, it may enforce constitutional limitations upon legislative enactments, always sustaining the latter up to the point where the superior law of the constitution interferes; that the general tax law authorizes a rebate; that the constitutional requirement is of a uniform and equal rate of assessment and taxation; that this constitutional requirement is indeed but the expression of a general principle underlying all valid taxation; that, as the general law authorizes a rebate, the constitutional provision carries the rebate into any special proceeding for the taxation of particular property; that the general tax law and this special section, being in pari materia, must be construed together; that the latter, being special and limited, only changes the general law so far as it expressly prescribes, and that in all other matters the provisions of the general law control; and finally that, in terms, a rebate on all taxes in the organized counties is allowed, and that whatever arrangement may be made between the county and the state as to who shall bear the burden of this rebate as between the public and the tax-payer, the rebate runs upon all taxes. We concur with the plaintiff in the argument last suggested. The question arises between the tax-payer and the public; as between these two parties the general law grants a rebate on all taxes. Paying in an unorganized county only his state, and litigating all other taxes, the tax-payer may insist upon the rebate. So far as the claim of the state upon the individual is concerned, it is satisfied when the tax, less the rebate, is paid. So far as the obligation of the individual to the state is concerned, it is discharged when the tax, less the rebate, is paid. Uniformity, enforced by constitutional mandate, would therefore seem to require that the general rule obtaining in all the organized counties and settled portions of the state should be operative wherever the state demands and collects taxes. The general rule should control the special case, rather than the--special case destroy the general rule. The rule as to rebates,, though existing prior to 1876, was reenacted, together with the provision for collecting taxes in unorganized counties, in. the one chapter of the statutes of that year concerning assessment and taxation. They constitute, therefore, concurrent legislation, affect the same subject-matter, are in the same-chapter, and the special proceeding is to be construed as departing from the general only in so far as it expressly prescribes a departure. Further, the section clearly recognizes-the applicability of other general provisions. It in terms prescribes no penalty, yet the warrant to the sheriff commands a levy for the tax, “ with the additional per cent, thereon.” What per cent.? None is named. Can it be other than the per cent, added in case of other delinquency, that prescribed by the general rule? If the general rule as to penalty controls, why not as to rebate? It may be conceded that the language is not clear, specific and full, yet we think it' is sufficiently so to manifest the legislative intent, and that which, is within the intent is within the statute, although without the letter. Such construction harmonizes the section with the rest of the statute, and with the constitution, and therefore must obtain.
Judgment will be entered in favor of the plaintiff, com- . manding the defendant to issue a receipt in full, upon the tender being made good by the railroad company.
All the Justices concurring.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Albert G. Smith against David Auld, W. R. Stebbins and George Scarborough, for rents and profits accruing from certain real estate previously in litigation between these same parties. (Scarborough v. Smith, 18 Kas. 399.) A trial was had in this action in the court below before the court without a jury, and upon the evidence introduced the court made special findings of fact and conclusions of law, and then rendered judgment upon the same in favor of the plaintiff and against the defendants for $261.85 and costs, and the defendants now bring the case to this court for review.
The defendants (who are now plaintiffs in error) object to-the sufficiency of the plaintiff’s petition and of the evidence, and also of the findings of the court below. For the purposes of this case, however, we shall assume that the plaintiff’s petition (or rather his amended petition) was sufficient, and that it stated facts sufficient to constitute a good cause of action; but whether it was sufficient or not, may be questioned. We shall also assume, for the purposes of this case, that the findings of fact made by the court below were sufficient to uphold the judgment which it rendered thereon; but, this may also be questioned. This leaves only the one question, whether the evidence was sufficient to sustain the findings, and the judgment rendered thereon. The principal evidence in this case was the record of the previous ease of Smith v. Auld, Stebbins, Scarborough, and others; and, upon the findings made and judgment rendered in that case, the findings made and judgment rendered in this case are founded. The record in that case shows that the property for which Smith now claims rents and profits belonged to Smith and Scarborough as tenants-in-common — each holding an undivided half thereof — but that Smith had been ousted from the premises, and that Auld, Stebbins and Scarborough were in possession, receiving and enjoying the rents and profits thereof. Such portions of the findings of fact, the conclusions of law, and the judgment in that case, as are necessary to be stated in this case, to show whether the plaintiff in this case is entitled to recover.upon the record of that case, are as follows: “Auld and Stebbins collected $1,825 as rent from 1868 to 1875, on the same” — that is, on said real property. (20th finding of fact.) “Auld and Stebbins paid $1,354.25” taxes on said property. (11th finding of fact.) “Auld and Stebbins and Scarborough went into possession of said lot on March 30, 1868, and have ever since been in possession and receiving rents, and have also paid taxes, as appears on the tax-roll thereon each year, and each year’s rent has been in excess of each year’s taxes, and in the aggregate has been $470.75 in such excess.” (24th finding of fact.) “The plaintiff’s claim for a judgment for rents received being a matter of accounting between them (Smith, Auld, Stebbins and Scarborough), and not affecting all the parties to this action, the same cannot be determined in this action, and the same is refused. It is sufficient here to say that the rents received are in excess of the taxes paid by them (Auld, Stebbins and Scarborough), and consequently there can be no lien against the property.” (Part of conclusions of law.) “And plaintiff also excepts to dismissal by the court of his claim for an account of rents and profits against Auld and Stebbins, and refusal to make a decision thereon.” (Part of plaintiff’s exceptions.) “And the court thereupon does dismiss so much of the plaintiff’s petition -as demands an accounting for th.e rents and profits against defendants, Auld and Stebbins, and a personal judgment therein against such defendants for any excess therein found due to plaintiff.” (Order or judgment dismissing plaintiff’s claim for rents and profits.) Judgment was rendered in that action that the property belonged to Smith and Scarborough, and that neither Auld nor Stebbins had any lien thereon or interest therein, and that the property should be partitioned between Smith and Scarborough; “and that of the costs in the action, said Auld and Stebbins be adjudged to pay ten dollars part thereof, and each (said Albert G. Smith and George Scarborough) one-half the balance of such costs, and therefor that execution issue.” No judgment, further than the said judgment or order of dismissal, was rendered concerning said rents or profits.
In the present case, the court based its findings principally upon the findings made in the previous case — finding among other things that the defendants received rents for said property amounting to $1,825, and paid taxes thereon amounting to $1,354.25, leaving in their hands the sum of $470.75, one-half of which belonged to Scarborough and the other half — to wit, $235.37 — belonged to Smith, for which sum, together with interest from May 1, 1875, amounting in the aggregate to $261.85, the court rendered judgment in favor of Smith, and against the defendants. It will be perceived that we have no evidence sustaining or supporting the findings made or judgment rendered in this case, except the findings made in said previous case, which findings are themselves not sustained or supported by any, judgment rendered thereon or confirming the same. Of course we now have reference to those findings made in the first case, showing that the defendants collected rents, $470.75, in excess of the moneys which they paid out for taxes, and to those findings only. No judgment was rendered in that case for the said sum of $470.75 or any part thereof, or concerning the same, except the judgment dismissing the plaintiff’s claim therefor. Now are said unsupported and unconfirmed findings an.y evidence in this case? We think not. Certainly they are not original evidence of the facts set forth therein, or of the facts which they were introduced to prove. Neither are they admissions made by the defendants, for the defendants took exceptions to them at the very time when they were made, and promptly moved to set them aside, and have never admitted their truth or correctness; and it cannot be said that they are adjudications between the parties amounting to res adjudicatce, for nothing but final determinations upon the merits are exalted to that preeminent distinction. (Freeman on Judgments, §251; 2 Wharton’s Evidence, §781, and cases cited.) Indeed, they cannot be considered as evidence against the defendants under any rule of evidence with which we are acquainted. • Final judgments are of course adjudications; and findings of courts and verdicts of juries, and reports of commissioners or referees, may also sometimes be considered as adjudications, but they can be considered such only in cases where they themselves are final, or in cases where a final judgment has afterward been rendered upon them sustaining and confirming them, and even when confirmed by a final judgment they are adjudications only so far as they are necessarily included in and become a part of such judgment. A finding or verdict partially sustained by a judgment and partially not, is an adjudication or evidence in a subsequent suit, only so far as it is sustained by the judgment. A thing contained in the finding or verdict, but not included in or confirmed by the judgment, cannot be considered as an adjudication or used as evidence unless some other ground can be found for its use than merely that it is contained in such finding or verdict. We would refer to the following as among the authorities which we think tend to sustain the foregoing propositions: Donaldson v. Jude, 2 Bibb (Ky.), 57; McReady v. Rogers, 1 Neb. 124; Hawks v. Truesdell, 99 Mass. 557; Nash v. Hunt, 116 Mass. 237; Fisk v. Parker, 14 La. An. 496; Whitaker v. Bramson, 2 Paine, 209; United States v. Addison, 73 U. S. (6 Wall.), 292; Ridgely v. Spenser, 2 Binney (Pa.), 70; Collins v. Freas, 77 Pa. St. 493, 497.
Whether or not the judgment rendered in said previous case is an adjudication between the parties to the extent of setting off the rents and profits and the taxes against each other up to the amount of the taxes, is a matter wholly immaterial in this case, for however that question might be determined there was certainly no adjudication in that case in favor of the plaintiff or against the defendants for the amount of the excess of the rents and profits over the taxes, but rather the reverse; and the judgment in this case was based solely upon the ground that there was such an adjudication in that case for said excess, and the judgment was rendered in this case solely for one-half of such excess.
The judgment of the court below will be reversed, and cause remanded for a" new trial.
Brewer, J., concurring.
Horton, C. J., not sitting, having been of counsel in the court below.
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Per Curiam:
The judgment in this case is affirmed, on the authority of Bobbett v. The State, 10 Kas. 9.
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The opinion of the court was delivered by.
Valentine, J.:
The main question involved in this case is, whether James E. Watson was eligible to hold the office of county treasurer of Douglas county for the term commencing on the second Tuesday of October, 1876, and ending on the second Tuesday of October, 1878. And this question depends entirely upon the construction to be given to our constitution and statutes; for there is no question with regard to the facts of the case. The facts are all admitted.
Up to November, 1876, section 3 of article 9 of the constitution was as follows:
“All county officers shall hold their offices for the term of two years, and until their successors shall be qualified; but no person shall hold the office of sheriff or county treasurer for more than two consecutive terms.”
This section was amended in November, 1876, but the amendment does not affect this case in any respect.
The constitution has never prescribed when the terms of county officers shall begin or end, but the statutes always have. Under the statutes, the regular terms for the office of county treasurer for the last eight years have been as follows:
1. From the first Tuesday of July, 1872, up to the first Tuesday of July, 1874.
2. From the first Tuesday of July, 1874, up to the first Tuesday of July, 1876.
3. From the second Tuesday of October, 1876, up to the second Tuesday of October, 1878.
4. From the second Tuesday of October, 1878, up to the second Tuesday of October, 1880.
For convenience, we shall hereafter designate the above-named terms by calling them the first, second, third, and fourth terms, as above numbered.
It will be noticed that there is a space of time of three months and one week between the above-named second and third terms, which space of time is not included in any regular term. This interregnum or interlude was brought about by a change in the law prescribing the time for the commencement and conclusion of the terms of the office of county treasurer. The legislature denominated this interregnum or interlude a “vacancy,” in said office, and enacted that the •county commissioners should fill the same by appointment. (Comp. Laws of 1879, p. 283, § 61.)
Said Watson held the office of county treasurer of Douglas •county for the latter half of said first term, and for the whole of the second term, and then vacated the office. Robert Young then, by appointment of the county commissioners, took possession of the office, and held it until the commencement of said third term, when Watson, who had been elected at the previous November election in 1875, again took possession of the office, for the purpose of holding it for and ■during said third term. And the only question now to be ■considered is, whether Watson was eligible to hold the office for said third term. And this question depends upon whether said second and third terms were “consecutive terms” within the meaning of the constitution, or not. The plaintiff claims that they were consecutive terms, while the-defendant, Watson, claims that they were not.
It seems to be admitted by all parties that the legislature had the legal power to change the time for the commencement of the county treasurer’s term of office, from the first Tuesday of July, 1876, to the second Tuesday of October, 1876; and therefore, that the act making such change was to that extent valid. But the plaintiff claims that the legislature-had no power to treat the office as vacant during said intermediate space of time, or at any time during such period, or-to provide for filling the same by appointment by the county commissioners; and therefore, that this portion of the-act was void. The plaintiff claims that, as the constitution provides that “ all county officers shall hold their offices for the term of two years, and until their successors shall be qualified,’’that Watson, (and not Young or anybody else,) should have held said office of treasurer during said intermediate space of time; that said intermediate space of time-really belonged to Watson’s said second term, and was a part thereof; that the legislature, by changing the time for the-' term of treasurer to commence; simply enlarged Watson’s-second term; that the provision of said act, which authorized the county commissioners, to appoint a person to' fill said supposed vacancy, was unconstitutional and void; that said second and third terms really came together, one succeeding the other, and therefore that they'were consecutive within the meaning of the constitution. Or if mistaken in claiming that said intermediate space of time was a portion of Watson’s second term, then they claim that it was nothing — a blaplc in legal contemplation — a thing not to be counted or taken-into consideration; and therefore, that said two terms were-not separated — that they really had nothing between'them, and were therefore “consecutive.”
On the other hand, it is claimed by the defendant that the term of' a county treasurer or other county officer is,, under the constitution, just two years, and no more; that, the legislature has no power to increase the length of such term; that when a county officer holds beyond his own term of two years under that provision of the constitution which authorizes him to hold until his successor is qualified, he is then simply holding during a portion of his successor’s term, and is not still holding a part of his own term; that said intermediate space of time was not any portion of Watson’s second term or of any other term; that the legislature could not have made it a portion of Watson’s second term, even if it had so desired, but it did not so desire, and did not attempt to do so, but just the reverse; that as said intermediate space of time did not belong to any term, it was therefore a period of time intervening between said second and third terms, and preventing them from being consecutive. The defendant also claims that he was ineligible to hold, the treasurer’s office during said intermediate space of time. He claims that he had already held the office “two consecutive terms” within the meaning of said constitutional provision, although in fact he had held the office only one-half of the first of said two terms.
The constitution of course does not mean that the county treasurer may hold the office for four years, for if it did, then Watson might have held said office not only during said intermediate space of time, but also for nearly nine months of said third term. The constitution says two “terms,” not four years, and that the treasurer shall not hold the office “for more than two consecutive-terms.” Now if he should hold the office for a part of one term, and then for the whole of the next term, he could not be eligible to be elected' for still another term, for that would give him the office “for more than two consecutive terms.” The constitution provides that “ all county officers shall hold their offices for the term of two years, and until their successors shall be qualified.” That is, they shall hold the office during their full term of two years; and then, in addition to their term, they shall hold until their successors are qualified. This addition is evidently no part of their term. It comes out of their successor’s term, and is a part of their successor’s term. The beginnings and the endings of terms are fixed by law. But a successor may give a portion of his own term to a predecessor, if he chooses. If he defers qualifying for twenty days, he gives that much to his predecessor, but it is that much of his term, and not of his predecessor’s or successor’s term, and he thereby shortens his own term just that much. He cannot run over into his successor’s term so as to make his term a full term of two years, provided his successor qualifies and demands the office on the day on which the statute says the term shall commence. And if he gives a portion of his term to his predecessor, it being no part of his predecessor’s term, it has been held that the sureties of his predecessor are not responsible for defaults occurring during such period of time. (15 Kas. 168; 22 Kas. 318, 464.)
The above provision of the constitution, however, is probably qualified as to sheriffs and county treasurers by the next provision in the same section. Sheriffs and county treasurers, like other officers, may hold their offices until their successors are qualified, but they cannot hold in any case for more than two consecutive terms. When their second term ends, their right to hold the office ends. They cannot then hold over and into their successor’s term, as at the close of the first term they might, or as other county officers might. The constitution does not say that they may hold the office for two consecutive terms, and until their successors are qualified; but it says that they shall not hold for more than two consecutive terms.
We think we agree mainly with the defendant in this case. Watson’s second term expired absolutely and completely on the first Tuesday of July, 1876, and his third term did not commence until the second Tuesday of October, 1876. Hence, here was an interregnum, an intervening space of time of over three months, separating these two terms, and not belonging to either, and during which another person held the office, having entire control of all the funds, book papers, etc., belonging or appertaining to the office. The object of said constitutional provision was not to make a man ineligible to ever afterward hold the office of county treasurer after he had held it for two consecutive terms, but the real object was to require him to go out of the office for a time, and to deliver to another all the funds, books, papers, etc., belonging to the office, so that a full, complete, honest and final settlement could be made with him. Now three months’ time, we think, was ample for this purpose — at least, if the other officers, with whom he was to settle, were anywhere near competent.
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.:
Action by Cox, plaintiff below, upon a note and mortgage executed to him by the plaintiffs in error, defendants below, for the purchase-money of the real estate mentioned and described in the mortgage. The petition alleged the making by the defendants of the note and mortgage, and their subsequent default as to,payment thereof, and demanded against them judgment on the note, and the foreclosure of the mortgage. The amended answer of the defendants set forth, that the only consideration for the note and mortgage sued on was the sale and conveyance by the plaintiff to the defendant Matthew Chambers of the real estate described and covered by the mortgage; that said conveyance was by deed of general warranty; and that the only title the plaintiff had in or to said real estate at the time of his said conveyance thereof was derived solely from a conveyance thereof to him by one Joel E. Cox, who was at the time of his conveyance of said real estate to the plaintiff a married man, and that said real estate was at the date of such conveyance thereof to the plaintiff by the said Joel E. Cox the homestead of the latter, and'that his wife did not join- in said conveyance, or in any manner consent thereto, but on the contrary, claimed and asserted an estate and interest in and to said real estate, adverse to the defendants. The amended answer also alleged that the plaintiff was wholly insolvent, and admitted that the wife of Joel E. Cox had never been an actual resident of the state of Kansas, and alleged that she had theretofore been abandoned by him without cause or justification. It does not appear anywhere in the pleadings that the defendants had ever been let into the actual possession of the real estate conveyed tcj them by the plaintiff. To the amended answer of the defendants, the plaintiff demurred, upon the ground that it stated no cause of defense to his action. The district court sustained the demurrer, and the defendants excepted, and bring the case here for review.
That the defense of a failure of the title to premises conveyed by deed of general warranty may be made to an action brought by the vendor for the foreclosure of a mortgage given for the purchase-money, is clear. (Scantlin v. Allison, 12 Kas. 85.) The only question therefore is, whether this answer discloses a failure of title. If it had stopped with the allegation that Joel E. Cox was a married man, and that the property by him alone conveyed was his homestead, there would have been no question of the invalidity of such conveyance, and of the failure of title. (Morris v. Ward, 4 Kas. 244.) The homestead “shall not be alienated without the joint consent of husband and wife, when that relation exists.” (Const., art. 15, §9.)
The additional facts are, that the wife of said Cox had never been an actual resident of Kansas, and had been abandoned by her husband without cause. Do these facts make good the otherwise invalid deed? Sec. 8 of the chapter of descents and distributions, (Comp. Laws 1879, p. 379,) which gives to the widow one-half in value of all the real estate not sold for debts, and of which she has made no conveyance, contains this proviso: “ Provided, That the wife shall not be entitled to any interest, under the provisions of this section, in any land-to which the husband has made a conveyance, when the wife, at the time of the conveyance, is not or never has been a resident of this state.” Upon this proviso, counsel for defendant in error mainly relies; but we fail to perceive how a statute regulating descents, affects the validity of this deed. Concede the power of the legislature in this respect, and that she can make no claim to inherit this land: how does that affect the deed? Suppose the legislature should provide that the wife inherit nothing in the homestead, whether she be a resident or not: would this incapacity to take by inheritance nullify the constitutional provision concerning the alienation of homesteads, or make good the single deed of the husband thereto? The separate deed of a married man to the homestead is void; it does not divest him of title, nor estop him from recovering the land. The question is not, Who will inherit from him? but, Has his title been divested? And the constitution says that his title to the homestead shall not pass, unless his wife joins in the deed. While the legislature may regulate the matter of inheritance, it cannot avoid or limit the constitutional provision for the protection of homesteads. The constitution forbids the alienation without the joint consent of husband and wife. It does not add, “providing they are living together and occupying the homestead,” nor “providing that both are residents of the state;” but the prohibition against separate alienation is absolute, when the relation of husband and wife exists. Whether any exception to this absolute prohibition were wise, it is not for us to inquire. The legislature has not attempted to make any, even if it had the power, but has repeated in the statute the very terms of the constitutional prohibition.; (Comp. Laws 1879, p. 437, §1.) Neither is the presence of ¡both husband and wife essential to the existence of a homestead. Though one may have abandoned the other, yet either may have the children to care for and be the head of a family, and occupy a homestead.
We conclude, therefore, that upon the facts as stated, the vendor had no title to convey, and this failure of title is a good defense. We may add that nothing is alleged, tending to create any estoppel, nothing showing an actual delivery, or taking of possession, and therefore nothing to surrender.
The judgment of the district court will be ¡reversed, and the case remanded with instructions to overrule the demurrer.
All the Justices concurring.
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Per Curiam:
The judgment in this case is affirmed, upon the authority of State v. Campbell, 19 Kas. 481, and Comm’rs of Shawnee Co. v. Ballinger, 20 Kas. 590.
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The opinion of the court was delivered by
Brewer, J.:
Plaintiffs sued defendant for a breach of the following contract:
“Emporia, May 26, 1879.
“I have sold this day to E. Epstein & Co. my wool (1,100 fleeces), at 20 cents per pound, to be delivered at Emporia. Received ten dollars on contract. ¥m, Graffenstein.”
One ground of defense was as follows:
“ 3d. For a third defense, defendant says that at the date, to wit, May, 1879, the plaintiffs came to the premises of defendant, and contracted to purchase some wool of defendant at the price' of twenty cents per pound, and at the time falsely and fraudulently represented that said price was higher than the market price, they well knowing to the contrary — which representations defendant, not knowing the market price thereof at that time, relied on and agreed to let them have it at that price; but plaintiffs were wool-buyers at the time, and had, been long before, and the fact was that wool had at that time largely advanced, and said sum was much less than the market price, and plaintiffs well knew it at the time; that as soon as defendant discovered the fraud,, he declined and refused to comply with the said contract.”
Upon the trial, defendant offered testimony in support of this count in the answer, but the court ruled that the testimony was inadmissible, and this ruling is the error alleged. Counsel for plaintiff in error fairly state the question thus-presented to be, “Whether a false and fraudulent representation as to the market price of a commodity made by a purchaser who knows, to a seller who does not know, the market price, to induce a sale more advantageous to the purchaser than he could otherwise get, and which representation is be lieved and relied on by the seller to his damage, is such a fraudulent representation as avoids his contract of sale?”
This question thus presented must be answered in the negative. It will be noticed that, as stated, the question eliminates two elements which sometimes enter in to affect the force of the misrepresentation, i. e., that of some personal trust or confidential relation, and that of peculiar means of .knowledge. Sometimes there are such relations between the parties, or their situations are such, that a peculiar obligation rests on the one who knows to reveal his knowledge. There may be some trust relation between the two, or a recognized habit of dealing in dependence upon the party’s statements .and representations. In such cases, there is a peculiar duty resting upon the party to disclose the true facts. A confidential adviser, an attorney, a factor, an agent, all hold such relations that they are under special duty to tell the truth, the whole truth, and nothing but the truth. So, where from a long-continued course of dealing the party making the representations knows that the other has become accustomed to act upon his representations, he may not presume upon such confidence to impose a falsehood. So, also, where there are peculiar means of knowledge possessed by one and not open to the other, as where a dealer in precious stones trades with one inexperienced and ignorant of the values of such articles. Acquaintance with such values, or the tests of quality, is not acquired at once, or by the mere asking; it requires training and time. So if a dealer knows that a party is confined to his room by injury or disease, and compelled to depend on the information brought to him — and indeed, generally, where the parties cannot, by reasonable care and diligence, place themselves upon equal terms, the law casts a higher obligation to reveal the truth.
None of these elements enter into this case. The article was one of general commerce; there was no special relation of trust or confidence; no peculiar training was prerequisite to a knowledge of values; the market price was a matter of public knowledge, and could be ascertained by any one by reasonable effort and inquiry. Under such circumstances, if the one party chooses to take the statements of the other, and act upon them, rather than make any inquiry as to the market price, he cannot thereafter repudiate his contract on account of the falsity of the statements. “ It must appear that the injured party not only did in fact rely upon the fraudulent statement, but had a right to rely upon it íd the full belief of its truth, for otherwise it was his own fault or folly, and he cannot ask of the law to relieve him from the consequences.” (2 Parsons on Conts., 3d ed., p. 270.)
Counsel argue in favor of the rule as they claim it, that it will tend to promote honesty in business transactions, and encourage the confidence which one man should have in another in the statements he makes. It may well be doubted whether, as a matter of public policy, such a rule would be wise; whether it is not better that every one should understand that it is his duty to make reasonable and ordinary effort to acquaint himself with all the facts necessary for his guidance in making a contract before he makes it, and that if he fails to make such effort, he must abide by the contract. Attention to business and prudence in making contracts are of no small importance; inquiry before is vastly better than inquiry after. A disposition, after entering into a contract which proves unfavorable, to search for some means of getting out of it, is unfortunate; it encourages misconstruction of statements, misrecollection of words, and willful falsehood. A party who finds on inquiry that he cannot avoid his contract, except by proof of misrepresentations by the other party, is under fully as strong temptation to impute such misrepresentations, as á party seeking a contract is to make them.
But it is scarcely necessary to pursue this question of policy further. We think the law is the other way, and any change in the rule must be made by the legislature. Counsel refer us to no authorities which come squarely up to the rule they contend for. They refer us to four which they claim tend that way. In Ellis v. Andrew, 56 N. Y. 83, there is an expression in the opinion of the court which seems to countenance this claim, but the expression is obiter, and the decision in the case in no manner sustains them. In that case, there was simply a false statement as to the value of the property sold, and it was held that this would not sustain an action of fraud by the purchaser, who relied on this statement. In Davis v. Jackson, 23 Ind. 233, the misrepresentation consisted in this, that the seller stated that a stock of goods, about which he knew, while the purchaser did not know, would invoice $3,500, when it only invoiced $1,500. An invoice was requested before the purchase, but the seller excused himself therefrom, on the ground of a lack of time. That the court did not intend to depart' from their former rulings, hereafter to be noticed, is evident from the fact that they say, that when the term value was used, tlie jury must have understood it as referring to the amount-of goods, rather than the rcaÚGes. In Lord v. French, 61 Me. 420, the seller agreed to sell a stock of goods at the Bostoíi prices of similar goods at that date, but fraudulently made out a bill with prices above the Boston prices some, $50(j), which the purchaser, in ignorance of the fraud, paid for, and then sued, and obtained judgment. On the other hand, in a later case, (Bishop v. Small, 63 Me. 12,) the same court held that an action of deceit will not lie upon a seller’s false representations, either as to what a patent right cost him, or. at what price he had sold territory rights therefor, o'r upon his statements as to its merits or prospective profits. The exact question was ruled upon in Indiana, where the supreme court held “That misrepresentations by one contracting party to the other, as to the value or quantity of a commodity in market, when correct information 'on the subject is equally within the power of both parties, with equal diligence, do not, in contemplation of law, constitute fraud. (Foley v. Cowgill, 5 Blackf. 18.) And this rule is followed by that court in Cronk v. Cole, 10 Ind. 485, where it was decided “that it cannot be said that the market value of a commodity is peculiarly within the knowledge of one person more than an other, as the channels of information are equally open to all; and a party to a contract of sale of a marketable commodity has no right to rely upon the representations of the other party touching the market value of that commodity.” And in support of these views the court cites Chitty on Cont., p. 681, and the following cases: Bailey v. Merrill, 3 Bulstr. 94; Moore v. Turbeville, 2 Bibb, 602, and others there referred to. See also 2 Kent’s Com. 486, and cases cited. And in the latter work we find this statement of the course of decision :
“The cases have, gone so far as to hold, that if the seller should even falsely affirm that a particular sum had been bid by others for the property, by which means the purchaser was induced to buy and was deceived as to the value, no relief was to be afforded; for the buyer should have informed 'himself from proper sources of the value, and it was his own folly to repose on such assertions made by.a person whose interest might so readily prompt him to invest the property with exaggerated value. Emplor' emit quam mínimo potest; mnditor vendit quam máximo potest.”
We see no error in the ruling, and 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 on a promissory note and a mortgage. The note was executed by Abraham Grand-staff, and the mortgage by Grandstaff and wife, and both were executed to James G. Brown. The note was an ordinary promissory note, dated May 25j 1872, for $500, due in one year after date, and drawing interest at the rate of ten per cent, per annum. It was given for money lent. The mort gage was more than an ordinary mortgage. It was given not only to secure the payment of said promissory note, but :also to secure the performance of various other agreements and stipulations; and it itself contained these agreements .and stipulations. It was given, among other purposes, to .secure the repayment of a proportionate share of moneys to be .advanced by Brown in carrying on a joint enterprise engaged in by Brown and Grandstaff, of improving the town site and ■building ,up the prospective town of Rosedale. This prospective town was situated in Wyandotte county, Kansas, near Kansas City, Missouri, and the property mortgaged was a part of the town site. This speculation proved disastrous, :at least to Brown, swho has lost about ten thousand dollars.in the enterprise. Grandstaff has lost nothing yet, but possibly may lose something if the judgment of the court below in this case is enforced. The judgment of the court below was in favor of Brown, that he recover (it does not say from whom) $804.23 on said note — $643.37, Grandstaff’s share of the expenses for improvements advanced by Brown; $144.45, taxes paid on the mortgaged property by Brown; $150, attorney’s fees for foreclosing this mortgage, and costs of this ■suit — and that the mortgaged property be sold for the payment of all these amounts. No general execution was awarded •against any of the defendants below, Abraham Grandstaff, Ellen Grandstaff, William Holmes, or Oliver H. Dean. Brown was the plaintiff in the court below, and the other persons .above named were the defendants. In this court the Grand-.staffs are the plaintiffs in error, and the other parties below .are the defendants in error. Holmes and Dean, however, are in this court, and were in the court below, mere nominal parties. The real, contest is, and has been, between Abraham Grandstaff and James G. Brown. The plaintiffs in error (the Grandstaffs) make five points in their brief, and as to each point, they claim that the judgment of the court below .should be reversed. We shall consider these points in their •order:
I. The petition below so obviously stated a cause of action in favor of the plaintiff Brown and against the defendants, the Grandstaffs, that we think it would be wholly useless to-discuss the question; and we think the petition is amply sufficient, considering all the circumstances of this case, to sustain-the judgment of the court below in all its branches. If some of the allegations of the petition might be considered as slightly defective, still the petition may now he considered as-amended so as to make its allegations correspond to the facts proved. (Civil Code, § 139; Mo. Valley Railroad Co. v. Caldwell, 8 Kas. 244; K. P. Railway Co. v. Montelle, 10 Kas. 127; Pape v. Capitol Bank, 20 Kas. 440.) There can be no question but that the evidence was sufficient as to all facts concerning which it is claimed that the petition was defective. Besides, after all the evidence was introduced, and the case stood for decision, the defendant Grandstaff filed an-amended answer, which helped to supply the supposed defective allegations of the petition. (Irwin v. Paulett, 1 Kas. 418; Barkley v. The State, 15 Kas. 99, 107; see also Smith v. Burnes, 8 Kas. 197.) The evidence showed that Grandstaff, previous to the commencement of this action, objected to anything further being done under their original contract, and that all business under such coptract was stopped. (See Mitchell v. Milhoan, 11 Kas. 617, 618, 625, 626, 630.) We might cite other cases showing that defective allegations in a petition may sometimes be cured by subsequent proceedings-in the case, but we do not think it is necessary for this case.
II. That Grandstaff was personally responsible for his share of all expenses rightfully incurred under said contract, and that Brown, who advanced the money to pay such expenses, was entitled to recover a personal judgment against Grand-staff for such share, we think there can be no doubt. But it may be questioned whether a personal judgment was rendered against any of the defendants. The judgment itself does not purport to be such, and no general execution was awarded against any of the defendants.
III. No good reason has been, or can be given, for suppressing; the whole of the deposition of V. V. Dodd. But it is claimed that the fourth interrogatory addressed to Dodd, with the answer thereto, and the first cross-interrogatory addressed to Dodd, with the answer thereto, should have been suppressed. We think, however, that the evidence was rightly admitted. First, no objection was made to it; and, second, it was competent evidence. An objection was made to the fourth interrogatory addressed to James G. Brown; but no objection was made to either the fourth direct or the first cross-interrogatory addressed to Dodd. And when no objection is made to the introduction of evidence, no material error is committed by permitting its introduction. (Brumbaugh v. Schmidt, 9 Kas. 117.)
IV. The plaintiffs in error claim that the item of $81 allowed for the clearing of 16J acres of the land contained in said town site was an improper item of expenditure under said original contract. Only one-eighth, however, of this item, or $10.12J, was charged as Grandstaff’s share of said expenditure; and if we really thought that the allowing of this $10.12J was erroneous, we would require that the plaintiff remit that amount, or accept a new trial; but we cannot say that the allowing of that item was erroneous. Brown did not personally make any of the improvements on said town site, and did not know personally anything about them. They were made by one V. V. Dodd, the common agent of both Brown and Grandstaff, assisted, however, by a son of Grandstaff, and by various other persons, who received the money furnished by Brown, for making them. Grandstaff was on the ground, residing a part of the time at' Westport and a part of the time on the mortgaged property; and, of course, could know, and probably did know, just what improvements were being made on the premises, and he never objected to the clearing of said 16.J acres of 'land. Besides, the terms of the contract or mortgage are broad enough to cover this improvement and this expenditure. We would think it would be proper to remove brush from a town site, especially from the streets, alleys and public grounds. Brown furnished the money to Dodd, who was the agent of Grand- staff, as well as of Brown, and Dodd made such improvements as he thought best.
V. The plaintiffs in error claim that certain evidence, tending to show that Grandstaff refused to settle any matters of difference between himself and Brown by arbitration, was erroneously admitted. Now, the whole case tended to show that Grandstaff did not want a settlement of any kind. He was occupying — and-had been since 1872 — the joint property of himself and Brown, whose rental value (as the referee finds) was $500 per year, and paid no rent, nor paid any taxes on the property (Brown paying all the taxes thereon), and did not pay any part of either the principal or the interest of the money which he borrowed, of Brown, or of his share of that which Brown advanced for said improvements. He preferred to be let alone. He was satisfied with things as they were. But if he really had desired to have a settlement by arbitration, it was as much his duty to ask for the arbitration as it was that of Brown. But he never asked for an arbitration, nor even expressed a willingness to have it. The direct evidence, tending to show that Grandstaff refused an arbitration, was embodied in the eighth direct interrogatory addressed to Dodd, with' its answer, and in the sixth and seventh cross-interrogatories addressed .to Dodd, with their answers. Row, no objection was made to said cross-interrogatories or to their answers, but only to the eighth direct interrogatory and its answer. The objection was, that the interrogatory was leading, and called for an opinion only, and that the answer was incompetent, irrelevant, and only an opinion or conclusion. The interrogatory and answer are not what they ought to be; but still, taking them in connection- with said cross-interrogatories and their answers, and it is clear that the witness attempted honestly to give the substance of a conversation had between himself and Grand-staff. A witness is never required to give the exact words of a conversation unless he can .remember them; and where he cannot remember phe exact words, he may give the substance of the conversation. Of course, -he should give the, substance as nearly in the exact words of the person using them as he possibly can ; and when he has done that, it then remains for the court, or jury or referee (as the case may be) trying the cause, to determine how much his evidence is worth. Where a-witness attempts to give a conversation and does the best he cau, his evidence is not to be' excluded, if he sufficiently remembers the conversation so as to give the substance of it in any form. We think the said evidence objected to was properly received; but even it had been excluded, the same result should have followed that did follow.
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
Wedell, J.:
This was an action to'determine the rights of the plaintiff, G. A. Edminster, to an interest in and to oil and gas in place and to oil and gas which had been produced from that land in Sumner county by the defendant, R. H. Young, a purchaser at a mortgage-foreclosure sale, and by his successors in title. While this case and the case of Malone v. Young, ante, p. 250, 81 P. 2d 23, were not consolidated for trial below nor for argument in this court, they grew out of the same general facts and transactions. Ed-minster, in this action, claims as a cotenant of the defendant, R. H. Young, just as did the plaintiff Malone, in his case. The summary of the petition contained in the opinion in the Malone case narrates the series of conveyances on which plaintiff predicates his equitable title against the same defendants in the instant case. It should be added here, however, that the plaintiff, Edminster, obtained his mineral deed from the defendants, the Erkers, on December 28, 1929, and that the terms of his mineral deed are in substance the same as those contained in Malone’s deed, marked exhibit “A,” in the Malone case. In the instant case it does not appear, however, that the plaintiff predicated his action on alleged fraud. He brings his action for the recovery of ah interest in the oil and gas in place and for the oil and gas produced under the provisions of G. S. 1935, 60-2001. The theory on which he relies is that Young purchased in the fiduciary relationship of a cotenant at sheriff’s sale and that he (Edminster) is therefore entitled to have the benefit of the purchase inure to him. The pertinent portion of G. S. 1935, 60-2001, provides:
“If his claim is based upon an equitable title, he shall state the facts upon which his title is based in his petition.”
Edminster has related the same general facts contained in the petition of Malone as to the derivation of his alleged title, except as to the date of his royalty deed, and we need therefore not review those facts in this case. His petition also asked for conditional relief against the Kanotex Refining Company, as follows:
“This plaintiff further alleges that the Kanotex Oil and Refining Company-purchased the oil produced from said land above described with full knowledge of the plaintiff’s right and if any amount has been paid out to other parties which belonged to this plaintiff, and which by reason of an accounting is found to be the property of this plaintiff, then the said the Kanotex Refining Company should reimburse this plaintiff for the amount so wrongfully paid out.” (Italics inserted.)
The defendants, R. H. Young, George Young, Verna Young, E. B. Shawver, Stella Shawver, the Stelbar Oil Corporation, and the Kanotex Refining Company, all lodged demurrers against plaintiff’s petition, which demurrers were substantially the same, and were as follows:
“First, for the reason that there was another case pending between the same parties for the same cause, being case No. 17,270, in the district court of Sumner county, Kansas, at the time of the filing of said petition in the above-entitled action;
“Second, for the reason that said petition fails to state facts sufficient to constitute a cause of action in favor of the plaintiff and against these defendants.”
Case No. 17,270, referred to in the first paragraph of the demurrers, was the Malone case, supra, in which this plaintiff, Ed-minster, was a party defendant and in which he personally appeared.
Did the petition state a cause of action for equitable relief? Did plaintiff act with greater promptness than his cotenants, Malone and Sanderson, in the Malone case, supra, so as to compel a contrary ruling in the instant case? Clearly he did not. What was said in the Malone case as to his and Sanderson’s delay in asserting their claims applies with even greater force to this plaintiff. He made no move to contribute to the purchase price and to thus protect his interest until November 30, 1937. Moreover, he had foreclosed his second mortgage against the Erkers in a judgment rendered July 27, 1931. In that foreclosure action he asked that the right, title, estate or interest of Young and those of all other defendants be barred, except as to the right of redemption. Those defendants and each of them were barred in that judgment, and again in the judgment of confirmation, from asserting any further right, title, interest or equity in and to the property. Even though in that action the period of redemption was extended so as to cover a period of approximately two and one half years instead of eighteen months, this plaintiff did not offer to redeem. In his petition for foreclosure he did not mention his mineral rights. He asked for no reservation of those rights in the judgment. No rights were reserved in the judgment. He later released his judgment upon a cash settlement with the Erkers. G. S. 1935, 60-3465, provides:
“That every deed for any lands or tenements heretofore or hereafter made and executed by any sheriff or other officer, purporting to have been made under or in pursuance of any execution, process or judgment of any court of record in this state, shall be sufficient evidence of the legality of the sale and the proceedings therein until the contrary be proved, and shall vest in the purchaser as good and perfect an estate in the premises therein mentioned as was vested in the person or persons against whom the execution, writ or order was issued at or after the time when such lands and tenements became liable to the satisfaction of the judgment or lien for which the same was sold.” (Italics inserted.)
The purchaser Young bought at sheriff’s sale this plaintiff’s interest in the oil and gas rights in accordance with plaintiff’s own prayer in the foreclosure action. The sale so made to Young was confirmed as being in all respects in conformity with law and equity. Concerning that confirmation plaintiff made no complaint. In the case of Cabeen v. Whalen, 120 Kan. 492, 243 Pac. 1021, it was said:
“The purchaser at the judicial sale acquired not only the title and interests held by the mortgagor, but also all interest held by the parties to the action. Whalen brought the action and set up his mortgage asking for a foreclosure and sale of the property, but made no mention of any reservation of mineral rights. He invoked the aid of the court in procuring a sale of the property, and on his own motion a judgment was rendered foreclosing his mortgage and adjudging that the rights and equities of the parties plaintiff and defendant should be barred. He did not complain of the judgment rendered nor ask to have his oil interest excepted from it. On the other hand, he procured an order of sale to be issued, which purported to cover every interest except the first mortgage of SI,000, and under that order the property was sold. On his motion the sale was confirmed and a deed executed, and out of the proceeds of the sale he received the full amount of the indebtedness secured by the mortgage. It is clear that he is not in a position to claim an interest not reserved in the judgment or at the judicial sale. The general rule is that in a judicial sale of property the deed conveys all the title and.rights of the parties to the action, and also of all persons who have derived their interest from such parties during the pendency of the suit. (35 C. J. 73.) In the recent case of Poss v. Steiner, 118 Kan. 595, 236 Pac. 640, it was decided:
“ ‘Where the court had jurisdiction of all the parties the validity of a judgment in a foreclosure action, under which land is sold and a sheriff’s deed is issued, cannot be questioned by any of the parties thereto in a subsequent action by the grantee to quiet title of the land against those parties.’ ” (p. 494.)
In the same opinion it was further stated:
“The rule of caveat emptor is invoked by Whalen on the ground that his oil lease had been made a matter of record and therefore the purchaser had constructive notice of it and could take no more than the interest of the mortgagor. The same contention was made in the Ferguson case, where the deed containing the provision for a reversion upon express conditions had been recorded. Because of this record it was insisted that the purchaser had coni structive notice of the reserved interest and took the property subject to it. The court rejected this contention and held that the mortgagee, having presented the case without reference to any reservation, and having cooperated in procuring a judicial sale, as if all the interests were to be conveyed, was barred from asserting an interest under the reversion. It was held that it was optional with him whether he would exercise his right of reversion, and that even if the purchaser had actual notice of the interest, the plaintiff not having exercised the option by proceeding as if the mortgagor had the complete title, he could not exercise it after a judicial sale and the payment of the mortgage debt. So here, the purchaser, although he had constructive notice of the oil lease, had notice of other facts which had intervened; that is, he had notice from Whalen’s petition that no reservation was alleged and that no outstanding interest was claimed by him, and he also had notice through the decree that Whalen and all of the parties to the action had been barred from claiming any interest or equities.” (p. 495.)
Having foreclosed Young’s interest in the mortgage-foreclosure sale, as well as having cut off his own mineral rights, how can he now claim the relation of cotenant again came into being, as between himself and Young, when Young purchased the title free from his (Edminster’s) interest? Even on his own theory, however, that the cotenancy continued to exist after the sheriff’s sale to Young, Edminster waited until November 30, 1937, to assert his alleged interest. That was over six years from the date of Young's purchase. It is needless to again review the enormous appreciation in the value of the property during the long period of speculative delay, which was fully discussed in the Malone case. The trial court was abundantly justified in holding that the facts pleaded on which plaintiff rested his equitable claim did not entitle him to the relief sought.
We have also carefully examined the contentions of the respective parties relative to the plea in abatement of the Kanotex Refining Company and are satisfied with the ruling. In view of the fact, however, that plaintiff is not entitled to a decree granting him any interest in the property of R. H. Young or Young’s successors in title, it is, of course, unnecessary to discuss the question of his right to an accounting and a reimbursement from the Kanotex Refining Company which purchased the oil. The demurrers of the respective defendants were properly sustained, and those rulings are hereby affirmed.
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff, a resident taxpayer of the city of Topeka, proceeding under G. S. 1935, 13-1403 and 60-1121, brought this suit to enjoin the governing body of the city, hereinafter referred to as the city, from purchasing certain described real property for the site of a public building for the use of the city, and from entering into any contract for the construction of such building on a designated block within the city, and from issuing any temporary notes or negotiable bonds by virtue of the authority of a bond election held on April 6, 1937. The trial resulted in a general judgment for defendant. Plaintiff appealed.
Briefly stated, insofar as it is material here and omitting formal parts, it was alleged in the petition, filed April 7, 1938, that on March 8, 1937, the city passed a resolution to submit to the voters April 6, 1937, a proposition to vote bonds, in an amount not to exceed $850,000, for the purchase of a site or the constructing and equipping of a public building, or both, for the city; “that said proposal be for the erection and equipping of a public building or the purchase of a site, or both, at an estimated cost of $1,545,454, the city’s share of which shall not exceed the proposed issue of bonds in the amount of $850,000; provided, however, that in the event a federal grant be not obtained therefor, said building be constructed and equipped and a site purchased, if one be deemed necessary, by the use of the funds derived from the sale of bonds in an amount not exceeding $850,000,” and in the event of a favorable vote that the city forthwith make application to the federal government for the approval of the project and the allowance of a grant to assist in its completion, and providing for a proclamation to be issued and other steps taken for the holding of the election. The proclamation was duly issued and published and the form of ballot provided by defendant and the election held, with the result that 12,587 qualified electors voted in favor of the proposition and 7,708 against it. The resolution, proclamation and ballot were attached and made a part of the petition. That prior thereto and on August 30, 1935, the city had adopted a resolution by which an application was made to the appropriate federal agency for aid in financing the construction of a city building at an estimated cost of $850,000. It was alleged that the city acted in bad faith in making such application and in not furnishing plans and other information requested by the federal agency, with the result that when the application was refiled after the election in 1937 federal funds to aid such a project were not available; that the proposition set out in the ballot to spend the entire amount of $1,545,454 if federal aid could be obtained, but only the proceeds of the bonds, $850,000, if such aid could not be obtained, was with the idea of creating a civic center at a designated place within the city; that the ballot used in the election was misleading and dual in its terms in particulars which were stated; that the city had on file with its clerk no itemized statement of the cost of purchasing a site and no estimate of the cost of erecting and equipping a public building as a basis for the issuance of temporary notes, but that the city is issuing temporary notes in a sum stated for a site for such building, which if continued would deplete the funds arising from the sale of the $850,000 bonds, so that the city would not be able to erect and equip the building with the balance of the funds; that on February 16,1938, the city passed a resolution by which it selected a location for the public building on the south end of the block bounded by Seventh and Eighth avenues east and Monroe and Quincy streets, and adopted preliminary plans; that on the northwest portion of this block is located the city office building, and this space would not be available as a building site for the public building contemplated; that the block is 450 feet long and 320 feet wide, and if the proposed building faces south it would occupy land not to exceed 200 feet north of the south line thereof; that the city commissioners are “proceeding to purchase the north end of said block for the site of a second building for use as city offices to be erected sometime in the future and are about to pay for the site of said second building with the proceeds from the sale of said bond issue,” and are thus diverting the fund from the purpose for which it was voted. The lots which it was alleged the city is about to purchase are described, and it was alleged that unless the city be restrained from purchasing them there will not be enough money to build and equip the public building; and it was further alleged that the bond election of April 6, 1937, is void because the ballot contained two or more separate propositions, which were voted on together instead of separately, as provided by law.
In its answer the city admitted the resolution of March 8, 1937, and other steps pleaded in the petition pertaining to the bond election; that it had made application for federal funds; that it intended to purchase all the property not already owned by it in the block bounded by Seventh and Eighth avenues east and by Quincy and Monroe streets; that it had already purchased some of the property and had issued its temporary notes therefor, but specifically denied that such notes had not been issued in accordance with law. It denied other allegations of the petition and specifically denied that the burdens of plaintiff as a taxpayer would be unnecessarily increased by any of the acts complained of, and denied that the bond election was void, as alleged by plaintiff. In an amended answer it alleged plaintiff has been guilty of laches, and that by his conduct in connection with the matters pertaining to the bond election he is estopped from maintaining the present action.
The evidence on plaintiff’s behalf tended to show that on August 30, 1935, the city applied to the PWA for aid to construct a municipal auditorium at a total estimated cost of $850,000, the city to furnish $467,500 of the amount and PWA to aid by grant of $382,500; that this application was not acted upon and was withdrawn by the city on November 15, 1935. After the election, April 6, 1937, at which there was a favorable vote on the bond issue, and on June 7, 1937, the city by resolution authorized its clerk to execute and file on behalf of the city an application to the federal government for a grant to and in financing the construction of a public building, and at the time of the trial of this case federal funds having been made available, the application was taken up and favorably considered, and at the hearing in this court we were advised federal aid had been granted in the sum mentioned in the resolution and ballot at the election for bonds April 6, 1937. The trial court did not find bad faith on the part of the city in respect to its application for federal aid. Indeed, the evidence would not have sustained such a finding. The first application in August, 1935, was made before the city had been authorized by a vote of the people to issue bonds to pay its share of the cost of thé project, and it was prudently withdrawn. After the election and in June, 1937, the city made a second application for federal aid. The form of this application is not before us, but obviously it was in the form contemplated by the resolution for, and the ballot used at, the election of April 6, 1937, for this was the grant we are advised was made as soon as the federal funds were available for that purpose.
Other evidence offered by plaintiff went to the question of the area of the site which was being purchased by the city for the public building. It had been alleged in the petition and admitted in the answer that the city was proceeding to purchase all of the lots not previously owned by it in the block bounded by Seventh and Eighth avenues east and Quincy and Monroe streets. -The evidence disclosed the city owned the northwest portion of this block, on which city office buildings are now situated. Plaintiff’s contention was that the new building authorized by the vote of April 6,1937, can be located on the south half of the block; that the city does not need the lots in the northeast portion of the block; that the city really is-purchasing them for use to locate new city office buildings at some time in the future, and that to purchase them with' proceeds of the bonds authorized at the election of April 6, 1937, is a wrongful diversion of that fund. The evidence on this point consisted of such surveys of the area and building plans as had been prepared by the city, all of which were quite tentative. There was no evidence that two buildings were to be constructed. Plaintiff did not charge the city with bad faith in its determination of the area of the site to be purchased. The only thing really established by the evidence on this point was that a difference of opinion existed between plaintiff and the city as to the area of the site necessary or appropriate for the public building authorized by the election of April 6, 1937. On that point the trial court held the area of the site was a matter within the discretion of the city, and in the absence of a charge and showing of bad faith on its part of a character to give jurisdiction to a court of equity the court could not interfere. We concur in this view. More than that, plaintiff brought this suit as a taxpayer and is entitled to complain only of wrongful or illegal matters which affect his pocketbook by unlawfully increasing his taxes. (Warner v. City of Independence, 121 Kan. 551, 557, 247 Pac. 871; Home Riverside Coal Mines Co. v. McAuliffe, 126 Kan. 347, 267 Pac. 996.) His only claim on this point is that too large a portion of the $850,000 bond issue authorized is being consumed in procuring a site. He does not contend that the amount he would have to pay in taxes to retire the bonds will be increased because more of the proceeds of the bonds is expended for a site than he thinks is necessary. So, on this point, plaintiff’s petition never did state a cause of action. The trial court correctly sustained the city’s demurrer to this evidence.
In respect to the court’s ruling on the demurrer to the evidence, appellee argues appellant is not entitled to be heard because the appeal was taken more than two months after the demurrer to the evidence was sustained. (Laws 1937, ch. 268, § 2; G. S. 1937 Supp. 60-3309.) The point is not well taken. The appeal here is from the final judgment against plaintiff. When an appeal is taken in time from the final judgment of the district court the fact that some ruling of which appellant complains was made more than two months prior to the time he perfected his appeal does not prevent a review of the ruling. (Laws 1937, ch. 268, §5; G. S. 1937 Supp. 60-3314a.)
In his brief in this court appellant contends the election of April 6, 1937, was irregular and void because of the form of ballot prepared by the city and used at the election. With respect to this, appellee argues that the appeal should be dismissed, or the judgment of the trial court affirmed, for lack of equity, and argues that appellant has been guilty of laches and of conduct in opposition to his present contention on these points, which barred or precluded him from maintaining this action. The facts on which this argument is based, shown by the record or stated in the argument and not controverted, may be summarized as follows: Appellant is and for many years has been actively engaged in the practice of law in Topeka. He lives about two blocks from the site of the proposed building. He has taken an active interest in this building project from the beginning and is familiar with all of the official and most of the unofficial acts connected with it. He opposed the bond issue and voted against it. After the bonds carried he took an active interest in the site to be selected for the building, a question in which many persons took an interest, many sites being proposed. He appeared before the city commissioners in a well-prepared and exhaustive argument and urged the selection of the site which eventually was chosen. He conferred repeatedly with the city as to the plans for the building, the materials which should be used in it, its size, and its exact location on the site, and the area of the site. The city had the site appraised and was buying, or taking options to buy, lots therein, and employed an architect. It was not until the city failed to agree with him on the area of the site, and possibly some other details of construction of the building, that he went into court and brought a suit-in his own name to enjoin the city from proceeding, and obtained a temporary restraining order. Perhaps to keep from having to give an injunction bond he dismissed that action and brought the present suit in slightly different form, but asked for no restraining order or temporary injunction. When this case was tried in the court below the city had expended in architect’s fees and other preliminary expenses and in purchase of property for the site more than $100,000, and had outstanding option contracts on other property calling for additional payments. By the time of the hearing in this court the payments made aggregated $177,000. The funds to make them had been obtained (on temporary notes to be redeemed by the sale of the bonds authorized by the election of April 6, 1937. Plaintiff knew of these various steps, perhaps recommended — certainly acquiesced in — many of them. We think appellee’s point is well taken. If the ballot used in the election was so defective as to invalidate the election, plaintiff knew that, or is presumed to have known it at the time. From his conduct it is clear he was willing to waive any defects in the ballot so long as the city followed his advice as to the location of the building and other details of the project. It was only when the city differed with him on some of those points, and after knowing the city had made large expenditures, which could be done only if there was a valid election on the bonds, that plaintiff raised these points, and this was done in a suit in which primarily he seeks to enjoin the city from buying a portion only of the site. The very statement of these facts discloses how inequitable it would be to permit plaintiff to maintain this action on these points. Our statute (G. S. 1935, 60-1121), by virtue of which plaintiff brought this action, requires promptness in the disposition of a case of this character, and our decisions require one who seeks equitable relief in such a case to act promptly. (See Commissioners of Morris Co. v. Hinchman, 31 Kan. 729, 3 Pac. 504; Ritchie v. Mulvane, 39 Kan. 241, 17 Pac. 830; Stewart v. Comm’rs of Wyandotte Co., 45 Kan. 708, 26 Pac. 683; Meistrell v. Ellis County, 76 Kan. 319, 91 Pac. 65; Kirsch v. City of Abilene, 120 Kan. 749, 244 Pac. 1054.) Defendant raised this question by the amendment to its answer. The record on this point fully justified a general judgment for defendant. Even in his argument in this court appellant stated he did not want to prevent the construction of the building, or the carrying out of the project if he could be assured the city planned to construct but one building — and with respect tó this the record does not disclose the city planned at any time to construct more than one building — and to conform to some other of his ideas about the building. In doing this he waived questions respecting the sufficiency of the ballot, and the court would be justified in dismissing his appeal with respect to this point.
•However, the questions raised by plaintiff respecting the sufficiency of the ballot were considered by the trial court and decided adversely to plaintiff’s contention. Perhaps plaintiff’s principal purpose in raising them was to have them judicially determined. He argues them in his brief in this court, and we deem it best to consider them. Omitting formal parts, the ballot reads as follows:
“Shall the following be adopted?
“Shall the City of Topeka issue its negotiable bonds in an amount not to exceed $850,000 for the purpose of purchasing a site or erecting and equipping a public building for such city, or both, said bonds to be used for the purpose of paying the city’s share of the cost of a total project estimated at $1,545,454 in the event such public building project is approved by the Public Works Administration, or some similar federal agency, and a grant of funds is obtained from the federal government through such federal agency, which grant shall be used to aid the City of Topeka in paying the cost of said project; and in the event such public building project is not approved by the Public Works Administration or some similar federal agency, and no federal grant of funds be obtained, then to pay the total cost to the city for the purchase of a site or the erection and equipment of a public building for said city, or both, at an estimated cost of $850,000?”
It is argued that the use of the phrase “a public building” in the ballot instead of the specific term “a municipal auditorium” is a grant of unlimited power to the city and violates article 11, section 5 of our constitution, and our statute, G. S. 1935, 10-117. It is a sufficient answer to this contention to say that in this respect the ballot used the exact phrase which the legislature used in the statute under which the city proceeded. (G. S. 1935, 13-1431, as amended by Laws 1937, ch. 138, §1; G. S. 1937 Supp. 13-1431.) The city could have found no sanction for the use of the suggested term “municipal auditorium" in any statute applicable to the city. Just why the phrase “a public building for such city” was used by the legis- ■ lature instead of some other phrase or term we need not stop to inquire, since no one contends the legislature lacked authority to use that phrase, or that the statute is void for that reason. The city had used the word “auditorium” in its initial resolution, but when it prepared the ballot it used the phrase found in the statute. This was legally accurate. Section 5 of article 11 of the constitution and G. S. 1935, 10-117, prohibit the use of funds raised by taxation for a purpose other than that for which they were raised. There is nothing in the ballot to indicate that the proceeds of the bonds voted are to be used for any purpose other than that stated in the ballot; hence, the ballot cannot be irregular or void as being in violation of these sections.
It next is argued that the provisions of the ballot to the effect that the building project is to be completed at an estimated cost of $1,545,454 in the event federal aid is obtained, but if not the total cost should not exceed the amount of the bonds, $850,000, issued by the city, presents a dual question and invalidates the ballot. We think this contention is not tenable. It is quite clear from the wording of the language that in the event of a favorable vote the project was to be completed in any event, the total cost not to exceed the amount of the city’s bonds if federal aid were not obtained, but if such aid were secured a larger or better building would be constructed, the total cost to the city in any event not to exceed the amount of its bonds voted for that purpose. Voters could not be misled on this point. In fact, the ballot gave them definite information respecting the total expenditure for the project, depending on .the contingency of receiving federal aid. Nothing was concealed from the voters respecting that matter. In this respect the ballot is not open to the objection found to exist in the ballots in Kansas Electric Power Co. v. City of Eureka, 142 Kan. 117, 45 P. 2d 877, and Board of Education v. Powers, 142 Kan. 664, 51 P. 2d 421.
It next is contended the ballot is indefinite and dual in its terms in that it is so worded that the city might use proceeds of the entire bond issue, or of the bond issue and the federal grant, in the purchase of the site for the building, or all of it might be used in constructing and equipping the" building, or that some indefinite part of these sums might be used for the purchase of the site and the remainder for constructing and equipping the building. We think the ballot might have been worded more clearly in this respect. For example, the language used at one place in the initial resolution, “that . . . said building be constructed and equipped and a site purchased, if one deemed necessary, . . .” would have expressed more accurately the thought sought to be conveyed. The terms “total project” and “such project” used in the ballot, and the amount involved, as shown by it, indicate quite clearly that but one project was submitted, namely, the construction and equipping of a public building for the use of the city, which project might require the procuring of a site, depending on where the building was to be located.
(Thomas v. Covell, 119 Kan. 684, 240 Pac. 574; Pittsburg Board of Education v. Davis, 120 Kan. 768, 245 Pac. 112; State, ex rel., v. McCombs, 129 Kan. 834, 284 Pac. 618; Robertson v. Kansas City, 143 Kan. 726, 56 P. 2d 1032; Kansas Power Co. v. City of Washington, 145 Kan. 962, 67 P. 2d 1095.)
It has been repeatedly held that a proposition to acquire a site and construct a building is not a dual proposition (Thomas v. Covell, supra; Pittsburg Board of Education v. Davis, supra), for, from the very nature of things, a building requires a site, and the ■site alone would be inadequate for the completion of the project. There is no reasonable basis for saying that anyone reading this ballot would understand all of this money would be used for a site for the building. Neither is it contended that plaintiff, or any other voter at that election, was misled by the form of the ballot in this respect. This is the type of question that might have been given more weight if raised at the time of the election or immediately thereafter. (Board of Education v. Powers, 142 Kan. 664, 668, 51 P. 2d 421.) It should not be permitted to have any weight at this time when rights of third parties have intervened (State, ex rel., v. McCombs, 129 Kan. 834, 284 Pac. 618) and financial obligations have been incurred. At most it is an irregularity insufficient in and of itself to vitiate the ballot.
Appellant cites and relies largely on the cases of Leavenworth v. Wilson, 69 Kan. 74, 76 Pac. 400, and Kansas Utilities Co. v. City of Paola, 148 Kan. 267, 80 P. 2d 1084. We do not care to detract from the holding in either of these cases. While they differ somewhat, the principal purpose of the city in each case was to establish a municipal utility where there was an existing privately owned utility of the same character. Naturally, the properties of the privately owned utility would be affected by the result of the election; hence, whether the vote should authorize the city to purchase the existing utility, or to build and construct a new one, presented distinct questions important to the owners of the existing utility as well as to the electors of the city. We have no such question here, hence the decisions are not in point.
We find no error in the record. The judgment of the court below is affirmed.
Hutchison, J., not participating.
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The opinion of the court was delivered by
Allen, J.:
This was an action to contest a will. Judgment was for defendants, and plaintiff appeals.
On the 20th day of February, 1935, Sam M. Stayton executed his last will and testament. He died ón March 5, 1935, and his will was probated on the-day of March, 1935.
By his will Sam M. Stayton devised to his wife, Minnie Stayton, plaintiff herein, the home place in Wellington. He directed that all the rest and residue of his estate (except his interest in the RushStayton Motor Company) be sold within two years after his death, and out of the fund created by the sale of his property he devised and bequeathed an undivided one half to his wife, Minnie Stayton.
Of the remaining one half he gave $7,500 to his sister, Mrs. Jack Connor, $2,500 to a brother, Fred Stayton, and the balance to his five brothers and sisters, share and share alike. He also provided that his partner, Rush, should have a prior right to purchase “my one-half interest in the firm business of the Rush-Stayton Motor Company.”
This suit was instituted by the plaintiff, Minnie Stayton, as the widow and sole heir at law of Sam M. Stayton, deceased, contesting the validity of the will.
The petition charged that for ten years prior to his death Sam M. Stayton had been highly nervous, erratic, subject to frequently recurring spells of depression and mental and nervous disorders, subject to delusions of oppression and persecution, and was easily influenced by his brothers and sisters; that for a period of eighteen months prior to his death his brothers and sisters carried on a plan of conspiracy to poison and alienate the mind and affection of Sam M. Stayton against his wife, and to turn him against his wife and to induce him to make a will devising as much of his property as was possible to his brothers and sisters. That in pursuance to such plan they made false statements to Sam M. Stay- ton that plaintiff did not love her husband, had no affection for him, desired to take his life, intended to poison or shoot him, and that it was dangerous to longer live with the plaintiff; that on February 5, 1935, Sam M. Stayton, on account of his mental and physical condition, was taken to the Hatcher Hospital at Wellington, where his brothers and sisters continued the plan and conspiracy to alienate his affection for his wife, and that such conduct was continued until his death. It was alleged that the brothers and sisters procured and induced Sam M. Stayton to sign the purported will, which he would not have signed except for such undue influence and his unsound mind. That he was not mentally competent to execute the will, but that his brothers and sisters procured and induced him to sign the will when he was of unsound mind, was mentally incompetent to sign it, and was wholly under their influence and control.
A trial was had before the court, and testimony supporting the claims of the respective parties was presented to the court. A demurrer to the evidence introduced on behalf of the plaintiff was interposed by defendants. The demurrer was sustained by the court as to the charge of undue influence and restraint on the part of the brothers and sisters. Thereupon the trial proceeded solely on the issue as to the testamentary capacity of the testator.
The court made findings of fact and conclusions of law, which are in part as follows:
“6. With reference to this issue as to whether Sam M. Stayton possessed the testamentary capacity required by law to make a valid last will and testament the court, after a due and careful consideration of all the competent testimony of the whole case, finds and determines the issue in favor of the defendants, finding that the said testator, Sam M. Stayton, at the time of the making and execution of said last will and testament, did possess that testamentary capacity which the law requires in the making of a valid last will and testament.
“9. Following these rules of law as expressed in the opinions of our state supreme court and in determining the facts as the court finds the facts to be as disclosed from the evidence of the whole case, we find that the testator spent practically his entire life in Sumner county, Kansas. That during his childhood days his mother was an invalid, and that his sister, Anna Connor, one of the defendants in this case, helped a great deal in the care of the boy Sam. That he was the youngest of the boys of the family and resided at the home of his parents until his marriage to the plaintiff on May 20, 1908, from which time, until his death on March 5, 1935, the plaintiff and the testator lived together as husband and wife. Sam Stayton in his lifetime was quite actively engaged in the business of farming, raising stock, feeding cattle, buying and selling horses, mules and other livestock, and was also engaged in the automobile business as one of the partners in the firm of the Rush-Stayton Motor Company of Wellington, Kan.
“10. It further appears from the evidence that the testator and the plaintiff suffered some domestic strife during the spring of the year, 1934, but an apparent reconciliation of these domestic troubles had been effected prior to the commencement of the year 1935. During the spring and summer of 1934 the testator had worried a great deal about his domestic difficulties with the plaintiff, but a great improvement had taken place in his mental attitude with reference to said matters, and in the fall of 1934 the testator had engaged in not only ordinary but many complicated business affairs. He had bought cattle and hogs to feed during the winter; owning between 250 and 300 head of cattle and borrowing from the bank with which he was doing business as much as $8,000 at a time, selling some of the stock from time to time when the markets appeared favorable and making payments on the notes for the money borrowed for such purposes. All of such dealings proved profitable and it appeared that during all of such times the testator was able to carry on business in his usual way.
“11. It further appears from the evidence that at practically all times during his marriage with the plaintiff the relationship between the plaintiff and the testator’s brothers and sisters was not entirely cordial. That the testator and his brothers and sisters at all times maintained cordial relations and consulted with each other concerning their business affairs.
“12. On the 5th day of February, 1935, Sam M. Stayton entered the Hatcher Hospital as a patient and there he remained until his death on the 5th day of March, 1935. His death was the result of a septicaemia induced by an ulcerating bacterial endocarditis which was of a recent origin and which developed by an acute process. It was while he was a patient in said hospital during his said last sickness, and on the 20th day of February, 1935, during the first hour of the day following midnight that he made and executed this last will and testament which is now the subject of this contest.
“13. The court finds that at the time of the making of said will the testator, Sam M. Stayton, was of sound and disposing mind and memory, possessing that testamentary capacity which has heretofore in this opinion been referred to. It appears that he had numerous callers while he was sick at the hospital, consisting of his wife and their intimate friends, his brothers and sisters, and his business friends. That he recognized said persons, calling them by name and carrying on a conversation with them about current events and in regard to business matters.
“14. The court finds that at the time of the preparation of said last will and testament the testator selected the attorney whom he desired to draft said instrument after being unable to secure his usual counsel, and that he was able to dictate the terms of said instrument. That he was acquainted with the property which he owned; that he was able to determine who were the proper objects of his bounty and as to the provisions to be made for each as he desired. That he was able to understand the terms of said will when it was read to him and suggested some changes which he' directed to be made and which were made by pen and ink interlineation at the time and prior to the attaching of his signature to said instrument. That he was able to give his at torney, the scrivener of said will, explicit instructions relative to the terms thereof, and that at said time he displayed a clear knowledge of the business he was then transacting.
“15. The court finds that both prior to the making of said will and subsequent thereto the said testator was at all times in possession of his mental faculties and qualified to dictate the terms of his said will. That said mental sufficiency existed up until two days prior to his death, which occurred on the 5th day of March, 1935.
“16. The court further finds that said testator was the owner of an undivided one-fourth interest in the partnership of the Rush-Stayton Motor Company, of Wellington, Kan. That pursuant to inventory filed in probate court having jurisdiction of the administration of the estate of the said decedent it appears that the gross value of said estate is $58,832.86. It also appears that mortgage debts and claims allowed against the estate of said decedent in said probate court amount to the sum of $18,535, and that the net value of said estate approximates the sum of $40,297.86.
“17. As a matter of law, the court concludes that the instrument of writing purporting to be the last will and testament of Sam M. Stayton, deceased, admitted to probate in the probate court of Sumner county, Kansas, on the-
day of March, 1935, is in every respect valid and entitled to full faith and credit as the last will and testament of the said testator, Sam M. Stayton, deceased, and that judgment be entered in harmony herewith.”
The abstract is voluminous and it is impossible to detail the evidence. It is not seriously contended that there was any substantial testimony to support the charge of undue influence. On the question of testamentary capacity the testimony was conflicting. There was, however, sufficient testimony to support the findings of the court that the testator was mentally competent to make the will. In this state of the record the findings of fact are conclusive on appeal. (Anderson v. Anderson, 147 Kan. 273, 76 P. 2d 825; Gilpin v. Burch, 145 Kan. 224, 65 P. 2d 308; Gorman v. Hickey, 145 Kan. 54, 64 P. 2d 587; Steward v. Marker, 143 Kan. 860, 57 P. 2d 75; Bradley v. Hill, 141 Kan. 602, 42 P. 2d 580.)
We proceed to an examination of the errors assigned and pressed upon us in plaintiff’s brief.
1. Did the court commit error in sustaining defendants’ demurrer to the evidence on the issue of undue influence?
In Holmes v. Campbell College, 87 Kan. 597, 125 Pac. 25, an action was brought to set aside a will on the ground of undue influence and want of testamentary capacity. A demurrer to the evidence was sustained as far as related to undue influence, and the trial proceeded on the issue of testamentary capacity. No question seems to have been raised as to the propriety of this practice. In this case, at the time the demurrer was sustained the court had before it all of the evidence of the plaintiff as to any undue influence that was exercised over the testator, and all of plaintiff’s evidence as to the mental and physical capacity of the testator. The court found that the plaintiff had failed to make a prima jade case as'to the charge of undue influence.
Text writers usually treat undue influence and want of testamentary capacity as separate and distinct grounds upon which a will may be impeached. (68 C. J. 424, 743; 1 Page on Wills, chapters 8 and 10.) This was evidently the view taken in Holmes v. Campbell College, supra. As it is not shown that the plaintiff was prejudiced in any way by the action of the court, we do not think the ruling constituted reversible error.
2. Attending physicians of Sam M. Stayton were permitted to testify to facts which they had acquired professionally touching the testamentary capacity of the testator over the objection of plaintiff.
It appears, however, that plaintiff had called Doctor Fellows, who had attended the testator while in the Menninger Plospital and who, on direct examination, testified at length as to his mental condition.
Under the rule laid down by this court in Chaffee v. Kaufman, 113 Kan. 254, 214 Pac. 618, the plaintiff, having introduced a witness on his own behalf, waived objection to the testimony of the two physicians called on behalf of the defendants. (See, also, In re Quick’s Estate, 161 Wash. 537, 297 Pac. 198.)
3. Plaintiff contends that improper hypothetical questions were propounded to expert witnesses. Doctor Hatcher, operator of the Hatcher Hospital, and Doctor Howell, a physician at the hospital, testified on behalf of defendants. Both doctors were in attendance on the testator while in the hospital. The testimony of these witnesses as to the mental condition of the testator was for the most part based upon their personal observation. Where personal observation is had hypothetical questions are unnecessary. (1 Wigmore on Evidence, § 675.)
In Connecticut Mut. Life Ins. Co. v. Lathrop, 111 U. S. 612, 618, 4 S. Ct. 533, 28 L. Ed. 536, it was said:
“ . . . Thus, the opinions of medical men are admissible in evidence as to the sanity or insanity of a person at a particular time, because' they are supposed to have become, by study and experience, familiar with the symp toms of mental disease, and; therefore qualified to assist the court or jury in reaching a correct conclusion. And such opinions of medical experts may be based as well upon facts within their personal knowledge as upon a hypothetical case disclosed by the testimony of others. . . .”
In State v. Felter, 25 Ia. 67, 75, Dillon, C. J., speaking for the court, said:
“ ... If a physician visits a person, and, from actual examination or observation, becomes acquainted with his mental condition, he may give an opinion respecting such mental condition at that time. . . .”
In Bellefontaine & Indiana Railroad Company v. Bailey, 11 Ohio St. 333, 337, it was said:
“If an expert may give his opinion on facts testified to by others, we see no reason why he may not do so on facts presumably within his own personal knowledge; . . .”
Where an expert witness, called to give his opinion, has had no personal observation of the data on which his opinion is to be based, the expert must have such data stated to him hypothetically in the question. (George v. Shannon, 92 Kan. 801, 142 Pac. 967.) It is then possible for the court or jury to reject his opinion later if they do not accept the data upon which the opinion was based.
The testimony of these physicians as to the mental condition of the testator was based on the daily observation of the testator while in the hospital during his last illness. One question, in hypothetical form, propounded to Doctor Howell, was as follows:
“Q. Assuming, Doctor, that, in order for a man to be competent to make a will, it is necessary for him to be able to understand what his property consists of, who his relatives or-friends and who are the natural objects of his bounty, and also know what he wants to do with his property, would you say that, during that period, Mr. Stayton was or was not competent to make a will?
“Attorney for plaintiff: Object to that; the hypothetical question doesn’t contain the necessary elements that constitute the soundness of mind.
“Court: Objection overruled.
“A. I believe that he was.”
In Stecher v. London Guarantee & Accident Co., 133 Kan. 89, 298 Pac. 754, paragraph 4 of the syllabus reads:
“While all undisputed elements and features of the case relating to the subject on which an expert opinion is being sought by way of an answer to a hypothetical question should be contained in the question, yet it is not necessary to include all the details of such elements or features.”
The test of mental capacity outlined in the hypothetical question has in substance been approved by this court many times. (Hud son v. Hughan, 56 Kan. 152, 42 Pac. 701; Cole v. Drum, 109 Kan. 148, 197 Pac. 1105; Barnhill v. Miller, 114 Kan. 73, 217 Pac. 274; Klose v. Collins, 137 Kan. 321, 20 P. 2d 494.)
We find no error in the admission of the testimony of these witnesses.
Objection is also made to a question propounded to Doctor Fellows, a witness on the part of the plaintiff. It referred to the mental capacity of the testator in March, 1934, nearly a year before the will was signed. It had slight bearing on the case and was well within the latitude allowed on cross-examination.
4. Complaint is made that one of the defendants, Mrs. Jack Connor, was permitted to testify to transactions and communications had with the testator in violation of the statute, G. S. 1935, 60-2804. The will made a bequest to Mrs. Connor in the sum of $7,500. She was asked: “During his boyhood, who assisted in caring for him?” She answered: “I certainly did.” The question was objected to as concerning a transaction between the witness and Sam M. Stayton, a deceased person.
The plaintiff testified that she was married to Sam M. Stayton on May 20, 1908. We are asked, then, to hold that the term “transaction” as used in the statute should be stretched to cover a segment of family history at least thirty-five years before the death of the testator. A mere statement that the witness assisted in caring for the testator during his boyhood could not be construed to be a transaction within the meaning of the statute.
This witness was asked: “Did Sam visit at your house?” She answered: “He certainly did.”
We have held that a defendant may testify as to the mental condition of the testator. “These questions were not propounded for the purpose of placing before the jury any transaction with, or conversation of, the deceased, but for the purpose of apprising the jury of the mental condition of deceased at and before the execution of the contract.” (Grimshaw v. Kent, 67 Kan. 463, 466, 73 Pac. 92. See, also, Loveless v. Ott, 121 Kan. 728, 250 Pac. 324.)
In Seligman v. Hammond, 205 Wis. 199, 236 N. W. 115 (Seligman v. Orth), in discussing a similar statute, the court said:
“We think the transaction meant in section 325.16 is a personal transaction with the deceased; a transaction in which each is an active participant, and that it does not prohibit the survivor from describing an event or physical situation, or the movements or actions of a deceased person, quite independent and apart, and in no way connected with, or prompted or influenced by reason of, the conduct of the party testifying. . . .”
A mere statement of an event, as a visit by the deceased to the witness, where it is not shown that such visit was prompted or influenced by the witness, is not within the ban of the statute.
We have examined the record as to the testimony of other witnesses which, it is argued, was admitted in violation of G. S'. 1935, 60-2804. Part of this testimony was stricken, and the other portions were unobjectionable under the rules above announced.
Other assignments of error were argued at length, but the view that has been taken disposes of those that are deemed to be material, and a reference to them in detail appears to be unnecessary.
Finding no material error in the record, the judgment is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
The defendant was charged with the crime of manslaughter in the first degree, and from a conviction of the crime of manslaughter in the fourth degree he appeals to this court, assigning certain errors, which are hereafter discussed.
Without attempting a full statement of the facts, it appears that on January 31,1938, Emilie Hoeduk and her husband were proceeding eastwardly on U. S. highway No. 40 in an automobile driven by her husband. A short distance behind was another car driven by one Pearl Martin. One Ralph Snowball was driving a car westwardly on the same highway. Shortly before these cars would have passed each other defendant, driving at a high rate of speed, came up behind the Martin car and attempted to pass it and the Hoeduk car, when the Hoeduk car was close to the Snowball car. In avoiding the Snowball car, defendant cut in front of and collided with the Hoeduk car in such manner that it was forced off the highway into the ditch, and after it proceeded a short distance it struck a telephone pole, turned over, and Mrs. Hoeduk sustained injuries from which she shortly died. There was evidence the defendant was intoxicated at the time the above events transpired. ;
Defendant’s first assignment is that the trial court erred in not sustaining his motion to quash the information for six asserted rea sons, the only one now urged being that the information omitted the words “without a design to effect death” found in the statute defining manslaughter in the first degree (G. S. 1935, 21-407). As defendant was convicted of a lesser offense, that is, manslaughter in the fourth degree, as defined in G. S. 1935, 21-420, it is apparent that any defect to fully charge the higher degree becomes immaterial, and the failure to quash is not reversible error. (See State v. Bailey, 107 Kan. 637, 193 Pac. 354, where an analogous situation is discussed.)
Defendant next contends it was error for the trial court to deny his motion in arrest of judgment. His contention is that the legislature, in the enactment of Laws 1937, ch. 283, sec. 29, hereafter called “uniform act regulating traffic,” defining “negligent homicide” and providing penalties therefor, declared the offense “manslaughter in some other degree,” and that therefore defendant could not be guilty of manslaughter in the fourth degree as defined by G. S. 1935, 21-420, reading:
“Every other killing of a human being, by the act, procurement or culpable negligence of another, which would be manslaughter at the common law, and which is not excusable or justifiable, or is not declared in this article to be manslaughter in some other degree, shall be deemed manslaughter in the fourth degree.”
The gist of his argument is that if a driver of an automobile “in reckless disregard of the safety of others” kills another he is guilty of negligent homicide under the uniform act regulating traffic, that that is a degree of manslaughter and is excepted by the definition of manslaughter in the fourth degree, under which he was convicted.
This leads us to inquire whether “negligent homicide,” as provided in the uniform act regulating traffic, is manslaughter of some other than the fourth degree. It is to be observed that the 1937 act does not use the word “manslaughter” nor specify any degree. Ordinarily, homicide, unless excusable or justifiable, is divided into two classes, murder and manslaughter. Under the facts of this case it would not be murder. Under the decision in State v. Custer, 129 Kan. 381, 282 Pac. 1071, relied on by the appellant, it might have been manslaughter at common law. In the opinion in that case the history of our statutes with reference to manslaughter is referred to and an analysis is made of the elements of that crime. That case, however, is not decisive of the question now before us.
First, it may be observed that the statutory language of the act defining manslaughter in the fourth degree includes “or is not de dared in this article to be manslaughter in some other degree.” The question arises whether, even though it be conceded the uniform act regulating traffic creates a degree of manslaughter, it is in any manner included in this article (G. S. 1935, ch. 21, art. 4).
Second, it may be likewise observed that the language of the uniform act regulating traffic fails to specify any degree of manslaughter, and for that reason it may be questioned whether there was any exclusion from the operation of the act defining manslaughter in the fourth degree as quoted above.
Third, at the time State v. Custer, supra, was decided, Laws 1925, ch. 158 (later appearing as G. S. 1935, 21-2174, 21-2175 and 21-2176) was in effect. Under that act, anyone under the influence of intoxicating liquor injuring another by reckless driving of a vehicle upon a public highway was guilty of a felony, the punishment prescribed exceeding that fixed for manslaughter in the fourth degree. Section 3 of that act provided that it should be deemed supplementary to existing prohibitory laws but should in no manner be construed as repealing the same. When the uniform regulatory traffic act was passed, the above sections of the 1925 act were repealed and were replaced by section 29 and other sections of the new act. While the repealed sections made it a felony for a drunken driver to injure another person by reckless driving of a vehicle upon a public road, the new section 29 provides that where death ensues within one year as a proximate result of injury from the driving of a vehicle in reckless disregard of the safety of others, the offender should be guilty only of a misdemeanor, which the statute denominated “negligent homicide.” . The Custer case involved no question of drunkenness, and the above-mentioned 1925 act was not referred to in the opinion.
Our criminal code classifies public offenses and defines a felony as an offense punishable by death or confinement and hard labor in the penitentiary (G. S. 1935, 62-103, 62-104) and an examination of our crimes act will disclose that manslaughter in all its degrees is a felony. In this state all crimes are statutory: We have no so-called common-law crimes, but as was noted in the Custer case:
“Paradoxical as it may seem, manslaughter committed by act, procurement or culpable negligence, which would be manslaughter at common law, is a statutory crime,” etc. (p. 395.)
In 2 Bishop on Criminal Law, 9th ed., p. 568, § 744, it is said, “Murder and manslaughter are felonies at common law.” Sée, also, 1 Wharton’s Criminal Law, 12th ed., p. 38, § 26; 29 C. J. 1049, to similar effect.
We. do not believe that it was ever intended that the force and effect of G. S. 1935, 21-420, denouncing manslaughter at common law, should be abated by the enactment of a regulatory measure denouncing as a misdemeanor certain conduct which might have been manslaughter at common law. There is some argument that the provisions of the uniform act regulating traffic amended or, alternatively, impliedly repealed the section of the crimes act under consideration. Neither result occurred. Had it been intended to amend, the amendment would have been of no force under article 2, section 16, of our constitution. It must suffice on the question of implied repeal to say that the last act did not in any manner cover the field of the crimes act.
We are of opinion the trial court did not err in denying defendant’s motion in arrest of judgment.
Appellant contends the trial court erred in its instructions. As to the complaint generally, it may be observed that the record shows no objection to the instructions as given. However, the principal point is that the court should not have instructed on manslaughter in the fourth degree. For reasons heretofore discussed, we think the instructions thereon were proper.
Complaint is also made that, although no request for Such an instruction was made, the trial court erred in not instructing with respect to negligent homicide as defined in the uniform act regulating traffic. The trial court is required by G. S. 1935, 62-1447, to charge the jury in all matters which are necessary for their information in giving their verdict. In State v. Winters, 81 Kan. 414, 105 Pac. 516, this court considered the duty of the trial court to instruct in reference to all lower degrees of the crime of which there is any reasonable theory of guilt under the evidence. Although it was there held under the facts not to have been prejudicial error, it was said:
“From all the decisions noted it may be concluded that the statute means what it says and should be followed, but that a duty rests on counsel for the defendant to aid and not to ambush the court, and consequently instructions should be requested covering all lesser degrees Or lesser crimes involved in the main charge which the defendant desires to be considered. A request sufficient to direct the mind of the court to the subject is enough. Good instructions need not be offered, or a good theory for them formulated; and the evidence itself may point so plainly to the necessity for such instructions that no request is, necessary. Generally, however, a failure to make the request waives error in failing to instruct, and, generally, error in failing to instruct or in giving wrong instructions upon lesser degrees or offenses works no prejudice when the defendant is convicted upon satisfying evidence of a higher charge, under correct instructions relating to it. Should it appear that if omitted instructions duly requested or clearly required by the evidence had been given the jury might naturally and probably have convicted of a lesser degree or offense, the omission will constitute prejudicial error.” (p. 421.)
Without reciting the evidence, there can be no doubt it showed a state of facts under which the jury might naturally and probably would have convicted defendant of the lesser offense of negligent homicide. It may here be noted that in his motion to quash the information, defendant contended the uniform act regulating traffic was unconstitutional and void. The trial court ruled against him. That contention, however, cannot be held to have misled or ambushed the trial court and did not relieve it from instructing as to the lesser offense. We think the failure to so instruct constituted reversible error.
Appellant also complains the trial court erred because of its refusal to give a requested instruction with reference to contributory negligence. He relies on State v. Bowser, 124 Kan. 556, 261 Pac. 846, reciting:
“In a prosecution for manslaughter in the fourth degree caused by the alleged culpable negligence of defendant,' while contributory negligence on the part of the decedent was not a defense, the court should have instructed the jury that the decedent’s negligence, if shown, should be considered with all the other evidence to determine whether the negligence of defendant was the proximate cause of the killing or whether defendant’s act or omission was culpably negligent under the circumstances.” (Syl. ¶ 3.)
The requested instruction pertained to claimed contributory negligence of the husband of the deceased, and not negligence of the deceased. Further, there was no evidence that the deceased was guilty of any negligence whatever, nor that the husband was guilty of any conduct prior to the time of the impact of the cars that could be called negligent either as a matter of fact or law. The instruction was properly refused.
And finally, appellant complains because the trial court would not order the county attorney to deliver to defendant and his counsel a transcript of the testimony taken at the preliminary hearing. Appellant seems to contend that because the county attorney had the evidence taken in shorthand by the person who w.as the court reporter, the transcript was an official document. That contention is not good, the transcript was not an official document, and under State v. Hooper, 140 Kan. 481, 504, 37 P. 2d 52, and State v. Badders, 141 Kan. 683, 685, 42 P. 2d 943, the refusal was not error.
Because of the error in not instructing the jury, the judgment of the trial court is reversed and the cause is remanded for a new trial.
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The opinion of the court was delivered by
Hutchison, J.:
This action was commenced in the city court of Wichita by an Insurance Company to collect from the defendant Marble Company an annual premium of $25 for five successive years on an indemnity bond of $5,000, issued by the Insurance Company on the application of the Marble Company and running in favor of the city of Wichita for certain protection.
The city court rendered judgment in favor of the plaintiff Insurance Company, and the defendant Marble Company appealed to the district court. The case was there tried before a jury, the demurrer to plaintiff’s evidence was overruled, and at the close of the evidence the trial court gave the jury a peremptory instruction to return a verdict for plaintiff for $125, with interest, which it did, and later the court rendered judgment thereon against the defendant and overruled defendant’s motion for a new trial, from all of which adverse rulings the defendant appeals to this court.
A preliminary question is mentioned in the brief of plaintiff as to the extent of the appeal, it having been taken within two months from the overruling of the motion for a new trial, but not within two months from the date on which the judgment was rendered. The appeal, however, under such circumstances, brings here for review all rulings and questions that were open for consideration on the motion for a new trial. (Smith v. Bowersock, 95 Kan. 96, 147 Pac. 1118.)
The appellant assigns the following specifications of error:
“First, in refusing the admission of competent evidence offered by defendant.
“Second, in failing to submit the case to the jury for its decision under general and special instructions requested by defendant.
“Third, in sustaining plaintiff’s motion for an instructed verdict in its favor and instructing the jury to return same.
“Fourth, in overruling defendant’s motion for a new trial.”
The city of Wichita, at the request of the Marble Company, issued an ordinance April 1, 1929, granting the Marble Company a revocable permit to erect and construct an elevated track and traveling crane across Santa Fe street in the city, the plans and specifications of which were subject to the approval of the city engineer, and the ordinance required a good and sufficient bond in the sum of $5,000 to hold the city harmless and to protect anyone whomsoever using and traveling upon that street, and further provided — ■
“. . . that this permit is a revocable permit and may be revoked at any time by the governing body and without any reason being given therefor, and when so revoked said overhead track and traveling crane shall be removed by said company at its own expense.”
The application of the Marble Company, dated June 1, 1929, for the issuance by the plaintiff Insurance Company of such a bond to the city of Wichita, Kan., contained an agreement—
. . to pay to the company the premium charge of twenty-five dollars ($25) annually in advance on the-day of-in each and every year, as long as liability shall continue under said bond, or any continuation or renewal thereof, or substitute therefor (said bond or any such continuation, renewal thereof, or substitute being hereinafter referred to as said bond), and until evidence satisfactory to the company of the termination of such liability shall be furnished to it at its home office in the city of Baltimore. . . .”
And the same application contained the further agreement:
. . that the company shall have the absolute right to cancel said bond in accordance with any cancellation provision therein contained. . . .”
The bond was issued by the plaintiff Insurance Company on July 5,1929, to the city of Wichita, and it referred therein to the Marble Company as principal, which desired to install a traveling crane across Santa Fe street and to comply with the permission of the city to install the traveling crane and to protect the public from any injury, and therefore the Insurance Company agreed to protect the city of Wichita against any claims for damages “by reason of the installation and operation of said traveling crane.” It was further provided in the policy that—
“This obligation shall be continuous, except that it may be canceled by the removal of said traveling crane from the avenue and the replacing of said avenue in as good condition as it was prior to said installation. . . .”
The elevated track referred to as being across Santa Fe street was about 18 feet above the level of the street, which was 18 feet wide, and was supported at that height at each end by steel I-beams 10 to 12 inches in diameter, which were based on cement foundations, one on the Santa Fe land and the other on the defendant’s land. The traveling crane was built wholly on the land of the defendant and operated over the elevated track in loading and unloading carloads of marble across the elevated track.
The premium of $25 per year was paid by the defendant for four years while the track and traveling crane were in operation, or until June 1, 1933, and this action is for the premium for five years since June 1, 1933. The defendant at that time discontinued the use of both the track and the traveling crane and removed the latter to the inside of a building, but left the elevated track across the street.
Appellant urges that its liability for premiums ceased when it refused to pay the premiums in advance and sent notice to the Insurance Company that it no longer required the bond. That might be true if the bond had been issued for the protection of the defendant, but certainly not true when it had applied for it and it was written absolutely for the protection of others.
Appellant’s next defense is that its liability for premiums and the liability of the Insurance Company ceased when the latter notified the city on June 8, 1933, that it was canceling the bond and that it would be noneffective after June 19, 1933. This statement must be supplemented by the fact that the city immediately informed the Insurance Company that the provisions of the bond and the application therefor had not been complied with by the removal of the traveling crane, as shown in the letter of the city dated June 23, 1933, and in a later letter stating that the street had not been replaced in as good condition as it was prior to the installation, and as shown in a still later letter—
“The city will be unable to give you a release on the bond as long as the elevated tracks remain in position.
“Upon the removal of the tracks, we will be pleased to accept a cancellation notice on the bond.”
This correspondence does not show a cancellation of the bond by the plaintiff when it was made to appear that the city objected.
Appellant argues the obligation of the bond as being limited to claims for damages by reason of the installation and operation of the traveling crane. This is the first portion thereof, as quoted above, but the second portion covers the situation until the street is replaced in as good condition as it was prior to the installation. We know of no right to limit liability to one specific obligation and eliminate the other, when both are contained in the same bond. This brings the matter to the consideration of the theory of the appellant that the elevated track was well built and so high above the street level that no contemplated danger could occur, and on this point appellant offered evidence which was rejected. That would mean that the elevated track could remain there indefinitely if it were well and stoutly built.
Appellant cites text and decisions to show there is no liability where no bond in fact was required by law. They are not applicable here. The bond was requested and given to comply with that application and the requirements of the city for the issuance of a permit. Are we to recognize it as a right to leave an elevated track across the street indefinitely because a permit was originally granted to construct it and because it is well built and not likely to fall or cause damage? We think not, and that the evidence along this line was properly excluded.
It is further urged that because the city also had the privilege of canceling the bond by ordering the removal of the traveling crane, and that since it did not order it removed, it should not be allowed to claim the continued protection of the bond. The traveling crane was removed before this action was commenced and before much, if any, of the unpaid premiums fell due, so no such order applied. Besides, the city is not a party' to this action, and it is shown to be objecting to the canceling of the bond until the elevated track is removed and the street is replaced in as good condition as it was prior to the installation. The permit ordinance required the removal of both the traveling crane and the elevated track.
The case of Fidelity & Deposit Co. v. Libby, 72 Neb. 850, 101 N. W. 994, is cited in support of the rule here urged by appellant, that if no definite time is expressly or impliedly provided in the contract either party may end the duration of such a bond at his own pleasure. The Nebraska case, supra, holds that a bond of indemnity which does not stipulate how long it shall continue in force, but stipulates that the annual premium shall be paid in advance so long as it does remain in effect, “does not require the payment of the premium so as to continue the obligation, but leaves the obligee at liberty to decline to make payment and thus put a period to the contract so far as the rights of third persons are not affected.” (Syl.) In the opinion it was said:
“If the premium is not paid it 'lapses’ or ceases to be obligatory as between the parties to it, except as to past transactions, although there may or may not be circumstances continuing it in force as to interested third persons, about which we express no present opinion.” (p. 852.)
This Nebraska case concerned the collection of annual premiums on the indemnity bond of a deputy county treasurer. The bond ran to the county for its protection, and the application for the first year stipulated that the deputy should pay the annual premium “in advance, while said bond shall continue in force.” The second year the deputy secured a similar bond from another insurance company, which was accepted and approved by the county board. The exception made in the opinion as to the discontinuance of the first bond not affecting the interest of third parties makes the case a substantial argument in favor of the continuance of the bond in the case at bar where the only interest concerned is a third party not a party to the action.
In the case of Amer. Surety Co. v. Empson, 39 Colo. 445, 89 P. 967, the insurance company, upon the application of a threshing-machine man, executed an indemnity bond in favor of a farmer growing peas extensively, to indemnify him against the threshing machine being an infringement upon other patents. The bond stipulated that the threshing-machine man should pay a specified premium in advance upon a certain date of each and every year for executing said instrument, and written in the bond was the provision as to continuation of the bond to be at the request of the threshing-machine man. It was there held that the written part was in conflict with the printed portion and should prevail, and the defendant was liable only for the premium for the first year.
The evidence does not indicate that the Insurance Company, after getting the disapproval of the city of Wichita, ever attempted to cancel or discontinue the bond, and there was an apparent acquiescence in the claim of the city to continue the bond until the elevated track should be removed. The city plainly, from its correspondence, claimed a liability of the Insurance Company under the bond as long as the elevated track remained, and this would be a sufficient consideration for the continued premiums. The protection under the bond and liability for premiums therefor are mutual. It is said in 32 C. J. 1211:
“. . . where the company waives forfeiture or its right to cancel and elects to continue the policy in force, insured may still remain liable for the premiums; but the company cannot elect to cancel the policy and recover premiums claimed to have been earned thereafter.”
The simple failure to pay a premium will not in itself terminate a bond. (45 A. L. R. 617, annotation.)
In 8 Am. Jur. 723 it is stated that—
“A bond that is executed in conjunction with a contract or other accompanying instrument must be read in the light of the terms thereof.”
As to the claim of error in directing a verdict the trial court had already expressed itself as to the sufficiency of the plaintiff’s evidence when it overruled the demurrer to its evidence and practically all the evidence of the defendant was excluded, so it was consistent with the ruling on the demurrer to direct the verdict in favor of the plaintiff. The evidence of the plaintiff consisted almost entirely of written instruments, and the force and effect thereof was practically a question of law, and therefore it was a proper case for a directed verdict. It was held in Wilson v. Gonder, 121 Kan. 469, 247 Pac. 631, that—
“Where the evidence and admissions of the complaining party leave nothing for decision but a question of law, it is competent for the court to direct a verdict in accordance with the law.” (Syl. ¶ 2.)
We find no error in the several assignments made and strenuously argued by the appellant.
The judgment is affirmed.
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The opinion of the court was delivered by
Allen, J.:
This was an action upon a written contract to recover money representing a part of the contract price of flour purchased by the plaintiff from defendant, and claimed by plaintiff to be money paid to defendant by the plaintiff to cover the processing tax imposed on defendant by the agricultural adjustment act and amendments thereto. A motion to strike was sustained. Plaintiff appeals.
As the material stricken from the petition involved the merits of the cause of action, the' order to strike is an appealable order. (McKenzie v. Ruggles Construction Co., 129 Kan. 759, 284 Pac. 407; Norman v. Railway Co., 101 Kan. 678, 168 Pac. 830; Whitlaw v. Insurance Co., 86 Kan. 826, 122 Pac. 1039.)
The petition was in two counts.
For its first cause of action plaintiff, in its petition, alleges that the plaintiff, on November 6, 1935, entered into a written contract with the defendant for the purchase of 2,000 barrels of wheat flour, as shown by a copy of the contract attached to the petition and marked exhibit “A.”
That part of the written contract pertinent to the present controversy is as follows:
“The N. Sauer Milling Co., Cherryvale, Kansas . . . seller—
“Agrees to sell to G. S. Johnson Company, of Davenport, Iowa, buyer, and buyer agrees to buy from seller the following commodities (to be manufactured), on the terms and conditions and subject to the agreements stated below and/or on the back hereof, F. O. B. carrier at shipping point, freight charged to be prepaid or allowed by seller to Davenport, Iowa. (Specify destination point.)
2,000 bbl. fir. bulk,
Cherry Bell $6.45
Rainbow 6.25
Sauers Best 6.15
Champion Bakers 6.55
Cream of Patents 6.65
“Taxes: The prices named in this contract include the processing taxes as now imposed by the United States on the processing of the commodities used in the manufacture of the products covered by this contract, . . . Any decrease in the processing taxes as now or hereafter imposed by any legislative or administrative branch of the United States shall inure to the benefit of the buyer, if, as and when the benefit of such decrease has been actually realized and secured by the seller, and shall be credited against the contract prices named in this contract to the extent, and only to the .extent, that the grain used in the manufacture of the product covered by his contract is milled after the decrease in the processing tax takes effect, and to the extent that the seller is thereby definitely relieved from the processing tax; provided, that no such decrease shall be credited on the prices of feeds for feeding livestock. If any such decrease shall be measured per bushel of grain the amount of the tax to be deducted from the price of any product produced from such grain shall be computed according to the conversion factor established for such product by the Secretary of Agriculture.”
The petition alleges that the defendant is engaged in the milling business and is a “first domestic processor” as defined in the agricultural adjustment act and regulations made pursuant thereto; that the defendant milling company, when the processing tax became effective “added to the then prevailing and existing price of wheat flour a separate and distinct item of $1.38 -per barrel”; that the amount of $1.38 per barrel was added by the defendant for the express purpose of collecting from the plaintiff a fund of money sufficient and for the purpose of paying the processing tax and to place defendant “in funds with which to pay the said processing tax.”
The petition alleges that an action was instituted in the district court of the United States for the district of Kansas by the defendant to enjoin the collector of internal revenue from collecting the processing taxes from the defendant, and that pursuant to said petition an injunction was granted, and from the 1st of May, 1935, until the 7th of January, 1936, under and pursuant to said injunction the defendant did not pay any processing tax to the United States government, but used the funds by placing it with the clerk of the court or in the bank at the direction of the clerk to act as a bond upon the temporary injunction.
The petition further alleges that after the decision by the supreme court of the United States on January 6, 1936, in United States v. Butler, 297 U. S. 1, 56 S. Ct. 312, 80 L. Ed. 477, holding the agricultural adjustment act unconstitutional, the United States district court for the district of Kansas ordered all moneys so placed with the clerk or with a bank as bond, returned to the defendant, so that from and after May 1,1935, the defendant paid no processing tax to the United States government.,
The petition refers to the act of congress of June 22, 1936 (the windfall tax), and alleges that such act is, in effect, a legislative determination that the funds returned to defendant constituted an unjust enrichment of defendant. It is alleged that the defendant has failed and refused, and still refuses, to account and pay to the plaintiff the respective amount and portion of the fund belonging to the plaintiff.
In the second count plaintiff refers to and incorporates paragraphs one to twenty of the first cause of action as part of the second cause of action, and alleges that the processing tax having failed, and the money having been returned to the defendant, that the defendant stands in the position of a fiduciary towards the plaintiff, and that it would be inequitable and unconscionable for the defendant to retain the fund, which does not belong to it, but which belongs to the plaintiff, and — •
“that by reason of the aforesaid, there exists and is an express trust, and that said funds constitute a trust fund which should be administered in this, a court of equity. If it should be held and determined by the court that said written contract should not be construed as establishing an express trust, then the plaintiff alleges, in the alternative,.that there is a resulting or an implied trust, and that the defendant should be held and declared to be the trustee.”
Plaintiff prays for an accounting, that defendant be decreed to be a trustee, and asks restitution of the funds due the plaintiff.
Assuming that the order to strike is equivalent to an order sustaining a demurrer to the petition, we are confronted at the outset with the effect to be given to the demurrer. Ordinarily a demurrer admits the truth of all matters well pleaded. But where the action is based on a written contract, a copy of which is attached to the pe tition, a demurrer does not admit plaintiff’s construction of the contract. In such case a demurrer admits the existence of the writing but does not admit it has the meaning or legal effect ascribed to it by the pleader, these being matters of law to be determined by the court upon construction of the language employed in the instrument.
In Rettiger v. Dannelly, 91 Kan. 61, 136 Pac. 942, a copy of a contract, and also a copy of a surety bond, were attached to the petition as exhibits and made a part thereof. The tenor and legal effect of the contract and bond were pleaded. The court stated that the allegation of the petition as to the legal effect of the bond “is not deducible from the language of the bond, but is extraneous thereto and inconsistent therewith.” The court further stated: “This portion of the petition, therefore, pleaded in connection with the contract or bond is not to be taken as true on the hearing of a demurrer to the petition. Where a written contract is unambiguous in its terms, its interpretation or construction is a matter of law for the court. (Warner v. Thompson, 35 Kan. 27, 10 Pac. 110.)” (p. 63.)
In Dillon v. Barnard, 21 Wall. 430, 22 L. Ed. 673, it was said:
“The averments of the bill as to the purport and meaning of the provisions of the indenture, the object of their insertion in the instrument, and the obligations they imposed upon the corporation and the trustees, and the rights they conferred upon the plaintiff when his contract was approved, are not admitted by the demurrer. These are matters of legal inference, conclusions of law upon the construction of the indenture, and are open to contention, a copy of the instrument itself being annexed to the bill and, therefore, before the court for inspection. A demurrer only admits facts well pleaded; it does not admit matters of inference and argument, however clearly stated; it does not admit, for example, the accuracy of an alleged construction of an instrument, when the instrument itself is set forth in the bill, or a copy is annexed, against a construction required by its terms; nor the correctness of the ascription of a purpose to the parties when not justified by the language used. The several averments of the plaintiff in the bill as to his understanding of his rights, and of the liabilities and duties of others under the contract, can, therefore, exert no influence upon the mind of the court in the disposition of the demurrer.” (p. 437.)
See, also, Johnson v. Igleheart Bros., 95 F. 2d 4; St. Louis, etc., Railroad v. U. S., 267 U. S. 346, 45 S. Ct. 245, 69 L. Ed. 649; United States v. Ames, 99 U. S. 35, 25 L. Ed. 295; Interstate Land Co. v. Maxwell Land Co., 139 U. S. 569, 11 S. Ct. 656, 35 L. Ed. 278.
Applying these principles to the case before us, it is apparent the court must construe the contract upon which the alleged cause of action is based. The rights of the plaintiff are to be determined by the contract and not by the inferences, deductions or legal conclusions set out in the petition. As stated in Kretchmar v. City of Atchison, 133 Kan. 198, 299 Pac. 621, “the demurrer admitted issuable facts, but did not admit the naked conclusions of the pleader.”
Looking to the contract, it is clear the parties were dealing at arm’s length, and there is nothing therein to justify the assertion that there was a fiduciary relation between the seller and the buyer. The contract contains no provision that the buyer was putting the seller in funds with which to pay the tax. The relationship of the parties being that of seller and buyer, and there being no charge of fraud, misrepresentation, duress or mistake, it is evident a strict application of the rules of pleading would eliminate any question of a trust from the case. But assuming the petition on its face states a cause of action on any theory, we will examine the questions raised.
The contract expressly provided that the prices named in the contract included the processing tax as then imposed. No price was fixed to which was added the tax. The price included the tax. The tax was not billed or set out as a separate item. It was a composite price.
In the case of Lash’s Products Co. v. United States, 278 U. S. 175, 49 S. Ct. 100, 73 L. Ed. 251, it was held the tax was a part of the •price and could not be recovered by the purchaser. The court said:
“This is a suit to recover the amount of certain taxes paid under the revenue act of 1918 (act of February 24, 1919, ch. 18, sec. 628, 40 Stat. 1057, 1116). By section 628 there is imposed ‘on soft drinks, sold by the manufacturer, ... in bottles or other closed containers, a tax equivalent to ten percentum of the price for which so sold.’ This tax was paid by the petitioner, calculated at ten percentum of the sum actually received by it for the goods sold. But the petitioner had notified its customers beforehand that it paid the ten-percent tax and it contends that in this way it passed the tax on and that the true price of the goods was the sum received less the amount of the tax. The phrase 'passed the tax on’ is inaccurate, as obviously the tax is laid and remains on the manufacturer and on him alone. (Heckman & Co. v. I. S. Dawes & Son Co., 12 F. 2d 154.) The purchaser does not pay the tax. He pays or may ■pay the seller-more for the goods because of the seller’s obligation, but that is all. . . . The price is the total sum paid for the goods. The amount- added ■because of the tax is paid to get the goods and for nothing else. Therefore it is part of the price, and if the statute were taken literally, as there would be no reason for not taking it if it were now passed for the first time, there might be difficulty in accepting the commissioner’s distinction even if the tax were made a separate item of the bill. But if, in view of the history in the solicitor general’s brief, we assume with him that the practice of the commissioner has been ratified by congress, we agree with his argument that the petitioner must take the 'privilege as it is offered. It did not bill its tax as a separate .item, and the commissioner’s regulations notified it that ‘if the sales price of a taxable beverage is increased to cover the tax, the tax is on such increased sales price,’ although they purported to make a different rule ‘when the tax is billed as a separate item.’ There has been some difference of opinion in the lower courts, but we regard the interpretation of the law as plain.” (pp. 175, 176.)
In O’Connor-Bills, Inc., v. Washburn Crosby Co., 20 F. Supp. 460, where the court was confronted with a similar question, it was said:
“It is to be noted in the first place that the tax passed by the defendant on to the plaintiffs was buried in the contract price for the processed commodity. The defendant became subject to and liable for the payment of the tax. The tax was a heavy one under a flexible statute that permitted an increase or a decrease at the discretion of certain officers of the government.
“The defendant as a precaution anticipated an increase and specifically provided that in such event, and independently of the contract price, the purchaser should then put the defendant in funds to meet such possible increase. On the other hand, the defendant agreed, because of the other alternative, that, in the event of a decrease in said tax, the several plaintiffs and others in like relationship should have the benefit thereof. Note the language: ‘Any decrease in the processing tax, as now or hereafter imposed by the United States, shall inure to the benefit of the buyer and be credited against the contract prices named in this contract.’
“This constituted an agreement between the parties as to the procedure to be followed if the tax should be decreased. The decrease was to ‘be credited against the contract prices named in this contract.’
“Undoubtedly it was then believed that the decrease might be authorized before the execution of the contract and the payment of the amount due thereon by the plaintiffs. The agreement did not provide for a refund if the contracts had been executed or fully carried out, nor neither did it provide for a credit or refund in the event the tax was held illegal. The payments made by the plaintiffs were entirely voluntary. The plaintiffs were not deceived nor overreached in making the payment; therefore they lost all title and legal interest in the funds thus paid. (Shell Oil Co. v. Miller, Inc., (C. C. A.) 53 F. 2d 74; Wourdack v. Becker, Collector, (C. C. A.) 55 F. 2d 840; Lash’s Products Co. v. U. S., 278 U. S. 175, 49 S. Ct. 100, 73 L. Ed. 251.”
In Johnson v. Igleheart Bros., 95 F. 2d 4, the court said:
“Plaintiff evidently relies largely upon the decision of the New York Court of Appeals in Wayne County Produce Company v. Duffy-Mott Company, Inc., 244 N. Y. 351, 155 N. E. 669, which, no doubt, lends support to his theory. We think, however, it is distinguishable from the instant case. In that case there was no written contract involved and the amount paid as tax and held to be recoverable was not included in the sale price of the product, but was in addition thereto and billed as a separate item. The court, 244 N. Y. 351 on page 353, 155 N. E. 669, said: 'This is not a case where the item of the tax is absorbed in a total or composite price to be paid at all events. In such a case the buyer is without remedy, though the annulment of the tax may increase the profit to the seller.’
“In the instant case the amount of the alleged tax was included and absorbed in the price named in the contract and paid by the buyer, and we think it was a price to be paid at all events. It is certain that the only protection afforded the buyer was a refund of any reduced price of the contracted article, which might result in the decrease of the processing tax. In the recent case of O’Connor-Bills, Inc., v. Washburn Crosby Company, D. C. W. D. Mo., August 31, 1937, 20 F. Supp. 460, 462, which was an equitable action to recover an amount paid by the purchaser of goods as a processing tax, but not paid by the seller to the government, the district court held: ‘The agreement did not provide for a refund if the contracts had been executed or fully can-ied out, nor neither did it provide for a credit or refund in the event the tax was held illegal. The payments made by the plaintiffs were entirely voluntary. The plaintiffs were not deceived nor overreached in making the payment; therefore, they lost all title and legal interest in the funds thus paid.’ ” (p. 9.)
See, also, Cohen v. Swift & Co., 95 F. 2d 131; Heckman & Co. v. Dawes & Son Co., Inc., 12 F. 2d 154; Golding Bros. Co. v. Dumaine, 93 F. 2d 162; Casey Jones, Inc., v. Texas Textile Mills, 87 F. 2d 454; Planters Co. v. Brown-Murphy Co., 128 Pa. Super. Ct., 239, 193 Atl. 381; Liggett & Meyers Co. v. U. S., 299 U. S. 383, 57 S. Ct. 239, 81 L. Ed. 294; Coppock v. Nichols Inv. Co., 146 Kan. 372, 60 P. 2d 701.
The case of Refining Co. v. Oil Co., 104 Kan. 719, 180 Pac. 807, relied upon by the plaintiff, involved the right of set-off against an assignee of an account. Whether or not the price at which the merchandise was sold was a composite price was not discussed by the court. That question is of controlling importance here.
In the case before us the contract was entered into on November 6, 1935, long after the processing tax became effective. The only price mentioned in the contract was a price in gross per barrel. Evidently that price included the ad valorem taxes, the cost of milling, selling, insurance, etc. The tax was measured not on the flour, but upon the wheat: The tax imposed was thirty cents per bushel of wheat of sixty pounds, computed and fixed at $1.38 per barrel of flour. It is clear the item of the tax was absorbed in the total or composite price to be paid for flour sold.
The contract did not provide for a credit or refund to the buyer in the event the tax was held illegal. This contingency was not in the contract. It is not contended there was fraud or mutual mistake, and no valid reason has been suggested why the agreement should not be enforced as written.
Plaintiff prays that the defendant be compelled to make restitution, as it would result in unjust enrichment of the defendant to keep the money. On this question the comment of the court in Johnson v. Igleheart Bros., supra, is pertinent:
“Plaintiff also seeks to sustain his position from the standpoint of equity, and urges that a denial of his claim will result, at his expense, in an unjust enrichment of the defendant. We do not think we are called upon to deal with such a theory. The contracts called for the delivery of the flour at various times over an extended period, and considering the nature of plaintiff’s business, it is not an unreasonable assumption that whatever amount was included in the contract price as processing tax, was passed on to those with whom it dealt. There is, of course, no allegation in the pleadings to this effect, but in the absence of an allegation to the contrary, how can this court say, as between the parties hereto, that the defendant has money, even if it be conceded that the same was collected as a processing tax, which belongs to the plaintiff?”
In U. S. v. Jefferson Electric Co., 291 U. S. 386, 54 S. Ct. 443, it was held that a taxpayer suing for refund of automobile accessories tax, must establish by pleading and proof that it has not collected the tax directly or indirectly from its customers.
For the plaintiff to recover it must establish its right to the funds in question. Assuredly if it passed on the tax to its customers it would not, as against the defendant, have a superior equity. In the absence of an allegation that the plaintiff did not collect the amount of the tax from its customers, how can this court say that the funds in suit belong to the plaintiff rather than to the defendant?
The moneys in question were paid by the plaintiff to the defendant in accordance with the terms of a written contract. The payment was voluntarily made with full knowledge of the facts. There is no charge of fraud, coercion or mistake. The rights of the parties are measured by the contract. As we find no basis for the establishment of a trust, and no right to restitution on the ground of a quasi contractual obligation is shown, the action of the trial court in sustaining the motion to strike must be sustained.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This was an action for damages for personal injuries sustained by plaintiff in the collision of two trucks, alleged to have resulted from the negligence of the driver of the other truck, whose insurer was made a defendant. The jury answered special questions and returned a verdict for $1,887.30. The insurer has appealed and contends, (1) that plaintiff was guilty of contributory negligence as a matter of law, and (2) that plaintiff is not the real party in interest, for which reason he could not maintain the action.
The pertinent facts may be stated briefly as follows: Plaintiff, a truck driver for the Safeway Stores, Inc., was driving east on state highway U. S. 81, which was paved with cement, about ten miles north of Wellington, about 3:30 a. m., May 20, 1936. His truck was a three-ton Mack tractor, with a twenty-two-foot, six-ton, semitrailer, the over-all length being about twenty-nine feet. It was in good mechanical condition, with sufficient lights, correctly focused, so that ordinary objects 300 feet ahead on the highway were plainly visible, and was equipped with booster brakes, which applied to the six wheels. Traveling at thirty miles per hour it could be stopped in sixty to eighty feet.
The insured truck was an oil transport owned by the Kent Oil Company and was being operated by Leo Sanborn, an experienced truck driver. He was driving east on the highway above mentioned, ahead of plaintiff. He had driven over a small hill, or rise, in the pavement, and thinking his fan belt was broken and his engine heating, he had turned to the right onto the shoulder of the highway and stopped about 100 feet east of the crest of the rise, with the left rear wheels of his truck about two and one half feet on the pavement. While the size of the truck is not stated, we are informed that it carried a load of between eight and nine tons. The tank was painted aluminum, with the word “Dixie” and the name of the Kent Oil Company printed on the rear end in large black letters, The rear bumper and the bottom of the tank were about two and one half or.three feet above the.pavement. The jury found the truck had no lights on it, but that it did have reflectors at the rear corners. When the driver stopped he went immediately to look at the fan belt. He had flares in the cab, but had not put them out. He had been stopped three to five minutes when the collision occurred in which plaintiff was injured.
Plaintiff approached this standing truck from the west and had driven up and over the hill or rise in the pavement at a speed of about thirty miles per hour, and had started down the slope toward the standing truck. As he did so he saw the bright lights of a truck approaching from the east, using the north side of the pavement, variously estimated at from two blocks to a quarter of a mile away. Plaintiff was driving near the south side of the pavement. He noticed the standing truck when he was about thirty to forty feet west of it, and turned to his left in an effort to go by it. The tractor part of his truck got by the left rear corner of the standing truck, but the semitrailer struck it about the center. As a result of this collision plaintiff sustained injuries for which he recovered judgment. The amount of the judgment is not seriously questioned, if plaintiff is entitled to recover.
Other pertinent special questions asked the jury, and the answers given, are as follows:
“7. How far away was the rear of the Kent or Dixie Oil Company truck visible in the rays of the lights on the truck plaintiff was driving? A. About thirty or forty feet.
“8. What, if anything, prevented plaintiff from seeing the Kent or Dixie Oil Company truck? A. Approaching car — no lights on Kent Oil Company truck — no flares. Kent truck parked just over crest of rise.”"
“11. Of what, if any, negligence was the Kent Oil Company guilty? A. Kent Oil Company truck parked on pavement without lights, and without placing out flares.
“12. Of what, if any, negligence, was the plaintiff guilty? A. None.”
Defendant’s demurrer to plaintiff’s evidence was overruled, as was its motion made at the close of all the evidence for a directed judgment! in its favor on the ground that under the undisputed evidence plaintiff was guilty of contributory negligence as a matter of law. Defendant also moved to set aside- the jury’s answer to a special question in which it found that there were no lights burning on the standing truck. On that point the testimony was directly in conflict. The answer made by the jury was in accord with the testimony of the witnesses called by plaintiff. It cannot be said to be unsupported by the evidence. Defendant also moved to set aside the answers to questions 7, 8, 11 and 12 as being unsupported by the evidence. The argument is directed principally to the answers to questions 7 and 8. Appellant points out that the transport truck was.painted aluminum, a color easily seen at night, and that the large letters painted in black on the rear of the tank of the transport should have been seen easily. But there was testimony the tank of the transport was painted “a dull aluminum, rather gray,” and that this was the same color, or about the same color, as the cement pavement. Plaintiff testified that when he came over the rise his attention was directed for an instant by the truck lights from the east, and the highway at that time looked open, and that as soon as he could get accustomed to that light he saw the parked truck, and was then within thirty or forty feet of it. Appellant argues the lights of the truck coming from the east were too far away to have any blinding effect. There is a discrepancy in the evidence as to how far it was away, and there is testimony the lights were exceedingly bright, enough to be blinding. There were no lights on the standing truck, a fact which the jury was entitled to find under the evidence, and it is conceded in the testimony that no flares had been put out. Criticism is made of the jury’s finding that the Kent truck was “parked just over crest of rise.” Appellant argues the rise was a very small one, not large enough to have any effect on the situation. We do not find in the evidence abstracted an estimate of its height above the pavement to the east or west of it, but we do find that there was a bridge a short distance to the west, and that from the bridge east it was upgrade to the crest of the rise, and counsel for appellee in their brief say that this rise was high enough that one approaching it from the west could not see trucks or cars east of its crest. On the whole, we are unable to say, as a matter of law, that the lights from the truck approaching from the east, or the fact that the transport had stopped just over the crest of a rise, had nothing to do with the question of whether plaintiff used due care. The trial court, much more familiar with the record than it is possible for us to be, approved these findings, and that is a fact to which we must give weight.
Counsel for appellant cite many of our cases holding that one traveling with a motor vehicle on the highway at night should travel at such speed, and have his vehicle under such control, that he can stop his car within the range of the vision afforded by his lights, and have cited also the cases in which the strictness of this rule has not been adhered to because of the peculiar circumstances of the case, and say:
“An examination of the decisions of this court in which recovery has been allowed [in this class of cases] will disclose that in each case one or both of the following two elements were present: (1) Either the parked vehicle was of such a peculiar nature that it could not easily be seen, or (2) the factual conditions were such that it was impossible or impracticable for the plaintiff to have turned out to avoid the collision.”
We are inclined to the view that this is a fair analysis of the cases cited, and appellant argues that neither of these conditions was present here. It seems to us this cannot be said, or at least that there is evidence from which the jury might reasonably have found that both conditions prevailed. The standing truck should have had lights on it, and flares should have been put out. Naturally, plaintiff would anticipate that if a truck were standing on the paved highway it would have lights, and flares would be put out. Appellant criticizes the testimony to the effect that the transport was painted “a dull aluminum, rather gray,” and that the color differed but little, if at all, from the color of the cement pavement. But that is the evidence. Criticism also is made of the effect of the lights of the oncoming truck and of the effect of the transport being parked just over the crest of a rise. But there was evidence on those matters from which the jury might reasonably conclude that they had a material effect on the question of plaintiff’s negligence, and that the parked vehicle, because of its color and its location, could not be seen easily.
Counsel for appellant argue that in any event plaintiff, when he saw the transport, could have turned to the left and avoided striking it, and it is pointed out that the left rear wheel of the transport was only two and one-half feet on the pavement, and that there was but little, if any, hangover past the wheel; and it is argued that it would have taken but a slight turn to the left to have enabled plaintiff to avoid it. This again presents a factual situation. When plaintiff first saw the transport he was thirty to forty feet from it, about the length, or one and a third times the length, of his truck. There was an oncoming truck. He did turn to the left and got the tractor of his truck past the corner of the transport, but did not succeed in getting his entire truck far enough to the left. Appellant’s argument on this point partakes somewhat of the doctrine of the last clear chance. It cannot be said, as a matter of law, that plaintiff had a dear chance, under the circumstances, to avoid the transport negligently left standing on the pavement, without lights, and without flares.
On the whole, it seems clear to us that the question of plaintiff’s contributory negligence was for the jury.
Appellant next contends plaintiff is not the real party in interest, as that term is defined in our statutes (G. S. 1935, 60-401), and that he had no authority to maintain this action. The following facts give rise to this contention: As a truck driver for the Safeway Stores, Inc., at the time of his injury, plaintiff and his employer were operating under our workmen’s compensation act (G. S. 1935, 44-501 to 44-565); that plaintiff made a claim for compensation under the act against his employer for the injuries he sustained at the time of the collision involved in this case, and that the claim for compensation was allowed and paid in full. At the trial of this case.plaintiff admitted these facts, but objected to their consideration on the grounds of incompetency and irrelevancy. The trial court sustained this objection. Appellant contends the ruling was erroneous, because of our statute (G. S. 1935, 44-504), which reads:
“When the injury or death for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damage, the injured workman or his personal representative shall within ninety (90) days of the date of receiving said injury elect whether to take compensation under this act or to pursue his remedy against such other person. Such election must be in writing and must be delivered to the employer in person or by registered mail, and the acceptance of compensation by an injured workman shall be construed as a positive election to accept compensation under this section. Failure on the part of the injured employee or his personal representative to file a written election with the employer within ninety (90) days that he will pursue his remedy against the negligent third party shall operate as an election to accept compensation and as an assignment of any cause of action in tort which the employee or his personal representative may have against any other party for such injury or death, and such employer may enforce in his own name, or the name of the workman, the liability of such other party for their benefit as their interests may appear.”
The earlier form of our statute on this point (Laws 1911, ch. 218, § 5) was held; in Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784, to provide for an equitable adjustment between the employer and employee when the latter is injured by the negligence of a third party; that the employee may proceed to recover compensation from his employer and at the same time maintain an action against the third party whose negligence caused his injury, and that the fact the employee had received compensation from his employer is not a defense to the action for damages, nor can that fact be shown by defendant upon the trial of the action for damages against the negligent third party. Although the statute was changed in 1927 to its present form (G. S. 1935, 44-504), the same construction has been given to the statute. (Riddle v. Higley Motor Co., 122 Kan. 458, 252 Pac. 231; Jolley v. United Power & Light Corp., 131 Kan. 102, 105, 289 Pac. 962; Early v. Burt, 134 Kan. 445, 454, 7 P. 2d 95; Acock v. Kansas City Power & Light Co., 135 Kan. 389, 394, 10 P. 2d 877; Cooke v. Bunten, 135 Kan. 558, 561,11 P. 2d 1016; Bittle v. Shell Petroleum Corp., 147 Kan. 227, 231, 75 P. 2d 829.)
Appellant contends, however, that the point it now raises appears not to have been presented to the court, or specifically treated in its opinion, since the amended statute went into effect. The specific points argued are that under the amended statute the workman is required to elect within a stated time whether he will seek compensation from his employer, or pursue his remedy against the negligent third party for damages; that if he does accept compensation this constitutes a binding election and has the effect of assigning his cause of action for damages against the negligent third party to his employer. It is argued that under the general rule, when a cause of action is assigned, the assignor has no further right therein and cannot maintain an action thereon, citing Klingberg v. Atchison, T. & S. F. Rly. Co., 137 Kan. 523, 21 P. 2d 405. It is pointed out that the court has held that the assignment provided for in this section is not simply of the amount the employer has paid to the workman by way of compensation, but of the entire claim of the workman against the negligent third party. (Copeland v. Martin Metal Mfg. Co., 141 Kan. 725, 42 P. 2d 982; Kelly v. Johnson, 147 Kan. 74, 75 P. 2d 209.)
The fact remains,'however, that this is a section of our workmen’s compensation act, and dealing primarily with the relation between employer and employee. It never was designed to affect the liability of a negligent third party, and it specifically provides, in the event the employee elects to take compensation, the “employer may enforce in his own name, or the name of the workman, the liability of such other party for their benefit as their interests may appear.” It seems clear to us from this provision that the action may be maintained in the name of the workman irrespective of whether he has elected to take compensation. Furthermore, the statute indicates a community of interest as between the employer and the employee in the action against the negligent third person, and that the distribution of any sum recovered in such an action shall be made between the employer and the employee “as their interests may appear.” Hence, whatever may be the general rule with respect to assignment of claims and the right of assignors thereafter to maintain an action thereon, this statute permits the action against the negligent third party to be maintained in the name of the injured workman, even though he has made an election to take compensation. Therefore the ruling of the trial court was correct.
Since we find no error in the record, the judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This is an original proceeding in mandamus brought by the state of Kansas on relation of the county attorney of Ellsworth county to compel the Missouri Pacific Railroad Company to construct a railroad crossing in compliance with ah order made by the board of county commissioners of Ellsworth county on April 7, 1937. An answer has been filed by the railroad company, giving various reasons for its refusal to comply with the order of the board of county commissioners and reasons why a writ should not be issued in this case.
Exhibits were attached to the motion of the plaintiff for the writ and to the answer of the defendant. A stipulation has been filed admitting the truth and correctness of the exhibits attached to the motion and the answer, and setting out in detail the facts concerning the proceedings leading up to the issuing of the order for the making of the crossing and the history of an earlier crossing at or near the same place, also agreeing that Guy A. Thompson, as trustee, should be substituted as defendant for the Missouri Pacific Railroad Company. The attorney general has joined the county attorney in the brief urging the right of the plaintiff to a writ of mandamus.
The plaintiff claims to be entitled to a writ because the board of county commissioners has complied with all the preliminary requirements for the making of an order for a railroad crossing. No particular objection seems to be urged by the defendant as to any omission, or disregard of any of such requirements before the making of the order, but defendant urges that the order is void for unreasonableness, that mandamus should not compel a violation of law nor be issued where the changed situation makes the necessity of the order doubtful.
The crossing is intended to connect the north and south portions of the county road on the section line between sections 26 and 27 and running through the town of Langley. The crossing is intended to be 20 feet wide from shoulder to shoulder, and 55 feet east of the section line. There was for a long time a crossing connecting the north and south parts of this highway now separated by the railroad. In June, 1930, this highway crossing was regularly closed for public use at the request of the railroad company, under the provisions of the statute, but it has still continued to be used by pedestrians. The railroad company made the request for the elimination of the crossing for the purpose of making changes in its roadbed there and along its line generally in Kansas, and the company has since raised its track at that place 6% feet, and the main track is now 3.03 feet higher than the side track 23 feet to the north. The crossing is not at right angles with the railroad, which comes into Langley from the northeast and continues westward, bearing somewhat to the south. It crosses the state highway No. 4 on the north line of section 26 about three eighths of a mile from the crossing in question.
When this crossing was discontinued in 1930 the railroad company gave the county a strip of land 18 feet wide off the south part of its right of way between the crossing in question and the crossing of state highway No. 4, three eighths of a mile to the northeast, and also a similar strip of land off the north part of its right of way from the proposed crossing to the southwest crossing at Third street, 3,196 feet distant. Both strips were prepared as usual for highways at the expense of the railroad company and deeded to the county, the expense being more than $10,000.
The side track is 23 feet north of the main track, and the grain elevator and the stockyards are near the side track. The side track and the general level on both sides of it are nearly four feet lower than the main track. The schoolhouse is in the block immediately south of the railroad and west of the county highway and is 390 feet from the proposed crossing, and approximately 900 feet from the crossing west of it. Seventy percent of the grain brought into Langley comes from the north. The town of Langley is unincorporated, with less than 75 inhabitants, and the population of the township in which it is located is about 325.
The viewers appointed by the board of county commissioners to investigate the convenience and inconvenience to individuals and the public as a result of the opening of the proposed crossing made a report to the board and gave the following reasons in favor of the crossing, which report was approved by the board:
“. . . we respectfully report as follows, and for the following reasons, viz.:
“The reason for opening said road is for the public-school convenience. Second, we feel that with the one crossing at the elevator is dangerous on account of railway cars on the south side of the crossing. In the third place, it gives a much better way of getting stock to the stockyard. We figure that this crossing should not have been closed in the first place; it was closed without the will of the people.
“The present road makes it a half mile farther for the patrons of said school.”
Plaintiff cites G. S. 1935, 66-227, which makes it the duty of a railroad company to make and keep in good repair all crossings by public highways, and G. S. 1935, 19-212, gives power and authority to the county board to open such a crossing even though it may have been closed. G. S. 1935, 68-509, 68-102 and 68-114, give auithority to county boards to require necessary crossings and to eliminate them and also to reopen them after they have been closed, so there can be no question as to the authority of the board in this line of duty, and while the acts of the county board are generally legislative and administrative rather than judicial, yet some of their acts under certain circumstances are subject to review, and others to supervision by mandamus.
Plaintiff cites the following from the opinion in the case of Evans v. Edelbrock, 106 Kan. 233, 187 Pac. 664:
“Whether the relocation was practical and convenient and the new road was of public utility and could be made without unreasonable expense, were questions which called for an exercise of the legislative powers of the board. It has been decided that the vacation, relocation and establishment of roads largely involves the legislative and administrative powers of the board, and that these functions are beyond the jurisdiction of the district court.” (p. 235.)
This was said in a case where the trial court dismissed the appeal from the order of the board of county commissioners vacating a road and establishing it on another line. However, shortly before the action for relocation of the road was commenced a separate action of mandamus was commenced to compel the opening of the road, which mandamus action was still pending when the opinion in this case was written, and the fourth paragraph of the syllabus explains the application of the views expressed in the portion of the opinion above quoted. It is as follows:
“The pendency of a proceeding in mandamus against a township trustee to compel the opening of a road does not prevent a board of county commissioners from allowing a petition to vacate the road or from establishing the same on another line.”
Except for the fact that the county has taken from the railroad deeds to the two tracts for highway along the railroad right of way to the crossings on both sides of the proposed crossing, and the fact that the grade of the main track at the proposed crossing has been raised 6% feet since the crossing was by agreement eliminated' in 1930, the situation is the same as if an application was being made for a crossing for the first time. No irregularity is urged in the matter of the elimination, and, of course, under the statutes above cited, no laches apply, and there is nothing to prevent a new application being considered for restoring a crossing after its elimination if the present circumstances and convenience of the public justify it.
A serious difficulty pointed out by the railroad company is in the matter of compliance with the provisions of G. S. 1935, 66-227, above cited, which requires that such railroad crossings “shall be on the same grade as the track for thirty feet on each side of the center of said track, unless the board of county commissioners shall find the same to be unnecessary, and the approaches thereto shall not exceed a six-percent grade.” The stipulation shows the grade of the approach on the north from the side track, 23 feet away, would be 19 percent. To comply with the specifications of the statute would require the moving of the side track at least 7 feet to the north and raising its grade quite a little to reduce the grade of the approach from 19 percent to 6 percent. To raise the grade of the side track would seriously affect its usefulness at the grain elevator and the stockyards and perhaps in other particulars.
The first reason given by the viewers for the restoring of the crossing was for the public-school convenience. The other two reasons given are of less importance, but it is said in the plaintiff’s brief that, some pupils have to travel as much as half a mile farther than they would if the crossing were restored. If they ride, a half mile additional travel would not be a very great inconvenience, and if they walk, the abandoned crossing is said to be still used by pedestrians. Another reason given by the viewers was that the proposed crossing would give a much better way of getting stock to the stockyard. The stipulation shows that by oral agreement the crossing might still be used for livestock and pedestrians, but that there was difficulty- in driving cattle across it because it was not planked and the drop to the north of the track was sharp and abrupt.
Defendant cites State, ex rel., v. St. Louis-S. F. Rly. Co., 124 Kan. 433, 260 Pac. 980, as being similar to the case at bar in many particulars. In that case the distance between the two tracks was 36 feet and the grade was raised 9 feet. The defendant constructed an underground pass at its own expense a mile away from the closed crossing and a grade crossing at another place a mile away in the other direction, and constructed new highways to each of these crossings. In that case the action to restore the crossing was commenced three years after the improvements had been made, and although the elimination of the original crossing had been made without regard to the requirements of the statute, yet in a mandamus action to compel the railroad to restore the crossing, it was held:
“Under the circumstances stated in syllabus 1, where the use of the public road was relatively negligible and the need of the railway company to double its tracks and raise the grade of its new track was urgent and the elimination of the grade crossing was a virtual necessity, and where adequate provision was.made for other crossings at not inconvenient distances,'and where permission to close the grade crossing could have been procured by the proper legal procedure, a restoration of the crossing will not be compelled by mandamus when its practical effect would be the complete demolition of the railway company’s double track, the disruption of the present railway service, and the consequent disaccommodation of the public served by defendant and its lessee.” (Syl. ¶2.)
The inconvenience of individuals and the public is certainly no greater in the case at bar than in the Frisco case, and in the case at bar the elimination was made as provided by statute, and the duty is imposed by statute upon the board of county commissioners to eliminate grade crossings as far as practicable by paralleling such railroads and by such other means as may be necessary to properly safeguard the traveling public.
We think with these two parallel highways along the railroad right of way to the crossings on each side of the proposed crossing that the inconvenience is not sufficient to justify the issuance of a writ by this court compelling the crossing on this county road to be restored.
As to mandamus being a proper proceeding to determine the rights of the parties in a matter of this kind, neither party in this case is in a very good position to raise the question because the plaintiff has invoked the proceeding on the suggestion of the defendant by letter. The ruling in the Frisco case, supra, would be sufficient to settle that question, but the following three rulings will supplement the decision in that case:
“Where, after proceedings have been commenced to improve a street, changed conditions, over which the officers have no control, make the public utility and necessity of the improvement doubtful, this court will, in the ex ercise of its discretion, refuse to issue a writ compelling the construction of the proposed improvement.” (State, ex rel., v. Ellis, 135 Kan. 702, syl., 11 P. 2d 708.)
“The writ of mandamus is a discretionary writ; it does not issue as a matter of right, but only in a clear case.” (Board of Education v. Powers, 142 Kan. 664, syl. ¶ 1, 51 P. 2d 420.)
“Rule followed that a writ of mandamus is not always an absolute right, but is to be given or withheld in the exercise of a sound judicial discretion as the facts and circumstances may warrant.” (State, ex rel., v. McCombs, 125 Kan. 92, syl. ¶ 6, 262 Pac. 579.)
The writ is denied.
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The opinion of the court was delivered by
Wedell, J.:
Separate actions were brought by a husband and his wife to recover damages resulting from an automobile collision. Plaintiffs recovered judgments against each of three defendants, and they have appealed. The actions were consolidated before trial and are so presented on appeal. The petitions were identical except as to personal injuries sustained by the wife and as to the damages to the husband’s car and expenses which he incurred for his wife’s medical attention.
The defendant, Lawrence Hobson, the driver of the car, was a minor fourteen years of age. The defendants, Millard E. Hobson, the minor’s father, and N. E. Hobson, the minor’s grandfather, were partners in the automobile business and had either furnished or knowingly permitted the boy to drive the car.
The accident occurred at about nine o’clock p. m. one mile west of Kingman, Kan., on U. S. highway No. 54, and on a strip of dirt road which had been left unpaved and was being prepared for a hard surface. ' Plaintiffs were traveling west and defendants’ car was traveling east. The accident occurred approximately six inches north of the center of the traveled portion of the highway. Defendants’ car had passed a truck which was on the south side of the center of the highway. In addition to the general verdict the jury made the following special findings:
“1. State width of travelable portion of highway from north edge of sand windrow at place of collision. A. Approximately twenty-two feet wide.
“2. State speed at which cars were traveling at time of collision. A. (a) Plaintiffs’; approximately thirty-five miles per hour; (b) defendant’s; approximately thirty-five miles per hour.
“3. State width and height of windrow of sand on south edge of highway. A. Width; approximately five ft.; height; approximately eighteen in.
“4. How far north of sand windrow were north wheels of defendant’s car at time of collision? A. Approximately 11% ft.
“5. How far south of the north edge of travelable portion of highway were the north wheels of plaintiff’s car at time of collision? A. Approximately 5% feet.
“6. If you find defendant, Lawrence Hobson, guilty of any negligence contributing to such collision, state fully of what said negligence consisted. A. He was negligent because of the fact that he did not stop and wait behind the truck until the plaintiff had passed the said defendant instead of speeding up and taking a chance.
“7. State what, if anything, prevented plaintiffs from driving on the north half of said highway, if you find they were not driving on north half. A.—
“8. State who was the owner of the Chevrolet, car driven by Lawrence Hobson at the time of the collision in question. A. N. W. Hobson and Son.
“9. State where, with reference to center of travelable portion of highway, did the collision occur. A. Approximately six inches north from the center of the travelable portion of the highway.”
Defendants first urge that finding No. 6 absolves them of all negligence other than that specifically found therein and requires judgment in their favor. The contention is grounded on the theory, first, that this finding does not pertain to any act of negligence pleaded, and second, that under plaintiffs’ own evidence such finding could not have been the proximate cause of the injury for the reason that plaintiffs’ evidence disclosed defendants’ car had gotten back to the right or south side of the center of the highway after passing the truck and prior to the collision.
Touching first the contention as to negligence pleaded, we find the petition charged three specific acts of negligence, to wit: excessive speed, lack of control and driving on the wrong side of the road. True, the petition did not charge the negligence consisted in the failure “to stop and wait behind the truck until the plaintiff had passed the said defendant,” which is a part of finding No. 6. It did, however, charge the operator of the car with negligence in driving on the wrong side of the road. We therefore cannot say finding No. 6 was unrelated to the negligence charged. For an opinion involving a somewhat similar pleading and finding, see Moorhouse v. Robbins, 145 Kan. 157, 159, 64 P. 2d 5.
Defendants, however, insist the act of passing around the truck did not constitute the proximate cause of the collision, as their car had gotten back to its proper or south side of the highway before the collision occurred. That their car did return to the proper side of the road in ample time to avoid a collision while passing the truck is true. It is also true, however, that after the car had returned to the south side of the road it took a northeasterly direction, and that the collision occurred north of the center of the highway. It took a northeasterly course while negotiating a railroad crossing. One of the plaintiffs’ witnesses testified:
“He passed this truck kinda weaving a little and then he got back to the south side of the road and came to this railroad crossing, and when he crossed the railroad tracks it kind of threw his car and then he came northeast.”
The jury apparently was of the opinion that in view of the entire situation, the driver of defendants’ car was taking a chance. Assuming, however, the driver did not take a chance and that passing around the truck was not the proximate cause of the collision, we are still confronted with the inescapable fact that the collision would not have occurred except for negligence expressly pleaded and the fact specifically found, namely, that defendants’ car was on the wrong side of the road at the point of collision. (Findings Nos. 1, 4, 9.) It is not contended those findings are not supported by substantial evidence. Irrespective, therefore, of finding No. 6, or any question of loss of control, the collision did occur while defendants’ car was on the wrong side of the road. This is not a case in which the jury found only negligence which was not pleaded. It is not a case where the jury found only facts which were not the proximate cause of the injury. It is also well to note that findings Nos. 1 and 4 preceded finding No. 6. It is entirely possible that under these circumstances the jury may have thought question No. 6 called for other and additional acts of negligence, if any, to that previously found. That the jury, however, intended to expressly find defendants were on the wrong side of the road at the time of collision, is again definitely shown by finding No. 9. True, the jury properly should have included all acts it considered negligent in finding No. 6, but it was also required to answer questions 1, 4 and 9, and since in those answers it specifically found the existence of an act of negligence expressly pleaded, we obviously cannot ignore those findings.
Under such circumstances we are obliged to consider all findings together with a view of harmonizing them with each other and with the general verdict where that is reasonably possible. (Brown v. Utilities Co., 110 Kan. 283, 287, 203 Pac. 907; Balandran v. Compton, 134 Kan. 542, 547, 7 P. 2d 510; Moorhouse v. Robbins, supra.) Finding No. 6 is not necessarily inconsistent with the findings which show defendants’ car to have been on the wrong side of the road at the time of the collision. It is not a finding defendants’ car was on the right side of the road at the time of the collision. In the most favorable view to defendants, all that can possibly be said in support of their contention is that the acts contained in finding No. 6 were not the proximate cause of the collision. If that finding, however, is completely eliminated the verdict is still supported by negligence pleaded and facts specifically found. That plaintiffs may base their right to recover on any act of negligence pleaded and proved, which was the proximate cause of their damage, cannot be doubted. (Balandran v. Compton, supra.) In the light of these circumstances we cannot upset the verdicts.
Defendants next urge the court erred in several respects in overruling their motion for a new trial. The first contention pertains to instruction No. 34. Plaintiffs insist there was no objection to that particular instruction, and, hence, the alleged error cannot be re viewed. In view of the record it is clear that while defendants perhaps did not identify the instruction complained of by the proper number, plaintiffs and the court understood the substance of the instruction to which the objection was directed. Moreover, the court advised defendants they had objections to all instructions. In view of these circumstances the objection will be considered on its merits. The instruction read:
“No. 34. It is an admitted fact in this case that the defendant, Lawrence Hobson, at the time in question was under the age of sixteen years.
“In this connection you are instructed that while it is negligence per se for every owner of a motor vehicle causing or knowingly permitting a minor under the age of sixteen years to drive such a vehicle upon a highway, and while it is negligence per se for any person to give or furnish a motor vehicle to such minor, yet such facts alone are not sufficient to warrant recovery by the plaintiff. In addition thereto the plaintiff must establish the fact, if it be a fact, that such negligence, if any, like any other act of negligence complained of was the direct and proximate cause of the damage and injuries complained of by the plaintiff as herein instructed.” (Italics inserted.)
After reviewing the three acts of negligence, namely, excessive speed, loss of control and driving on the wrong side of the road, with which the defendant, Lawrence Hobson, the minor and driver of the car, was charged, the court definitely instructed the jury in substance: that plaintiffs were bound by the acts of negligence pleaded; before they could recover they must find that all or one of such negligent acts of the driver was the proximate cause of the collision; if they found the defendants, owners of the car, had knowingly permitted the minor to drive the car, the owners would be liable for damages caused by the negligence of the minor.
The defendants, owners of the car, insist that the portion of instruction No. 34 which declared them to be negligent per se in the event they caused or permitted the minor to use the car was erroneous. They insist that permitting the minor to drive the car did not constitute negligence per se, but rendered them liable for damages only in the event the minor’s negligent operation of the car caused damage. In that contention they are correct. G. S. 1935, 8-222, provides:
"Every owner of a motor vehicle causing or knowingly permitting a minor under the age of sixteen years to drive such vehicle upon a highway, and any person who gives or furnishes a motor vehicle to such minor, shall be jointly and severally liable with such minor for any damages caused by the negligence of such minor in driving such vehicle.”
The court, as previously stated, in instructions other than in struction No. 34, stated the law in conformity with the provisions of G. S. 1935, 8-222, and advised the jury that in order to make the owners of the car liable it was necessary to find the minor had committed one or more of the acts of negligence with which the minor was charged, and that such act or acts must have constituted the proximate cause of the injury. Does the technical error, then, as contained in instruction No. 34, require a reversal of the judgment? We think not. It was not necessary the jury should find the owners of the car guilty of negligence in order to render them liable for the damages sustained. They were liable to plaintiffs if any negligent act of the minor was the proximate cause of the injury. Technical errors which do not affirmatively appear to have prejudicially affected the substantial rights of the parties are not grounds for reversal. (G. S. 1935, 60-3317; Root v. Packing Co., 94 Kan. 339, 345,147 Pac. 69; Firmin v. Crawford, 140 Kan. 370, 36 P. 2d 970.)
Defendants further urge a new trial should have been granted by reason of the admission of certain evidence over their objection. The evidence related to a conversation between the plaintiff, A. R. Jacobs, and the defendant, N. E. Hobson, the minor’s father. The testimony which defendants asked to have stricken was to the effect that the minor’s father had told him the boy had no license. It does not affirmatively appear such ruling affected the substantial rights of the defendants. The minor had previously testified, without obj ection by any defendant, to the effect he was fourteen years of age at the time of the collision and had no driver’s license.
It is also urged the court should have given a requested instruction to the effect that the failure of the minor to have a driver’s license was immaterial and that the jury should not discuss or permit this fact to enter into their deliberations. (Wilson v. Rogers, 140 Kan. 647, 38 P. 2d 124.) In the Wilson case it was held:
“Plaintiff and her husband were riding in their automobile on a public highway. They had no license for its operation as required by statute. Defendant overhauled them and, in attempting to pass, he negligently drove his automobile against plaintiff’s car, causing it to swerve and upset in a ditch by the roadside. Held, that the want of a license for plaintiff’s automobile constituted no defense to her action for damages against defendant; and so much of his pleaded defense as pertained thereto was properly stricken from his answer.” (Syl.)
The minor’s want of a license was not pleaded or relied upon as constituting negligence in the instant case. In the instructions the court first stated the three specific acts of negligence pleaded, which we have heretofore mentioned, and then instructed the jury that plaintiffs were bound by the acts of negligence which they had pleaded. In view of such clear instructions and in the absence of any special finding or other affirmative showing indicating that the j ury ignored the instructions given, we cannot say the refusal to give a special instruction on the subject of a license constituted reversible error.
We have noted all decisions cited by defendants in support of each of their contentions and do not find them inconsistent with the views herein expressed. No reversible error appears, and the judgment must therefore be affirmed. It is so ordered.
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The opinion of the court was delivered by
Hutchison, J.:
This action was commenced by a building and loan association on one of its building and loan form notes against the appellee and her husband, a copy of the note being attached to the petition as an exhibit.
Personal service was had on both defendants, and judgment was rendered against both defendants for the balance due on the note. Three days after such judgment was rendered the wife filed a motion to open up and set aside the judgment as to her, which was done, and she was permitted to answer. She did so and attached to her answer by reference a contract made between her husband and the building and loan association just a month before the date of the note, in which the association agreed to sell the husband a certain five-acre tract for $2,200 and to finance him for $1,700 of the purchase price. The husband agreed to purchase the property and pay $500 of the purchase price in cash and secure the balance by note and mortgage on the property purchased. The answer attempted to plead want of consideration, fraud and misrepresentation in securing her signature to the note.
Motions were filed by the plaintiff to make the answer definite and certain and also to strike out certain parts thereof. These motions were in general overruled, but defendant was given leave to file an amended answer, which she did, and it was more in detail but along the same line as the original answer. The plaintiff, on July 30, 1937, filed a demurrer to every part of the amended answer except the general denial, and it was overruled on October 8, 1937. Two motions to strike out certain parts of the amended answer were filed by the plaintiff in the month of October and overruled the same month. On December 22, 1937, the plaintiff, by leave of court, filed a reply and a motion for judgment on the pleadings, which motion was by the court overruled the same day it was filed. Another motion to strike out certain parts of the amended answer was filed January 3, 1938, and overruled January 10, 1938. Notice of appeal was filed by the plaintiff with the clerk of the district court on January 11, 1938, containing acknowledgment of service, and was filed with the clerk of this court on January 19, 1938. The overruling of these several motions and the demurrer to the amended answer are assigned by plaintiff as error. The petition, amended answer and reply were each verified.
The dates above noted are given because the second objection stated by the appellee to the review of these proceedings is that the appeal was not taken in time. The rulings on the demurrer and some of the motions to strike out portions of the amended answer were made more than two months before the date of appeal, and it is claimed review is excluded by section 2 of chapter 268 of the Laws of 1937, but section 5 of the same act provides that the two months’ rule as to previous orders shall not apply where the appeal is taken from the final judgment within the two months, which was done in this case.
Appellee also challenges the right of appellant to be heard as to the rulings on the motions to make definite and certain and to strike out certain portions of the amended answer because such rulings are not appealable orders and as to the overruling of the demurrer because plaintiff waived such right by pleading over. Appellee cites on the first point G. S. 1935, 60-3303, and Whitlaw v. Insurance Co., 86 Kan. 826, 122 Pac. 1039, and Fox v. Ryan, 121 Kan. 172, 246 Pac. 520. Under these authorities there arises the question of whether or not the portions of the answer which the plaintiff moved to strike out were such as would affect a substantial right in the action or determine the action, as is specifically mentioned in the statute above cited. In both the cases cited above the portion of the pleading attacked by motion was not so held, and unless it can be so held it is not reviewable under these authorities. We prefer at this time to pass that question because it necessarily calls for a conclusion as to its affecting substantial rights in the action.
The second challenge raised by the appellee to the review in this case is on account of the abandonment of the error, if any, in the overruling of the demurrer to the answer when the plaintiff filed its reply. Not every pleading over is a waiver of the right to review alleged errors previously committed. One exception is where the question raised by.the demurrer involves the matter of the pleading stating a cause of action or defense. Besides, the pleading following the ruling on demurrer must be consistent with the attitude of the party demurring and pleading. It is said on this subject in 2 Am. Jur., Appeal and Error, section 208, that—
“The general rule is that a party, by pleading over after his demurrer is overruled, waives his right to institute appeal or error proceedings from such order or to have such order reviewed on appeal from the final judgment. There are some well-recognized exceptions to- the rule, however, one of which is error in overruling a demurrer to a complaint which does not state a cause of action, and the other, error in overruling a demurrer for want of jurisdiction.”
In the case of Scovill v. Scovill, 144 Kan. 759, 62 P. 2d 852, it was said:
“The appellee insists that the appellant abandoned his right to appeal from the adverse ruling on his demurrer to the petition when he answered, but it seems from the authorities and decisions that in order to constitute an abandonment his attitude must be inconsistent with that which he maintained in support of his demurrer. No inconsistency is apparent in the appellant’s attitude in these two steps in this case. In his demurrer he urged that the petition, as a matter of law, did not state facts sufficient to constitute a cause of action. The trial court held otherwise. He then answered the petition, denying the matters of fact set up in the petition. These are by no means inconsistent positions.” (p. 763.)
There is no inconsistency in the attitude of the plaintiff in the case at bar in the filing of the demurrer to the amended answer and later filing a reply in the form of a general denial. The demurrer attacked all of the amended answer except the general denial, which was in effect an attack upon the entire ground of defense.
There is another reason why the matter in controversy between the parties to this action is subject to review in this court, even if there should be a substantial objection to the review of the overruling of the demurrer to the amended answer, and that is, that immediately after the filing of the reply in this case the plaintiff filed a motion for judgment on the pleadings, which was overruled. An exception was taken to that ruling immediately thereafter and the notice of appeal was served and filed the day after such ruling. So we have here unquestionably before us for review the matter of the correctness or error in overruling the motion for judgment on the pleadings.
The amended answer is a general denial except as to certain admissions, which are: The incorporation of the plaintiff company, change of the name of the former building and loan association to the present name, that the defendant, Luly Thurston, is the wife of D. E. Thurston, her codefendant, and that her husband paid the sum of $312.28 to plaintiff as alleged in the petition. It was then alleged in the amended answer that a month before the date of the note upon which the action was brought the plaintiff association, which was the owner of a certain tract of land in Beloit, Kan., entered into a contract of sale thereof with defendant’s husband, the contract being made a part of the answer. That she was not a party to that contract and did not sign it. That thereafter, in pursuance of that contract, the plaintiff, on August 5, 1929, conveyed the land to her husband, and that she was asked to sign a mortgage upon the land in favor of the plaintiff “so as to waive her inchoate rights therein,” but no mention was made to her about signing a note for the purchase of shares of stock in the association. That she was at that time “inexperienced in business matters and had never theretofore signed or executed any mortgage or similar paper and was ignorant as to the form or contents of such an instrument.” That the officer of the plaintiff company, Eldridge Gaston, who carried on the transaction with her, was one “who had been an old acquaintance of this defendant and codefendant, D. E. Thurston, from the days of their youth.” That the sole consideration for- the transaction was the balance of the purchase price of said land as set forth in the contract made a month before and signed by her husband. That this defendant received no part or benefit from said consideration and that at the time of the signing of the plaintiff’s exhibit A, this defendant did not know, understand or realize that she could be held personally liable to the plaintiff in any manner whatsoever. That she never was to her knowledge a member of the plaintiff organization and did not purchase or intend to purchase any of its shares of stock or interest therein and never made any assignment thereof to the plaintiff to her knowledge. That she never heard the matter of the purported sale of the shares of stock referred to in said petition mentioned at any time and did not know that there was any such matter involved in said transaction until she was so advised by her attorneys at the time of the preparation of the motion for a new trial herein. That if there was any such transaction it was solely between the plaintiff and her codefendant, D. E. Thurston. This defendant, in signing said exhibit A, attached to the plaintiff’s petition, thought and understood from the statements and lack of statements herein set forth, that it was simply part of the mortgage, which mortgage was executed on the 5th day of August, 1929, and recorded in book 58, page 591, of Mortgages, Mitchell' county, Kansas. That on the date exhibit A was signed “the plaintiff by its said officer, Eldridge Gaston, called this defendant and her said husband, D. E. Thurston, over the telephone and said, ‘We have gotten possession of the house now and wish you folks would come down and sign up the mortgage.’ ” That thereupon she and her husband went to the plaintiff’s office and there “the said Eldridge Gaston said to them, as he pointed to a paper on the desk in front of him, ‘Here is the mortgage for you to sign. Sign here,’ pointing to the place for the signatures.”
That nothing was said to her or to her husband at that time by the plaintiff or its officers about the purchase of seventeen shares of stock of the association or about certificate No. 324 evidencing the same, nor about a loan being made upon said shares or anything about dues upon them, “nor anything about this defendant signing a note.” That relying upon the foregoing statements and lack of statements, this defendant was induced to and did sign said exhibit A, believing at the time of such signing that the same was a mortgage only, as aforesaid, waiving her inchoate rights.
The closing paragraph of the amended answer, except the prayer, is as follows: “That said deed to D. E. Thurston is also made a part hereof for the purpose of reference and is recorded in book 46, page 474, of Deed Records, Mitchell county, Kansas. That the said purported note and contract, exhibit A of plaintiff’s petition, is wholly without consideration as to this defendant and is void for lack of consideration and is void for the further reason that the same was by the said plaintiff, through its said officer, Eldridge Gaston, represented to this defendant to be only a mortgage, and this defendant relied upon said representation and believed the same to be true. That she would not have signed said contract note had she understood or believed the same to be the instrument that it now purports to be, nor would she have signed the same had she believed or understood that it created any liability against her independently of the mortgage, nor had she understood that by so doing she was creating or assuming the liability as now claimed.”
The defendant claims the amended answer contains two defenses: first, want of consideration as to her, and second, that her signature to the note was obtained under fraudulent circumstances. She urges that she did not receive the deed to the property conveyed to her husband and she did not sign the original contract of sale and purchase which contained the only consideration between the plaintiff and her husband, citing Schuler v. Myton, 48 Kan. 282, 29 Pac. 163, where it was held that — ■
“An agreement to do or the doing of that which a person is already bound to do does not constitute a sufficient consideration for a new promise.” (Syl. 1fl.)
This was a case where a subsequent oral agreement was attempted to be enforced which modified a previous written agreement.
The defendant also cites the case of Gaar, Scott & Co. v. Green, 6 N. D. 48, 68 N. W. 318, where it was held:
“Where a party is legally bound by contract to execute certain papers, but refuses to do so unless the other party to the contract will enter further agreements and promises, such further agreements and promises are without consideration, and impose no liabilities.” (Syl. fl 1.)
The further agreement and promise in the case at bar is not a modification or change of the original agreement. Two other cases cited by defendant are Bartlett v. Wyman, 14 Johns. (N. Y.) 260, and Carpenter v. Taylor, 164 N. Y. 171, 58 N. E. 52. Both of these cases grow out of circumstances where extra or additional compensation was subsequently promised.
In the case at bar, if we consider the signing and giving of the note in connection with the agreement of sale and purchase, they each had a separate consideration; that in the first was a promise for a promise; that in the second was the deed of conveyance and the financing of the purchase by a loan of $1,700.
It is said in 12 Am. Jur., Contracts, § 113:
“Subject to qualifications, hereinafter stated, it is a general rule that a promise by one party is a sufficient consideration for a promise by the adverse party. . . .
“It is the promise, and not the performance thereof, that constitutes the consideration for the promise. Nonperformance of a promise which was the consideration for another promise does not constitute want of consideration, although it may be ground for an action for damages.”
This also answers an argument made in the brief of appellee that plaintiff could have recovered against her husband for the balance due on the sale of the lot by suit on the original contract. The only recovery that could have been had against the husband on a breach of that contract by him would have been damages, and not the balance of the purchase price.
In Kramer v. Walters, 103 Kan. 135, 172 Pac. 1013, it was held that—
“A binding contract can be made by mutual promises; each promise furnishes a sufficient consideration for the other.” (Syl. ¶ 4.) (See, also, Peoples Exchange Bank v. Miller, 139 Kan. 3, 29 P. 2d 1079, and 6 R. C. L. 676.)
Defendant calls our attention to the fact that the note on which the action is brought commences with the words, “I hereby agree,” to show that she was not intended to be a party thereto. But it might be so worded if it were signed by a surety. She further urges that as the deed went to her husband she received no interest in the property which he purchased and therefore she should not be held liable under the contract note. But there would be such liability even if she were only a surety and received no benefit except what passed to the principal, and that is held to be a. sufficient consideration.
It is said in 30 C. J. 895:
“Of course there must be a consideration for the guaranty or suretyship, although it may consist entirely of a benefit to the principal. The contemporaneous lending of money to the husband is a sufficient consideration for the wife’s signature as surety on a note in which she expressly pledges her separate estate. . . . Where the wife signs a note or pledges or mortgages her property or otherwise contracts for a consideration that moves to her husband or to a third person, she or her estate receiving no pai't of the benefit, she will be regarded as a surety.” (See, also, Miner v. Pearson, 16 Kan. 27.)
As to the defense of fraud or false representations, including the lack of statements or explanation, it should be noted first that twice in the long amended answer she admitted signing the note, but claimed she did so by reason of not being familiar with such busi ness and by reason of the misstatements made to her at the time she signed the same. There is no allegation that she was unable to read the note before signing it or that she asked any one to read it to her. She complains of the note containing references to purchase and assignment of stock in the building and loan association, the payment of monthly dues and other items of expense in connection with land purchased by her husband. One must make an effort to inform herself before she can expect to avail herself of fraud and misrepresentation. One is presumed to know the law, and our statutes fully state what the provisions and contents of a building and loan note shall be (G. S. 1935,17-1011). Other sections in the same chapter and article give additional information concerning transactions of this kind. It takes more than an omission or failure to state and explain the whole situation, even by a life-time acquaintance, to constitute fraud and misrepresentation to one who fails to read the document signed or to ask that it be read to her.
It was held in the early case of Roach v. Karr, 18 Kan. 529, that—
“Where a wife signed a mortgage-deed on a homestead, to secure a note executed by her and her husband, to take up a prior usurious note of a like amount secured on the same homestead, and the wife alleged in her answer that the mortgage was given without her consent, and the proof showed that the wife was illiterate and could only read a little by spelling the words, that the mortgage was not read to her, that she inquired of her husband as to its contents at the time of making her mark to the mortgage, and was told by him 'that it was none of her business, that it did not amount to a row of-pins — -that it was a note;’ and that she signed the instrument believing it was a note; held, that if the wife was mistaken or deceived as to the contents of the said written instrument it was the result of her own gross negligence; that she should have demanded the paper to be read to her, and that if she relied upon the representations of her husband, it was at her peril alone. . . .” (Syl. IT 3.)
It was held in the case of Ferguson v. Nuttleman, 110 Kan. 718, 205 Pac. 365, that—
“A wife who can read and write, and who at the request of her husband signs with him a mortgage on their homestead but does not know that it is a mortgage and does not understand its nature or effect, cannot avoid the mortgage where no fraud has been practiced nor duress exercised on her to procure her signature thereto.” (Syl. ¶1.) (See, also, Smyser v. Kline, 129 Kan. 72, 281 Pac. 927; and Mid-West Lamber Co. v. Wagner, 133 Kan. 405, 300 Pac. 1067.)
This rule was distinguished in the case of Larriak v. Jacobson, 139 Kan. 522, 32 P. 2d 204, where the element of intention and de sign on the part of the plaintiff to deceive and mislead the defendant entered into the case. That element is not in this case even by inference.
Under these authorities we must conclude the amended answer did not sufficiently allege want of consideration or fraud and misrepresentation to constitute a defense to the action on the note. Notwithstanding the general denial in the first part of the amended answer, all the necessary allegations of the petition as to the execution and validity of the note, except consideration and fraud, were specifically admitted in the amended answer. We think the demurrer to the amended answer should have been sustained, and under all the circumstances of this case the trial court would not have committed error in sustaining the motions to strike out parts of the amended answer. Since the answer in the case is an amended one, and after the filing of the reply there being a motion for judgment on the pleadings and the defense to the liability wholly failing, we think there is nothing left to be tried out, and the trial court should have sustained the motion of the plaintiff for judgment on the pleadings.
It was held in Manufacturing Co. v. Porter, 103 Kan. 84,172 Pac. 1018:
“Where all the controlling facts to determine a liability are established, and the defense to the liability wholly fails, a new trial is unnecessary, and final judgment on the liability should be ordered.” (Syl. ¶ 3.) (See, also, Thresher Co. v. Nelson, 105 Kan. 517, 184 Pac. 982; id., 106 Kan. 716, 189 Pac. 907; Security Benefit Ass’n v. Swartz, 146 Kan. 267, 70 P. 2d 16; and Gaston v. Collins, 146 Kan. 449, 72 P. 2d 84.)
The rulings of the trial court are reversed and the cause is remanded with directions to render judgment on the pleadings for the plaintiff.
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The opinion of the court was delivered by
Wedell, J.:
This was an action for soldiers’ compensation. Plaintiff prevailed, and the compensation board appeals.
The soldiers’ compensation board denied the claim on December 18, 1923, for the reason claimant did not'then possess an honorable discharge. He had enlisted June 1, 1917, at the age of seventeen, and was discharged from the military service March 6, 1918, for fraudulent enlistment on account of misrepresentation of age. At the time of discharge he was a private in company G, 140th infantry, and was located at Camp Doniphan, Okla. The only question presented on appeal is whether the trial court erred in finding claimant had an honorable discharge. It is conceded he did not have an honorable discharge when his claim was disallowed by the compensation board.
In March of 1936, the congress apparently recognized that to deny such a youth an honorable discharge was not in keeping with the patriotic spirit evidenced by his enlistment nor in keeping with the character of the service rendered. Clearly he had not been discharged by reason of any dishonorable act while engaged in the service. In order to remedy the obvious injustice, the congress enacted the following legislation:
“Be it enacted by the senate and house of representatives of the United States of America in congress assembled, That in the administration of any laws conferring rights, privileges, or benefits upon honorably discharged soldiers of the United States army, their widows, and dependent children, a soldier who served as an enlisted man between April 6, 1917, and November 11, 1918, both dates inclusive, and who was discharged for fraudulent enlistment on account of minority or misrepresentation of age, shall hereafter be held and considered to have been discharged honorably from the military service on the date of his actual separation therefrom if his service otherwise was such as would have entitled him to an honorable discharge: Provided, That no back pay or allowance shall acrue by reason of the passage of this act: Provided further, That in all such cases the war department shall, upon request, grant to such men, or their widows, a discharge certificate showing that the soldier is held and considered to have been honorably discharged under the provisions of this act.” (49 U. S. Stat. at L. 1159.)
In conformity with this act there was issued to claimant a certificate of honorable discharge. Following the passage of the federal law our legislature in 1937 extended not only the time for filing new claims for compensation (Laws 1937, ch. 323), but also provided for new appeals to the district court from rulings of the soldiers’ compensation board, disallowing claims previous to the time the 1937 law became effective. (Laws 1937, ch. 321.) No exception was made of claims previously disallowed by reason of failure to present an honorable discharge. The new law provided ninety days within which to perfect the appeal. That the appeal in the instant case was perfected in time is conceded.
The state urges that the class of persons intended to be included within the provisions of the Kansas law were those who had an honorable discharge at the time of the adoption of the referendum in 1922, known as “An act relating to compensation for veterans of the World War.” (G. S. 1935, 73-101.) Our attention is directed to that portion of the foregoing statute and also to G. S. 1935, 73-102, enacted in 1923, which, touching the subject of a discharge, reads: “who was honorably discharged.” That the word "was” cannot reasonably be construed to have been intended to include only such persons who, at the time of the referendum vote and at the time of the enactment of the first statute passed in compliance therewith, had received an honorable discharge, must be obvious. At that time quite a number of Kansas soldiers had not yet been discharged from the service. They were still employed in various capacities, and clearly it was not the intention to exclude such persons from compensation by virtue of their continued service. The interpretation urged by the state would result in penalizing certain persons whose term of military service had been extended beyond that of others. ■ The contention is untenable. The original act of 1921, the referendum adopted in 1922 and the act of 1923 all contained the following language: “One dollar per day for each day of his or her entire service.” No limit of length of service was fixed and no date of discharge was mentioned. At the special session in 1923, section 1 of chapter 200 of the Laws of 1923 was amended to limit payment to the period ending June 30, 1919, but without regard to date of discharge. (Laws 1923, Special Session, ch. 5, § 1.) Moreover, succeeding statutes which extended the date for the filing of claims did not restrict the application of the law to those holding an honorable discharge at the time referendum was submitted and adopted. This is true, not only of the last act which extended the time for the filing of claims (Laws 1937, ch. 323), but also of the latest provision for appeals (Laws 1937, ch. 321).
Our legislature in 1937 was probably conversant with the intent and purpose of the 1936 congressional act and intended to provide for new appeals which would include claimant’s appeal and appeals by others similarly situated in order to enable them to obtain the compensation benefits to which an honorable discharge entitled them. At any rate, as previously stated, the new provision for appeals in no wise excluded new appeals in such cases as the instant one.
An appeal to the district court in soldiers’ compensation cases does not constitute merely a review of the record before the soldiers’ compensation board, but provides for a trial de novo. (G. S. 1935, 61-1003, 73-128.) Moreover, the law requires the appeal in the district court shall be heard as an equity proceeding. (G. S. 1935, 73-129.) The government, which the soldier had served, had the authority to determine what should constitute an honorable discharge from its service, and to what date such honorable .discharge should relate. It fixed the date of his honorable discharge as the date of his actual separation from the military service. The state legislature did not restrict the payment of compensation to persons who had received an honorable discharge by a particular date. In view of all the circumstances, we have no hesitancy 'in concluding claimant had an honorable discharge, within the meaning of the Kansas soldiers’ compensation act, and that the judgment of the trial court must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Harvey, J.:
This appeal is from the conviction upon a charge of attempted bribery of jurors. From June 14 to 22, 1937, there was on trial in the district court of Cowley county the case of The State v. M. B. Light, in which the defendant was charged with violations of the banking laws. The presiding judge was Hon. Edgar C. Bennett, judge of the twenty-first judicial district, sitting as judge pro tern under an appointment authorized by G. S. 1935, 20-311a. While the jury was deliberating upon a verdict two of the jurors informed the foreman that efforts had been made to bribe them to vote for an acquittal. The matter was reported to Judge Bennett, who conducted an inquiry. The two jurors, and others, made statements to the court which were taken by the court reporter. Judge Bennett commended the jurors for calling the matter to his attention, declared a mistrial in the case of State v. Light, and discharged the jury.
Soon thereafter this prosecution was commenced. The information was in two counts. The first count charged appellant with attempting to bribe W. L. Sailing, a juror in the Light case, and the second count charged him with attempting to bribe D. L. Zirkle, a juror in the same case. He was found guilty on both counts. His motion for a new trial was overruled, and because of the showing and finding of previous convictions of felony he was sentenced to life imprisonment, in conformity with G. S. 1935, 21-107a.
In this court complaint is first made of the court’s instructions. At the time the instructions were given no objections were made to any of them, or were there any requests for other or additional instructions. The contention now is made that the court should have instructed the jury with respect to the evidence of an accomplice. No one was charged in this case as an accomplice with defendant, nor do we find anything in the record which indicates that there was any contention made at the trial that anyone was an accomplice. It is pointed out, however, that with respect to the evidence of the attempt to bribe the juror Zirkle the negotiation was carried on between defendant and the juror’s son. The evidence was to the effect that defendant contacted the juror’s son, told him what he wanted his father to do, and the son was asked to see the father and report to defendant; that the juror told his son to continue the negotiations to see what it would lead to, and there is evidence of several conversations between defendant and the juror’s son. We need not determine whether this would implicate the son as an accomplice, for that question is not before us. Appellant now contends the jury might have taken that view of it; hence, it was the duty of the court, under G. S. 1935, 62-1447, to give an instruction with respect to the manner in which the jury should weigh the testimony of an accomplice. The court was not required to give such an instruction unless it was requested to do so. (State v. Patterson, 52 Kan. 335, 34 Pac. 784; State v. Miller, 83 Kan. 410, 111 Pac. 437.)
The other complaints as to instructions go mainly to certain words or phrases which it is contended might better have been omitted, or other language used. There is nothing fundamentally wrong with any of the instructions given. The court followed the statute and gave all the essential pertinent instructions. If defendant was of the opinion that some of the language in the instructions might have been changed so as better, or more clearly, to express the thought in the mind of the court, he should have made that request at the time. (Skaer v. American Nat’l Bank, 126 Kan. 538, 268 Pac. 801; State v. Harris, 126 Kan. 710, 712, 271 Pac. 316.) We find it unnecessary to set these instructions out and deal specifically with each of the relatively trivial criticisms.
Appellant contends it was error for the court to send a certain exhibit, admitted in evidence at the trial, to the jury room. A witness for defendant testified she was present at the time of certain conversations between defendant and some of the witnesses for the state. She fixed these dates by a diary which she testified she kept daily. On cross-examination it was developed that a number of the entries in the diary evidently were written at the same time and by the same person and with the same lead pencil. She then admitted that a part of the time covered by the entries she was in the hospital and that the entries covering that period were made after she returned home. It was the contention of the state that the entries pertaining to the pertinent dates indicated they were made at the same time a number of other entries were made. The book had been introduced in evidence, exhibited to the jury, and discussed in the argument of counsel. After the jury had been out considering its verdict it returned to the courtroom and asked to see the exhibit. Over defendant’s objection the court permitted this exhibit to go to the jury room. Appellant complains that the court did so. We see no error in this ruling. At best it was a matter within the discretion of the trial court, and there is nothing to indicate that the court abused its discretion.
Appellant complains of remarks of prosecuting attorneys in their arguments to the jury. In answer to criticism by appellant’s counsel of the two jurors for not reporting the attempted bribery directly to the court instead of to the foreman of the jury the county attorney read the remarks of Judge Bennett commending the action of the jurors. Appellant’s objection is that the transcript containing those remarks had not been offered in evidence. There was a stipulation that the reporter who took notes of the hearing before Judge Bennett had taken them correctly and that they were properly transcribed. There is a debate between counsel as to whether this transcript had been offered in evidence. It had been used repeatedly by counsel on each side in the examination or cross-examination of witnesses who had given statements before Judge Bennett and commented upon by counsel. We regard it as immaterial whether the transcript had been offered in evidence or not. It is not contended the county attorney in this argument incorrectly quoted Judge Bennett. There is a controversy between counsel as to whether another statement complained of by appellant was made by one of the attorneys for the state in his argument. Counter affidavits on that point were before the trial court on the motion for a new trial. Obviously the trial court was of the opinion either that the statement had not been made, or, if made, was not prejudicial. We see no' reason to disturb that finding.
When it came to pronouncing sentence on defendant the county attorney produced evidence that the appellant previously had been convicted in the federal court in Kansas in two cases in which he was charged with a conspiracy to violate the laws of the United States, a felony under the federal statute (U. S. Criminal Code, §§ 37, 335, U. S. C. A., Title 18, §§ 88, 541), and had been sentenced to the penitentiary, and also that he had been convicted once on a similar charge in the federal court in Oklahoma and had been sentenced to six months in jail. In view of that evidence the trial court found that appellant previously had been convicted “a third time of a felony,” and sentenced him to be confined in the penitentiary during his life. (G. S. 1935, 21-107a.) Appellant contends that a previous conviction of felony in a federal court does not authorize the imposition of the increased penalty under this statute. The point is not well taken. (See In re Minner, 133 Kan. 789, 3 P. 2d 473.) Appellant also contends that the felony referred to in our statute just cited means a felony defined by the laws of our state, and he points out that the offense for which he was convicted in the federal court was conspiracy, in which an overt act was shown to have been committed, to violate the laws of the United States. He argues this is not a felony under the Kansas statute and that our state has no statute making conspiracy to violate the law in which an overt act is committed an offense of any kind. The point is not well taken. The statute specifically applies to a former conviction of felony “in or out of this state.” (And see In re Minner, supra.) A few cases from other states are cited by appellant in support of his views, but in those states the statute before the court differed materially from our statute; hence, the cases are not in point.
Appellant does not contend that the evidence was insufficient to support the verdict; hence, we have not attempted a detailed statement of the evidence. It is sufficient to say there was direct and positive evidence to sustain the charges made in the information.
We find no error in the record. The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This was an action to foreclose a real-estate mortgage which the court found to have been given for the purchase of the property, less than one third of which purchase price had been paid. The period of redemption was fixed at six months, in accordance with G. S. 1935, 60-3466. The appeal is from an order overruling defendants’ belated motion, in which the court was asked to modify its judgment and to fix the period of redemption at eighteen months.
Briefly stated, the facts are these: Defendants purchased a residence property in Salina in 1919, which later they mortgaged to the Homestead Building and Loan Association. They permitted this mortgage to become in default and it was properly foreclosed. At the sheriff’s sale the property was purchased by the building and loan association and a sheriff’s deed was issued to it in 1932, and thereafter it went into possession of the property and received the income from it. Defendants vacated the property, claimed no further interest in it, and moved to Chicago, where they lived about a year.
In 1934 the Home Owners Loan Corporation had been organized by an act of congress. Among other things it was “authorized to exchange bonds and to advance cash to redeem or recover homes lost by the owners by foreclosure . . . subsequent to January 1, 1930.” (U. S. C. A., Title 12, § 1463 g.) Acting under this statute, defendants undertook to reacquire the property which they had lost by foreclosure. The building and loan association agreed to accept bonds of the HOLC for a stated amount and to convey the property to defendants. This plan was carried out. The HOLC turned its bonds over to the building and loan association and it conveyed the property to defendants, and they went into possession of the property. In acquiring it they executed a mortgage to the HOLC for the amount of the bonds it had delivered to the building and loan association. Defendants permitted this mortgage to become in default, and the present action was to foreclose that mortgage. There was personal service on defendants, they made no appearance, judgment of foreclosure was entered, the property sold and bid in by the IIOLC, and the period of redemption was fixed at six months. This judgment was rendered November 27, 1936. The property was sold and the sale confirmed on January 25, 1937. In the petition to foreclose this mortgage plaintiff alleged that the mortgage was given for the purchase price of the property, that less than one third of such purchase price had been paid, and asked the court to fix the period of redemption at six months. Based on these allegations, the court in its decree of foreclosure fixed the period of redemption at six months.
After the term of court at which this judgment was rendered, and at which the sale was confirmed, and on July 24, 1937, defendants filed a motion to modify the judgment. In this it was alleged that the court erroneously fixed a shorter period for redemption than that allowed by the statute; that the allegations of plaintiff’s petition to the effect that defendants had paid less than one third of the purchase price were inaccurate and misleading, and that the court acted on a misunderstanding of the facts, and alleged the facts to be that they had paid more than one third of the purchase price, that defendants permitted judgment to be taken by default because of a misapprehension as to what the allegations of the petition were, and upon their belief and understanding that the period of redemption would be eighteen months, and that they had not been advised that the period of redemption, had been fixed at six months until after the term of court at which the judgment had been rendered.
The motion to modify the judgment because of alleged inaccuracies in the allegations of the petition on which the judgment was rendered, and because of defendants’ alleged misunderstanding as to the allegations of the petition, is not one authorized by G. S. 1935, 60-3007, or by 60-3010, or by any other section of the code which ha^ been called to our attention. The time for defendants to learn what the petition alleged was before judgment was taken upon it. They had ample opportunity to do so, since they were personally served with summons. The term of court having expired, the trial court had no judicial discretion in the matter aside from the provisions of the code. These considerations amply justified the ruling of the court denying the motion. ■
Appellants contend, however, that when they acquired the title from the building and loan association and made the mortgage to the HOLC they were not purchasing the property, but were redeeming from the former foreclosure. We are unable to see merit in this contention. Their time to redeem under the former foreclosure had long since expired. Their previous title to the property had been extinguished by a sheriff’s deed, the validity of which is not questioned. They had no further right to redeem under any statute or order of the court. They were in fact repurchasing the property. The mortgage which they gave to the HOLC to obtain the funds to enable them to purchase the property from the building and loan association was a mortgage given for the purchase price of the property within the meaning of our statute, as construed by all of our former decisions on the point. (Langworthy v. Martin, 129 Kan. 159, 281 Pac. 879; Prudential Bldg. & L. Ass’n v. Greenlee, 141 Kan. 667, 43 P. 2d 217; Home Owners Loan Corp. v. Torrey, 146 Kan. 332, 69 P. 2d 1096.)
We find no error in the record. The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover damages for injuries incurred in an automobile collision. Judgment was for the plaintiff. Defendants appeal.
The collision occurred about 10 a. m. about two and one half miles south of Lindsborg on U. S. highway 81. At the place where the collision occurred the highway runs north and south. There is a gradual rise toward the north from the place of collision. It is paved with an oil mat. This mat was originally twenty-four feet wide, but the edges.had been broken off. At the time of the collision the traveled part of the highway was twenty feet wide. Prior to and at the time of the collision plaintiff was driving a Ford roadster north. He was on the right-hand side of the highway, traveling at the rate of fifteen or twenty miles an hour. Behind the Ford a Cardinal Stage Lines bus was being driven in the same direction. Two cars were coming from the north, being driven in the opposite direction from that in which the Ford was being driven. Plaintiff and the person in the car with him. were both deaf mutes. The collision occurred when the driver of the bus drove' around the car plaintiff was driving. As it started around the Ford it hit the left rear of the Ford. As it pulled back to the right-hand side of the road after having passed the Ford, it hit the left front of the Ford. This caused the plaintiff to lose control and the affair ended with plaintiff's car upside down in the ditch. The two cars coming from the north were being driven at the rate of forty-five to fifty miles an hour. The bus was being driven at about the same rate of speed. All the cars were on the proper side of the highway.
The story of what happened may be told here, in the language of the bus driver. He testified, in part, as follows:
“I was going north in the same direction the Ford was and I got back behind the Ford about 300 feet. There was a car coming from the north, traveling south, and I started judging where these two cars were going to meet and where I would be at that time, to see if there would be — when they passed that I wouldn’t be too close to them for safety. When I got up about 200 feet behind the Ford I saw that I was gaining on the Ford a little too much for safety for this other ear from the north to meet this Ford and pass and make room for me to pass the Ford, so I applied a little air on my brakes then. At that time the Ford was on his right side of the road toward its center. Had there been a black line or white line marking the center of the road he would have been about a foot or foot and a half from the line; that is, the left side of his car. The car coming from the north was about the center of his right side' of the road. At about 200 feet I saw I was getting a little too close and I wanted to slow down a little just to lay back behind the Ford until the other two cars had met and passed each other. I applied a little air on the brakes to slow down. I found that there was no response in the brakes at all toward slowing down. I had never noticed any difficulty prior to that time. After I found no response I gave' it a. heavy application of air. I just figured I had not applied quite enough air to make them take hold. There was no response yet, a-nd when I didn’t get any response from the air brakes I looked down at my air gauge to see what was the matter and found there was no air in the air tank at all — the air gauge sitting on zero. I immediately started sounding my horn, large horns on top of the bus, electrically driven, and started giving short, continuous blasts of that. . . . Just about that time I pulled up on the hand brake. From the hand brake I started in trying to get over into second gear. I succeeded. In the meantime the Ford was still ahead of me. He did not make any change in his position in response to the sounding of the horn. I did not have any knowledge that the occupants of the Ford were deaf.
“The Ford and the car from the north were getting closer to each other all the time and I was getting closer to the Ford. When I noticed that it did not change its position in response to the blasts of my horn I pulled out on the right side of the road, thinking if I couldn’t get him to move over I could possibly pass him on the right side. When I pulled over I saw there was a culvert there with a post sticking up which would make it impossible for me to pass on tlie right side. I immediately pulled clear over to the left, still sounding my horn. The car approaching from the north had gotten very close to the Ford and almost ready to pass each other. The other one then passed the Ford. In the meantime I had pulled out toward the center of the road, thinking I could possibly get him to get over to the other side, that is, the car coming from the north. He just kept coming straight ahead, following the same course. I was behind the Ford, getting closer all the time, and they met, and after this car coming from the north had gone past far enough to where looking out of the corner of my eyes I could see the back end of his car was about even with the driver's seat on the bus and he was going on south, I whirled the bus to the left just as hard as I could. To my knowledge I did not hit the back end of the Ford. I pulled out toward the left side of the road. I straightened up after I got over to the left side of the road. There was another car coming from the north at that time that I could see and I knew I would have to get over on my side of the road not to endanger him, so as soon as I got past the Ford I looked up in my mirror and saw I was past him, and I whipped back to the right side of the road. As I passed the Ford I heard a raking sound on the right-hand side. After I'passed the Ford I looked up in my mirror and the Ford at that time was in the road directly behind the bus. I would say I proceeded north along the road before I stopped about 1,000 feet. After I stopped I learned that something had happened to the Ford. I saw that the Ford was over in the ditch at the west side of the road.”
The plaintiff testified as follows:
“The bus was fifty to sixty feet behind us when I saw it in the rear-view mirror. I was driving on the right side of the highway and continued to drive on that side. I do not know whether our car and the bus collided. I saw the' north car coming and then I saw the bus coming, trying to go around, and then it side-swiped me — the fender.”
His companion testified as follows:
“At the time of the accident Randall was driving on the right side of the road. When I first saw the bus it was 400 feet back. I saw it by the reflection in the windshield and I turned around and looked at it. Randall was driving about thirty miles per hour. My judgment is that the bus was moving about fifty miles an hour. When the bus struck my car I woke up to a sudden realization that, something had happened and the blue bus flashed by. Ornear was going like the waves of the sea. Randall told me he was hurt through the chest and the back. I crawled out of the ditch and went over to the road. Our car was turned over with the wheels in the air.”
Defendants argue, first, that their demurrer to the evidence of plaintiff, their motion for a directed verdict and their motion for judgment notwithstanding the verdict should have been sustained. The basis of this argument is that the evidence of plaintiff shows him to have been guilty of contributory negligence as a matter of law. To sustain this argument defendants point out that when the companion of plaintiff first saw the bus it was 200 feet away, approaching at a rapid rate of speed; that he called the attention of plaintiff to this and plaintiff looked back and saw the bus coming and continued on his course without giving an inch to the right. The argument is that it was negligence for plaintiff to fail to pull to the right so that the bus could have passed between the car of. plaintiff and the cars coming from the north. Defendants argue that had plaintiff done this the collision could have been avoided.
In the consideration of such an argument this court considers all the evidence in the light most favorable to the plaintiff and allows all reasonable inferences in his favor. (See Tilden v. Ash, 145 Kan. 909, 67 P. 2d 614. See, also, Nelson v. Peterson, 147 Kan. 507, 78 P. 2d 20.) From the evidence in this record we cannot infer that plaintiff must have known that the bus was out of control and that the driver was not able to stop it. On the other hand, when his attention was called to it and it was 200 feet away, and later when it was fifty or sixty feet away, he had a right to assume that the driver of the bus would obey the law and slow up or stop before it struck his car. In Stillwell v. Faith, 142 Kan. 730, 52 P. 2d 635, this court said:
“A motorist in a hurry has no absolute right to require all other cars ahead of him to get out of his way. The others have exactly the same rights as himself. Much depends on the condition of the road, the weather and the congestion of traffic. And even where a slower motorist refuses to steer far enough to the right to give another motorist an opportunity to pass when requested to do so by a timely sounding of the horn, the remedy for such discourtesy is not that of driving ahead to pass regardless of such a consequence as happened in the case at bar.” (p. 736.)
II would not do to hold that one who failed to drive out of the way of a car coming at a fast rate of speed from the rear was guilty of contributory negligence as a matter of law, especially in this case where the person charged with contributory negligence was well over on the right-hand side of the road.
Defendants point out that the jury was asked whether, if plaintiff had turned to the right when his companion warned him of the approach of the bus, or when he himself saw it, the bus could have passed in safety, and the jury answered “probably not.” This was equivalent to an answer in the negative. Defendants argue that there was no evidence whatever to sustain this. We cannot agree with this argument. There were too many other elements to consider in answering such a question. The whole affair was over in less than a second, and the correct answer depended on the position of the other cars and their closeness to each other and the speed at which they were being driven. We cannot say that the undisputed evidence compelled that this question be answered in the affirmative.
Defendants next argue that even though plaintiff did not know that the air brakes on the bus would not work, still the driver of the bus was sounding blasts on his horn, and had plaintiff and his companion not been deaf they would have heard the horn and known there was an emergency and pulled to the right. Defendants argue that, as a matter of law, a person completely deaf is not competent to operate a motor vehicle upon the highways of the state. To sustain this argument defendants point out that plaintiff did not have a license to operate a motor vehicle, and that he was guilty of a misdemeanor for driving a car without one, and that the statutes forbid a license being issued to any person who is suffering from such a disability as would prevent him from exercising ordinary control over a car. The statute does not forbid a deaf person being given a license to drive a car. Whether the disability from which plaintiff was suffering would have been sufficient grounds to warrant the vehicle commissioner in denying him a driver’s license would be a question of fact. Whether the failure of plaintiff to hear the hom being sounded by the driver of the bus was the cause of the collision and whether the horn was sounded were both questions for the jury. They were answered against the contention of defendants. In Furtado v. Bird, 26 Cal. App. 152, 146 Pac. 58, the defendant driving an automobile overtook and collided with the plaintiff, who was riding on horseback. The plaintiff was deaf. The defendant contended that the plaintiff was guilty of contributory negligence because, being deaf, it was his duty to look back as well as forward and that if he had been doing so the accident would not have occurred. The court overruled this contention, and said:
“We do not think it was plaintiff’s duty to be constantly looking back. Both parties had an equal right to the' use of the road, but defendant was in the better position to avoid a collision and when he observed that plaintiff appeared not to hear the horn it was defendant’s duty to slow down and even to stop his car, if necessary, to avoid running against plaintiff’s horse.” (p. 158.)
See, also, McCann v. Sadowski, 287 Pa. St. 294, 135 Atl. 207.
Defendants next argue that the trial court erred in refusing a new trial. The basis of this argument is the giving of an instruction to the jury, a portion of which was to the effect that a motorist approaching a car from the rear may not deliberately run into the car ahead. Defendants object to the use of the word “deliberately.” They argue that by the use of this word the court in effect instructed the jury that it might determine that the driver in this case ran into the car of plaintiff with malice aforethought.
This is not the correct interpretation to put upon the word as it is used here. In the first place, the court told the jury in the very sentence in which the word is used that the act described would constitute negligence, not that it would constitute wantonness. In the second place, the testimony of the bus driver himself shows that he did what he did deliberately as the word is defined in the dictionary. That is, an “act formed or taken with deliberation, well advised, carefully considered.” It will be remembered that the bus driver first looked to the right and concluded that he could not pass on that side, then he considered whether he could stop before he hit the Ford, then he decided to go around on the left-hand side, with the disastrous consequences that resulted. His course of conduct shows about as much deliberation as could be expected under the circumstances.
The next ground upon which defendants urge that a new trial should have been granted is misconduct of counsel for plaintiff during the closing argument. Counsel for plaintiff referred to a doctor who testified for defendants as a “doctor who followed the bus company around testifying.” Defendants argue that such a statement was not true and was prejudicial to the defendants’ case. The testimony of the doctor in question was on the question of the extent of the injuries suffered by plaintiff. As soon as the statement was made counsel objected to it and the trial court advised the jury in effect that they should decide the case on the evidence as they heard it from the witnesses and the law as given in the instructions. (See Smith v. Cement Co., 86 Kan. 287.) Defendants do not make any point here that the vei’dict and judgment were excessive. We have examined the authorities furnished by defendants where language used by counsel in argument has been held to be reversible error. We find that the language used in this case was not nearly so well calculated to prejudice the rights of defendants as that in the authorities relied on.
We have concluded that the trial court committed no error in the trial of this case.
The judgment of the trial court is'affirmed.
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment in favor of plaintiff on a rental contract.
Plaintiff owned a store building in Oakley. Defendant leased it for a term of 18 months to begin on May 15, 1933, and to end on November 14, 1934. The stipulated rent was $60 per month, payable on the 15th day of each month.
Defendant entered into possession and paid rent for four months, but he made default on the rent due on August 15, 1933, and paid nothing thereafter.
Predicated on that default, on July 16, 1934, plaintiff brought an action in the district court of Ottawa county (referred to herein as case No. 6508) for the amount of rent then due; and on February 5, 1935, or March 9, 1935 (the record is equivocal as to the date), judgment for $600 was rendered in plaintiff’s behalf, which was the amount of rent due for ten months.
The present action was begun on May 17, 1937, for the defaulted rent which thereafter accrued to the expiration of the term of the lease, November 14, 1934. The amount prayed for was $240.
Defendant’s answer to the petition contained a general denial, pleaded the facts of the prior action (case No. 6508) and set out a copy of the judgment rendered therein; and alleged that—
“. . . the cause of action set out ... in said case No. 6508 was exactly the same cause of'action that, is set out in the petition in the . . . [instant] . . . cause, and was for the same breach of the same contract and for damages for the same breach of the same contract as is set out in the petition in the above-entitled cause. Said defendant further alleges that all of the matters and things set out in the plaintiff’s petition in the above-entitled cause as between the said plaintiff and the defendant in said case No. 6508, has been fully adjudicated and determined and that the same is now res judicata.”
To this answer plaintiff filed a demurrer, which was sustained, and the propriety of that ruling is the subject of this appeal.
It is defendant’s present contention that defendant abandoned the premises in October, 1933, and that plaintiff there and then accepted a surrender of the leased property; that thereafter his only cause of action was for damages for breach of the lease contract; and that those damages were determined in the first lawsuit, case No. 6508. But the record does not bear out the contention that plaintiff accepted a surrender of the property. In case No. 6508 the trial court made a specific finding, which reads:
“On the 16th day of October, 1933, after an exchange of letters between plaintiff and defendant in which correspondence defendant informed plaintiff that he, the plaintiff, might repossess the premises, defendant sent the plaintiff, by mail, the keys to the Oakley store building hereinbefore described. The plaintiff taking this act of the defendant as a notice that it was the purpose of the defendant to abandon the lease premises and to terminate the lease, at once began looking around for a tenant for said Oakley store building. Plaintiff did all that he could to find such a tenant and to minimize whatever damages he might sustain by reason of defendant’s failure and refusal to make any further payments of rent. Plaintiff was able to find a tenant for only one day during the period covered by the lease, and from him he received as the rent the sum of $10 and no more. Copies of said letters are hereto attached as plaintiff’s exhibits 2 and 3.”
The letters to which the quoted finding referred ran as follows:
“W. O. Brooks: 10/5 [1933],
“Dear Sir — I have your letter in regard to the rent due me. I think this building could be rented again, but I’m not in a position to rent it with the lease you have. If you will pay your rent up to date and write me to go ahead and rent the building I will try and help you to get out with as little loss as possible. L. L. Moose.”
“L. L. Moore, . . .: Oct. 16, ’33.
“Dear Sir — Am sending the keys to your building and there is nothing to hinder you from going ahead and renting the building. W. O. Brooks.”
While the question of defendant’s abandonment of the premises and of plaintiff’s acceptance of their surrender was apparently raised or at least suggested in case No. 6508, it is rather to be inferred from the court’s finding quoted above that the defense of abandonment and acceptance was not sustained. Although the correspondence between the litigants which is incorporated by reference in the court’s finding is not before us for our independent consideration in this appeal, it does aid us to gauge the proper significance to be attached to the finding and judgment of the district court in case No. 6508. Manifestly that judgment was for the rent that had then accrued, nothing more. And that is exactly what the court allowed. If it had been regarded as a full and final adjudication, including any further anticipated breach of contract, it would have taken that $10 item into account in its judgment. Certainly we cannot now declare that the trial court in the first action erred in not attaching the legal significance of abandonment of the premises and their acceptance by plaintiff to the isolated fact that plaintiff attempted to minimize his damages by renting the property for one day for which he received $10.
In the present case our concern is with the matters pleaded in defendant’s answer — the subject matter of the first lawsuit (case No. 6508), and whether this present lawsuit is the same as the earlier one, and that in consequence its subject matter was res judicata. We think it is manifestly clear that the subject matter of the present action was not the same as in the earlier case. There the suit was for the unpaid rent which had then accrued. The present action was for the rent due for the remainder of the term for which the property was leased.
The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff sued for the wrongful death of her husband and recovered judgment for $6,150. Defendant has appealed, and contends the judgment is excessive. This is the only question presented here.
Plaintiff’s husband, George W. Pattrick, was an employee of the Kansas City Public Service Company, which operated the street railway, as an emergency track repair man. On September 23, 1935, about 2 o’clock, a. m., he and a helper were repairing a track switch in the street when he was struck by an automobile driven by defendant and sustained injuries which resulted in his death ten days later. While defendant’s liability was contested in the trial court, no point is raised in this court respecting such liability.
Mr. Pattrick was more than 77 years of age, nearer his 78th birthday, at the time of his death. His life expectancy by the American table of mortality was 5.11 years. He was 5 feet, 9 inches tall, weighed 185 pounds, and was in good health. He did not gamble, was sober and industrious. He had been employed by the streetcar company for 31 years, and within that time had no serious illness, and was under the doctor’s care but once, when a foot was injured by accident in 1909. Since 1923 his wages had been constant at $24.60 per week. He and his wife owned their home, which they had bought on contract for $3,500, of which $900 was still to be paid. In his hours off duty he cared for the yard and garden and kept up the little repairs about the place. They had a married son who had a home of his own.
Out of Mr. Pattriclc’s weekly wages about $3.50 was consumed by him personally for clothes and incidentals. The balance was used in paying for and maintaining the home, paying the household and living expenses of both of them, and for plaintiff’s clothes and incidentals. Answering a special question, the jury found that plaintiff lost $21 a week by reason of the death of her husband. Apparently this did not take into account the fact that the grocery bill for two would be larger than for one. Answering another special question, the jury found the deceased contributed $12.30 to the support of plaintiff. This finding is hardly consistent with the one just mentioned. It was just half of the earnings of the husband. Perhaps the finding was prompted by testimony that neither plaintiff nor her husband attempted to take any advantage of the other in the use of his earnings, but obviously it did not take into account the fact that a place to live and items which make up the expense of maintaining a home are substantially the same for one person as for two.
It is the well-settled rule of law that the amount of the recovery in a case of this character is limited to the financial loss sustained by the plaintiff. (G. S. 1935, 60-3203; Aaron v. Telephone Co., 89 Kan. 186, 194, 131 Pac. 582; Hilliard v. Southern Kansas Stage Lines Co., 146 Kan. 288, 70 P. 2d 28.) The amount of the general verdict, $6,150, indicates the jury arrived at it by allowing plaintiff $21 a week for the time of the life expectancy of her husband, 5.11 years, plus the expenses of his last illness and burial. The court had instructed the jury that for the purpose of determining the probable duration of the life of the decedent, had he not met death by acci dent or injury, the table of life expectancy admitted in evidence might be considered in connection with all the other evidence adduced bearing on that question, and no complaint is made of this instruction. It seems clear the general verdict does not take into consideration loss of wages or possible expense resulting from loss of time by reason of health failing from natural causes, a thing reasonably certain to happen when we consider the age of plaintiff’s husband. Neither does it take into consideration some items necessary for his support, nor the fact that payment is being made in advance. We think the general verdict is at least $1,500 too high.
Appellant contends the evidence does not show that plaintiff paid the expenses of her husband at the hospital, the doctor bills and funeral expenses, the amounts of which are not controverted, and argues it was improper , for those items to be considered because of the lack of such evidence. The record discloses that Mr. Pattriek and his employer were operating under the workmen’s compensation act, that the employer paid compensation, including these items, and that this action is prosecuted by the employer and plaintiff in her name, as is authorized by G. S. 1935, 44-504. Necessarily the proceeds of the judgment in this case will be apportioned between them as “their interests may appear.” We think this was proper. (Marshall v. Miller Bros., 112 Kan. 706, 212 Pac. 883.) Any arrangement between plaintiff and her husband’s employer growing out of their relations under the workmen’s compensation act does not lessen or increase appellant’s liability. (See Long v. American Employers Ins. Co., 148 Kan. 520, 83 P. 2d 674.) There was no error in this respect in the trial court.
If plaintiff will remit $1,500 of the judgment, and so advise the clerk of this court within ten days after this opinion is filed, the judgment of the trial court will be reduced to $4,650, and as so reduced will be affirmed; otherwise it will be reversed for a new trial to be limited to the amount of the damages only. It is so ordered.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action to recover from a father and son damages sustained in a collision on the highway. At the close of the plaintiff’s evidence both defendants filed demurrers thereto, and the court sustained that of the father and overruled that of the son. Later the cause was dismissed without prejudice as to the son, and notice of appeal was served as to sustaining the demurrer of the father.
Questions as to the injury of the plaintiff and the negligence of the son are not involved in this appeal; they are considered as having been established by the evidence. But the main question here for consideration is the liability of the father for the negligence of the son, and in that matter there is involved the question of joint adventure.
The father was not in the car with the son at the time of the collision. He was a half mile away and was going home in the same direction in another car. The plaintiff called the father as one of his witnesses, and he testified mostly about the occasion which brought him and his son on this highway at the time of the collision, which occurred about 8:30 on an evening in August.
The following are undisputed facts: The son lived at his father’s home on a farm. They owned an automobile together. They were working in a harvest field that day a short distance from their home, and when they were ready to go home at the close of the day’s work they found the automobile would not start. A neighbor pushed their car to their home. They decided it should be taken to the repair shop at once so as to be ready for use the next day. Jarvis, a son-in-law of the father, was stopping temporarily at the father’s home and his car was there in the garage. The father and son decided to borrow the Jarvis car — although Jarvis was not there at the time — and use it to push their car to the repair shop. They did so, and the car was repaired in about fifteen minutes and they started back toward home, the son going ahead in the Jarvis car and the father following in the repaired car. They were traveling in the same direction about a half mile apart when the collision occurred by the Jarvis car running into the wagon driven by the plaintiff, in which collision the plaintiff and one of the mules tied behind the wagon were injured.
The father came up to the place of the collision very shortly after it occurred, and the conversation is given by the different witnesses with some slight variations. The father’s name was Morton Hall and the son’s name was Milton Hall.
Appellant calls our attention especially to the following testimony of the plaintiff as to the conversation at the place of the collision after the father reached there:
“Q. You may give that conversation as near as you can. A. Morton Hall said they had been over in the hayfield and he said ‘we couldn’t get our caito run’ or get it started, I don’t know which. He said they borrowed the Jarvis car to pull it over in the valley to the shop over there to get it fixed and was on their way home when this took place.”
Appellant also called attention to a question and answer in the testimony of Morton Hall:
“Q. Mr. Hall, was the accident or collision in this case, or did it rather occur on your way to the garage or coming from the garage? A. Coming from the garage home.”
Defendant calls our attention to the following testimony of Morton Hall:
“Q. What use did you make of the Hugh Jarvis car that afternoon or evening? A. You mean that evening on that trip?
“Q. Yes? A. Milton Hall took the Hugh Jarvis ear to push this ear over to Riverton.
“Q. Over to the garage? A. Over to the garage, yes, sir. . . .
“Q. You couldn’t get your partnership car started there on the farm? A. We couldn’t get it started in the hayfield where we were at work.
“Q. That was your reason for taking it over to the repair shop? A. Taking it over to get it repaired.
“Q.' And for the purpose of pulling it over to the shop, the partnership car, over to the shop? A. Yes, sir.
“Q. I will ask you what arrangement you made with your son to take this ear over to the garage, if any? A. ... I said, ‘Are you boys going away tonight?’ Waldo said, T have to go to Baxter,’ and Milton said, T have to go after Hugh (Jarvis). I can take you over there first.’
“Q. Now, after you got the car started where, if any place, did your son go? ... A. He went to Melrose.
“Q. And where did you go? A. I started for home.
“Q. What road did your son take to Melrose? A. Taken the road straight back the way we had gone.”
The only question involved in this appeal is whether the trial court was right in holding as a matter of law that the plaintiff’s evidence failed to show joint enterprise at the time of the collision such as to render the defendant, Morton Hall, liable. Of course, in passing on a demurrer to the evidence the court must consider not only the evidence favorable to the plaintiff, but also the surrounding circumstances from which inferences could be drawn in favor of the plaintiff.
Appellant cites authorities as to the rule in passing on a demurrer to evidence that the court must not weigh evidence or decide between conflicting evidence, and we unhesitatingly agree with that rule as expressed in the cases cited; viz., Acker v. Norman, 72 Kan. 586, 84 Pac. 531, and Stallings v. Graham, 146 Kan. 867, 73 P. 2d 1090. Strictly speaking, there is no conflicting evidence here. The difference pointed out is where the plaintiff quoted the father as saying in the conversation shortly after the collision that they had been to the repair shop to get the car fixed and were “on their way home when this took place,” and the father in his testimony, when asked whether the collision occurred on the way to or coming from the garage, said “coming from the garage home.” The testimony which appears slightly different from the statements about going “home” from the garage is that which is said about the son having to go after Jarvis but going to the garage first and then going to Melrose, taking “the road straight back the way we had gone.”
Appellant argues that this trip to the repair shop to get the car (which was jointly owned) repaired was not ended until the father and son had gotten back home with the repaired car and the borrowed Jarvis car. The use of the word “home” in the testimony does not seem to make that place the necessary termination of a joint adventure, if such it was. It is not out of harmony with the quoted statement of the son 'that he had to go after Jarvis, but could go to the repair shop first, and the father’s statement that the car was repaired and the son went to Melrose, going on the same road they came. The appellant insists that as a joint adventure by the two owners of the car, it could not end until they returned the borrowed car to the place they got it. That might be the case if Jarvis were the plaintiff and had sued to recover the value of the car or the amount of damage done to it while on such trip. But plaintiff’s rights are not enlarged nor lessened by any right or claim that Jarvis might have. It is argued by the defendant that if there was a joint adventure here, it was to get the jointly owned car repaired and that it ended when it was repaired; and the going home, or one going to Melrose and the other going home, was not a necessary part thereof. All we find it necessary to conclude here is that there is no conflict calling for the weighing of the testimony and no substantial inferences that can be drawn from this testimony to supplement the general testimony as to such a joint adventure making the father liable for the negligence of the son.
Counsel for appellant admit frankly that the joint ownership of the car, standing alone, would not make both of the defendants liable for the collision, but they rely upon the joint effort of the joint owners to get the car repaired as making both of the owners liable for the collision which occurred while they were carrying out that effort to have the car repaired.
Appellant cites the following language used in the opinion in the case of Howard v. Zimmerman, 120 Kan. 77, 242 Pac. 131, in support of his contention that the father had equal privilege and authority to control the car driven carelessly by the son, although he was a half mile from the place of the collision when it occurred:
“The term ‘joint enterprise’ is not helpfully elucidated by definition. An enterprise is simply a project or undertaking, and a joint enterprise is simply one participated in by associates acting together. The basis of liability of one associate in a joint enterprise for the tort of another is equal privilege to control the method and means of accomplishing the common design. If the means employed be an instrumentality negligent use of which inflicts injury, the associate whom the law regards as participating in the conduct of the actor must have had equal control over its use. This control, however, need not have extended to actual manipulation at the time injury was inflicted. It is sufficient that, at the beginning of the enterprise, or as it progressed, or at any time before the tortious event, he possessed equal authority to prescribe conditions of use.” (p. 79.)
The interpretation the appellant gives the language used in the opinion goes further than the application thereof to the facts in that case. There both parties were riding in the car involved in the collision, one at the wheel and the other in the back seat, and it was held that the one in the back seat had equal authority as to the road they should take and the speed of the car.
To bring the case at bar under the rule of joint adventure in the driving of the cars back from the repair shop would go to the extent of an equal right to direct and govern the driving of the car. This could not be when they were driving separately and a half mile apart. It was held in Farmer v. Central Mut. Ins. Co., 145 Kan. 951, 67 P. 2d 511, that—
“Parties taking an automobile trip are not engaged in a joint enterprise within the law of negligence unless there is a community of interest in the object and purposes of the undertaking and an equal right to direct and govern the driving of the car, and to determine the point of destination.” (Syl. ¶3.)
In 45 C. J. 1020 it is said:
“Where persons are engaged in a common or joint enterprise and each has an equal right to direct and control the conduct of the others with respect to the acts or omissions which contributed to cause the injury, the negligence of one of such persons is imputed to each of the others. . . . Each must have some voice and right to be heard in its control and management, and the mere fact that two persons are doing something together does not make each chargeable with the negligence of the other, nor does the fact that they have certain plans in common.”
In Link v. Miller, 133 Kan. 469, 300 Pac. 1105, it was said:
“Appellant calls attention to the fact that all were on their way to the funeral. He argues that since they were on the journey for a common purpose the venture was a joint one. The fact, however, that the,trip upon which people are engaged has a common purpose is not conclusive upon the question of joint venture. All the surrounding facts and circumstances must be considered. The decision turns upon whether there was mutual purpose and equal privilege of direction and control and whether they were traveling in the same vehicle in pursuit of a common object.” (p. 471.) (See, also, 48 A. L. R. 1061.)
The negligence of the son was not in the fact of traveling on a certain road or driving the Jarvis car, concerning which the father might have had a voice or control, but it was alleged to have been in driving at a high and dangerous rate of speed without giving proper attention ahead, without proper lights, giving no horn or other signal, and in driving the automobile into the rear end of plaintiff’s wagon, striking said wagon and one of the mules. Under these allegations of the son’s negligence, the father, being a half mile away, had no chance or opportunity for the exercise of equal control, direction or management of the car driven by the son, regardless of the question of whether there was a joint adventure in the effort to have the jointly owned car repaired.
It required no weighing of the testimony for the trial court under the facts, circumstances and favorable inferences therefrom to reach the conclusion that the testimony of plaintiff and favorable inferences therefrom were insufficient to establish a liability of the father for the damages claimed by the plaintiff for the negligence of the son.
The judgment is affirmed.
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The opinion of the court was delivered by
Allen, J.:
The proceedings to be reviewed in'this appeal relate to the pleadings. This is the second appearance of the case. (Fleming v. Campbell, 146 Kan. 294, 69 P. 2d 718.) On the former appeal we upheld the judgment of the trial court in sustaining a demurrer to the second cause of action, and the ruling of the trial court in striking out certain portions of the first cause of action. After the mandate of this court wént down to the district court the appellant filed his third amended petition.
The first cause of action in the petition which was before this court on the' former appeal was on the contract. Certain allegations relating to fraud were stricken. This will appear by a quotation from the former opinion, 146 Kan. 294, 297:
“Other allegations stricken from the first cause of action, and from which ruling an appeal was taken, pertain to the alleged fraud on which the second cause of action was based. That those allegations pertained to fraud is admitted in plaintiff’s brief. They were properly stricken from the first cause of action, which was an action for damages on the ground of alleged breach of contract. A cause of action must be drawn on a definite theory. (Turner v. Jarboe, 145 Kan. 202, 64 P. 2d 26.) The allegations, if deemed necessary by plaintiff, should have been made in the second cause of action.”
The third amended petition appears to be a restatement of the action on the contract as pleaded in the first cause of action in the former suit. The only alteration is that some of the matter stricken has been reincorporated in different form, and allegations of new matter have been inserted. This is set forth in appellant’s brief:
“Plaintiff then filed his third amended petition upon the same theory as the previous petitions and upon the same ground, but added some of the allegations theretofore stricken in a different manner and coupled with allegations of new matter not in the original petition, giving the defendant a full and more explicit petition by way of additional facts.”
The trial court sustained a motion to strike the allegations which had been formerly stricken and also the new matter not in the original petition. From these orders the plaintiff appeals.
As stated above, it is admitted that some of the allegations stricken have been reincorporated in a different manner. As to such material the general rule is that our action on the former appeal became the law of the case, and the action of the trial court in striking this material is sustained. (Henry v. Railway Co., 83 Kan. 104, 109 Pac. 1005.) There should be a finality to decisions. Courts refuse to reopen what has been decided. In Messenger v. Anderson, 225 U. S. 436, 32 S. Ct. 739, 56 L. Ed. 1152, it was said:
“In the absence of statute the phrase, law of the case, as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to [re] open what has been decided, not a limit to their power.” (Syl. ¶ 2.)
And in a later case (Southern Ry. Co. v. Clift, 260 U. S. 316, 319, 43 S. Ct. 126, 67 L. Ed. 283) it was stated: “The prior ruling may-have been followed as the law of the case, but there is a difference between such adherence and res judicata; one directs discretion, the other supersedes it and compels judgment.”
As stated in Henry v. Railway Co., supra, the practice of the courts in refusing to reopen matters once decided is not an arbitrary, inflexible rule. It is, however, a salutary rule to be applied with discretion. We think it should be applied under the facts here presented.
An inspection of the petition discloses that the additional matter in the petition is not confined to ultimate, material, operative facts as required by the code (G. S. 1935, 60-704), but consists of the recital in detail of mere evidentiary matter. Whether a motion to strike such matter should have been sustained was clearly within the sound discretion of the trial court. As it does not appear that such discretion was abused, the order of the court in striking such evidentiary matter must be sustained.
It follows the judgment must be affirmed. It is so ordered.
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The opinion of the court was delivered by
Thiele, J.:
Plaintiff brought his action for specific performance of a contract with a person since deceased whereby he was to receive real and personal property. Certain of the defendants demurred to his petition, and their demurrer being overruled, they appeal to this court.
Omitting formal allegations, the petition alleged that plaintiff was a minor eighteen years of age; that Ellen Amelia Shelton Gifford died August 1, 1936, leaving a last will, since duly admitted to probate, under which she devised her farm to her niece, the defendant lone E. Snyder, and that she died intestate as to the remainder of her property, and that defendant G. E. Pees was appointed administrator with the will annexed of her estate. Allegation was also made as to the persons who survived her, and who, by reason of the postnuptial contract hereafter mentioned, would be her heirs at law, all of such persons being made parties defendant. Her husband, Burton C. Gifford, was not made a party defendant. It was further alleged that Ellen Amelia Shelton Gifford was a resident of LaPIarpe, Allen county, for many years; that she had been twice married, that her first husband died in 1934, at which time she was about 75 years of age; that she had no relatives living in or about her home and that none of them visited or communicated with her except the defendant lone Snyder; that she soon tired of living alone and married Mr. Gifford, a neighbor; that they did not get along well and he frequently left for considerable periods of time, and on August 1, 1935, they entered into a postnuptial contract, a copy of which was made a part of the petition. The general purpose of this contract was to provide that each was to control his own separate property, with right to dispose of it, and upon death of either party, the survivor took nothing, each having the right to dispose of his or her property by will, and—
“the separate property of each party hereto shall go and descend to the legal heirs of said decedent as if the parties had never been married to each other.” ■
It was further alleged after the making of the agreement Mr. Gifford spent considerable time away from their home, during which time Mrs. Gifford was left alone, and that when he was at home they were not always congenial and there was quarreling between them, which continued until the following occurred: Mrs. Gifford had never made a habit of visiting with her neighbors, but remained close to her own home, and had no close friends. On account of the death of her first husband and the absence of her second husband, she was lonely and without companionship and had no one to take her places and care for her, and about March 1,1936, she commenced verbal negotiations for the plaintiff to come and make his home with her for the remainder of her life, and in consideration of his doing so she would buy him a car, clothe, keep and educate him and at her death he should have all of her real and personal property except the farm which she had willed to her niece, the defendant lone E. Snyder, and that about March 23,1936, after consideration, he accepted her offer; that to show him her right to make such a contract she delivered to him the postnuptial contract above referred to, which he retained; that at the time he made his verbal contract with her he was a junior in the high school at Chanute, Kan., and had attended there since his freshman year; that during the summer months and while attending school he had worked at a .certain grocery store, but upon accepting Mrs. Gifford’s proposition he quit his job, withdrew from school, and moved to her home in La Harpe; that he immediately entered the high school there and continued until the end of the school year; that on March 26, 1936, Mrs. Gifford purchased a Ford coupé, the title to which was taken in her name, as plaintiff was not to have her property until her death, the automobile being used for taking her riding, to places where she wished to go and for her own pleasure and enjoyment. It was further alleged that when the verbal contract was made Mrs. Gifford was in good health and free from any serious illness or disability; that suddenly and without warning, about July 25, 1936, she became seriously ill, and she was taken to a hospital at Iola, Kan., where she was operated upon the day she was taken there, and later, and on August 1, 1936, she died;, that pursuant to the contract, during the time plaintiff was in her home he was her constant companion, devoted all his time outside of school hours to her, took her riding and to such places as she wished to go from time to time, was kind and obedient to her, and did all he could to make her life cheerful and enjoyable, and when she became ill he obtained medical attention for her, and after she was taken to the hospital he visited her daily. It was further alleged that plaintiff had fully and completely performed his part of the contract with Mrs. Gifford and was entitled to have the contract specifically performed; that he had possession of the above-mentioned automobile and constructive possession of her home, and her administrator had possession of all other property as to which she died intestate; that an inventory and appraisement on file in the probate court showed the value of all her real and personal property at her decease, except the farm devised to defendant lone E. Snyder, was $6,540.21; that the administrator had collected certain rents on real estate subsequent to her death. The prayer of his petition was for specific performance of the contract, for decree adjudging him to be owner, barring all defendants, and for such further relief as plaintiff may in equity and good conscience be entitled.
Three of the defendants named as heirs of the decedent demurred to the petition on the grounds the court had no jurisdiction of the subject of the action and that the petition did not state facts sufficient to constitute a cause of action. The defendant administrator filed a like demurrer. These demurrers were overruled and the demurring defendants appeal.
The first ground of the demurrer was that the trial court had no jurisdiction of the subject of the action. The argument in support seems to be based partly on the ground that appellee had a remedy in the probate court, a matter which will be referred to later, and partly on a claim the contract in question was only partly performed. The petition alleges full performance, and for our purposes here that is admitted by the demurrer, hence Bahney v. Gross, 135 Kan. 446, syl. ¶ 3, 10 P. 2d 844, has no application. However, that case recognizes the rule in Anderson v. Anderson, hereafter referred to. Appellants also cite Johnson v. Lander, 140 Kan. 329, 36 P. 2d 1006. In that case claimants filed their claim in the probate court. Defendants there contended the plaintiffs were seeking to specifically perform a contract, and that the district court was .the proper forum. A review of some of our decisions respecting jurisdiction of the probate and district courts was made, and it was held that the claimants there were not seeking equitable relief. In that case it was held:
“The probate court is the proper forum for establishing a claim against a decedent's estate for services rendered by the claimant to the decedent in his lifetime, unless the claim shows on its face that equitable considerations enter into its allowance or the title to real estate is involved.” (Syl. ¶ 1.)
And there is nothing in Kothman v. Markson, 34 Kan. 542, 9 Pac. 218, which leads to a conclusion that the district court is without jurisdiction to entertain an action such as is alleged in the petition now before us. It must be conceded here that equitable principles are involved and hence the district court had jurisdiction.
Under the other ground of the demurrer, i. e., that the petition does not state facts sufficient to constitute a cause of action, five different questions are presented which will be noticed hereafter. Before proceeding to a discussion of these questions, it may be observed that the petition states a cause of action for some relief. Perhaps on trial, and in view of the law as applicable to the facts which may be established, the plaintiff may not have specific performance, but that would not mean he could not have compensation if he could establish value for services rendered. In such a view the petition states a cause of action. Plowever, we shall discuss later the questions presented. And the following observations may also be made. We have many decisions touching various phases of actions wherein it was sought to specifically perform contracts to make wills, convey property, etc., in consideration of services to be rendered during the lifetime of the promissor. On the general subject, one of our leading cases, often cited, is Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743, wherein it was held:
“Whether equity will decree the specific performance of a contract rests in judicial discretion and always depends upon the facts of the particular case. As a rule, when a definite contract to leave property by will has been clearly and certainly established, and there has been performance on the part of the promisee, equity will grant relief, provided the case is free from objection on account of inadequacy of consideration and there are no circumstances or conditions which render the claim inequitable.” (Syl. ¶1.)
In the present state of the case before us, and on the theory specific performance alone was sought, the contract is admitted, as is the performance of the promisee, and before we can say the trial court erred in overruling the demurrer, we must be able to- say, as a matter of law, that the petition discloses there was inadequacy of consideration and circumstances and conditions which render enforcement of the contract inequitable.
Appellants argue that the early death of the promisor prevents enforcement of the contract, and they direct our attention to the early case of Baldwin v. Squier, 31 Kan. 283,1 Pac. 591, wherein the period in which services were performed did not exceed eighteen months, and where it was held:
“Where A, the owner and in possession of a tract of land, made a parol contract with B that if she would come and live with and take care of him till his death he would give her the land, and in pursuance of such contract she came, lived with and took care of him till his death; and where there was no contract in reference to making a will; and where it does not appear that there was any difficulty in estimating the value of B’s services prior to A’s death, the same taking place within a year and a half, held, that there was no such part performance as took the case out of the scope of the statute of frauds.” (Syl.)
And, also, to Hazleton v. Reed, 46 Kan. 73, 26 Pac. 450, where the period of service involved was about eighteen months. A reading of the last case will disclose that it is hardly in point here, as was pointed out in Bless v. Blizzard, 86 Kan. 230, 234, 235,120 Pac. 351, a case much more like the one at bar. Appellant also refers to Bahney v. Gross, 135 Kan. 446, 10 P. 2d 844, contending the principle of the case is controlling. In that case it is recognized that the rule in Anderson v. Anderson has been consistently followed. Ap plication of that rule showed the petition there involved was demurrable because the promisee had not performed fully, had received some monthly compensation, and if he had anything due him it was the basis of a claim in the probate court. The petition now before us does not show a like situation. Application of the principle of that case leads to the conclusion that mere early death of the promissor did not deprive the promisee of his right to specific performance.
Appellants also contend the value of the services rendered can be readily ascertained and compensated, and appropriate relief given appellee upon his filing a claim in the probate court, and that the services rendered are not extraordinary or unusual in their nature. We have some difficulty in seeing how these questions may now be determined as a matter of law in view of the allegations of the petition, which are here entitled to a liberal interpretation in favor of the pleader, who was not compelled to plead his evidence, whatever it may be on a trial of the action. Each case of this type varies from the others. In Bless v. Blizzard, supra, the contract was between an elderly man and his young nephew, who was “to stay with and care for” his uncle, in consideration for which the nephew was to receive certain property. The uncle died in about eighteen months. In an action to enforce the contract it was contended the contract was without adequate consideration and was inequitable because of the shortness of time. This court said:
“The evidence shows that Noel was seventy years old and was afflicted with physical maladies which made close association with him repellent, and at the same time placed him in need of personal care and attention. His home was broken up. His wife and daughter were turned against him. He might live a long time, but he was not a sufferable addition to the family of any friend, and to others he was impossible. Bless was a young man of twenty-three years, apparently of the normal type, including the disposition to be loyal to one who had stood in the place of a father toward him. He was the one person to whom Noel could turn for care and attention touched and sweetened by that personal regard which fortifies considerate and patient endurance of unpleasant and even nauseating tasks, and which money cannot buy. So Noel said to Bless, 'Stay with me and care for me until I die and I’ll will you my land.’ Bless consented, and thereby, for a time as uncertain as the duration of Noel’s life, cut himself off from the pleasures, the prospects and the opportunities of a young man of his station and took upon himself the burden of Noel’s care through trying days and more trying nights — a renunciation and a task not easy of estimation according to exact pecuniary standards. The case therefore is one in which the consideration for the contract lies in the breadth and scope of the undertaking, rather than in the fact of service for a particular time.” (p. 233.)
And Hazleton v. Reed was commented on and its inapplicability to the facts noted.
A somewhat similar contention was made in Schuler v. Rehberg, 145 Kan. 176, 64 P. 2d 571, wherein it was said:
“Appellants argue the value of the services shown to be performed by plaintiff readily could be ascertained and paid in money; that they were inconsequential compared to the value of the property; hence, it was error to decree specific performance of the contract, citing on this point Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743; Woltz v. First Trust Co., 135 Kan. 253, 261, 9 P. 2d 665; Laupheimer v. Buck, 135 Kan. 631, 637, 11 P. 2d 721. These authorities are to the effect that courts of equity will decline to decree specific performance where the services performed, or to be performed under the contract, are inconsequential compared with the compensation to be paid. In applying that principle, however, courts are reluctant to make new contracts for parties. In this case the court cannot say that the contract, when made, was so inequitable in this regard that it should not be enforced. At the time the contract was made Herman Rehberg was seventy years of age. Generally speaking, his health was good, aside from his attacks of heart trouble, the seriousness of which possibly none of the parties realized, and which perhaps he discounted. He might have lived ten or even twenty years, and his health might have been such that the care required would have made the compensation agreed to be paid and accepted look meager. In that event perhaps appellants would have been glad there was a limitation placed in the contract upon the amount plaintiff was to receive. It is only because his death occurred a little less than two years after the contract was made that the compensation seems large. No doubt the fact that he had made a suitable provision for his care for the remainder of his life, whatever time that might be, for a definite portion of his property, was a thing he regarded as of value. The trial court did not regard the value of the property to be left plaintiff so out of proportion to the services to be performed under the contract, and which were performed, as to justify refusing specific performance. This, also, was the view of the advisory jury. The disproportion is not so great that we should say, as a matter of law, the contract made should be disregarded, and that plaintiff should have presented her claim against the estate for services performed. She is not a person who had been accustomed to work for wages in the homes of others.” (p. 183.)
In Bateman v. Franklin, 114 Kan. 183, 217 Pac. 318, a youth of 16 years went to live with his uncle and aunt under an agreement that if he would do so, live with them as a member of the family, assist in the farm work and stay until he was twenty-one, he should have certain property. After their deaths, he sought to enforce the contract. In disposing of the cause it was said:
“The contract, though oral, had been fully performed on plaintiff’s side, so the statute of frauds, which was not pleaded, would not bar ■ the action. (Meador v. Manlove, 97 Kan. 706, 711, 712, 156 Pac. 731.) Though the time of performance on the part of the uncle and aunt could not be definitely fixed, the time might have matured within a year by their death. (Dubbs v. Haworth, 102 Kan. 603, 171 Pac. 624.) There was no breach, and there could not well have been a breach (except perhaps by dissipation of all the money received from the sale of the farm) until the death of the surviving promisor. Nor was there anything inequitable about tlie contract to deny its enforcement. Rather the contrary. This plaintiff, in his callow years, was induced to leave his father’s rooftree and the society of his own family, and take up his abode and adjust his habits and inclinations to conform to the rules and customs of his uncle’s household, and to render the service and obedience of a dutiful child to them during his minority. Why is he not entitled to receive his due? Courts are instituted for the administration of justice, not to withhold it. Of course, this is the sort of case where the triers of the facts, and especially the trial judge, must be a-lert to see that estates are not plundered through false and fraudulent claims, and where there must be careful and conscientious sifting of the evidence. But such claims may be bona fide, and when they are such and are established by clear and convincing evidence, they are perfectly legitimate and must be respected and enforced. (Baldwin v. Baldwin, 73 Kan. 39, 46, 84 Pac. 568; Meador v. Manlove, supra, 713; Nash v. Harrington, 110 Kan. 636, 205 Pac. 354.)” (p. 184.)
Among other cases, appellants direct our attention to Renz v. Drury, 57 Kan. 84, 45 Pac. 71, as supporting their contention, that the value of services rendered, if any, is easily ascertainable, and therefore the petition states no cause of action for specific performance. In that case the claimant had been taken into the home of the claimed promisors when a mere infant, and did not know she was not their own child until she was about fourteen years of age. She was permitted on the trial to testify that her foster father then told her that if she would remain in the home she should inherit one half of their property. In this court the judgment of the trial court in her favor was reversed for error in admitting the above-mentioned conversation, because no legal adoption was proved, and for the reason that:
“Specific performance of a parol agreement to make a foster child, not legally adopted, an heir, in consideration of her personal services, will not be enforced as to real estate not owned by the foster parents at the time of the agreement, when the value of such services is easily ascertainable.” (Syl. ¶ 3.)
the court in the opinion saying:
“In the present case, the value of the services of Virginia from the time that said contract was made until she married was easily ascertainable, and might have been recovered on a quantum meruit, as held in Wallace, Administrator, v. Long, Guardian, supra.” (p. 89.)
However, in Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743, heretofore referred to, it appeared that claimant’s parents and the promisors had made an agreement whereby the promisors were to take claimant into their home in all respects as their own child and she was tó be left all property of which they died possessed. The claimant brought suit for specific performance and recovered. In discussing her rights, this court said:
“We cannot agree with the contention of the defendants that the terms of the contract are incomplete and uncertain. Its terms provided that the Palmlunds were to receive Hilda Anderson at the age of eight years into their home; to care for, raise and educate her; to have her custody and control; and, in consideration of these benefits, and the opportunity thus afforded them to gratify their parental love and to receive her obedience, society and services in all respects as though she were their own child, they agreed that she should be given whatever property they possessed when they died. The parents, in consideration of the future benefits to their child, surrendered the possession and control of plaintiff. She performed her part fully. The contract, then, so far as plaintiff is concerned, has passed from an executory to an executed one. All the authorities to which we have referred sustain the doctrine that a contract of this nature will be enforced when it is not inequitable.....We do not regard Renz v. Drury, 57 Kan. 84, 45 Pac. 71, as laying down the hard and fast rule that a court of equity should never compel the specific performance of a parol contract of this character, but rather as an illustration of the doctrine, recognized almost universally, that each case depends upon its own particular facts and circumstances, and the granting or denying of'the remedy rests in judicial discretion.” (pp. 128, 129.)
And in Bray v. Cooper, 145 Kan. 642, 66 P. 2d 592, the fact that love and companionship of a child cannot be accurately measured in money was recognized. It is deducible from the above -that there may be serious questions under certain circumstances whether companionship, affection and devotion can ever be measured in terms of dollars. Services of the above kind are often of such a peculiar character that it is difficult, if not impossible, to measure their worth with a pecuniary standard. Whether the desire of the promissor was to obtain companionship, affection and devotion, or mere help in performance of some household or other task, is a matter for consideration by the trial court. To some extent, at least, the question is whether the promissor here by her agreement received what she desired.
Space forbids a detailed analysis of other decisions of our court and of the courts of other jurisdictions cited by the parties in connection with the last-mentioned contentions. Attention, however, is directed to the exhaustive annotations on remedies for breach of decedent’s agreement to devise, bequeath or leave property as compensation for services found in 69 A. L. R. 14 and 106 A. L. R. 742. It may be that on a trial of the action the appellee will not be able to prove fully the allegations of his petition. We are not'now concerned with that. He does allege, however, and those allegations are all that are now before us, that Mrs. Gifford, being lonely and without companionship, and having no one to take her to such places as she wished to go, offered that if he would come .and make his home with her so long as she should live, she would give him certain property, and that he fully performed. That we must take as the fact. Had she lived for eight or ten years, could anyone say the appellee in equity and good conscience should not have that for which he bargained? He further alleges she was in good health when the contract was made, and that her death in about four months was sudden and unexpected. Is he entitled to any less for that reason? We do not believe that it should be so said as a matter of law.
Appellants also contend that because, as they say, the money value of appellee’s services is easily ascertainable, it would not be inequitable or constitute a fraud on appellee if specific performance be denied. What has been said heretofore is deemed a sufficient answer, and the same may be said as to the contention that the consideration of the contract is not adequate to support an action for specific performance.
We think it may not be said that the petition does not state a cause of action.
The rulings of the trial court on the demurrers to the petition were correct, and are affirmed.
Harvey, J., dissenting.
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action by plaintiff, who held a judgment against a defunct corporation to subject its corporate successor to liability for the satisfaction thereof.
The pertinent facts were developed without dispute. On March 17, 1935, plaintiff sustained personal injuries in a taxicab operated by the Peoples Taxicab Company, a corporation, in Wichita. On July 20, 1935, she commenced an action against that company for damages. The same day its entire assets, including its municipal licenses, office equipment and good will, were taken over by the Safeway Cab, Transfer & Storage Company, and the Peoples Taxicab Company ceased to do business. For convenience we will name these companies as the Peoples and the Safeway. The personnel of the stockholders, directors and officers, with a single exception, was identical in the two companies.
The minutes of the two companies recited the facts of the transfer of the assets and that the Peoples company owed a considerable sum to the city of Wichita for license fees; and it was agreed that the Safeway company or its officers would pay that indebtedness to the city. No provision was made for the payment of any other obligations of the Peoples company, but the Safeway company did in fact pay all the other obligations of the Peoples company to an aggregate sum of $3,525.07. No arrangement between the companies was made for the defense of the pending action brought by plaintiff against the Peoples company, but it appears that the parties to the transfer believed that any judgment plaintiff might secure would be paid by an insurance carrier. In the negotiations stated above there was no attempt to conform to any provision of statute governing the merger of corporations, nor for the winding up of the affairs of the Peoples company. Its summary dissolution was effected in December, 1935, by the simple expedient of not filing its annual report to the secretary of state in conformity with G. S. 1935, 17-701, which automatically caused a forfeiture of its charter. (G. S. 1935, 17-706.)
On December 19,. 1936, plaintiff’s action for damages against the Peoples company proceeded to judgment for $1,500 in her favor. That judgment was not paid, and plaintiff brought this action against the Safeway company, pleading the pertinent facts as summarized above. In its answer, defendant admitted that it had taken over all the assets of the Peoples company, but that at the time of the transfer plaintiff’s claim was not then a valid and subsisting indebtedness, and that the entire assets of the Peoples company which had been transferred to the answering defendant did not exceed the value of the obligations assumed and paid by the defendant; and that it was a separate, distinct corporation and not indebted to plaintiff.
When the cause came on for trial, counsel for the parties made extended opening statements. Counsel for plaintiff then moved for judgment on the pleadings and statements and admissions of counsel. Before ruling on this motion the trial court questioned counsel for the parties at length, and eventually sustained plaintiff’s motion and gave judgment in her favor.
Defendant appeals, objecting to the net result. It contends that the Safeway company was only liable for the debts of the Peoples company to the extent of the value of the assets it received from that company; and it asserts that it has already paid out more money in satisfaction of the obligations of the Peoples company than the total value of the assets transferred to appellant. On this point it cites Altoona v. Richardson, 81 Kan. 717, 106 Pac. 1025, where it was held that—
“Where one corporation becomes practically extinct, transferring all its assets to another and receiving in return stock in the other corporation, which succeeds to its business, the new corporation is liable, to the extent of the value of the property acquired, for the debts of the old one.” (Syl.)
A careful reading of the opinion in that case, however, will show that this court was not setting the maximum limit of liability of a corporation which takes over the entire assets of another corporation under such circumstances as were conceded to exist in the case at bar. Here the negotiators for the Peoples company and the Safeway company were identical. There was not a formal sale of the assets of the Peoples at a fixed price to the Safeway. The transfer of assets was prompted by the mere fact that the Peoples company was not in good standing with the city because it was delinquent in the payment of its license fees. And since the personnel of the two companies was practically identical, the most practical way — if •not the only one — the Safeway company could get a license to operate its taxicabs and other vehicles in Wichita was to take over the licenses of the Peoples company and pay up the latter’s delinquencies thereon. No formal arrangements were made to care for the other debts of the Peoples company, yet the negotiators deliberately disabled it from any possible further exercise of its corporate functions. Sometimes this sort of conduct on the part of corporations, whereby one acquires all the assets of another, is characterized as fraudulent. But it may not be intentionally so; perhaps no intentional fraud inhered in this transfer. But where the transfer of assets strips a debtor corporation of all its assets, and disables the corporation from earning money to pay its debts, thus leaving creditors and holders of claims no resources to which they may look for the payment of their due, the net result is in legal effect a fraud; and the courts will subject the transferee to liability for the satisfaction of claims against the corporation whose assets it has absorbed. The law books go into painstaking details in respect to merger, absorption, amalgamation, and consolidation of corporations, and in some of our own cases we have written at length on related phases of the same subject. (Berry v. K. C., Ft. S. & M. Rld. Co., 52 Kan. 759, 34 Pac. 805; Condenser Co. v. Electric Co., 87 Kan. 843, 126 Pac. 1087; Flemming v. Light and Power Co., 90 Kan. 763, 136 Pac. 228; Coal Co. v. Nicholson, 93 Kan. 638, 152 Pac. 763; First Nat’l Bank v. Willis, 128 Kan. 681, 280 Pac. 782; Shattuck v. Pickwick Stages Corp., 135 Kan. 602, 11 P. 2d 996.)
We think the instant case in its controlling aspects is quite analogous to that of Crozier v. Shoe Co., 103 Kan. 565, 175 Pac. 376, where the parties interested in a corporation caused a new corporation to be created and transferred to it the assets of the prior corporation and agreed that the latter should cease to do business. The negotiators, who, as here, were on both sides of the contract, made no provision for the payment or discharge of the general debts and obligations of the older company. This court said:
“They all agreed, in short, to deal with and dispose of the old company's assets and business as their own, and to create a nominally independent business successor for the old Menzies company. The contracting parties made some provision for the collection of outstanding accounts of the old company and for their application to the satisfaction of its debts, but the rights of creditors are not limited to any fund thus created. If that fund is insufficient or inconvenient to reach, they are entitled to sweep these agreements aside, for the contracting parties could bind nobody but themselves. They could not prejudice the rights of creditors. . . . The parties who brought about this arrangement and effected this transaction could not create and establish the appellant as the business successor of the old company and shape its corporate structure and business policy and endow it with the advantages of the latter without also imposing upon it the' disadvantages, that is, the liabilities of the old company. The capital and assets of the old company were a trust fund for the payment of its debts. The Wisconsin company holds and enjoys all, or nearly all, the assets of the old company; it did not procure them as a wholly independent purchaser at a fair sale, nor otherwise freed of the pertinent liabilities attaching thereto. (Citations.)” (pp. 566, 567.)
The case of Douglas Printing Co. v. Over, 69 Neb. 320, 95 N. W. 656, was essentially to the same effect. The first paragraph of the syllabus summarizes the pertinent facts and also the law:
“Where a debtor corporation transfers all of its assets to a new one, organized for the purpose of taking such assets and therewith continuing the business in which the former corporation was engaged, and no provision is made for payment of its debts and it ceases to do business, one holding a judgment against the old corporation may bring an action at law against the new one, and a finding in his favor by the trial court will not be disturbed, when the evidence shows that the circumstances attending the creation of the new corporation, and its succession to the business and property of the old, are of such a character as to warrant the finding that the new corporation is a mere continuation of the old one.”
It is quite true, of course, that one corporation may purcháse outright all the assets of another corporation at a fair sale and for a specified consideration, without being thereby subjected to the payment of debts of the vendor; but that rule applies where the contracting corporations and their representatives are dealing with each other at arm’s length, and where each side is looking out for the interest of its own corporation. That rule cannot be applied when the negotiators for both corporations are the same or virtually the same, and the transfer of assets is made merely for their own convenience and advantage. Here not only were the negotiators identical, but their main concern was to get rid of a situation whereby the Peoples company had lost standing with the city government of Wichita through its protracted delays and refusals to pay its license fees to the city. (Peoples Taxicab Co. v. City of Wichita, 140 Kan. 129, 34 P. 2d 545; Id., 294 U. S. 691, 55 S. Ct. 350, 79 L. Ed. 1231.)
In our survey of the authorities we note an attitude on the part of some eminent courts to give greater respect to the mere formality of separate corporate entities than is done in this jurisdiction. In Coal Co. v. Nicholson, 93 Kan. 638, 653, 145 Pac. 571, Mr. Justice Porter said:
“The decisions of this court indicate a tendency to disregard the theory of a corporation as an entity separate from its corporators where justice between the real parties to the transaction requires it.”
See, also, Cities Service Co. v. Koeneke, 137 Kan. 7, 28, 29, 20 P. 2d 460.
Under the pleadings and statements and admissions of counsel, we think the trial court reached a just and correct judgment in this case. (See Anno. — Corporation—Debts of Predecessor, 15 A. L. R. 1112 et seq.; 39 A. L. R. 143; 7 R. C. L. 183-184; 14A C. J. 890-892.)
The judgment is affirmed.
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The opinion of the court was delivered by
Allen, J.:
This is a proceeding in mandamus filed in the district court of Cloud county, wherein the state of Kansas prays for a peremptory writ ordering and requiring the defendants to correct the county social welfare budget of Cloud county in accordance with the recommendations, requirements and directions of the state board of social welfare. The record consists of the petition and writ, motions to quash the writ, separate answers by the defendant boards, and motion by the state to quash the answers. No evidence was introduced. The action of the trial court was in effect a judgment on the pleadings. The trial court sustained defendants’ motion to quash the writ, overruled the motion of the state to quash the answers, and denied a peremptory writ. Plaintiff appeals.
In this state of the record, we are confronted with the issues raised by the pleadings.
The petition states:
“Comes now the plaintiff, the state of Kansas, through and on the relation of Clarence V. Beck, the duly elected, qualified and acting attorney general of the state of Kansas, and for its cause of action alleges and states:
“1. That the defendants Frank A. Peterson, Herbert G. Moore and Aug Larson are the duly elected, qualified and acting members of the board of county commissioners of Cloud county, Kansas, and of the county board of social welfare of Cloud county, Kansas, and that Frank A. Peterson is the chairman thereof.
“2. That by the provisions of section 39-711, Laws of 1938, the board of county commissioners of Cloud county is made the county social welfare board of Cloud county.
“3. That in accordance with the provisions of subsection (g) of section 39-713, Laws of 1938, the defendants prepared and submitted the county welfare budget of Cloud county for the county budget year of 1939 to the State Board of Social Welfare on or about the 31st day of May, 1938.
“4. That the state board examined said proposed budget, and on June 25, 1938, made the following recommendations and requirements, to wit:
“ ‘1. Establish the amount of the monthly grants in conformity with the need as recorded in your file of D. S. W. 104’s.
“ ‘2. Adjust totals to include an equivalent average grant.’
“5. That on the 19th day of July, 1938, the defendants submitted to the state board of social welfare a revised county social welfare budget for the budget year of 1939, which revised budget was rejected by the state board of social welfare on July 30, 1938, and the state board of social welfare again directed the Cloud county board of social welfare to:
“‘1. Establish the amount of the monthly grants in conformity with the need as recorded in your file of D. S. W. 104’s.
“ ‘2. Adjust totals to include an equivalent average grant.’
“6. That on the 3d day of August, 1938, the defendants caused to be published the budget and financial statement of Cloud county, Kansas, in the Concordia Blade-Empire; that a copy of said budget and financial statement is attached hereto, marked exhibit ‘A,’ and made a part hereof; that the hearing on said budget and financial statement was set for the 15th day of August, 1938.
“7. That contained in said budget and financial statement was a ‘welfare fund,’ the same being the proposed county social welfare fund of Cloud county; that a copy of the budget items of said welfare fund is attached hereto, marked exhibit ‘B,’ and made a part hereof.
“8. That on the 10th day of August, 1938, a conference between the defendants and representatives of the state board of social welfare relative to the Cloud county social welfare budget was held, at which conference it was agreed that the state board of social welfare would make definite and specific recommendations and requirements to the defendants for each and every fund within the county social welfare fund.
“9. That notwithstanding the conference on August 10, the defendants held a hearing on the budget and financial statement of Cloud county, including the county social welfare budget, and on or about the 15th day of August did adopt the budget for Cloud county as published on August 3, 1938, and did adopt a county welfare budget as published on August 3, 1938, as set out in exhibit ‘B.’
“10. That on August 22, 1938, the State Board of Social Welfare, in accordance with the conference held on August 10, 1938, hereinbefore referred to, in a letter to the defendant Frank A. Peterson, made definite and specific requirements and recommendations to the defendants for each and every fund within the county social welfare fund; that a copy of said letter containing said definite specific requirements and recommendations for each and every fund within the county social welfare fund is attached hereto, marked exhibit ‘C,’ and made a part hereof.
“11. That the state board of social welfare, in making the definite and specific requirements and recommendations referred, to in paragraph numbered (10) and in exhibit ‘C,’ established such requirements and recommendations in conformity with the need as recorded in forms D.S. W. 104, and adjusted the totals to include an equivalent average grant.
“12. That the defendants have failed and refused to correct the county welfare budget in accordance with the directions, recommendations and requirements of the state board of social welfare made on June 25, 1938, again on July 30, 1938, and again and more specifically on August 22, 1938.”
Plaintiff prays for a peremptory writ of mandamus ordering and requiring defendants to correct the county social welfare budget in accordance with the requirements and directions of the state board made on June 25, 1938, July 30, 1938, and more definitely and specifically on August 22,1938.
The section of the social welfare act relating to the preparation and submission of the budget is as follows:
“The county board shall prepare and submit to the state board on or before June 1 of each year its county welfare budget in such detail as the state board may prescribe. The state board shall examine said proposed budget and approve the same or make such recommendations and requirements as it shall deem advisable and return the same to the county board on or before June 25 of each year. The county board shall correct said budget in accordance with the directions of the state board and shall submit the same as corrected to the board of county commissioners. It shall be the duty of the board of county commissioners to make such levies upon the taxable property of the county as is necessary to raise the funds required by the county welfare budget: Provided, The levy shall not be in excess of that authorized by law. In the preparation of said budget and in its examination by the state board there shall be taken into consideration the estimated amount of grants the county will be entitled to receive from the state welfare funds, including the federal aid contribution thereto.” (G. S. 1937 Supp. 39-713 [g].)
Mandamus is a discretionary writ. The writ of mandamus, whether alternative or peremptory, must not only show the obligation of the defendant to perform the act, but must also show his omission to perform it. (Rosenthal v. State Board of Canvassers, 50 Kan. 129, 32 Pac. 129.)
The petition alleged that in accordance with the provisions of G. S. 1937 Supp. 39-713 (g), the defendants, on or about May 31, 1938, submitted a county welfare budget to the state board of social welfare. The answer states the budget was not prepared and submitted by both defendants, but by the county social welfare board.
The petition alleged that the state board examined the proposed budget, and on June 25, 1938, made requirements and recommendations. The answer denies that on that date the state board made any requirements or recommendations as contemplated by law, but that the state board, by and through its director, sought to deprive the board of county commissioners of Cloud county of its lawful and discretionary duty of fixing and determining the levy to be made for welfare purposes.
The petition alleged that on the 19th day of July, 1938, defendant-submitted a revised budget, which was rejected, and that the state board again made the same requirements and recommendations. The answer admits that the revised budget was submitted, but asserts that the same was arbitrarily, capriciously, and without lawful right rejected; that the state board having failed to make recommendations and requirements as contemplated by law, the county social welfare board submitted the revised budget to the board of county commissioners.
Defendant contends the only definite and specific requirements made by the state board were by the letter to the chairman of the county board on August 22, 1938, shown as exhibit “C” attached to the petition, and this was long after the revised budget was prepared, published and adopted by the county board on August 15,1938.
The petition alleges that on July 25, 1938, and on July 30, 1938, the state board made the following recommendations and requirements :
“1. Establish the amount of the monthly grants in conformity with the need as recorded in your file of D. S. W. 104’s.
“2. Adjust totals to include an equivalent average grant.”
Defendants assert that the cabalistical symbols “D. S. W. 104’s” unexplained have no legal significance.
No evidence was introduced by plaintiff and the petition contains no information as to the meaning of form 104 referred to in the requirements and recommendations. Was it a form prescribed by the , state board? Was it a case worker’s record? Was it a county record, and if so, by whom was it compiled? Was the information given in No. 104 files accurate? Was it a record that would under the law serve as the basis for a budget? On these questions the court was without information. There is no allegation or proof the information in the No. 104 files was prepared by the county board, or that the information therein contained is correct. It would seem the county board was not supplied with authentic data upon which to base the budget for the coming year.
The petition alleges that the (state) board, by its letter of August 22, being exhibit “C,” required the county to increase county funds to $49,128.24, and estimated a total of all funds for 1939 at $82,-224.41, an increase over the total budget as fixed by the county board of $22,924.41. The increase in county funds was the difference between $49,128.24, demanded by the state, and $34,637.56, as budgeted by the county board, or $14,490.68.
There is no allegation in the petition that these increases were necessary. There is not the slightest claim that the totals appearing in the letter of August 22 were needed to adequately care for the old, blind and other dependents in Cloud county for the year 1939.
Since there is no claim that the amount budgeted by the county board was to any degree inadequate or deficient, and since it is not claimed that the increased amount demanded by the state board was necessary, how can it be claimed that the state of Kansas has any right to compel the board of county commissioners, by levying upon the taxable property of Cloud county, to raise an amount of money largely in excess of what is claimed to be necessary for the budget period?
As the petition stands, there is an utter absence of any claim that there is anything wrong with the budget prepared and published by the county board. The only claim is that on August 22 the state board demanded that the county board budget an additional $22,-924.41, which is not claimed to be needed, and to require the county commissioners to levy a tax on the property in Cloud county to compel the payment of such admittedly unnecessary sum.
The absence of any allegation that the amount budgeted by the county board is insufficient would seem to be an admission that the amount specified is adequate.
For the reasons stated, the petition fails to state facts upon which a peremptory writ of mandamus should issue.
In this view of the case it is unnecessary to consider the various questions as to the construction or constitutionality of the social welfare statutes, which have been argued by counsel.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This was an action for damages for personal injuries. The jury answered special questions and returned a general verdict for plaintiff and against the Broadview Hotel Company for $3,000, from which the hotel company has appealed. It also returned a general verdict against the plaintiff and in favor of the Skelly Oil Company, from which plaintiff has appealed.
Yery generally the facts may be stated as follows: Plaintiff resides in Atchison county. In May, 1936, he was an officer of the state oil department, with headquarters in Topeka. His duties required a considerable amount of travel, usually by automobile. He had an arrangement with the Skelly Oil Company by which it had issued to him a credit card which enabled him to buy on account the products of the Skelly Oil Company of any garage or oil station where they were sold and have a statement of his purchases sent him periodically from the Kansas City office of the Skelly Oil Company. The Skelly Oil Company has agents at various places in the state of Kansas upon whom service of summons can be made in an action such as this is. One of such agents is at Atchison. The Broadview Hotel Company is a corporation organized under the laws of this state, domiciled at Wichita, in Sedgwick county, where it operates the Broadview Hotel. It has no agents in any other county in the state. At the time in question one Robert F. Wilson operated an oil station and garage for the storage of cars under the name of the Broadview Garage, directly across the street from the Broadview Hotel, and he had a contract with the hotel company by which, among other things, he agreed to store automobiles of the guests of the hotel for a stated sum per month. On the evening of May 8, 1936, plaintiff, accompanied by Mr. Purcell, another officer of the state oil department, left his car at the Broadview Garage for storage, asked the attendant to fill it with Aromax gasoline, a product of the Skelly Oil Company, and to grease it ready for him in the morning, and was told that would be done, and he was given a storage ticket. He and Mr. Purcell then went across the street to the Broadview Hotel, where they registered and stayed all night. Near the clerk’s desk, and in their room, was displayed printed information that the storage of automobiles at the Broadview Garage was free to guests of the Broadview Hotel. Early the next morning he paid his bill at the hotel and went to the garage for his car. He gave his storage ticket to some man in front of the garage, who asked him if he could locate his car. He said he thought he could, and went back into the storage room of the garage for that purpose. In doing so he tripped and fell over or into a grease pit in the garage and sustained personal injuries for which this action was brought.
The action was brought in Atchison county, where service of summons was had upon an agent of the Skelly Oil Company and a summons for the Broadview Hotel Company was sent to the sheriff of Sedgwick county, where it was served upon an officer of the hotel company. We find it necessary now, in view of the separate claims of liability, the separate results, and the separate appeals, to deal with the case as to each defendant.
As to the Skelly Oil Company, plaintiff alleged Wilson was its agent “in the matter of furnishing service to automobiles and vending gasoline, oil and automobile supplies.” This allegation of agency was denied under oath. The evidence disclosed that Wilson rented the building, with its equipment, including gasoline service pumps, from R. G. Kirkwood, who owned the building; that he purchased outright, for resale, gas, oil and greases from various oil companies; that at the time in question he was so purchasing gasoline from the Skelly Oil Company and oils and greases from that company and several others. There was nothing to show any agency relation between Wilson and the Skelly Oil Company more than there would be between any retailer of merchandise and the wholesaler or producer from whom he purchased for cash. As tending to show agency, counsel for plaintiff stressed the fact that Wilson honored his credit card with the Skelly Oil Company; that in due time he received from the Skelly Oil Company, from its Kansas City office, a statement of his account, which included the gasoline and grease sold him by Wilson. The point is not well taken. The evidence is that Wilson honored such credit cards of eleven oil companies, and on a placard in his office that fact and the names of the oil companies were stated, and that Wilson simply turned this item in as so much cash on his purchase of the products of the Skelly Oil Company. The jury specifically found that Wilson was not the agent of the Skelly Oil Company. We think no other finding could have been made under the evidence. The trial court approved it. Plaintiff complains that the court refused to give his requested instruction to the effect that the agency of Wilson for the Skelly Oil Company might be inferred from the facts and circumstances and did not have to be established by direct proof. There was no error in the court’s ruling on this point. Here all the facts and circumstances tended to disprove such an agency.
While there is no cross-appeal on behalf of the Skelly Oil Company, its counsel point out that in fact the petition in this case did not state a cause of action against the Skelly Oil Company. At the most, the liability of the Skelly Oil Company as disclosed by the petition was that Wilson.was its agent for the sale of gas, oils and greases and servicing automobiles therewith. The petition does not allege that plaintiff sustained any injury by reason of any such agency, if it existed. His injury was sustained in connection with the storage of his automobile, concerning which the petition does not allege the Skelly Oil Company had anything to do, or that Wilson was its agent for the purpose of storing cars.
The Broadview Hotel Company first filed its special appearance and motion to quash the service of summons upon it on the ground that it is a corporation, with its principal, place of business in Sedgwick county; that it had no agent in Atchison county; that Wilson was not in fact the agent of the Skelly Oil Company, and that plaintiff's petition stated no cause of action against the Skelly Oil Company, and hence there was no basis for the issue of a service of summons for the defendant to be served in Sedgwick county. At the hearing of this motion affidavits tending to substantiate its allegations were presented, and the motion overruled.
In sending this summons to Sedgwick county for service apparently plaintiff was attempting to act under G. S. 1935, 60-509 and 60-2502. These sections apply to actions in tort as well as actions on contract. (Reiff v. Tressler, 86 Kan. 273, 276, 120 Pac. 360.) It is essential, however, that the action be bona fide against the resident of the county in which it is brought (King v. Ingels, 121 Kan. 790, 250 Pac. 306), for the general rule is that actions in personam can be brought only in the county in which defendant resides or may be summoned. (Heston v. Finley, 118 Kan. 717, 720, 236 Pac. 841; State, ex rel., v. Miley, 120 Kan. 321, 326, 243 Pac. 262; King v. Ingels, supra.) At the suggestion of counsel for plaintiff, acquiesced in by counsel for the hotel company, the question of the good faith of plaintiff in bringing this action against the hotel company in Atchison county was submitted to the court as a question of law rather than to the jury as a question of fact, although the fact this was done may be of no special importance in this case.
In the briefs and arguments quite a little is said about the good faith of plaintiff in this regard, and the hotel company offered some evidence on that question, which is stressed by its counsel. But as we view the record it is not necessary to impugn the motives of plaintiff or his counsel. As previously indicated, the Skelly Oil Company contends the petition never did state a causé of action against it, and the hotel company in its motion to quash.the summons made the same contention. Examining the petition, we think the point is well taken. The petition alleges that Wilson was the agent of the Skelly Oil Company for the sale of its products and servicing cars therewith; that Wilson was the agent of the Broad-view Hotel Company for the purpose of storing automobiles of the guests of the hotel, and that plaintiffs injuries occurred in connection with the storage of his automobile. Passing the fact that the evidence disclosed and the jury found Wilson was not the agent of the Skelly Oil Company for any purpose, and taking the allegations of the petition as they were made, it seems clear that the petition did not state a cause of action against the Skelly Oil Company. The only cause of action the petition stated, if any, was one against the Broadview Hotel Company. The venue of that action was in Sedgwick county, and the hotel company had a right to be sued in that county, if at all. It goes without saying, irrespective of the motives of plaintiff or his counsel, that a petition which seeks a personal judgment only, which does not state a cause of action against the resident defendant, is insufficient to authorize the sending of a summons to another county to be served upon another defendant. To permit that to be done would render nugatory the provisions of our statute (G. S. 1935, 60-509), which assures one that he can be sued only in his own county in such an action. The authorities accord with this view. In King v. Ingels, supra, it was said:
“It is elementary law that a plaintiff cannot ordinarily get an unwilling adversary into court without yalid personal service upon him in the jurisdiction in which the action is begun, nor can he accomplish that end by joining as defendant some mere nominal party upon whom personal service can be had in that jurisdiction when the plaintiff has in fact no bona fide cause of action against the defendant so nominally joined. (Brenner v. Egley, 23 Kan. 123; Rullman v. Hulse, 32 Kan. 598, 5 Pac. 176; 33 Kan. 670, 7 Pac. 210; Hawkins v. Brown, 78 Kan. 284, 97 Pac. 479, syl. ¶ 4; Hembrow v. Winsor, 94 Kan. 1, 145 Pac. 837.)” (p. 792.)
The result is, the special appearance and motion to quash the summons filed by the Broadview Hotel Company should have been sustained. Since the hotel company had no right to appeal from the order of the court overruling this motion it did not waive the question by answering and going to trial. (Oil Co. v. Beutner, 101 Kan. 505, 167 Pac. 1061; Clingman v. Hill, 104 Kan. 145, 178 Pac. 243; Maynard v. Bank, 105 Kan. 259, 182 Pac. 542.)
The Broadview Hotel Company contends there was error in the trial of the case on its merits. We find it unnecessary to go into these questions, if, indeed, it would be proper to do so. There was no legal reason for trying this case against the hotel company in Atchison county, and all that was done in the trial court after it ruled erroneously on the motion to quash the summons should be set aside.
The result is, the judgment of the trial court as it pertains to the Skelly Oil Company should be affirmed, and as it pertains to the Broadview Hotel Company should be reversed with directions to sustain its motion to quash the summons and to dismiss the action as to it. It is so ordered.
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The opinion of the court was delivered, by
Wedell, J.:
This was an action by a law partnership to recover attorney fees and certain expenses incurred in connection with litigation for the defendant. The defendant prevailed, and plaintiffs appeal.
The action was commenced February 3, 1933. An amended petition was filed and on June 6, 1933, defendant filed his answer alleging payment in full. On October 2, 1935, J. Graham Campbell, one of the members of the plaintiff partnership, died. The action was finally set to be tried on May 25, 1936. No administration had been had on the partnership estate nor on the individual estate of the deceased partner. No order of revivor had been made. Under these circumstances defendant objected to proceeding with the trial. Glenn, the surviving partner and counsel in this action for the plaintiff firm, admitted no administrator had been appointed, and informed the court none would be appointed. Defendant’s objection was at that time overruled and the action was ordered revived, and Vivian Campbell, wife of the deceased partner, was substituted for the deceased partner. Plaintiffs were given ten days to file a supplemental petition. Such petition was filed and was as follows:
“J. Graham Campbell, one of the plaintiffs in this case, died October 2, 1935, intestate, and there has been no administration of the estate, leaving this pleader as his widow and sole heir. This lawsuit survives to Mr. W. M. Glenn as the surviving partner of Mr. Campbell, and he is fully authorized by this pleader as the sole heir of J. Graham Campbell to proceed with the prosecution of this action.
“This pleader further alleges that she knows nothing about the facts of this case and has no different or additional allegations to make to the pleadings already on file. She makes all the allegations of the amended petition of the plaintiffs, filed February 25, 1933, a part of this supplemental petition by reference, the same as if fully incorporated herein.
“This pleader therefore asks that the plaintiffs may have judgment as prayed for in said amended petition.”
The action was finally set to be tried on January 18, 1937. The journal entry of judgment discloses that on the day of trial the defendant interposed a plea in abatement and a general demurrer to the amended petition and that the court took the matters under advisement and sustained both on September 7, 1937. The plea in abatement alleged in substance: The action was filed by the partnership; J. Graham Campbell died on October 2, 1935; no revivor of the action had been made in accordance with law; the time for revivor had expired and the action had abated; defendant was entitled to be discharged with his costs.
A disagreement is disclosed in the first briefs of the parties as to whether a demurrer was in fact interposed. Defendant admits the demurrer was oral. As heretofore stated the journal entry disclosed a demurrer had been interposed and sustained. Plaintiff’s specifications of error included both the ruling on the plea in abatement and the ruling on the demurrer.
Recollections of the parties, of course, cannot prevail against a positive record such as that affirmatively disclosed by a journal entry of judgment. (Wyckoff v. Brown, 135 Kan. 467, 468,11 P. 2d 720.) In the instant case we need, however, not place the decision on the question of whether a demurrer was interposed on the ground of the disclosures in the journal entry and the fact that the specifica tion of error expressly included the ruling on the demurrer. In their reply brief, plaintiffs consent to a review of the ruling on the demurrer. In reviewing the ruling we shall give plaintiffs the benefit of all allegations contained in the supplemental petition as the parties have argued the case on the basis of allegations contained therein as well as those contained in the amended petition.
Defendant insists the appeal should be dismissed for the reason the ruling on the plea in abatement is moot, as there was no appeal from the final order, the sustaining of the demurrer. He also insists that since there was no appeal from the ruling on the demurrer, there is nothing here for review. The appeal was from all adverse rulings, decisions and judgments, and defendant’s contention in this respect is not well taken.
The ruling on the demurrer will reach the vital question in this case. Did the court err in sustaining it? This was an action to recover a sum of money claimed to be due, not to any individual partner, but to the partnership. While a partnership has no existence separate and apart from the members which compose it, it is nevertheless an entity as to all matters germane to its interests or affairs. It has its own capital, its own assets and liabilities. In other words, the partnership estate is separate and distinct from the individual estates of its members. (Neiswanger v. Ord, 81 Kan. 63, 105 Pac. 17; Farney v. Hauser, 109 Kan. 75, 198 Pac. 178.)
In Jones v. Way, 78 Kan. 535, 97 Pac. 437, it was held:
“The interest of each partner in the partnership property is his share of the surplus after the payment of all partnership debts and the settlement of all accounts between himself and his partners.” (Syl. fl 1.)
See, also, Neiswanger v. Ord, supra; Farney v. Hauser, supra; Midwest Reserve Trust Co. v. Pioneer Cattle Loan Co., 119 Kan. 528, 531, 240 Pac. 587; 20 R. C. L., Partnership, § 84; 47 C. J., Partnership, § 221.
The collection of moneys owing to a partnership estate is one of the essential functions in the administration or winding up of the partnership. Under our law the administration of partnership estates is prescribed by statute and such administration is placed under the supervision and control of the probate court. (G. S. 1935, 22-401 to 22-409, inc.) These provisions preclude the settlement of partnership estates in any other manner. (Shattuck v. Chandler, 40 Kan. 516, 20 Pac. 225.)
The primary right to settle the partnership affairs rests with the surviving partner. (Clark v. Andrews, 136 Kan. 23, 27, 13 P. 2d 294, and cases cited.) In order to qualify for such administration he must give a bond (G. S. 1935, 22-402), the conditions of which are prescribed by statute (G. S. 1935, 22-403). (Ballinger v. Redhead, 1 Kan. App. 434; Presbury v. Pickett, 1 Kan. App. 631; Glass Co. v. Ludlum, 8 Kan. 40, 48; Shattuck v. Chandler, supra; Clark v. Andrews, supra, 27; Burris v. Burris, 137 Kan. 831, 22 P. 2d 976.)
In the Ballinger case, in referring to the rights of the surviving partner, it was said:
“While it is true that he was entitled, to the possession of the property for the purpose of preserving the same, before he could lawfully proceed to wind up the affairs of the estate, he must give bond as required by the statute and wind up the affairs of the estate under the direction of the probate court.” (p. 441.)
In the Burris case it was held:
“The procedure to be followed by the surviving member of a partnership which has been dissolved by the death of a member is provided for in R. S. 22-401 to 22-408, and a surviving partner has no right to bring an action with reference to the partnership unless he has complied with these provisions.” (Syl. ¶ 1.)
In the event the surviving partner fails to give bond as required by the statute (G. S. 1935, 22-402), the executor or administrator of the estate of the decedent partner, upon giving a further bond to administer the partnership estate, may take possession of the partnership property and use the name of the surviving partner in the settlement of the partnership estate. (G. S. 1935, 22-405.) In order, however, to take such administration out of the hands of the surviving partner, the latter must first be cited concerning his failure to make the required bond. It is only after the surviving partner neglects or refuses to give the bond, after citation, that the executor or administrator of the deceased partner may administer the partnership estate. (G. S. 1935, 22-405, 22-406; Clark v. Andrews, 136 Kan. 23, 13 P. 2d 294.) In the instant case there was no allegation the surviving partner or an administrator or executor of the deceased partner had given a bond to settle the partnership estate. W. M. Glenn, the surviving partner and one of the attorneys for plaintiffs, informed the court there had been no administration on the estate of the deceased partner, and that there would be none. Assuming the action was properly revived by the order substituting Vivian Campbell, the wife and sole heir of the deceased partner, it is evident none of the parties plaintiff were qualified to administer the partnership estate under the provisions of our law, and the demurrer was properly sustained.
Plaintiffs contend W. M. Glenn was authorized, as the surviving partner, to maintain this action on behalf of the copartnership, without administration on the partnership estate so long as he had . not been cited for neglect or failure to give the statutory bond, citing Ballinger v. Redhead, supra; Shattuck v. Chandler, supra; Carr v. Catlin, 13 Kan. 393; Blaker v. Sands, 29 Kan. 551; Teney v. Laing, 47 Kan. 297, 27 Pac. 976; Newhouse v. Heilbrun, 74 Kan. 282, 86 Pac. 145; Friesen v. Hiatt, 129 Kan. 470, 283 Pac. 644; Clark v. Andrews, 136 Kan. 23, 13 P. 2d 294; 47 C. J., Partnership, §§ 494, 607, 689, 691. The citations from Corpus Juris touch only the right of the surviving partner to administer on the partnership estate. The question here presented is his right to administer that estate without qualifying under our statutory provisions. A few of the earlier cases and some statements contained in later cases appear to support plaintiffs’ contention. In the Blaker case, much relied upon by plaintiffs, the action by the surviving partner was to obtain the possession of partnership property. It is true it was there held the surviving partner could bring action without having given bond so long as he had not been cited for a failure to give the bond. The various statutes heretofore cited were not discussed and the only case cited as authority for the decision was the still earlier case of Carr v. Catlin, 13 Kan. 393, which is to the effect that the surviving partner has the primary right to the possession of the partnership property, but that where he appears without citation and files a written refusal to close up the partnership business, the court has jurisdiction to direct the administrator of the deceased partner to give the necessary bond and take charge of the entire partnership assets and that a bond so given is valid. The Carr case is not authority for the right of the surviving partner to bring an action on behalf of the partnership without first giving the statutory bond, and the Blaker case is no stronger authority for that contention.
In the Teney case it was held the executor or administrator of the estate of the deceased partner was not entitled to obtain the possession of the partnership property from the surviving partner until the latter had been cited for failure to give the bond and the former had executed the further bond for the administration of the partnership property. Nor is the Clark case authority for plaintiffs' contention. It is authority for the proposition that the surviving partner, upon complying with the provisions of G. S. 1935, 22-405, is entitled to administer the partnership assets as against the administratrix of an administering partner. It also holds the surviving partner is required to give bond under the provisions of G. S. 1935, 22-402, in order to be entitled to administer the partnership estate. Plaintiffs also stress the Friesen case. The action there was on a note which plaintiffs had received as a part of a distributive share of the partnership property after the partnership had been fully administered by the surviving partners in collaboration with the administrator of the deceased partner, and under the supervision of a probate court in the state of Nebraska. After such distribution had been made the suit was brought and the defense urged was that it had not been shown the surviving partner had made the necessary bond to administer the partnership estate. It was held the defense was not good, as the proceedings in the Nebraska court were entitled to full faith and credit, and furthermore that plaintiffs held full.title to the note, not only from the liquidating partners, but also by assignments of the interest of all heirs of the deceased partner and of his administrator. We do not deem it necessary to discuss the other cases cited.
In order to avoid confusion it is well to bear in mind that the question before us is not whether a surviving partner temporarily may have possession of the partnership assets, but whether he has power to do those things necessary to wind up the partnership business without giving bond. That question is not governed by the common law, but by our statutory provisions for the administration of partnership estates. (G. S. 1935, 22-401 to 22-409, inc.) These statutes cannot be construed separately, but must be considered together. When so considered and so construed we think the legislature intended by G. S. 1935, 22-402 and 22-403, that the surviving partner should be required not only to give a bond, but a bond conditioned as required by statute, in order to be entitled to the right to manage and close the partnership affairs. In other words, the surviving partner has the primary right to such administration, but is required to qualify for the administration as prescribed by law. In the event he fails to so qualify then we think the legislature intended by G. S. 1935, 22-405, to enable the executor or administrator of the estate of the deceased partner to administer the partnership affairs by giving the bond required by G. S. 1935, 22-406, but that before the surviving partner can be ousted from his primary right to administer the estate, it is necessary that he be cited for failure to make the statutory bond and that he refuse to make the bond after citation. We do not construe G. S. 1935, 22-405, to mean the surviving partner has authority to administer the partnership estate without- bond unless he be first cited to make the bond. To construe G. S. 1935, 22-405, otherwise would require that we completely ignore the express provisions of G. S. 1935, 22-402 and 22-403. This we are not at liberty to do.
The judgment of the trial court is therefore affirmed.
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The opinion of the court was delivered by
Thiele, J.:
The question for decision arises on a motion to dismiss an appeal. In the court below, the trial was by jury. At the conclusion of plaintiff’s evidence the defendant interposed a demurrer, which was overruled. The trial proceeded and the case was submitted to the jury, which disagreed. Thereafter defendant filed a motion for a rehearing on the demurrer and for a directed verdict, both motions being denied. Thereafter the plaintiff filed a motion to dismiss the action without prejudice, and it was subsequently allowed. Within a few days the defendant appealed to this court, specifying as error all the rulings, orders and judgments entered, and particularly the overruling of the demurrer. The plaintiff appellee then moved this court to dismiss the appeal, its reasons being summarized thus: The case being dismissed without prejudice, the matter is moot; there is no final judgment against defendant in the lower court, and there was no appealable order rendered against the defendant unless it was the order of dismissal, which is not one of the particular orders from which the appeal is taken.
The matter has been briefed and submitted on the motion.
In its argument in support of the motion, appellee treats the matter as though no appeal has been taken from the order of dismissal. With that assumption we cannot agree, but in the view we take of the matter whether the assumption is erroneous is immaterial.
It is first contended that because of the dismissal there is now no controversy between the parties, and hence nothing to appeal from. In support, appellee cites 18 C. J. 1148 and 1158, but a reading therefrom will show that the dismissal may be had only where it does not prejudicially affect the rights of the defendant. To determine whether there is any order or judgment from which an appeal lies, and whether the matter is moot, depends on whether there was a final order or a judgment against the defendant in the lower court, and its effect. In support of his contention that no final order was made, appellee directs our attention to Schafer v. Weaver, 20 Kan. 294, 298 (decided in 1878), in which it was held that submission of a demurrer to the evidence in a cause being tried by a jury was not a final submission, and wherein it was held:
“The district court, after sustaining a demurrer to evidence interposed by the defendant, and before rendering any judgment thereon, may in its discretion allow the plaintiff to dismiss his action without prejudice.” (Syl.)
and to a quotation from 2 R. C. L. 43, that the overruling of a demurrer is not an appealable order. The Schafer case is not conclusive here, partly because of changes in our code of civil procedure and partly because of a material difference in the manner in which the question arose, as a reading of that decision will disclose. And the R. C. L. quotation is not correct insofar as this state is concerned.
In our code of civil procedure, as it has existed since its revision in 1909, it is provided:
“The supreme court may . . .' modify any of the following orders of the district court or a judge thereof . . . that sustains or overrules a demurrer.” (G. S. 1935, 60-3302.)
Such amendment of the section as there has been has not changed the above. Plain though the language of the code is, this court has had occasion to say that an order sustaining or overruling a demurrer to evidence is an appealable order. Among the cases so holding are Schubach v. Hammer, 117 Kan. 615, 232 Pac. 1015; Israel v. Lawrence, 126 Kan. 586, 270 Pac. 602; Security Finance Co. v. Hoyt, 143 Kan. 11, 53 P. 2d 802, and Walker v. S. H. Kress & Co., 147 Kan. 48, 55, 75 P. 2d 820. In Corr v. Continental Oil Co., 145 Kan. 78, 64 P. 2d 30, no question as to right of appeal was raised. There defendants’ demurrer to plaintiffs’ evidence was overruled, the case proceeded, and the jury, being unable to agree, was discharged. Thereafter the defendants appealed from the ruling on the demurrer and this court entertained the appeal. In that case no attempt was made by plaintiffs to dismiss their action. It is thus apparent that as soon as a demurrer to evidence is ruled on, the party adversely affected has a right of appeal.
Was this right of appeal cut off by the dismissal of the action prior to the perfection of appeal? An analogous situation was involved in Hicks v. Parker, 143 Kan. 763, 57 P. 2d 413. There a motion to strike plaintiff’s petition was allowed. Shortly thereafter the cause was dismissed on motion of defendant for want of prosecution. Within time plaintiff appealed. In the opinion it was said:
“On behalf of appellee it is contended the order striking the amended petition from the files is a moot question, for the reason the trial court subsequently dismissed the action for want of prosecution. The order striking the amended petition from the files is a final order and appealable. (R. S. 60-3302, 60-3303.) Appellant had six months from the date of the order within which to perfect his appeal. (R. S. 60-3309.) The right of appeal was not defeated by the subsequent order made within the period allowed for appellate review.” (p. 765.)
It may here be noticed the same question is again raised in a second appeal in the same case, this day decided. (See Hicks v. Parker, post, p. 679, 84 P. 2d 905.) There the dismissal was procured by the defendant; here the dismissal was by the plaintiff.
We are of opinion that where a plaintiff invokes the jurisdiction of a court by filing a petition, and in a trial on the cause of action a demurrer is lodged against his evidence and is ruled on, the plaintiff may not thereafter, by procuring a dismissal of the action without prejudice, cut off the right of the defendant to appeal from the ruling on the demurrer insofar as it is adverse to him. The party against whom a final order is made has a substantial right in his right of appeal. When the present plaintiff instituted his action and invoked the jurisdiction of the court, he did so with notice of what consequences might follow, and when they did follow as outlined above, he may not avoid them by dismissing his action.
Authorities cited in the briefs, as well as others, have been examined, but we do not find it necessary to comment on them.
From what has been said it follows that the motion to dismiss the appeal should be, and it is, denied.
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The opinion of the court was delivered by
Smith, J.:
This was a claim for workmen’s compensation by a widow for the death of her husband. The commissioner of workmen’s compensation awarded compensation to the widow. This award was approved on appeal to the district court. Respondent appeals.
The deceased was porter at the Salina Country Club. One evening he drove to his home in his automobile to get some towels and some laundry his wife had been doing at their home for members of the club. Shortly after he drove into the yard his wife heard a shot; she heard him groaning. He had been shot by a pistol bullet, and died that night.
The respondent argues that the claimant did not produce anything more than surmise and conjecture that the death was the result of an accident arising out of and in the course of the employment of deceased. On account of this argument the evidence will be noted in some detail.
The doctor testified that he found deceased in the evening with a bullet wound in his abdomen ranging upward through the liver and lodging in the right chest. He did not see how deceased could possibly have shot himself at that angle. Deceased made no statement.
The next witness was a member of the club, and testified that he dealt with deceased as custodian of the grill room and locker room of the club; that the salary of deceased at the time of his death was $15 a month; that in addition to this deceased received the profits from the operation of the grill room, where he sold drinks and sandwiches, and he handled towels, from which he derived a profit; that it was his duty to have the towels cleaned and washed, and he would bring towels to the club any time they ran out; that it was his duty to take care of the grill room and locker room. This witness testified in part as follows:
“Q. Mr. McCullough, was it his duty to look after the property that was left out there in the locker rooms belonging to individuals, or personal property that was stationary? A. Not necessarily property belonging to the members, although he did, but there was nothing in our contract that he was to take care of that personal property, but he always did do that.”
This witness also testified about deceased bringing his wallet home to him on one occasion when he had left it in his pants pocket; that deceased’s work began at eight in the morning and he never knew when he was going to get home. This witness also testified as follows:
“A. We have about 360 lockers there that it was his duty to see they were kept clean; he kept the moths out of the carpets, looked after the toilets and baths, and the grill room, refrigerators, and that stuff connected with the grill room.
“Q. That is what you meant by part of his employment being to take care of the club’s property. A. That’s right.”
He further testified as follows:
“Q. Did he have any duties to perform under his contract of employment which required him to carry a firearm that you knew of? A. No, I think that would have been up to him. He might have had a reason, but as far as we hiring him to, we didn’t.”
The sheriff was the next witness. He testified that deceased had been a deputy sheriff; that deceased had told him he wanted a permit to carry a gun because he was custodian at the country club; that on one occasion he picked up some fellows out there who had stolen some stuff and held them until some one from the sheriff’s office came out after them; that he never heard deceased say he had permission from any members of the club to carry a gun.
The wife of deceased was the next witness. She testified on the night of the death of deceased he called up and told her to have things ready; that he was coming after her and that he was going back because there was a party on that night; that he came in and honked and she was getting ready to go out and she heard the report of a gun; in a few minutes she heard him groaning; she went out and found him stretched on his back; that he said over the phone that he wanted some towels and laundry for the golfers and he wanted her to go back out with him to help get ready for the party; that after they took deceased to the hospital she found some bundles of dirty laundry in the back of the car; that in the year 1933' his profits were $1,200 and in 1934 were $1,500; that she had heard deceased say in the presence of Mr. Peck that the reason he wanted to carry a gun was that the club had been robbed and Mr. Peck told him to guard the place; that deceased had $150 on him when he was killed; that she could not tell when the conversation with Mr. Peck took place, but it took place at Mr. Peck’s office and nobody but herself and deceased and Mr. Peck was there. The record does not show whether Mr. Peck had any official connection with the club.
The next witness was a member of the club. He testified that he knew deceased, and his duties were the doing of regular routine porter work.
A demurrer to the evidence was presented and overruled.
The same witness who testified for claimant about the work of deceased testified on behalf of respondent that he had charge of deceased and he did not know he carried a gun and did not give him permission to carry one.
The next witness for respondent was also a member of the club. He testified that he was vice-president of the club and had a general knowledge of what deceased did around the clubhouse; that he did not know whether or not deceased carried a gun; that he was hired as a porter, and in his opinion that would not require the carrying of a gun.
The next witness was a member of the club. He testified that the duties of deceased were to keep the place clean and to take care of the locker room; that is, in his opinion it was not necessary that deceased carry a gun in order to do what he was hired to do; that he was employed to protect the locker rooms, but not as a policeman; that he was not financially responsible if things were stolen.
One other member of the club testified to the same general effect.
The man who was sheriff in 1935 testified that deceased obtained from him the permit to carry a gun while he was sheriff; that deceased was working at the state house as a doorkeeper or sergeant at arms at the time; that he did not believe he had ever called de ceased to act as deputy sheriff. None of the witnesses who were members of the club could remember of any robbery out there.
After hearing the above testimony the commissioner found as a matter of fact that deceased met his death as the result of an accident arising out of and in the course of his employment. On appeal the district court approved this award. We are asked to reverse that judgment.
The only condition under which we can do that is that all of the evidence, taken in its most favorable light for claimant, and drawing the inferences therefrom favorable to the claimant, compel a finding that will not support the award, or that the evidence upon which the award is based must appear to be mere surmise or conjecture. (See Whitaker v. Panhandle Eastern P. L. Co., 142 Kan. 314, 46 P. 2d 862.)
The question of fact at issue in this case is whether the accident by which deceased met his death arose out of and in the course of his employment. There seems to be no contention but what he met his death as the result of an accidental discharge of a revolver he had been carrying.
A definition of the term “arising out of and in the course of his employment” that has met with general approval appears in Mc-Nicol’s Case, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916 A. 306. In that case the court said:
“1. The first question is whether the deceased received an ‘injury arising out of and in the course of his employment,’ within the meaning of those words in part II, §1 of the act. In order that compensation may be due, the injury must both arise out of and also be received in the course of the employment. Neither alone is enough.
“It is not easy nor necessary to the determination of the case at bar to give a comprehensive definition of these words which shall accurately include all cases embraced within the act and with precision exclude those outside its terms. It is sufficient to say that an injury is received ‘in the course of’ the employment when it comes while the workman is doing the duty which he is employed to perform. It arises ‘out of’ the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises ‘out of’ the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause, and which-comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence.” (p. 498.)
It will be noted that the above case holds that it may be said that an accident happens “in the course of the employment” when it comes while the workman is doing the duty which he was employed to perform. Applying that rule here, we have no difficulty in holding that there was substantial, competent evidence for the commissioner to find that one of the duties of the deceased was to keep the club supplied with clean towels and to take the laundiy of the club members from the club to his home. There is no doubt that he had gone to his home for that purpose on the evening he was killed. It is also clear that he had gone there to get his wife and take her out to the club in order that she might help him get ready for the party.
It is with the term “arising out of” the employment that we have difficulty in this case. It will be noted that the above authority states that an injury arises out of the employment when there is apparent to the rational mind upon consideration of all the circumstances a causal connection between the conditions under which the work is required to be performed and the resulting injury. Narrowed down, our question is whether the carrying of a gun by deceased had anything to do with or was any part of his work. In answering such a question we must indulge all reasonable inferences in favor of claimant, and we must consider all the surrounding facts and circumstances.
Respondent points out that several members of the club testified that deceased was not hired as a policeman and that his duties did not require, him to carry a gun. The only evidence to the contrary is that concerning a conversation had by deceased with a Mr. Peck. This record does not disclose that Mr. Peck had any official connection or was even a member of the club. The record is silent as to whether he had any authority to direct deceased to guard the property of the club. Even should we assume that Mr. Peck was a member, we cannot assume that he had authority to bind the club.
We have concluded that the evidence giving the claimant the benefit of all the presumptions, and drawing every reasonable inference in his favor, shows that the deceased in this case carried the gun in question for the protection of his own person and the money he ha bitually carried on his person for the benefit of respondent and that there was no substantial evidence that anyone with authority to speak for respondent gave him any permission to carry a gun while on duty at the country club or that the carrying of a gun was incidental to the work he was employed to perform for the club. We are unable to see any connection between the employment of deceased and the accidental discharge of the gun that caused his death. It follows that the judgment of the trial court in holding that the death of deceased arose out of and in the course of his employment was erroneous.
The judgment of the trial court is reversed, with directions to enter judgment for respondent.
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The opinion of the court was delivered by
Smith, J.:
Defendant was convicted of bank robbery. He appeals.
The first point raised by defendant is that the prosecution was barred by the statute of limitations. On this account various procedural steps in the prosecution had prior to the filing of the information on which the trial was had will be noted at the outset.
The bank was robbed on March 1, 1933. A complaint was filed on March 6, 1933, charging defendant with bank robbery. A warrant was issued on this complaint. It was never served. As far as this record disclosed this warrant was lost or misplaced. On February 6, 1935, defendant was arrested within the jurisdiction of the court on an alias warrant. On February 16, 1935, a new complaint was filed against defendant charging the same offense. A warrant was issued on this complaint and served on defendant. On the filing and issuance of this complaint and warrant the prosecution began on March 6,1933, was abandoned. On February 18, 1935, a preliminary examination was held and defendant was bound over to the district court for trial. On March 12,1935, defendant was extradited to Nebraska to answer to a charge of bank robbery. This extradition was over the objection of defendant. On September 30, 1935, an information was filed charging defendant with bank robbery. On March 16, 1936, this prosecution was dismissed by the county attorney for lack of evidence. On January 7, 1937, defendant was arrested in California on what purported to be the complaint and warrant filed and issued on March 6, 1933. He was extradited and brought back to Kansas. The basis of this extradition proceedings was the complaint and warrant of March 6, 1933. It should be stated here parenthetically that the question of the regularity of this extradition proceedings is not before us on this appeal. On January 28,1937, a new complaint was filed charging defendant with bank robbery. A warrant was issued on this complaint. A preliminary examination was given defendant and he was bound over for trial. On March 1, 1937, an information was filed. Count one of this information alleged that defendant and others named entered the bank with the intent to rob it. Count two alleged that the same persons at the same time and place entered the bank with the intention to rob it and during the perpetration of the robbery made an assault on an officer of the bank. All this was alleged in the first paragraph of the count. The next paragraph of the count contained allegations about the commencement of the prosecution on March 6,1933; that it had remained pending at all times; that on February 16, 1935, a second prosecution was begun against defendant for the same offense, and that on September 30, 1935, an information was filed; and that this prosecution remained pending at all times until March 16, 1936, when it was dismissed on motion of the county attorney for lack of evidence.
Defendant filed a motion to quash this information for the reason that it showed on its face that it was barred by the statute of limitations; that it showed on its fac.e that it was in violation of section 10 of the bill of rights of the state constitution; that it showed on its face that it was in violation of the sixth amendment to the constitution of the United States; that it showed on its face that it was not filed within the time provided by G. S. 1935, 62-505; that it showed on its face that it was in violation of G. S. 1935, 62-1431 and 62-1432, and for the further reason that the state, by surrendering defendant to Nebraska on March 16, 1935, 'while defendant was in custody charged with the same offense, lost jurisdiction to try defendant on this charge. Defendant also filed a plea in abatement on the grounds that he had never had a preliminary examination upon the charge set forth in the first and second counts of the information; that he had not waived his right to a preliminary examination and that he was not a fugitive from justice at the time the information was filed.
The trial court conducted a hearing on these two motions and made findings of fact as to the procedural steps substantially as they have been set out in this opinion. In addition, the court found that the statute commenced to run the next day after the bank was robbed and ran until March 6, 1933, when the first complaint was filed, and warrant issued, when the running of the statute stopped, and was held in abeyance until March 12,1935, when defendant was surrendered to Nebraska, and that on that day the statute commenced to run and was not tolled until January 29, 1937. Calcula tion discloses that if the above holding is correct the statute only ran a total of one year, ten months, and twenty-five days. G. S'. 1935, 62-503, provides that the prosecution must be commenced within two years after the commission of the offense. G. S. 1935, 62-504, provides that if any person who has committed an offense is absent from the state or so conceals himself that process cannot be served upon him, or conceals the fact of the crime, the time of the absence or concealment is not to be included in computing the period of limitation. G. S. 1935, 62-505, provides that where any indictment or information shall be quashed, set aside, or judgment reversed, the time during which the same was pending shall not be computed as part of the time of the limitation prescribed for the offense. This statute was construed in State v. Child, 44 Kan. 420, 24 Pac. 952. In that case this court held:
"Where a prosecution fails, on account of a defective indictment or informa^tion, the time during which it is pending is not to be computed as a part of the time limited for prosecution, and the accused, after the nolle or dismissal of an indictment or information, may, within the time prescribed, be again proceeded against for the same offense.” (Syl. If 2.)
The trial court denied the motion to quash and overruled the plea in abatement. The court held, however, that since the state contended that the defendant was a fugitive from justice or concealed himself so that the provisions of G. S. 1935, 62-504, prevented the statute from running, it was essential that this should be pleaded in the information. The state was given permission to file forthwith an amended information. On April 29,1937, a new information was filed. The first count charged that defendant entered the bank with the intention of robbing it. This count contained no allegations calculated to toll the statute. The second count charged that defendant took from one Jaquith, an officer of the bank, certain money, by putting Jaquith in fear, and charged that the money was the property of the bank. The second paragraph of this count alleged a prosecution was begun against the defendant on March 6, 1933; that the warrant was lost or misplaced; that on February 6, 1935, an alias warrant was issued and filed on the complaint of March 6,1933; that defendant was arrested on this warrant; that on February 10, 1935, a new prosecution by complaint and warrant was commenced against defendant; that a preliminary hearing was held February 16, 1935, and defendant was bound over; that an information was filed September 30, 1935; that this information was pending until March 16, 1936, when it was dismissed; that on January 27, 1937, a new complaint was filed; that a warrant was issued on this complaint; that a preliminary hearing was held on January 28, 1937, and defendant bound over.
To this amended information the defendant filed an amended plea in abatement on the ground that he had been unlawfully extradited from California; that it was charged in the amended information that the crime was committed on the first day of March, 1933, and that no warrant was ever issued to the sheriff of Lyon county, Kansas, or any other officer qualified to receive said warrant, nor ever placed in the hands of any such officer prior to the 16th day of November, 1936, and that by virtue thereof the prosecution of this action is and was barred by the two-year statute of limitations; that he was not a fugitive from justice at the time he was arrested. The motion to quash this amended information is not furnished this court in the abstract. At any rate the trial court overruled the motion to quash the first count of the information and sustained it as to the second count with the exception of the last paragraph of it, for the reason that the defendant had not been given a preliminary hearing on the offense charged in the second count. This ruling left the charge in the information that defendant, in company with others, entered the bank with the intention of robbing it and the allegations which have been set out detailing the procedural steps leading up to the filing of that particular information. The defendant went to trial on that information.
The first point argued by defendant is that the prosecution was barred by the statute of limitations. Defendant argues that an information filed four years after the commission of the offense that contains no allegations to toll the statute does not state an offense. Defendant realizes the fact that the allegations calculated to toll the statute were left in this information, and argues that these allegations cannot be held to apply to the count of this information that was not quashed because it was never a part of this count and each count must state a complete offense by itself.
There are two answers to this argument. The authorities cited and relied on by defendant to sustain his argument that the allegations relied on by the state to toll the statute should be made a part of each count are all cases where the facts that were stated but once in the information were part of the gravamen of the offense, such as describing the cattle the defendant was charged with stealing, or an allegation that a child upon whom defendant was charged with committing rape was an infant “above the age of ten and under the age of twelve years.” The reason for the rule announced in the above cases is that each count must be complete and certain enough that an acquittal on one count would be a bar to another trial for an offense growing out of the same facts. The allegations as to the tolling of the statute of limitations may be set out in the information in a separate paragraph from any of the charging counts and need be alleged but once in the information. (Rosenberger v. Commonwealth, 118 Pa. 77, 11 Atl. 782; see, also, Thompson v. State, 54 Miss. 740.) One reason why matter to toll the statute of limitations should be pleaded in the information is that the defendant must be given an opportunity to contest the truth of whatever facts are relied upon by the state. In this case this opportunity was given defendant since, on two or three occasions, he contested the question of whether the prosecution was barred. The court heard him and made findings of fact against the contentions of defendant, as have already been noted in this opinion. This question could be contested by defendant just as well where it was alleged once in the information as though it had been made a part of each count. Especially is this true where each count is simply a different way of characterizing the same act.
The other answer to the contention of defendant, that the information should have been quashed because of the failure of the information to state correctly the matter to toll the statute of limitations, has to do with the contention of defendant that the information showed on its face that the prosecution was barred. A similar contention was made in State v. Bowman, 106 Kan. 430, 188 Pac. 242. There the crime was committed on a day in November, 1915. The information was filed more than two years after this date. When the defendant argued that the information disclosed on its face that the prosecution was begun more than two years after the offense charged was committed, on this question this court said:
“It is said the information disclosed on its face that the prosecution was commenced more than two years after the offense charged was committed. This is not true. The information did not disclose, on its face or otherwise, when the prosecution was commenced. The information was a step in the prosecution subsequent to its commencement. The certified transcript of the earlier proceedings was on file in the cause, from which the court took judicial notice of the time when the complaint, was filed and the warrant issued.” (p. 432.)
The statute in this state requires that the prosecution must be commenced within two years after the commission of the offense. (See G. S. 1985, 62-503.) The prosecution must be deemed commenced when a complaint has been filed and a warrant issued. Where the warrant was issued in good faith and was not served on defendant until more than two years after the commission of the offense, this will not prevent the filing of the complaint and issuing the warrant from tolling the statute. (See State v. Waterman, 75 Kan. 253, 88 Pac. 1074.)
We have already set out in this opinion the various proceedings leading up to the filing of the information in this case. G. S. 1935, 62-505, provides as follows:
“Where any indictment or information shall be quashed, set aside, or judgment reversed, the time' during which the same was pending shall not be computed as part of the time of the limitation prescribed for the offense.”
The statute also applies to the entering of an order of dismissal as was done in this case. (See State v. Child, 44 Kan. 420, 24 Pac. 952.)
The question with which we are confronted is whether the above statute applies to a situation where the complaint filed immediately after the offense was committed is dismissed before the information is filed.
In the discussion of criminal law generally the words “indictment,” "information” and “complaint” are used interchangeably. In Commonwealth v. Goulet, 160 Mass. 276, 35 N. E. 780, the court held:
“The courts are not disposed to distinguish that case, but the objection is met by Pub. Sts. c. 200, par. 6, that ‘no person shall be held t.o answer on a second indictment for an offense of which he has been acquitted by a jury upon the facts and merits; but such acquittal may be pleaded by him in bar of any subsequent prosecutions for the same offense, notwithstanding any defect in the form or substance of the indictment on which he was acquitted.’ The word indictment in this statute includes complaint.” (p. 277.)
See, also, 2 Words and Phrases (2d ser.) 1046. These authorities are in point here. The statute in question applies to complaints as well as informations and indictments. This prosecution was therefore commenced in time. There is abundant evidence in this record that the first complaint was filed and warrant issued in good faith and that the warrant was not served on defendant earlier because he could not be found.
Defendant next argues that the court erred in giving the instruction on the alibi defense of defendant. This instruction was as follows:
“You are further instructed that one of the defenses made by the defendant in this case is what is known in law as an alibi. That is, that defendant was in another place at the time' of the commission of the crime.
“This is a proper defense and the defendant is not required to prove an alibi beyond a reasonable doubt, or even by a preponderance of the evidence, it is sufficient, to justify an acquittal if the evidence upon that point raises a reasonable doubt of his presence' at the time and place of the commission of the crime charged, and the attempt of the defendant to prove an alibi does not shift the burden of proof from the prosecution, but the prosecution is bound to prove his presence, beyond a reasonable doubt. An alibi is easy to prove and hard to disprove, and testimony offered to prove this defense should be subjected, like all the other evidence in the case, to rigid scrutiny for the reason that witnesses, even when truthful, may be honestly mistaken of, or forgetful of times and places.”
The portion of the above instruction to which defendant takes exception is the last sentence of it. It is the claim of defendant that by giving the instruction with the above language in it the trial court in effect placed the burden of proof on the defendant and that in this instruction the court commented on the evidence.
The first objection is not good for the reason that in the first part of the instruction the trial court instructed the jury that all the defendant had to do by his alibi evidence was to raise a reasonable doubt in the minds of the jury as to his presence in the bank.
Such an instruction has been approved by this court many times. (See State v. Smith, 114 Kan. 186, 217 Pac. 307; also, State v. Wright, 138 Kan. 31, 23 P. 2d 475.)
As to the complaint that in the instruction the court commented on the evidence, it should be noted that the court told the jury that alibi evidence, like all the other evidence in the case, should be subjected to rigid scrutiny. The instruction amounts to but little more than an instruction to the jury that all the evidence in the case should be subjected to rigid scrutiny.
The legislature of this state has taken cognizance of the difficulty with which the state is confronted. G. S. 1935, 62-1341, was enacted by the legislature at the session of 1935. It provides that where a defendant intends to use the defense of alibi he must give the prosecuting attorney notice of it and the names of the witnesses by which he intends to prove his alibi.
The statute with reference to the instructions given the jury by the trial court is G. S. 1935, 62-1447. It reads as follows:
“The judge must charge the jury in writing and the charge shall be filed among the papers of the cause. In charging the jury he must state to them all matters of law which are necessary for their information in giving their verdict. If he presents the facts of the case, he must inform the jury that they are the exclusive judges of all questions of fact.”
Instructions substantially like the one we are considering have been approved. In People v. Tice, 115 Mich. 219, 73 N. W. 108, the court held:
“An instruction in a criminal case' that the juiy should carefully scrutinize any evidence in relation to an alibi, for the reason that an alibi is a defense that is easily proved and hard to disprove, is not erroneous.” (Syl. ¶ 1.)
In Radke v. State, 107 Ohio St. 399, 140 N. E. 586, the court said:
“Defendant complains that the court erred in its charge on the subject of alibi, particularly in the following sentence: ‘An alibi is a defense easily proven and hard to disprove.’ It is not unlikely that this language was adopted from one of the many form books on instructions to juries. This language appears in 1 Blashfield’s Instructions to Juries (2d ed.), p. 715, sec. 327: ‘In some decisions it has been held proper to instruct that “the defense of alibi is one easily manufactured, and jurors are generally and properly advised by the courts to scan the proofs of an alibi with care and caution”; that the jury “are to carefully scrutinize any evidence in relation to an alibi. An alibi is a defense which is easily proved and hard to disprove. Therefore you will be careful and cautious in examining evidence in regard to an alibi.” ’” (p. 404.)
See, also, 16 C. J. 976; also, People v. Marcus, 253 Mich. 410, 235 N. W. 202.
We hold that the instruction was not erroneous.
Defendant next argues that the court erred in an instruction given the jury after it had been deliberating a few hours. The jury had informed the trial court in writing that it had taken nine ballots and failed to agree upon a verdict. The court thereupon gave the following instruction in writing:
“You have been deliberating on this case for sometime and, as I understand from your foreman, so far have been unable to reach a verdict. This is an important lawsuit, both to the state and the defendant, and is expensive to both parties. We would not want to put this county and the defendant to the expense of trying this case over again, if there is any possibility of its being decided by the jury.
“It is important that you should agree upon a verdict if it is possible for your minds to get together upon the question of the guilt or innocence of the defendant, and you should fairly and frankly consider the testimony and the instructions given you by the court in this case, as this lawsuit should be decided by you solely on the law as given to you in the instructions, and the evi dence as you have heard it from the witness stand. And if, after further consideration of the case, any of you become satisfied that the position first taken was wrong, then you should not hesitate to yield.
“It has taken three days to try this case and a lot of expense has been incurred on both sides and a lot of expense would be incurred by the state and the defendant on a retrial of this case, and it. is desirable and important to the state, as well as the defendant, that you give this case further consideration. However, I do want the jury to distinctly understand that the court has no desire whatever to invade the province of the jury or coerce the will or judgment of any juror, as you are the sole and exclusive judges of the facts in the case and the credibility of the witnesses and the weight and value to be given their testimony, but this being the second trial of this case, and a great expense to the public as well as to the defendant to try it, it is desirable and important that you should agree upon a verdict if it is possible for your minds to come together upon the question of innocence or guilt of the defendant.”
Defendant next argues that this instruction was coercive and had the effect of taking away from the jurors the right of independent judgment as to the facts, which each juror was bound to exercise. Many cases are brought to our attention where courts have held that certain instructions were coercive and therefore erroneous.
We have examined these authorities. The instruction given here contained the following paragraph:
“However, I do want the jury to distinctly understand that the court has no desire' whatever to invade the province of the jury or coerce the will or judgment of any juror, as you are the sole and exclusive judges of the facts in the case and the credibility of the witnesses and the weight and value to be given their testimony. . . .”
This language indicates that the trial court was making every effort to avoid coercing the jury. Instructions substantially the same as this instruction have been approved in State v. Rogers, 56 Kan. 362, 43 Pac. 256; State v. Garrett, 57 Kan. 132, 45 Pac. 93; and State v. Young, 109 Kan. 526, 200 Pac. 285. See, also, 85 A. L. R. 1427.
Defendant next argues that he did not receive a fair and impartial trial. We have examined the record critically on this point. The case presented some unusual features due to the time that had elapsed since the commission of the crime and the somewhat complicated procedural steps that had been taken. We have concluded that the defendant was afforded an opportunity to present every defense to which he was entitled and that when those defenses were presented they received careful and fair consideration by court and jury.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Allen, J.:
This was an action to recover damages for the death of plaintiff’s husband, arising out of an alleged defect in a township road. Defendant filed a motion to make plaintiff’s petition definite and certain, which was overruled, and a motion to strike. The latter motion was sustained in part and plaintiff filed an amended petition. Defendant demurred to the amended petition, which demurrer was overruled, and defendant appeals.
The amended petition alleged:
“2. Plaintiff further alleges that prior to March 25, 1935, the defendant caused to be constructed and opened for public travel a certain township road or public highway and had for many years prior thereto maintained the same as a township road or public highway, said road being more particularly described as a dirt road extending in an easterly 'and westerly direction east from Twenty-first street in the city of Topeka and commonly referred to as East Twenty-first street; that approximately a mile south and a half mile west of the colored Kansas Vocational School, located within said township, said township road extends over and across a very steep and abrupt decline; that to the east of the top of said decline the roadway is practically level for a distance of half a mile, but to the west of the top of said decline there is a steep, abrupt, and precipitous decline or drop of approximately sixty-five feet within a distance of three hundred feet; that the degree of the drop in said roadway is in excess of twenty-five degrees and constitutes a precipitous, dangerous, and abrupt drop in said highway; that on March 25, 1935, and for at least a year prior thereto, the surface of said decline, slope, or drop was extremely rough and uneven, caused by rocks protruding three or four inches above the surface of the ground in and across said roadway, and numerous loose stones and rocks were scattered over the surface of said roadway, and said highway was filled with ruts three or four inches in depth; that said roadway upon such decline was rough and uneven to the extent that it was extremely dangerous to persons traveling along said highway, particularly in view of the sleep, abrupt and precipitous drop in said roadway; that not only was said decline precipitous, rocky, and uneven, but along each side thereof there was a ditch approximately four feet in depth; and that because of the precipitous drop and the rough, uneven and narrow condition of said roadway it was dangerous to the traveling public and was a defective highway within the meaning of section 68-301 of R. S. Kansas, 1923.
“3. Further complaining, plaintiff alleges that at about six o’clock p. m. on March 25, 1935, the deceased, Francis B. Neiswender, was traveling in a westerly direction along said highway, driving a Dodge delivery truck; that said deceased, after passing along the level portion of said highway mentioned above, suddenly and without warning, reached such decline; that upon reaching the top of such decline, said automobile was precipitated into the air and when it reached the surface of the ground it turned over and rolled down said drop and into the deep ditch along the side of said roadway, and the said Francis B. Neiswender was killed.
“6. Plaintiff further alleges that in the operation of said automobile the deceased was proceeding in a reasonably prudent and careful manner and at a rate of speed as is usual and ordinarily taken by persons traveling along a county highway and such as the ordinarily prudent person would take under the circumstances, and plaintiff was without any contributory negligence in the premises.
“7. Plaintiff further alleges that the officers of the defendant township and particularly the trustees thereof had actual notice and knowledge of the condition of such roadway for a long period of time prior to March 25, 1935, and much in excess of five days prior thereto; that said defendant, through its trustees and other officers, agents, and employees, had performed road work upon said decline and knew of the precipitous, abrupt and sudden drop in said roadway for many months prior to the injury and death of the deceased, but wholly failed to remove the same or to take precautions to warn or apprise the public traveling along the same of such dangerous condition.”
The petition further alleged that it was the duty of the defendant to place warning signs or signals along the roadway, and that the defendant negligently failed and omitted so to do.
The sole question is whether the petition stated a cause of action against the defendant township under G. S. 1935, 68-301.
Defendant asserts the petition fails to allege any defect in the highway within the meaning of the statute. In paragraph two of the petition the highway is described as a dirt road that runs east and west and over and across a very steep and abrupt decline; that to the east of the top of the decline the road is practically level for a distance of half a mile, “but to the west of the top of said decline there is a steep, abrupt, and precipitous decline or drop of approximately sixty-five feet within a distance of three hundred feet; that the degree of the drop in said roadway is in excess of twenty-five degrees and constitutes a precipitous, dangerous and abrupt drop in said highway; that on March 25, 1935, and for at least a year prior thereto the surface of said decline, slope, or drop was extremely rough and uneven, caused by rocks protruding three or four inches above the surface of the ground in and across said roadway, and numerous loose stones and rocks were scattered over the surface of said roadway, and said highway was filled with ruts three or four inches in depth; that said roadway upon such decline was rough and uneven to the extent that it was extremely dangerous to persons traveling along said highway, particularly in view of the steep, abrupt and precipitous drop in said roadway; that not only was said decline precipitous, rocky, and uneven, but along each side thereof there was a ditch of approximately four feet in depth.”
In Williams v. State Highway Comm., 134 Kan. 810, 8 P. 2d 946, it was stated: “A condition of a highway which renders it dangerous for the public traveling over it is certainly a defect. The evidence tends so strongly to show that the highway was in a dangerous condition that whether it amounted to a defect under the statute became at least a question for the determination of the jury.” In that case it was further stated:
“Under the statute it became the duty of the commission to keep the highway in a reasonably safe condition for public travel. Of course, not every slight depression or inequality in the surface of the road would be regarded as a statutory defect, but a hole five inches deep cannot be regarded as a mere inequality or slight depression. When the wheel of an automobile drops into a hole of that depth when going at thirty or thirty-five miles an hour it necessarily will cause a severe jolt, and when this was instantly followed bjr a drop into another hole it would be likely to jar the driver and toss him from one side of the car to the other, and thus account for his losing control of the car. The holes, it appears, were only a few feet apart and respectively four and five inches deep. The drops coming close together necessarily increased the danger and made the plight of the driver of tire car more difficult. We have had a number of cases involving the question of what is a defect under the law, one of which is Collins v. State Highway Comm., 134 Kan. 278, 5 P. 2d 1106. There a shoulder had been built on the edge of the concrete slab, and there was a deep rut on the side of the shoulder. On some occasion it had become necessary for the driver of cars to drive upon the shoulder to avoid a collision where there was a congestion in the traffic. The plaintiff had occasion to use the shoulder and dropped into the rut, which resulted in an injury. It was held to be a defect in the highway which justified a recovery of damages. In the decision it was said:
“ ‘There is no legal foot-rule by which to measure conditions generally and determine with precision whether a condition constitutes a defect. Some conditions may be so patently dangerous that a verdict denying defect would be promptly set aside. Other conditions may be so trifling that a verdict of defect would be promptly set aside.’ (p. 283.)" (p. 812.)
The question as to what constitutes a defect in a highway within the meaning of the statute was considered by this court in Watson v. Parker Township, 113 Kan. 130, 213 Pac. 1051. In that case there was a ditch covered with weeds on the side of the traveled part of the road. The traveled part of the road was only thirteen and one half feet wide, and the plaintiff, to avoid a collision with an oncoming car, turned off the traveled part of the road and thus ran his car into the ditch, which he could not see because it was covered with weeds. The court did not determine as a matter of law that the ditch was a defect, but under the evidence it was held to be a question of fact for the jury to determine.
In Story v. Brown County, 116 Kan. 300, 226 Pac. 772, the petition alleged that while an old county bridge was being replaced by a new one, a deep excavation was made across the highway, no warning of it being given to travelers and no barrier being interposed to their approach, except a board within two feet of its edge. A judgment in favor of the plaintiff, based upon “permitting the highway to become defective through a failure to adopt some sufficient method of giving warning of dangers due to alterations which were in progress,” was sustained.
The purpose of the statute was to protect the interests of the traveling public. A steep, abrupt and precipitous decline or drop in a level dirt road as described in the petition, and without warning signs or signals, might well constitute a defective highway within the meaning of the statute.
Defendant contends that the allegations of the petition do not show that the defect in the highway was the legal or proximate cause of the death of Francis B. Neiswender. What constitutes a proximate cause of an injury was stated by this court in Railway Co. v. Parry, 67 Kan. 515, 73 Pac. 105:
“Negligence, to be the proximate cause of any 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.)
The petition before us alleges that the deceased was proceeding along the road in a prudent and careful manner and that when he reached the abrupt drop or decline in the road the automobile was precipitated into the air, and when it reached the ground it turned over and rolled down the drop into the deep ditch along the roadway. These allegations, together with the allegations as to the steep, abrupt and precipitous decline of the road, and the absence of warning signs or signals, we think fairly charge that the defective condition of the road was the legal and proximate cause of the death of the deceased. (Arnold v. Coffey County Comm’rs, 131 Kan. 343, 291 Pac. 762; Collins v. State Highway Comm., 134 Kan. 278, 5 P. 2d 1106.)
Defendant contends that actual notice to the township trustee of the defects in the highway is a condition precedent to the right of the plaintiff to maintain thé action and that the petition is totally defective in this regard. The petition alleges that the defendant, through its trustees and other officers, agents and employees, had performed road work upon the highway and had actual knowledge of the condition of such roadway in excess of five days prior to the injury. We think the allegations as to notice sufficient. (Erie Township v. Beamer, 71 Kan. 182, 79 Pac. 1070; Watkins v. Harper County, 95 Kan. 166, 147 Pac. 822.)
Defendant urges that the petition shows contributory negligence as a matter of law, hence the demurrer should be sustained. It is asserted that the driver of a vehicle should be able to stop within the distance he can see ahead. We do not think this well-settled rule is applicable to the situation described in the petition. This question was considered in Hayden v. Jack Cooper Transport. Co., 134 Kan. 172, 5 P. 2d 837. The syllabus in that case reads:
“The rule that one driving an automobile in the nighttime must so operate his car that he may stop it within the range of vision of his headlights, is applicable in cases where vehicles or other objects on the highway may be seen by the aid of proper lights, but where an obstruction was of such a character and so placed that a motorist driving his car properly equipped with lights and brakes, at a moderate speed, is unable to see an obstruction in time to prevent colliding with it, and is otherwise free from negligence, he cannot be held guilty of contributory negligence as a matter of law.” ( Syl. ¶ 1.)
See, also, Abbott v. Wyandotte County, 94 Kan. 553, 559,146 Pac. 998; Williams v. State Highway Comm., 134 Kan. 810, 814, 8 P. 2d 946.
We think the petition states a cause of action. The judgment is affirmed.
Allen, J., dissenting.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Smith, J.:
This was an action originally commenced against defandants’ testator to rescind a contract for the sale of securities and to recover the purchase price under the securities law of Oklahoma. After the death of the testator the action was revived against the executors of his estate. Judgment was for defendants, sustaining a demurrer to the evidence of plaintiff. Plaintiff appeals.
The action was brought pursuant to section 4912 of the statutes of Oklahoma for 1931. That section is as follows:
“Every sale made in violation of any of the provisions of this act shall be voidable at the election of the purchaser; and the person making such sale and every director, officer or agent of or for such seller, if such director, officer or agent shall have personally participated or aided in any way in making such sale, shall be jointly and severally liable to such purchaser in any action at law in any court of competent jurisdiction upon tender of the securities sold or of the contract made for the full amount paid by such purchaser, with interest, together with’ all taxable court costs and reasonable attorney’s fees; provided, that no purchaser otherwise entitled shall claim or have the benefit of this action who shall have refused or failed within thirty (30) days from the date thereof to accept an offer in writing of the seller to take back the security in question and to refund the full amount paid by such purchaser, together with interest on such amount for the period from the date of payment by ¡?uch purchaser down to the date of repayment, such interest to be computed:
“(a) In case such securities consist of interest-bearing obligations at the same rate as provided in such obligations; and
“(b) In case such securities consist of other than interest-bearing obligations at the rate of six percentum per annum; less, in every case, the amount of any income from said securities that may have been received by such purchaser.”
The petition alleged that Newland was the agent of the Banner Production Company, an express trust; that on or about May 29, 1934, plaintiff purchased from Newland and certain trustees of the trust, certain oil payment assignments which were described in the petition; that in consideration of these assignments plaintiff executed and delivered to the trust a deed to a farm comprising 230 acres, 45 shares of bank stock and also paid the trust $2,500 in money; that Newland received a remuneration for his services in helping the trust sell the securities;’that Newland was the agent of the trust and was not registered as an agent with the securities commission, as required by law; that at the time of the sale the securities in question were not registered with the Securities Commission of Oklahoma, as required by law; that on or about March 15, 1937, plaintiff tendered to defendant Newland certain oil and gas payment assignments issued by the Banner Production Company. These assignments were described in the petition. The petition further alleged that the assignments were assigned to Newland, and the sum of $66.22 was also tendered by plaintiff; that at the time this tender was made, plaintiff demanded from defendant Newland a conveyance to him of the land that had been conveyed by him to the trust, or, in lieu of the land, an amount of money, equivalent in value, or $35,000, the 45 shares of bank stock or its equivalent in money and $2,500; that all these demands were refused by defendant Newland; that plaintiff was at all times since March 15,1937, ready and able to keep the tender open; that plaintiff had made the same tender to the trustees of the Banner Production Company; that all the above refused the demands of plaintiff. The prayer was for a judgment for an amount plaintiff claimed was the value of the property and cash paid by him to the trust.
The answer of defendants denied that Newland was the agent of the Banner Production Company and alleged that the securities law of Oklahoma did not require such contracts as were sold to plaintiff to be registered or qualified with the commission; that plaintiff retained his oil run contracts from May 29, 1934, until about July 11, 1934, and then with full knowledge of all the circumstances, elected to trade off all of these contracts to the Banner Production Company and received in return other consideration; that by this sale he ratified the sale of May 29, 1934; that later, on February 2,1935, plaintiff made a third deal with the trust by which he exchanged all the contracts he had obtained on the second deal; that plaintiff at the time he made his tender to Newland of the oil contracts, dated May 29,1934, was no longer the owner of them and had not been since July 11, 1934.
The reply to this answer was a general denial.
It will be seen it was necessary that plaintiff should prove, in order to come under the act, first, that the sale was made in violation of law. There seems to be no serious contention but that these contracts were securities, as defined by the act, and that they were not registered or qualified, as required by the act, hence the sale was in violation of the provisions of the act. Next, it is necessary, in order for this action to be good against Newland, that he should be proved to be the agent of the Banner Production Company. This was put in issue by the pleadings. Defendants argue here that the plaintiff failed to offer any substantial evidence to prove this, and that on this account the demurrer to the evidence was correctly sustained. After an examination of the record,- however, we have reached the conclusion that there was sufficient evidence of agency introduced to make this a question of fact for the jury.
It then becomes necessary to notice the theory upon which this action to recover money is based. It is based upon the election of the purchaser, the plaintiff, to take advantage of the fact that the sale of the securities was made in violation of the law and hence voidable. It should be noted here that the only sale in which defendant Newland is claimed to have taken any part was the original sale to plaintiff on or about the 29th of May, 1934.
The statute then makes an agent in the voidable sale liable for the full amount of the purchase price, but provides that in order to enforce this liability the purchaser must tender back the securities sold or the contract made. On this point there is no conflict in the evidence. On May 29, 1934, plaintiff did buy from the Banner Production Company the securities described in the petition. On July 11, 1934, he assigned these securities back to the Banner Production Company and received from that company some other securities of the same general nature. The record is devoid of evidence that Newland knew about or had anything to do with the latter transaction. The record also discloses that about February, 1935, plaintiff exchanged some of the securities he received in the transaction of July 11, 1934, for some other securities.
It should be noted here that this action is brought to recover pursuant to the terms of the statute. The petition does not charge nor does the evidence prove any fraud. The action is not one to recover on account of fraud. Counsel realize the necessity under the statute for proving a tender of the securities purchased by plaintiff. They meet this situation by proving that plaintiff bought some other oil-run contracts and tendered them back to defendant New-land. He argues here that it was not necessary in order for him to eomply with the statute that he should tender back the identical securities, but that it is sufficient if he tenders back the equivalent of the securities purchased.
Defendant argues that the tender was insufficient because the record does not disclose that the contracts tendered back were the equivalent of the contracts bought. On this point the form of the contracts in question will be of interest. One of the contracts was as follows:
“oil payment assignment
“Whereas, on the 14th day of December, 1933, a certain oil, gas and mining lease was made and entered into by and between Prentiss Price, Blanche Ratliff, R. R. Bell, Jacob Schwartz, sometimes called J. Schwartz, and Sam Schwartz, sometimes called S. Schwartz, lessors, and C. L. Oarlock, lessee, covering the following-described land in the county of Oklahoma, and state of Oklahoma, to wit: Lot twelve (12), of Beverly Hills Suburban Ranches, second unit, a subdivision of the northeast quarter (NE14) of section twenty-seven (27), township eleven (11) north, range three (3), West of the Indian Meridian, containing four (4) acres, more or less.”
This lease being recorded in the office of the county clerk in and for said county in book 242, page 626, of the oil and gas records.
“Whereas, a portion of the said lease and of all rights thereunder or incident thereto, are now owned by the Banner Production Co., an express trust, of Oklahoma City, Oklahoma.
“Now, therefore, for and in consideration of one dollar (and other good and valuable considerations), the receipt of which is hereby acknowledged, the undersigned, the present owner of the said lease and rights thereunder or incident thereto, does hereby bargain, sell, transfer, assign and convey unto J. G. Glatt and Louise Glatt (as joint tenants with right of survivorship and not as tenants in common) Yeith of lessee’s interest of all oil and/or gas, as if and when produced, saved and sold from the above described lease until the said J. G. Glatt and Louise Glatt or assigns shall have received the sum of $15,000 in lawful money of the United States of America.
“It is further agreed and understood that after the $15,000 above mentioned has been paid in full, this assignment shall be null and void, and the owner and holder thereof shall forthwith release or re-assign the same to the said Banner Production, an express trust, or its successors or assigns.
“And for the same consideration, the undersigned, for itself, its successors and representatives, does covenant with said assignee, their heirs, successors or assigns, that it is the lawful owner of said lease and rights and interest thereunder and of the said personal property thereon or used in connection therewith; that the undersigned has good right and authority to sell and convey the same, and that said lease has been fully complied with.
“In witness whereof, the undersigned owner has signed and sealed this instrument this 29th day of May, 1934. Banner Production Co.,
An express trust,
By: E. H. Garrett,
T. B. Rucker,
Trustees.”
It will be noted that this entitles the holder to 1/64 of the lessee’s interest in the oil and gas that should be taken from the lease described until $15,000 should be paid to the holder.
The record discloses that plaintiff bought the following contracts: 5/384 of Beverly Hills lease, 5/3,840th of a Beverly Hills lease, 1/640 of above lease, 1/640 of above lease, 1/640 of Carney Heights Addition lease, 1/640 of above, 5/384 of above, 5/384 of Earps Addition lease.
The record also discloses that the contracts tendered back were for different fractional interests, the leases were on different real estate, the parties to whom the lease was made in the first place were different and there were differences in the dates of the contracts and the assignments. It is true that each contract provided that the contract should be in effect only until the amount of money named in the contract should be paid the holder. The question of whether this payment should ever be made was not guaranteed by the Banner Production Company. It is altogether dependent on whether any oil or gas is taken from the lease. The value of the contracts at any certain time depended upon the location of the lease, the state of development in the field, whether wells were being drilled on the lease, the price of crude oil and the length of time wells on the lease had been producing, if at all. There is no evidence in this record on any of these matters. Such being the case, we cannot say that plaintiff proved that the securities he tendered back were the equivalent of the securities purchased. We have examined the authorities relied on by plaintiff and find that they are not controlling on this point.
Another consideration in this case is that the action is one under the statute to rescind the contract of purchase. We have seen that about six weeks after the purchase the plaintiff did tender back the contracts he purchased and received some other contracts. The defendant Newland had' nothing to do with this transaction. Defendant argues that by this exchange plaintiff rescinded the contract he is charged with having been a party to, and that this is the rescission contemplated by the statute. Plaintiff meets this argument by contending that the plaintiff did not know of the violation of the securities act by the Banner Production Company at the time of the transaction of July 11. It must be remembered that this is not an action based on fraud, but is based on the statutory right of the purchaser to elect to treat the contract as voidable. In that situation we see that the only contract of purchase with which the defendant Newland was concerned had been rescinded by a tender back of the contract and a receipt of other contracts. Such being the case, the contract of purchase in which Newland was charged with acting as agent had become a closed incident. It could no longer be made the basis of an action under the statute.
For the failure of proof as to the securities tendered back being the equivalent of the securities purchased, and on account of the proof that the contract of purchase for which defendant Newland is charged with being an agent had been rescinded before the tender back of the securities and the demand for repayment, we have concluded that the demurrer of the defendants to the evidence of plaintiff was properly sustained.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
Counsel for appellant filed a motion for rehearing which consists largely of a reargument of the points argued in appellant’s original brief, all of which were fully considered by the court before the opinion was written. This motion has been fully considered by the court and is denied.
Counsel amici curiae have filed a brief in support of the motion for rehearing in which we are requested to reverse the judgment of the trial court for the sole purpose of directing a resentence of double the penalty of the crime for which appellant was convicted in lieu of the life sentence imposed by the court and approved in our opinion. This is upon the theory that the prior convictions of defendant, found and used as a basis for the life sentence, were in federal court, each upon a charge that defendant had conspired with others to violate the laws of the United States. The maximum punishment for this offense under the federal statute is a fine of $10,000 and imprisonment in the penitentiary for two years. The statute provides no minimum; hence, the punishment may be a fine only, or a j ail sentence. The fact that the punishment may be imprisonment for a term exceeding one year makes it a felony under the federal statute. In this respect the federal statute is similar to our own. (G. S. 1935, 62-104.) Counsels’ argument is that for the purpose of imposing the additional punishment provided by our statute for habitual criminals the test should not be the statutory definition of felony, but should depend upon whether the punishment imposed in the prior convictions was a penitentiary sentence or something less. Counsel advise us the record in this case discloses that in the three previous convictions of this appellant of a felony in the federal court there was only one of them in which he was given a penitentiary sentence, which he served; that in one of the other cases he was given a jail sentence for six months, and in the other he was put on parole.
On 'this point counsel cite and rely upon People v. Trimble, 18 Calif. App. 2d 350, 63 P. 2d 1173, where the holding of the court is in accord with counsels’ argument, and this case was followed in People v. Rowland, 19 Calif. App. 2d 540, 65 P. 2d 1333. Counsel apparently overlook the fact that the decisions in the California. cases were predicated specifically upon a statute of that state (section 17 of the penal code), which reads as follows:
“A felony is a crime which is punishable with death or by imprisonment in the state prison. Every other crime is a misdemeanor. When a crime, punishable' by imprisonment in the state prison, is also punishable by fine or imprisonment in a county jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the state prison.”
We have no such statute in this state, hence .these decisions are not in point.
This motion is denied.
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action to recover a balance of money due on a sale and exchange of certain farm machinery.
It appears that the plaintiffs, Harmon and Harmon, were partners dealing in farm machinery at Girard. They handled the Avery Champion binder. Coonrod, the defendant, was a farmer in Bourbon county, south of Fort Scott. On May 7, 1936, he made a contract with plaintiffs for the purchase of a new eight-foot Avery Champion binder and transport truck for $253.05, which was to be paid for by delivering to plaintiffs his old binder at an agreed value of $75 and by paying the balance in cash. The terms of the transaction were in writing on a printed form of “retail purchase order,” to which reference will be made below. On May 21, 1936, plaintiffs delivered the new binder, and received the old binder and $60 in cash in part payment therefor. While the balance was likewise to be paid in cash, that was not done, which fact eventually gave rise to this lawsuit.
The action was begun before a justice of the peace. Plaintiffs filed their bill of particulars reciting the facts substantially as stated above. To it was attached a copy of the retail purchase order signed by defendant, and which, in part, reads:
“Retail Purchase Order
ALLIS-CHALMERS AGRICULTURAL MACHINERY
Date, May 7, 1936.
"To Harmon Bros., Girard, Kan.
Please enter order of undersigned for purchase of the following described machinery ... at the prices and upon the conditions as follows, . . .
1 8 ft. Avery Champion binder.................’........ $241.50
Transport truck .................................... 11.55
Total price ..................................... $253.05
SETTLEMENT •
“The undersigned agrees to receive the said machinery, to pay the freight and handling charges in cash, and'to settle for the above purchase price as follows: By bill of sale, free of encumbrance, of—
1 used binder ......................................... $75.00
By cash on delivery................................... 178.05
Total (not including freight) ........................ $253.05
WARRANTY
“The said machinery is sold by the dealer with the following warranty, and no other:
“Allis-Chalmers Manufacturing Company warrants that it will repair f. o. b. its factory, or furnish without charge f. o. b. its factory, a similar part to replace any material in its machinery which within one year after the date of sale by the dealer is proved to the satisfaction of the company to have been defective at the time it was sold.....
“This warranty to repair is the only warranty either express, implied, or statutory, upon which the undersigned purchases said machinery: the company’s liability in connection with this transaction is expressly limited to the repair or replacement of defective parts, all other damages and warranties, statutory or otherwise, being hereby expressly waived by the undersigned.
D. B. Coonrod.
By Harmon Bros. (Dealer),”
Defendant’s answering bill of particulars contained a general denial and certain admissions, and alleged that the binder sold to him by plaintiffs did not possess “the quality implied by the name Avery Champion Binder”; that it was defectively made and of no value for cutting and binding grain; and “that the said binder would not cut and bind the grain or do the work which Avery Champion binders were manufactured to do and which the trade generally and the parties to this action knew that the Avery Champion binder and transport trucks usually would do.”
Defendant further alleged that the binder was wholly worthless and that the consideration for it had wholly failed; that plaintiffs had represented to him that the Avery Company had consolidated with -the Allis-Chalmers Company, and that the latter company “was behind the guaranty and the upkeep of the said binder,” and that such representation was false and known to be false by plaintiffs, but that defendant had believed and relied on it.
Defendant’s bill of particulars also pleaded a cross action against plaintiffs, in which he alleged that he cut 138 acres of grain with the binder, but that it worked so defectively that he lost almost two hundred bushels of oats, barley and wheat on account of it (details and values specified), and that be lost parts of fourteen days’ time worth from $2 per hour to $5 per day “endeavoring to get the machine to work”- — for all of which defendant prayed damages as itemized, together with reimbursement for the agreed value of the old binder ($75) and the $60 he had paid on account of the new but “worthless machine,” in the aggregate amount of $289.87. Defendant’s pleading concluded thus:-
“Defendant alleges that all and each of the above-mentioned'items of damage were caused to him by the false and fraudulent statements of the said plaintiffs on which the said defendant relied and by the fact that the plaintiffs failed and neglected to deliver unto the said defendant binder of the efficiency and usefulness implied by the name Avery Champion binder.”
Various motions and a demurrer were successively lodged against defendant’s bill of particulars, all of which were overruled. Defendant also filed a belated amendment to his bill of particulars, in which he alleged that he had tendered back to plaintiffs the binder in controversy and had demanded the return of his old binder and the return of the $60 he had paid, but that plaintiffs “told him that his suggestion was child’s play, and that they would under no consideration accept the said binder back.”
Plaintiffs filed a verified reply, traversing in detail the allegations of defendant’s bill of particulars.
Just what happened to this lawsuit before the justice of the peace does not appear, but in due time it came before the district court for trial de novo. A jury was. waived and the parties adduced their evidence, which will not need to be detailed for reasons which will appear as we proceed.
At the conclusion of the evidence the court took the cause under advisement and gave counsel for the parties time to submit briefs, after which it made findings of fact and conclusions of law, which, in part, read:
“findings of fact
“3. The court further finds that the defendant used said machine during the harvesting season, of 1936, and the machine did not do a good or perfect job of binding the grain, but said defendant did use the machine through the harvesting season of 1936, and now claims damage because it failed to do the work for which it was intended.
“6. The court finds that the damage suffered by the defendant during the harvesting season of 1936, in using and attempting to use the binder in cutting his wheat, oats and rye, amounts to $110, which amount should be an offset to any amount due plaintiff.
“7. The court further finds that the evidence adduced on the hearing of this case is not sufficient to warrant the court in finding that the defendant rescinded the contract whereby he purchased said Champion binder, and that a lawful tender back to the seller of said machine has never been made.
“8. The court further finds that from all the facts gathered and all evidence before the court, very little or nothing, has been done by any of the interested parties to correct whatever defect there is in said Champion binder, relating to a fairly efficient binding power, and if the plaintiffs are willing to put it in perfect working condition so said Champion binder will do a reasonably complete job of binding oats, wheat and rye, then the defendant should pay the balance due under the contract price, less damage of 1936; if plaintiffs cannot do that, then the defendant should recover damages to compensate him for his losses in harvesting his grain during the season of 1936, which the court finds is $110, and plaintiffs should recover nothing.”
“conclusions op law
"1. That the contract between the parties to this action and the manufacturing company owning the Champion binder is a valid and enforceable contract and has not been rescinded by the defendant.
“2. That the plaintiffs are entitled to recover from the defendant the balance of the purchase price amounting to $118.05, with 6 percent interest since June 1, 1936, if said binder can be put in first-class condition, and the defendant is entitled to judgment against the plaintiffs for $110, covering his damage in his attempting to use said Champion binder in cutting his grain during 1936 and because said binder did not do a fairly complete job in tying the grain.”
In accordance with the foregoing findings, judgment was rendered as follows:
“It is therefore considered, ordered and adjudged, that if the plaintiffs will so adjust said Champion binder that it will do a fairly complete job of binding wheat, oats and rye, then they shall have judgment against the defendant for the balance of the purchase price, less the damage caused defendant in using said machine during the harvesting season of 1936. If said Champion binder cannot be so adjusted, then plaintiffs shall not have judgment for the balance of the contract price, but the defendant shall have judgment for his damages in the sum of $110, which amount shall offset all balance due plaintiffs.
“The entire costs of this action shall be paid, one half by the plaintiffs and one half by the defendant.”
Plaintiffs appeal, urging various errors, the first of which relates to the overruling of their motion to require defendant to elect whether he would stand on his defense based on the alleged breach of an implied warranty with the resultant damages pleaded in his cross action, or upon his plea of rescission of the contract and his tender of a return of the binder and for the recovery of the consideration he had paid for it.
This motion of plaintiffs should have been sustained. Defendant should have been required to stand squarely on one position or the other. Plaintiffs were obviously handicapped in the prosecution of their cause of action, since they did not know which of the manifestly inconsistent defenses they would have to overcome. This subject of inconsistent remedies has frequently been expounded by this court. Thus in Sweet v. Bank, 69 Kan. 641, 77 Pac. 538, this court said:
“The doctrine of the election of remedies has been frequently applied by this court. The cases hold that where the remedies afforded are inconsistent the election of one by a party, with full knowledge of the important facts affecting his right, operates as a bar to the adoption of another of such remedies . . . (Citations.) . . . Election goes not to the form but to the essence of the remedy. It applies only where the law supplies to a party two or more modes of procedure, predicated upon inconsistent and conflicting theories. If the remedies afforded be predicated upon consistent theories, the suitor may use one or all of them; there can be but one satisfaction. Where the remedies afforded are inconsistent, the election of one operates as a bar. Where the remedies afforded are consistent, the satisfaction of the claim operates as a bar.” (p. 643.)
In the recent case of Turner v. Jarboe, 145 Kan. 202, 64 P. 2d 26, the action was to recover real and personal property plaintiff had given in exchange for a hotel property in Kansas City, Mo. Various motions were unsuccessfully leveled at plaintiff’s petition and an intermediate appeal followed. In the course of our opinion, written by Mr. Justice Harvey, it was said:
“In the main the petition is drawn for rescission; it contains all essential allegations for such an action. In it there are allegations of damages and a prayer for a money judgment. When plaintiff found she had been defrauded, as she thought, she had one of two remedies open to her; namely, an action to rescind, or an action for damages. These actions differ fundamentally in several respects. Rescission seeks to hold property or to recover property previously parted with, or its value if it cannot be recovered. In damages, plaintiff in effect' concedes the title to the property has passed, no effort is made to recover it, and a money judgment alone is sought. Because of the fundamental differences in these remedies they cannot be commingled. The petition must be drawn on a definite theory. (Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 22 P. 2d 965.) Neither can the action be brought first in rescission and then be changed to an action for damages, or vice versa. (Ireland v. Waymire, 107 Kan. 384, 191 Pac. 304; Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932; Hamilton v. McGinnis, 119 Kan. 719, 241 Pac. 690.) In such a situation plaintiff may elect which remedy he cares to pursue, but the one elected must be followed throughout. The allegation for damages, therefore, had no place in the original petition, or in the second amended petition. This does not mean, however, that in rescission the court would have no authority, under any circumstances, to render a money judgment. There are circumstances under which a money judgment might be rendered if the court had jurisdiction of the person of defendants. From the allegations of plaintiff’s petition it is a little difficult to understand clearly the items which make up the $4,500 for which plaintiff asks a personal judgment. Apparently one item is the rents collected by defendants from the Wyandotte county real property conveyed to them by plaintiff. Perhaps that might be awarded in rescission as necessary to complete equity, but if so it could be done under the general prayer for equitable relief. The remainder of the amount for which a personal judgment was sought, and perhaps all of it, appears to be damages of different kinds alleged to have resulted from the willful fraud of defendants. This should have been stricken from the second amended petition, or, if not, the demurrer thereto should have been sustained.” (p. 207.)
See, also, Spaulding v. Dague, 120 Kan. 510, 243 Pac. 1045; Fleming v. Campbell, 146 Kan. 294, 69 P. 2d 718; Curtis v. Hanna, 146 Kan. 919, 73 P. 2d 1063.
However, the trial court’s finding of fact No. 7 took the question of rescission out of the case, so we will pass on to the next point urged against the judgment.
Plaintiffs direct attention to the written contract of the parties, entitled “retail purchase order,” quoted, in part, above, in which it was categorically stated that the only warranty to which plaintiffs were bound was the express one to repair or replace free of cost any parts of the binder “proved to the satisfaction of the [manufacturing] company to have been defective at the time it was sold.” Plaintiffs invoke the well-known rule of law that a mere dealer in machinery of standard make is not bound by any implied warranty, and that would be particularly true where, as here, the written terms of the contract of purchase had expressly excluded any and all implied warranties. In Ehrsam v. Brown, 64 Kan. 466, 67 Pac. 867; id., 76 Kan. 206, 91 Pac. 179, one Brown purchased from plaintiffs two Wolf gyrators for his flouring mill. Plaintiffs were merely dealers in such machinery, not manufacturers. It was held that there was no implied warranty of such well-known machinery as gyrators, and that plaintiffs, being merely dealers, were not liable for any latent defects in their construction. Many subsequent cases of this court have been governed by the same rule. (Parker v. Hutchinson Motor Car Co., 127 Kan. 765, 274 Pac. 1115, and citations; Oil Well Supply Co. v. Hopper, 129 Kan. 300, 282 Pac. 701.) It therefore seems imperative to hold that so much of the judgment as imposed damages on plaintiffs for breach of an implied warranty cannot stand.
Turning briefly to the nature of the judgment itself, it should be understood that in a lawsuit based upon a claim for money due and a cross-claim for monetary damages, the litigants are ordinarily entitled to a judgment which will be a finality — one litigant should win in whole or in part, and the other must lose in whole or in part. But the judgment entered in this case was not a finality. It is decreed that “if the plaintiffs will so adjust said Champion binder that it will do a fairly complete job of binding wheat, oats and rye, then they shall have judgment,” etc. Plow is the fact to be ascertained whether the adjustment of the binder “to do a fairly good job” has been effected? Is that matter to be the basis of a supplemental lawsuit? In Alexander v. Clarkson, 100 Kan. 294, 297, 164 Pac. 294, it was said:
“There are two important ends in view in every lawsuit; the first is that it be decided right; and the second, which is only less important than the first, is that it be decided,.’’
Plaintiffs complain of another matter which the writer of this opinion is personally disposed to overlook, but a majority of the court hold that it cannot be ignored under this court’s supervisory duty to see that lawsuits are conducted in conformity with established procedure. When defendant had given his testimony, the court intimated that it was needless to call further witnesses. The record reads:
“By the Court: Well, now, gentlemen, really there wouldn’t be any necessity of calling a dozen witnesses. This court won’t doubt a word Mr. Coonrod says and I don’t know-how you can add to it by trying to say he was in the law or has any rights in the law, and whatever he says about this machine the court is bound by it, and his conscience is bound by it, and I won’t doubt a word he says about it. Now, if Mr. Harmon has anything in rebuttal, he could present it. As it presently stands now, every fact is before this court, in my judgment., as will be when you quit with a dozen more witnesses. That is the way I feel about it.
“[Counsel for plaintiffs]: I appreciate what your honor says, but if I want to offer creditable testimony of the — (interruption)—
“By the Court: You wouldn’t be able to do that without someone was storying about it. Now, take this for granted; I have known this man too long, just as well as he knows you, or the reporter, or anybody, but the court would be glad to hear anything you would like to present, so proceed.
“(Before the close of the case the following objection was made to the remarks of the court.)
“[Counsel for plaintiffs]: The plaintiffs object to the remarks of the court, in reference to the testimony of the defendant, D. B. Coonrod, as prejudicial to the rights of the plaintiff.
“The court made the following response:
“In that matter, the court is perfectly willing to announce that he has no right now and sees no reason for doubting what either one of the Mr. Harmons has said about this machine or any of their connection with it. It is a question of what the facts will sound in the court’s mind, as to being the true facts. As a matter of fact, the plaintiffs, if there is anything to the contention of the defendant that it would not work, the testimony is perfectly apparent, that they were not there all of the time and would have no way of knowing whether it did or did not.”
Plaintiffs insist that these remarks of the court were prejudicial. It would seem, however, that whatever errors inhere in the judgment. they did not arise from the credence given to defendant’s testimony, which plaintiffs might have controverted if they had been permitted to call other witnesses. Granting the truth of Coonrod’s testimony, it was clearly subject to plaintiffs’ demurrer on the ground that it was insufficient to establish a cross action or defense to plaintiffs’ bill of particulars. But we must also observe that plaintiffs did not bring into the record the proffered testimony which the court declined to hear, consequently we have no means of ascertaining its importance. (Elliott v. Oil Co., 106 Kan. 248, 251, 187 Pac. 692; Hall v. Shaffer, 131 Kan. 109, 289 Pac. 442; Hunter v. Greer, 137 Kan. 772, 22 P. 2d 489.) While the trial court’s premature avowal of unreserved credence in defendant’s testimony before plaintiffs had a full opportunity to adduce evidence to controvert it cannot be approved, and the incident might have compelled a reversal of the judgment under other circumstances, the disposition of the present appeal need not rest on this particular assignment of error.
In view of the various matters considered in this appeal, what disposition should be made of it? Manifestly, the judgment cannot stand. If the cause were remanded for a new trial, what is there left to try? The trial court has held that there was no rescission, and defendant does not complain of that finding. The “retail purchase order” signed by defendant, and which constituted the written contract of the parties, expressly excluded any and all implied warranties. Consequently the cross action for damages based thereon cannot stand; and there was no evidence of breach of the written terms of the contract. Defendant was therefore bound by its terms. In Manufacturing Co. v. Porter, 103 Kan. 84, 89, 172 Pac. 1018, it was held that where all the controlling facts to determine a liability were established, and the defense wholly failed, a new trial would confer no favor on defendant but only prolong litigation over a liability which he could not escape, and that final judgment should be ordered. The same rule has been repeatedly followed. (Kansas Wheat Growers Ass’n v. Smith, 127 Kan. 267, 273 Pac. 437; Devlin v. City of Pleasanton, 130 Kan. 766, 773, 288 Pac. 595; Cornwell v. O’Connor, 134 Kan. 269, 272, 5 P. 2d 861; Stevens v. Myers, 134 Kan. 286, 5 P. 2d 802; Security Nat’l Bank v. Crystal Ice & Fuel Co., 145 Kan. 899, 909, 67 P. 2d 527; Security Benefit Ass’n v. Swartz, 146 Kan. 267, 272, 70 P. 2d 16.)
The judgment is reversed and the cause remanded with instructions to enter judgment for plaintiffs in accordance with the prayer of their bill of particulars.
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The opinion of the court was delivered by
Hutchison, J.:
This action was a special proceeding to set aside as voidable, and for lack of jurisdiction a decree of divorce granted in another action between the same parties in the same court more than six months prior to the commencement of this action.
The first ground alleged in the petition in this special proceeding is not here for consideration on this appeal, but is briefly stated as the practice of “extrinsic fraud” by the defendant upon the court and the plaintiff, and that he thereby became the successful litigant in fact, notwithstanding the decree of divorce was in favor of the wife, the plaintiff. The second allegation in this proceeding was as follows:
“That the defendant by threats and intimidations prior to trial and the judgment, decree and orders herein referred to, compelled and induced this petitioner at the time of trial against her will to amend the prayer in the above-entitled action for separate maintenance and support, and to pray for divorce from the defendant, which she did in fear,” etc.
The answer consisted of a general denial and an allegation about the plaintiff having in the former action filed a motion for a rehearing as to property, which was the same in substance as the petition in this action, and that she later withdrew such motion and signed and approved the journal entry in the case, thereby barring and estopping her from maintaining this special proceeding.
After the overruling of a demurrer to this answer the plaintiff filed a reply, and the defendant moved to strike out the first paragraph thereof, which alleged want of jurisdiction to render a decree of divorce in the earlier case, and, also, eight subdivisions under the first paragraph, all having reference to the petition in the original case being one for permanent alimony and separate maintenance for her and the children; also referring to the failure to comply with the statutory requirement (G. S. 60-1517) of sixty days intervening between the filing of a suit for divorce and the hearing therefor, unless an emergency is found and declared by the trial court; the changing at the time of the trial from permanent alimony to divorce, which had not been mentioned in any of the pleadings prior to that time and no emergency having been declared; and to irregularities in the judgment as rendered in such former action. 'The trial court in this action sustained the motion to strike out all these matters in the reply, and from that ruling the plaintiff appeals, regarding the ruling as upon a demurrer.
The trial court heard evidence upon this motion, and in the form of an opinion found therefrom that the petition for separate maintenance was amended to one for divorce within sixty days prior to the hearing of the divorce suit, that negotiations were had for more than sixty days before the hearing, but plaintiff did not consent to the making of such amendment until within sixty days prior to the hearing. No emergency was found, and for general information it should be stated that the amendment made in the prayer of the earlier petition was by substituting the words “a divorce” instead of the words, “separate maintenance,” and the wife was granted a divorce, the care and custody of the two minor children, a judgment for a lump sum of money payable at the rate of $60 per month until paid, the ownership of the home where they had been living, which was subject to a mortgage, and a monthly allowance for the support of the children. No .appeal was taken from that decree.
The bringing of a new action to set aside such a final decree on account of fraud practiced by defendant is the approved plan instead of a motion in the original action, as was held in Booth v. Booth, 114 Kan. 377, 219 Pac. 513.
Appellant urges the matter of the disregard of the requirement of G. S. 1935, 60-1517, as to the hearing in a divorce suit being at least sixty days after the filing of the petition, and cites Hipple v. Hipple, 121 Kan. 495, 247 Pac. 650, and Elfert v. Elfert, 132 Kan. 218, 294 Pac. 921, in both of which cases the court upheld the statutory requirement, but in the former case recognized the asking for a divorce by the defendant in a cross petition filed more than sixty days before the hearing as a substantial compliance. In the Elfert case the service was by publication and the hearing was had in less than sixty days, but an emergency was declared, though not shown in the journal entry, and the irregularity was in correcting that omission by a nunc pro tunc order. The opinions in both cases recognized the necessity of a substantial compliance with the statutory requirement.
In the same connection our attention is directed to the next preceding section of the general statutes, which provides that the wife may obtain alimony from the husband without a divorce, in an action brought for that purpose, for any of the causes for which a divorce may be. granted. That was the way the former case was brought, and the grounds alleged for alimony were extreme cruelty and gross neglect of duty.
Appellant cites Steele v. Duncan, 47 Kan. 511, 28 Pac. 206, and McLeod v. Hartman, 123 Kan. 110, 253 Pac. 1094, where judgments were asked to be set aside because of fraud in obtaining them. The first was by petition in a second action, and the second was not sustained because the question was raised in the same case.
The allegations contained in the reply in this case, which were stricken out, were not allegations of fraud but tended to show want of jurisdiction. As stated above, the allegation of extrinsic fraud in the petition is not now before us.
The appellee urges that the jurisdiction of the district' court to grant a divorce was determined by the allegations of the petition and not by the prayer or the amendment thereof, citing Smith v. Smith, 67 Kan. 841, 73 Pac. 56, and Webster v. Broeker, 97 Kan. 219, 155 Pac. 15, which go far toward holding that, in determining the question of jurisdiction of the court, it is the cause of action stated and not the relief prayed for which controls. The Smith case is exactly like the one at bar, but in the ruling in the Broeker case attention is called to the statutory provision making the prayer a necessary part of a petition, although not a part of the cause of action. In the Smith case it was insisted that where the facts pleaded warranted more than one kind of relief, plaintiff should have only such relief as prayed for, as the defendant might be misled and not know the ultimate and true purpose of the action. It was held that “he knew from the allegations of the petition that she might obtain a divorce.” The question of sixty days intervening between the filing of the suit and the hearing thereof was not raised in the Smith case, that requirement not being enacted at that time.
It was said in the case of Snehoda v. National Bank, 115 Kan. 836, 840, 224 Pac. 914, “that an amendment to a prayer of a petition is seldom an important matter and never an essential one to the correct administration of justice,” referring to the ruling in the case of Eagan v. Murray, 102 Kan. 193, 170 Pac. 389, which is as follows:
“The prayer of a petition is merely the pleader’s idea of the relief to which he is entitled; it is not a part of the statement of the cause of action; and if the cause of action is sufficiently stated and sufficiently proved, the court will adjudge and decree the proper legal redress, which may or may not conform in whole or in part to the relief prayed for by the pleader.” (Syl. ¶ 2.)
It was also said in Staley v. Espenlaub, 127 Kan. 627, 274 Pac. 261, that “the prayer of a pleading may always be looked to as an aid to interpretation.” (p. 634.)
It should be observed also that the prayer in the case at bar went further than asking for separate maintenance, which was later changed to divorce, but it also asked “and for such other and further equitable relief as to the court may seem fit and proper.” But, regardless of this proposition, we have before us, and so did the trial court have before it, the all-important and superior question of the jurisdiction of the court.
The allegations of the original petition with the prayer for separate maintenance gave the court jurisdiction of persons and the sub ject matter. So did the amended petition which prayed for a divorce. The court had unquestioned jurisdiction, both before and after the amendment, so we do not need to further consider the effect of the change of the prayer as a jurisdictional matter. The only serious contention in that part of the case now before us for review is the validity of the divorce judgment and decree which was rendered prior to sixty days after the filing of a petition for divorce. Even if that should make the judgment voidable or erroneous, is the plaintiff now by this reply in a position to raise the matter of the jurisdiction of the trial court when she brought the case and afforded the court jurisdiction of the subject matter and also of the persons, and can she question the jurisdiction of the court to render the judgment from which she has been accepting and receiving the fruits and benefits? In the case of Kirby v. Kirby, 143 Kan. 430, 55 P. 2d 356, it was held that—
“A party cannot invoke the jurisdiction and power of a court for the purpose of securing important rights from an adversary through its judgment, and after obtaining some relief, repudiate the action of that court on the ground it was without jurisdiction.” (Syl. ¶ 4.)
This ruling was made in a divorce action where the plaintiff had, as such, brought a similar action in another jurisdiction and later attempted to abandon it, but judgment therein was rendered in favor of the husband before the trial was had in the Kansas case.
The case of Bledsoe v. Seaman, 77 Kan. 679, 95 Pac. 576, is also along the same line, where the wife pleaded in a second action that the court in the earlier action for divorce brought by her had no jurisdiction on account of the residence of the parties. It was there held:
“When both parties to a suit for divorce appear in the court of another state and submit to its jurisdiction, and after trial on the merits a decree is obtained, the party in whose favor the decree is granted will not be permitted, in an action subsequently commenced in this state, to impeach such decree on the ground that at the time the suit was commenced and the decree entered neither party resided in that state but both were residents of this state.” (Syl. ¶ 1.)
Neither can one raise the question of the jurisdiction of the court to render the judgment it did when such jurisdiction was invoked by such person and some of the benefits thereof were accepted and received by such party. (Bierce v. McNinch, 115 Kan. 542, 223 Pac. 1110.)
We conclude that the ruling of the trial court was correct in sustaining the motion to strike out parts of the reply, which motion was equivalent to a demurrer to that part of the reply.
The judgment is affirmed.'
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The opinion of the court was delivered by
Smith, J.:
This was an action to enjoin the city of Wichita from operating a wholesale produce market. Judgment was for the plaintiff, striking out certain portions of the answer. Defendants appeal.
The petition alleged that plaintiff was a resident and taxpayer of the city of Wichita and that he brought the action on behalf of himself and others similarly situated; that pursuant to an ordinance a proposition of issuing $25,000 in bonds for the purpose of purchasing ground and equipping it for a market place was submitted to the voters of the city in 1929; that this bond issue carried and the land was purchased and improved; that in 1936 an ordinance was passed providing for the operation of a wholesale produce market in the building; that this ordinance provided for a market master and other necessary employees; and that under the rules of the market the sale of produce is prohibited to anyone except retailers; that, at the time the bond issue was submitted the plaintiff and others relied upon the truth of publicity concerning the ordinance, namely, that the city would establish and maintain a public market in the event the bond issue carried at the election; that the city pays the upkeep of the building in addition to paying salaries to employees ; that in 1917 a proposition was voted on and carried for the issuance of $200,000 of bonds for the acquiring of land and erecting improvements for market purposes; that upon the land acquired a forum annex was built; that the forum annex is equipped and suitable for a market place; that the city never maintained a public market in accordance with the terms of the purported ordinances; that the acts of the city in acquiring the land and erecting the buildings thereon for market places amounted to a fraud on the people in that money was spent for market places and improvements and market places and improvements were never maintained; that private and special interests had appeared before the board of commissioners of the city objecting to the operation of a public market and supporting the city commission’s action of maintaining a public wholesale market; and that by reason of this complaint a public wholesale market had been operated; that the city did not have the corporate power, authority or right under the laws and constitution of Kansas to operate a public wholesale market. In so doing it violated the public rights of taxpayers, bestowed upon favored individuals rights that were not given to the public; that the operation of a wholesale market had no connection with the business of the city; the regulations of the market operated by the city of Wichita were unreasonable, unfair, unjust and discriminating; that the city had no corporate power'to operate and maintain a public market under the constitution or statutes of Kansas, particularly G. S. 1935, 12-1301,13-402,13-1060 to 13-1065; that the city was renting rooms in the wholesale produce market for a filling station and restaurant and that this violated the constitutional rights of the plaintiff, increased his taxes, and that the city was without the power to do such acts; that all of these acts violated the constitution of the state of Kansas. The petition prayed for judgment requiring the city to operate a public market, and to enjoin it from maintaining a public wholesale produce market, and to enjoin it from leasing a part of the space for the purposes therein set forth.
In their answer the defendants pleaded first a general denial, except that the plaintiff was a taxpayer and owned land. The defendants then admitted the allegation as to the $25,000 bond issue for the purpose of purchasing and equipping a public square or mar ket square; that the amount received from the bonds was sufficient only to purchase the land and level off the ground; that the construction of the building was paid for out of funds received from the treasurer of the United States and from the treasurer of the city of Wichita, which could be used for that purpose; that the funds available were insufficient for the construction of a public market and were only sufficient for the construction of a wholesale produce market; that the present building was in no way suitable for the operation of a retail market. Paragraph 7 of the answer was as follows:
“These defendants allege that there is considerable ground in said tract of land so purchased, and lying between Wabash avenue and Ohio avenue, and between Third street and Central avenue, in the city of Wichita, not occupied by the building already constructed thereon; that said unoccupied ground is sufficient and is available for the operation of a retail market and for the construction of proper and suitable building with proper and adequate facilities for a retail market, whenever the funds are available for the construction of a retail market upon said tract of ground, provided it is the desire and intent of the city of Wichita to occupy and use said tract of ground wholly as a market square, instead of partly as a market square and partly as a public square.”
The answer then admitted that the city paid certain employees of the market place and that no retail sales were permitted; that the building on that tract of land was not suitable for the operation of a retail market; that no portion of the money used in constructing this building was raised by taxation of plaintiff’s property or the property of any taxpayer similarly situated. The answer further alleged that the ground in question was procured under the provision of G. S. 1935, 12-1301, and denied that the governing body of the city ever promulgated any publicity, as alleged in the petition; that the forum building referred to in the petition was used at all times for exhibition purposes and such use precludes the use of it as a market. Paragraph 14 was, in part, as follows:
“Defendants further allege that the space complained of in the pretended second cause of action was intended and designed to be leased for purposes incidental to the operation of a wholesale produce market in said building, and that part of the rooms are now vacant; that the defendants, acting for and on behalf of the city of Wichita, would be willing to consider the entering into of a lease with the plaintiff for any use of such space which might be incidental to the market, and likewise, defendants would be willing to negotiate for a lease on said space with any other persons who might be interested in entering into a lease for such vacant space for a use incidental to the said market.”
Plaintiff filed a motion to strike the allegations quoted above from the answer. This motion was allowed in part by ordering stricken from paragraph 7 the following language:
“Whenever the funds are available for the construction of a retail market upon said tract of ground, provided it is the desire and intent of the city of Wichita to occupy and use said tract of ground wholly as a market square, instead of partly as a market square and partly as a public square.”
And by ordering stricken from paragraph 14 the following:
“That the defendants, acting for and on behalf of the city of Wichita, would be willing to consider the entering into of a lease with the plaintiff for any use of such space which might be incidental to the market, and likewise, defendants would be willing to negotiate for a lease on said space with any other persons who might be interested in entering into a lease for such vacant space for a use incidental to the said market.”
And that there should be stricken from paragraph 8 of the answer the following: “And that on the contrary, said building was paid for out of public funds secured from sources other than the taxation of plaintiff’s said property.”
The defendants have appealed from the judgment ordering the above matter stricken from the answer.
From an examination of the pleadings and briefs and statements made in the oral argument, we have reached the conclusion that the end sought in this action is to challenge the right of the city to maintain and operate a wholesale market only as distinguished from one where retail sales would be permitted. This is true even though there are allegations in the pleadings about favoritism of the city officials in renting space in the forum building.
The defendants have treated the ruling on these motions as a de- ' murrer to their answer. Otherwise the order would not be appeal-able. On that account the motion directed at the answer will be considered as searching the record. (See Rohrbaugh v. Cunningham, 101 Kan. 284, 166 Pac. 471.) When this is done we find that the action is brought by a citizen in his private capacity. It challenges certain official acts of the city officials of Wichita, charges them with certain illegal actions and with failure to act in certain cases. It does not appear that the plaintiff has any interest in the subject matter of this action different from that of the other citizens of the city. As has been the long-settled holding of this court, that such actions could not be maintained by a citizen in his private capacity, the action must be brought by the county attorney of the proper county or the attorney general of the state. There is an exhaustive discussion of the decisions of this court on the subject in the recent case of Kern v. Newton City Commissioners, 147 Kan. 471, 77 P. 2d 954. It would be difficult to add anything of value to that opinion here. From an examination of the authorities considered there, we have reached a conclusion that the plaintiff was without authority to institute this action. When the motions to strike, amounting to a demurrer to the answer, were filed, the trial court should have carried them back as a demurrer to the petition and sustained them.
The judgment of the trial court is reversed with directions to render judgment sustaining a demurrer to the petition.
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages for injuries growing out of an automobile collision. Judgment was for defendant. Plaintiff appeals.
The collision occurred while plaintiff was riding in the rear seat of a car owned by her, but which was being driven by her husband. Plaintiff and her husband lived at Newkirk, Okla. On the day the injury occurred they had driven in the car of the plaintiff from their home to Blackwell, Okla., where they had picked up another married couple. They had returned to Blackwell and then driven to Arkansas City, Kan., where the four of them had dinner with another couple. After dinner the three couples entered plaintiff’s car, being driven by plaintiff’s husband, and after one stop in Arkansas City started back to Newkirk, Okla., to the home of plaintiff and.her husband, where their two minor sons were waiting. Plaintiff and the other two ladies were riding in the back seat. Her husband and the other two men were riding in the front seat. The collision oc curred while driving south toward Newkirk. The car had just reached the south end of Chilocco bridge in Kay county, Oklahoma, when it and defendant’s car collided. As a result of the collision plaintiff’s car was forced through the guard rails on the east side of the bridge. A piece of timber came through the side of the car, struck plaintiff on the leg, and injured her.
In her petition plaintiff set out the facts about the journey on which she and her husband were traveling and described the place where the collision occurred. She then alleged that defendant was negligent in the operation of his car, in that he was driving at an excessive rate of speed, did not remain on the right-hand side of the center of the road, but crossed over to the left-hand side, and that defendant was not watching the road and traffic at the time of the collision.
The answer of defendant was first a general denial, then an allegation that the injuries of plaintiff were the result of her own negligence and that of others jointly associated with her. The answer alleged that plaintiff and those associated with her were guilty of negligence in that in attempting to pass the car driven by defendant they did not pass to the right of the middle of the road but drove to the left of the middle. The answer further alleged that plaintiff herself failed to use reasonable and ordinary care to protect herself from injury, in that she failed to warn the driver of the car in which she was riding of the approaching car being driven by defendant and of the narrow bridge, and of the necessity for cars keeping to the right, and in failing to warn the driver of her car to drive slowly.
The reply of the plaintiff was a general denial.
The court instructed the jury fully and a verdict was returned for defendant. Motion for a new trial was denied, and plaintiff appeals.
Only one error is urged here.
Plaintiff presents the sole question that the trial court erred in giving certain instructions to the jury as to joint enterprise.
Plaintiff contends that the facts disclosed by the evidence did not warrant the instruction given.
At the outset, it should be noted that plaintiff did not order a transcript of the entire record' of the trial. She obtained a transcript of the evidence of herself and her husband only. The abstract in this court is also incomplete in. this regard. Defendant argues first that the appeal should be dismissed on this account.
The question of whether the driver of the car in which plaintiff was riding was guilty of negligence which should be imputed to the plaintiff was not the only question in this case. The question of whether the defendant was guilty of any negligence was sharply contested. For aught that appears in this record, that may well have been the reason the jury found for defendant. Of course, if this were the case, then the contributory negligence of plaintiff and the construction on it was of no moment. Furthermore, the facts and circumstances surrounding the actual collision of the two cars are of importance in weighing the correctness of the instruction of which complaint is made. In this case it is apparent that there were four people present in the car with plaintiff at the point where the collision took place. The plaintiff is asking us to reverse a judgment for defendant and to send the case back for a new trial when only a portion of the record is brought to us for review and it bears only on one disputed fact in the case and-does not touch on all phases of that point. There are cases occasionally where the appeal may be determined without a complete record. That is not the case, however, where the errors assigned depend upon the evidence. (See Darst v. Swazee, 135 Kan. 458, 11 P. 2d 977.) We shall not consider the merits of this appeal because we are not able to do so intelligently from the record furnished.
The appeal is dismissed.
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The opinion of the court was delivered by
Dawson, C. J.:
This appeal presents the question whether the probate court must order an administratrix to sell mortgaged real estate on the insistent demand of the mortgagee.
The probate court ruled to the contrary, and the district court sustained that ruling. Hence this appeal.
The pertinent facts were these: On September 8, 1936, the late Fred L. Hartley, of Saline county, died testate, naming his widow, Florence A. Hartley, as sole beneficiary of his estate. On October 24, 1936, the widow qualified as administratrix with the will annexed. The personal estate was inconsiderable and quite insufficient to pay the debts of the testator. Exclusive of the homestead, there were twelve separate pieces of Salina real property belonging to the estate, each of which was mortgaged so heavily that the equitable margins in them were negligible, and most of them were also encumbered with delinquent taxes.
The Security Savings & Loan Association held mortgages covering three separate pieces of property of Hartley’s estate, viz.:
No. Mortgage Taxes Valuation Value of Equity
4 $3,200 $311.20 $2,650 0
9 3,250 308.13 2,750
10 650 142.14 300
These mortgages had been executed by the testator to secure, certain of his promissory notes dated December 17, 1923, November 1, 1925, and January 20, 1926, respectively. All of these notes were long overdue and large sums of accrued interest were also due thereon.
Instead of instituting actions in a court of competent jurisdiction to reduce these notes to judgment and to foreclose the mortgages given to secure their payment, appellant filed in the probate court its petition and proof of demand against the estate. Attached to its petition as exhibits were copies of the notes and the related mortgages. The petition also alleged:
“The several debts above mentioned are by reason of the above-described mortgages the first liens respectfully [respectively] in, to and upon the first, second and third parcels above mentioned and described, and said debts are due and unpaid and there are not sufficient personal assets in the estate of said decedent to pay the same and said lands and tenements should be sold for the payment thereof, the proceeds of said sales respectfully [respectively] first to be applied upon the debt owing to petitioner and claimant, and for the payment of any other debts and expenses of administration as are or shall otherwise not be paid. . . . Wherefore petitioner and claimant prays that its three claims aforesaid be allowed as debts of said estate secured as aforesaid and that the administratrix with the will annexed of said estate be required by an order of this court to sell said land and the proceeds of said sales apply respectfully [respectively] upon petitioner’s liens above set forth and further that she be required to sell such other lands and tenements of the decedent subject to the payment of debts as shall be necessary for the payment of petitioner’s claims.”
The probate court ordered that appellant’s claims be allowed as of the fifth class (G. S. 1935, 22-701), but declined to order the administratrix to sell the lands covered by its mortgages.
When the cause came on for review in the district court, extended findings of fact and conclusions of law were made. Among the latter were the following:
“1. A sale of the properties in the probate court upon this petition would eliminate the equity of redemption in said properties, and the right to redeem the same, as provided by law, on behalf of the estate and the second lien holders. . . .
“2. That the estate of said decedent could not benefit by the sale of said properties for the payment of said mortgage liens, for the reason that neither of said properties would sell for more than the amount of the first mortgages and taxes on such properties, and the administratrix should not be required to institute proceedings to sell said properties for the benefit of said mortgagee.
“4. That there being no equity in said properties, the remedy of said mortgagee is by regular foreclosure proceedings, and that the action of the petitioner amounts to a short cut or a quick method of applying the proceeds of the mortgaged property to the payment of the mortgage liens, and is not authorized by law, and that the statute requiring the administratrix to sell real estate for the payment of debts of creditors applies to creditors generally, and does not require the said administratrix to select mortgaged properties and start proceedings in the probate court to sell the same for payment of the mortgage debt, when the general creditors could in no wise be benefited from such proceedings, but would suffer an evident loss as a result therefrom.”
It is of the judgment rendered in accordance with these conclusions that appellant now complains. It cites the statute relied on to force a sale of the mortgaged properties in the probate court, the pertinent provisions of which read:
“As soon as the executor or administrator shall ascertain that the personal estate in his hands will be insufficient to pay all the debts of the deceased and the charges of administering the estate, he shall apply to the probate court for authority to sell the real estate of the deceased, or any interest he may have in any real estate situated within this state subject to the payment of debts.” (G. S. 1935, 22-801.)
“If the court is satisfied that it is necessary to sell real estate of the deceased to pay his debts, it shall order the real estate described in the petition, or so much thereof as may be necessary for the payment of the debts, to be sold at public or private sale, as the comí; may direct, by the executor or administrator, for cash in hand, or upon deferred payments not exceeding two years, with interest, as shall be ordered by the court.” (G. S. 1935, 22-807.)
“The money arising from the sale of real estate shall be applied in the following order: First, to discharge the costs and expenses of the sale and percentage and charges of the executor or administrator thereon, for his administration of the same; second, the payment of mortgages and judgments or other liens or claims upon the estate sold, according to their respective priorities, so far as the same operated as a lien on the estate of the deceased at the time of his death, which shall be apportioned and determined by the court; third, to the discharge of claims and debts, in the order mentioned in article 5 of this act.” (G. S. 1935, 22-824.)
Do these provisions of the statute require that under all circumstances all real property belonging to an insolvent estate, encumbered as well as unencumbered, must be sold at the instance of any person holding a demand against the estate? This court has never so held. In Bowlus, Executor, v. Winters, 117 Kan. 726, 233 Pac. 111, the power of an executor to sell mortgaged property for the purpose of paying off the mortgage was called in question. In that case the encumbrance on the property was $1,500. The executor sold the property for $7,000. During the negotiations for its sale, foreclosure proceedings were instituted which would have gone to judgment if the sale had not been consummated. Clearly that sale by the executor was for the benefit of the estate. Moreover, in that case the executor desired to sell the property, and the probate court gave its sanction and approval to the sale. In contrast with that case, in the one at bar, where the properties are encumbered for more than they are worth, it could not be of any advantage to the estate to have them sold by order of the probate court, and such sale would obviously be to its disadvantage since it would lose the privilege accorded to all mortgagors and those holding under them personally or in a representative capacity, the equity of redemption. Moreover, on two of the mortgaged properties there are rights of a junior lien-holder which are entitled to consideration. If the properties were sold by order of the probate court, that junior lien would be summarily wiped out. By further contrast with the Bowlus case, in this case the administratrix does not desire to sell the mortgaged properties with which appellant is concerned. And the probate court has refused to order her to do so. Some early cases where the sale of mortgaged property by authority or approval of the probate court has been upheld by this court were Fudge v. Fudge, 23 Kan. 416; Graham v. Graham, 38 Kan. 440, 17 Pac. 152, and our recent case of Fry v. Heargrave, 129 Kan. 547, 283 Pac. 626, is to the same effect. That the separation of a promissory note from its incidental security and its presentation in court for adjudication may lead to unwanted results under modern conceptions of justice is not urged in this case; but see Kaw Valley State Bank v. Thompson, 140 Kan. 726, 37 P. 2d 985.
To say that the statute authorizes the sale of mortgaged real estate to pay the debts of the decedent is one thing. (24 C. J. 550.) But it is quite a different matter to say that the probate court is bound to order the administratrix to sell mortgaged real estate notwithstanding such sale would not contribute one dime toward the payment of the unsecured debts of the estate. And furthermore, if the probate court, the district court, and this court — all three— should give countenance to the maneuvers instituted by appellant to have these mortgaged properties sold by the probate court, it'is not certain that appellant would have thereby succeeded in cutting off the equity of redemption. On this point see In re Estate of Wood, 118 Kan. 548, 551, 235 Pac. 864, and State Bank v. Diamond, 119 Kan. 294, 239 Pac. 970. Certain it is that if the right of a mortgagor of real property to the leniency of a period of time after its forced sale to make provision for its redemption could be circumvented by an in invitum order of a probate court, then our statute (G. S. 1935, 60-3439), which aims to give such consideration to the debtor, is scarcely entitled to the many encomiums which admiring jurisconsults have given it. Counsel for appellees cite an early Wisconsin case, Crow v. Day, Adm’r, etc., 69 Wis. 637, 642, 35 N. W. 45, where the supreme court of that state affirmed a decision of the circuit court which had overruled an order of the county (probate) court approving a sale of lands of a decedent so heavily encumbered that no benefit to the estate or to general creditors could be derived from such sale. While the main point was a question of jurisdiction of the probate court to approve the sale, the remarks of the supreme court are pertinent here:
“If the county court had clear jurisdiction in the matters, as claimed by the petitioner, it certainly ought not to have put this insolvent estate to the expense of selling the land, when it is absolutely certain that it could not have been sold at such price as would more than pay the mortgage debt. According to the petition, neither the estate, the creditors, nor the administrator, the widow, nor the heirs, nor any one except the petitioner himself, has any interest in such a sale, except to pay the expenses, or would in any respect be benefited by it.” (p. 642.)
See, also, Amos, Adm’r, v. Livingston, 26 Kan. 106, 109.
The error assigned on this phase of the appeal cannot be sustained.
Another error is urged on our attention. It appears that in the mortgages securing the notes, which were the basis of appellant’s claims in the probate court, there were recitals assigning to the mortgagee the rents of the properties to be applied on any delinquencies in payment of insurance, taxes and the like. This matter was not called to the probate court’s attention. It was first raised in the district court when the cause was brought there on appeal. But while the cause on appeal is tried de novo, it is nevertheless an appeal, and the matter of rents was not before the district court at the time. Indeed, after this cause was pending in the district court; appellant returned to the probate court and made application for an order directing the administratrix to pay to appellant the rents collected by her after June 30, 1937. (This date was named in deference to the fact that chapter 219 of the Laws of 1937 took effect at that time.) That application was denied and the probate court’s ruling thereon was brought to the district court on a separate appeal. That appeal is still pending and undetermined in that tribunal. Manifestly, we can have nothing to say on that phase of this litigation at this time.
The judgment is affirmed.
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The opinion of the court was delivered by
Thiele, J.:
Defendants appeal from certain orders made in connection with an effort on their part to satisfy, in manner hereafter set out, a judgment rendered in a foreclosure action.
Plaintiff filed an action to recover on a note signed by the five persons named as defendants, and to foreclose a real-estate mortgage made by two of them to secure the note. All of the defendants answered by general denial. On April 1, 1935, judgment was rendered on the note against all of the defendants for $6,122.66 and interest, and for foreclosure of the mortgage, and directing issuance of an order of sale of the mortgaged real estate, subject to an eighteen months’ period of redemption, the proceeds to be applied in order, to costs, taxes unpaid, amount due plaintiff, balance, if any, to persons entitled thereto under direction of the court. Pursuant to order of sale issued, a sale was had and the property stricken off to plaintiff for $2,912.51. On defendants’ motion, the court ordered the sale be not confirmed. Pursuant to a second order of sale issued, another sale was had and the property was stricken off to a stranger to this action for $2,500. Defendants moved the court to set aside this sale; to make an order fixing an upset price on the real estate and an order conditioning confirmation of sale upon requirement the fair value be credited upon the judgment. The court set aside the sale, and fixed an upset price of $6,000 at' which the land must be sold if sale thereof shall be confirmed. This last-mentioned order was made May 29,"1936. Nothing further was done until September 6, 1937, when defendants filed their motion, reciting the fixing of the upset price and that since May 29, 1936, plaintiff had failed to readvertise or resell the land, and requested the court to order the plaintiff to credit the sum of $6,000 on the judgment, the defendants tendered into court all sums due on the judgment over $6,000 and requested, on fulfillment of the conditions, the sale theretofore had been confirmed. The court overruled the motion. At some date not disclosed defendant Groft had died. The above judgment had not been revived against his legal representatives, and before December 27, 1937, his estate had been finally closed in the Trego county probate court. On the last-mentioned date, the remaining defendants filed their application for a restraining order and for an injunction, in which were recited the facts above, and charging that plaintiff had maliciously and negligently failed to prosecute the ac tion, and that it would be inequitable, unjust and unconscionable to permit him to collect interest on the above judgment on and after the date defendants had tendered into court the amount of the judgment over the sum of $6,000; that plaintiff had filed a transcript of the judgment in Trego county, and that transcripts had been filed in other counties (not named), and plaintiff had threatened to and defendants believed he would cause executions to be levied upon any property defendants might own, all contrary to G. S. 1935, 60-3469. It was further alleged in the motion that the reasonable value of the involved real estate was far more than $6,000 and to permit the plaintiff to recover from defendants more than the difference between the fair and reasonable value of the property and the total amount due on the judgment would be unconscionable, etc., and plaintiff should be permanently enjoined-from enforcing the judgment in excess of the difference. On this motion the trial court granted a restraining order and set the matter for hearing. At the hearing there was no dispute as to the facts stated. Plaintiff’s attorney stated he had started to file a praecipe for an execution in Trego county, but desisted when defendant’s counsel stated: “I might be able to change your mind on your right to do it.” Later conversation was that he thought he would file it and that he thought he had a right to file it. After hearing the application, the trial court, on January 28, 1938, made findings of fact, covered by what has been stated, and concluded:
“1. As to the defendants, J.H. Heckman and Jane W. Heckman, his wife, the plaintiff, having brought this action to foreclose a mortgage given by them, is estopped from proceeding by way of a general execution to enforce his personal judgment against said defendants; but this estoppel does not apply as to the defendants, Ray J. Shaw, C. M. Hutchison and E. H. Groft, against whom only a personal judgment was rendered. The liability of the defendants in this action is both joint and several.
“2. At the hearing on May 29, 1936, for the confirmation of the sale held on April 6, 1936, the court might have required, as a condition to confirmation, that the fair value of the mortgaged property be credited upon the judgment, interest, taxes and costs (G. S. 60-3463a). It did not do this, but fixed an upset price at which the premises must be bid in, if the sale was to be confirmed. The court’s order of May 29, 1936,.has become' final; but it should not be construed as meaning more than it states, that is, that the property must be sold for at least $6,000 before a sale will be confirmed. The property may at some time be sold for this amount, but until this is done, the defendants are not entitled to credit on the judgment. If the court thought that it was equitable to require a credit on the judgment, it might have so decreed.
“3. The defendants have not shown or offered to show that the mortgaged property, if reoffered for sale, would now sell for $6,000.
“4. An injunction will be denied. The restraining order heretofore issued will be dissolved.”
Judgment was entered accordingly.
On March 26, 1938, the surviving defendants filed two motions, one to change a finding with respect to filing of a praecipe for execution in Trego county, the other for permission to introduce further testimony the effect of which was to show all of the defendants contributed to the purchase price of the involved real estate and that title was taken in Heckman’s name as a matter of convenience, and that the fact was known to the plaintiff when the mortgage to him was executed and delivered.
On the first motion the trial court directed that the record show a praecipe had been prepared but not filed. On the second motion, although indicating it felt the motion should be denied, the trial court permitted defendants to introduce testimony tending to prove all of them owned the real estate, that it stood in Heckman’s name and that plaintiff knew it prior to execution and delivery of his mortgage. At the conclusion of the offer, defendants’ counsel orally moved for a modification of the first conclusion of law quoted above that estoppel applied to defendants Shaw, Hutchison and Groft, and in lieu it should be held plaintiff should be restrained. The trial court then denied the motions.
The defendants followed this on April 16, 1938, by depositing $1,178.38 with the clerk of the district court and filing a motion stating they had paid that amount into court to satisfy the judgment, and requesting the trial court to correct an error in the judgment of April 1, 1935, because, through error, it was for an exces; sive amount. This motion came up for hearing on April 25, 1938, and defendants then filed an amended motion, stating the amount due on the judgment and interest thereon, giving credit for the upset price and arriving at a balance of $1,178.38, amount of the tender, offering to pay the costs, and all delinquent taxes due on the real estate, and moved the court to decree them released of further liability on the judgment. They also claimed an error in computing the amount due plaintiff on April 1, 1935, and that the judgment was excessive in the sum of $136.07. They asked the court to correct the error and to deduct the amount from the sum paid into court for the plaintiff. The trial court denied the motion asking release from further liability and allowed it as to error in the judgment.
The plaintiff does not complain as to the reduction in the judgment. The defendants appeal, specifying errors which will be dis: cussed. We may here note that as to many of the rulings complained of, it does not appear that appeal was taken in time. How - ever, they are mentioned in order that the matter may be intelligently discussed.
Although presented from various angles, what appellants sought to do in the trial court was to secure release from the money judgment rendered again'st them in the foreclosure action, and that is the gist of their complaint on appeal. That judgment was rendered on April 1,1935. There was no issue before the court then that the five defendants were not all equally liable on the note, nor was there any issue that all five of them owned the mortgaged real estate rather than the two defendants who executed and delivered it. There was no motion for a new trial; no objection was made to the judgment as-rendered and it became final. Not until appellants filed their motion on March 26, 1938, was any contention made that all five defendants owned the real estate. The trial court permitted the testimony to be taken, but denied the motion. While the motion did not specifically ask that the original judgment be altered or modified, had it been allowed, that would have been its effect. That such a course of procedure is not authorized by the code, but is contrary to it, needs no elucidation. The trial court properly denied the motion.
Appellants also contend that the order of the trial court fixing an upset price of $6,000 was a final order, and they argue therefrom that an appeal not having been taken, that upset price is forever fixed, and at any time the real estate is sold, that much must be realized, and therefore their liability for deficiency is now determined, and they are now entitled to pay that deficiency and be released. That argument is coupled with the contention above mentioned and not sustained, that all five defendants were owners of the land. It is not necessary to our decision, and we expressly refrain from discussing or deciding whether under any circumstances a new and different upset price may not be fixed. On the general proposition of the right of any defendant to be thus released from liability» over and above the upset price placed on real estate, little need be said, assuming such a contention was not otherwise subject to attack. The statute providing for fixing an upset price is G. S. 1935, 60-3463a, and it does not even faintly suggest the trial court may compel a judgment creditor to take the mortgaged property at any price, nor does any statute of which we are aware. That would be the result if appellant’s motion to have their liability limited were allowed. The trial court ruled correctly on the motion.
Our attention is directed to decisions such as Wheat Belt Building & L. Ass’n v. Armstrong, 140 Kan. 541, 38 P. 2d 145, holding:
“Where an action is brought to foreclose a mortgage, and a personal judgment for the amount due is rendered and an order made for the sale of the mortgaged real estate, the order of sale must issue, and if the proceeds arising from the sale are not sufficient to pay the judgment, costs and taxes, a general execution may then, and not before, issue for the balance.” (Syl.)
And it is argued therefrom that a general execution may not issue here until the plaintiff takes the lands at the upset price or the land is sold on order of sale with resultant credit for that amount, and therefore plaintiff should have been enjoined from having general execution issue. This argument is also coupled with the contention that all five of the defendants were owners of the real estate. In its conclusions of law embodied in its order of January 28, 1938, the trial court so concluded as to defendant Heckman, as shown by the quotation above, and plaintiff does not complain. As to the remaining defendants, however, the judgment of April 1, 1935, was simply a money judgment, and the trial court properly concluded that plaintiff was not so limited.
As has been indicated, the purpose of the many motions and of the application for a restraining order was in effect to compel the plaintiff to take the land at its upset price, and to relieve the defendants from liability upon their paying the difference between that price and the amount due on the judgment. The effect of the rulings on the various motions and the refusal to grant the injunction was to deny any such relief.
The trial court’s various rulings and judgments were proper and are affirmed.
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The opinion of the court was delivered by
Thiele, J.:
This was a proceeding under the workmen’s compensation act. The commissioner made an award allowing compensation to the claimant. On appeal the district court found for the respondent and denied compensation. The claimant appeals.
As presented to this court, the real question is whether the respondent was engaged in the business of operating a motor transportation line. Such disputes as there were at the hearing as to the number of men employed by respondent, whether he had notice, whether proper claim was made, and whether the present claimant was a dependent, have all been resolved in favor of the claimant, and the sole question for our consideration being whether respondent was under the workmen’s compensation act, our statement of facts will be limited.
Respondent operated a bulk station in Kansas City, Kan., from which he supplied gasoline, and perhaps other petroleum products, to five retail filling stations on which he held leases, but which were operated by lessees to whom he sold, also to two or three other retail filling stations, and he also made deliveries to users at the Wyandotte county lake, then under construction. It was shown that re spondent used four trucks in making such deliveries, that he had more than five employees, and that he did not manufacture any of the products sold by him. The record is silent as to how the products reached the bulk station.
On May 12, 1937, Joseph James Gillispie, driver of one of the trucks, had delivered a load of gasoline to the Wyandotte county lake location and had returned to the bulk plant to make city deliveries. He went into the office to get an order directing where to make delivery and walked out by the truck. No one seems to have witnessed what occurred, but in a fire which destroyed the truck, whatever contents it contained, the office and the records, Gillispie received injuries from which he died. The deceased workman and his wife had been divorced. The claimant is the son of the decedent.
The workmen’s compensation act (G. S. 1935, 44-505) limits its field of operation to employment in the course of the employer’s trade or business in railway, motor transportation line, factory, mine or quarry, etc., and to all employments wherein a process requiring the use of any dangerous or inflammable materials is carried on. Prior to 1927 the words “motor transportation line” were not included in the act. In Dodson v. Sales Co., 110 Kan. 481, 204 Pac. 532, decided in 1922, where the driver of a truck transporting gasoline died as the result of a collision between the truck he was driving and another truck owned by the defendant, it was held that the development of power in a truck engine by the use of gasoline was not such a “process” as brought the employer within the terms of the act. Appellant recognizes that had the statute not been amended he would be barred from recovery if the above case be followed. He argues, however, that the words “motor transportation line,” inserted in the act in its general revision in 1927, are sufficiently broad that the trial court erred in holding, in effect, that the respondent was not engaged in business as a “motor transportation line.” It should be noted that the respondent here is not to be held liable unless he was so engaged. There was no evidence that he manufactured any of the products he distributed, and there was no evidence that he used any process requiring the use of any dangerous explosive or inflammable materials, nor is it so claimed.
Under our workmen’s compensation act, mere operation of a motor-driven vehicle is not a hazardous employment. It may be said that the deceased workman was engaged in about the same kind of work and assumed about the same risks as though he were driving a motor truck for a concern engaged exclusively in transporting gasoline or some other dangerous article from one definite point to another definite point along a prescribed route, but whether the act applies is to be determined not by what he did, but by the business in which his employer was engaged. The test is: Was the employer’s business within the purview of the act? As was said in Shrout v. Lewis, 147 Kan. 592, 77 P. 2d 973:
“In order to bring an employer within the act it is not enough that the work at which the laborer is employed is covered by the act, but it is also necessary that the work shall be a part of his employer’s trade or business. (G. S. 1935, 44-503, 44-505; Setter v. Wilson, 140 Kan. 447, 449, 37 P. 2d 50.) In other words, it is the purpose of workmen’s compensation acts to place the burden of compensation for accidents to employees upon the industry rather than upon the individual employer.” (p. 594.)
In that case it was recognized that a person might be engaged in two occupations, one of which subjected him to the provisions of the act, and the other not, and that it was a question of fact as to whether he was sufficiently engaged in the first that he was subject to liability. It does not follow, however, that one engaged in a business clearly outside the act is liable to a workman because the type of work done might otherwise be within the terms of the act (Setter v. Wilson, 140 Kan. 447, 37 P. 2d 50). It must appear the employer’s trade or business brings him within the terms of the act. If it does, the workmen are entitled to its benefits (Pegg v. Postal Telegraph-Cable Co., 129 Kan. 413, 283 Pac. 58; Kennedy v. Hull & Dillon Packing Co., 130 Kan. 191, 285 Pac. 536; Stager v. Sinclair Refining Co., 143 Kan. 517, 54 P. 2d 969). Thus it became necessary for the trier of the facts to determine what the trade or business of the employer was and whether it was one of those included in the workmen’s compensation act. The commissioner found that the respondent was subject automatically to the provisions of the act; the district court, on the contrary, found he was not engaged in a hazardous employment and that he had not elected to accept the provisions of the act. Insofar as this may be a question of fact, the finding of the district court is conclusive here.
If the evidence showed respondent was engaged in the business of selling gasoline and petroleum products at wholesale, and it is not contended that such a business is covered by the compensation act, does the fact that he causes delivery of those products to be made to his customers, warrant a conclusion that he is also engaged in the business of a motor transportation line? To reach such a conclu sion it must have been found respondent was engaged in two businesses. Appellant’s contention is that respondent was engaged in business as a “motor transportation line.” Each refers to that part of the following definition which seems to lend strength to his position:
“Line 26. (a) A number of public conveyances, as carriages or vessels, plying regularly under one management over a certain route; as a line of stages ; the American Line to Southampton, (b) Any system of transportation or the equipment by which it is carried on; also, the company or business organization owning or operating it; as, the main line of the old Dominion Line; the Pennsylvania Line.” (Webster’s New International Dictionary, 2d ed., p. 1435.)
And in the same work the word “transportation” is defined as follows:
“1. Act of transporting, or state of being transported; carriage; removal; specif., systems and modes of conveyance of persons or goods from place to place.” (p. 2694.)
Giving to the words of the statute. their ordinary meanings, it must appear that, measured by the above definitions, a clear demarcation cannot be made. Actually all the evidence showed was that respondent delivered his own wares to purchasers, most of whom were at fixed locations, but some of whom may not have been. In most respects, except as to the kind of merchandise carried, the situation was the same as though a wholesaler or jobber of ordinary merchandise were delivering to his customers.
Any examination of cases bearing on the question of liability under various workmen’s compensation acts will disclose that much depends on the terms of the act, for in some of them mere transportation of goods is sufficient to bring the employer within the terms of the act. In the majority of cases it would seem that delivery of goods by an employer to a customer, as a mere incident to other business, does not bring him within the terms of the workmen’s compensation act (71 C. J. 373, 389 [Workmen’s Compensation Acts §§ 84,113]).
In Mobley v. Brown, 151 Okla. 167, 2 P. 2d 1034, it was held that an employee using a motorcycle to make deliveries for a drugstore was not engaged in a hazardous employment as defined in the workmen’s compensation act of that state. The above case is also reported in 83 A. L. R. 1014 and is followed by an annotation on who are within the provisions of workmen’s compensation acts relating to hazardous employments or occupations, and at page 1057 thereof may be found citation of many cases dealing with the rights of drivers of vehicles.
Appellant directs our attention to certain cases which will be noticed briefly. Because of similarity of facts, he relies strongly on Floro v. Ticehurst, 147 Kan. 426, 76 P. 2d 773, a case where a driver of a truck used to transport gasoline was killed, and where recovery was allowed. Reference to the abstract in that case shows it was stipulated both parties were under the act. For that reason there is nothing in the opinion that bears on the question now before us.
Appellant also relies on Johnson v. Arma Elevator Co., 146 Kan. 965, 73 P. 2d 10.18. In that case the question was whether claimant was an employee of the respondent. The abstract in the case showed respondent had elected to come within the provisions of the workmen’s compensation act, hence the question now before us was not there considered.
Our attention is also directed to Stager v. Sinclair Refining Co., 143 Kan. 517, 54 P. 2d 969, and it is argued therefrom that because one or more employees transported gasoline by motor truck, the business should be considered as a whole and held to be within the workmen’s compensation act. In that case there was no doubt that the respondent, as to its principal activities, was within the terms of the act. The contention of the respondent was that claimant’s decedent was not an employee of the respondent in the hazardous part of its business; that filling stations were not included in the hazardous employments named in the workmen’s compensation act and therefore it was without liability. The commissioner and the district court held that the business must be considered as a whole, and this court on appeal held to the same effect and that where an employer refines gasoline and also operates filling stations, the employees used in operating the filling stations are under the act. It seems to us the present appellant’s reasoning is the reverse of what was there held. There the employer was undoubtedly within the terms of the act and sought to avoid liability on the ground that part of its activities was not specifically named as being hazardous, while here, because some duties are hazardous, it is claimed the entire business is within the purview of the act.
In Wetlaufer v. Howse, 146 Kan. 500, 71 P. 2d 879, it was held that the employer was within the term “motor transportation line.” There seems to have been little or no dispute on that point; the term is not defined and the case is not helpful here. The principal ques tion there was whether the claimant was in fact an employee under the circumstances of that case.
Appellant also directs our attention to our statutes pertaining to the sale of motor vehicle fuels and the regulation of motor carriers. We need not discuss them. There is no evidence that respondent did not comply fully with any statute that affected him. Such definitions as are included there are for the purposes of those acts and have no reference to the workmen’s compensation act.
There can be no doubt the rule is that the workmen’s compensation act is to be so interpreted that its purposes may be fully accomplished. But its terms and the employments to be included were the problem of the legislature. That the court might believe a certain employment was hazardous, or that it ought to be included, is not sufficient. In many types of business, explosives and inflammable materials are sold, but that alone does not bring an employer of five or more persons within the act. Unless the employment is fairly within the terms of the act, the employer has no liability under it. The statute is devoid of any language which may be said to make mere transportation of an employer’s own merchandise to his customers, whether by motor truck or otherwise, a hazardous employment. If it should be so held, every employer of five or more persons who used a motor-driven vehicle of any kind, truck, automobile, motorcycle, or motor-driven scooter, -for the purpose of delivering his goods to his customers, would be within the terms of the act. This would subject to the act many owners of general stores, grocery stores and other types of business not generally considered as being under the act. The whole content of the act shows that was not intended by the legislature. It may be conceded that one person or corporation can be engaged in two businesses, one of which is within the act, and the other of which is not, but they would have to be clearly separable.
For an employer to be engaged in business as a “motor transportation line” it would seem that he must do more than deliver his own goods to his customers. We shall not attempt here to define the phrase nor to supply illustrations of its application. We are satisfied that it was not intended by the legislature that an employer of five persons, otherwise without the act, should be brought within its provisions merely because he made delivery of his own wares to his customers by motor vehicle.
The judgment of the district court that the respondent was not engaged in a hazardous employment under the terms of the workmen’s compensation act was correct, and it is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This was an action -to establish and enforce a trust in relation to real property and for specific performance. Counsel did not ask the trial court to make findings of fact and conclusions of law, under G. S. 1935, 60-2921, but in deciding the case the court filed a written opinion, generally finding for plaintiffs, but making specific findings on the principal facts, with its conclusions of law, and which contained argument and citation of authorities in support of the conclusions reached. The trial court decreed specific performance against the defendants, but declined to decree specific performance against the wife of one of the defendants, who was not a party to the action and who had not signed the written agreement which the court held binding on her husband. The court also denied plaintiffs’ motion, later made, to abate the price to be paid by plaintiffs for the property, upon the evidence offered. Plaintiffs have appealed.
The facts as shown by the record and found by the court may be summarized as follows: Prior to the time of the matters which gave rise to this controversy plaintiffs were the owners of a ranch of 3,120 acres in Chase county, of which about 435 acres were good creek-bottom farm land, the balance grazing land. It is well improved and was used for growing and feeding livestock. It was encumbered for $90,000 in the form of two mortgages made to a joint-stock land bank and later owned by the Farm Mortgage Holding Company. These mortgages became in default and were foreclosed in October, 1934, when the judgments amounted to $108,-446.72. The sheriff’s sale was held December 31, 1934, at which the Farm Mortgage Holding Company purchased the property for the full amount of its judgments, interest, taxes and costs. The sale was confirmed, and the period of redemption was fixed at eighteen months, at the expiration of which, or about July 1, 1936, a sheriff’s deed was issued to the purchaser, and this was recorded. Under some lease or rental arrangement plaintiffs remained on the premises. At some time within the period of redemption the Farm Mortgage Holding Company had offered to take $65,000 for its certificates of purchase, and plaintiffs had endeavored to get a loan from the Federal Land Bank at Wichita, and possibly from other sources, to purchase them, but had been unable to do so.
About December 1, 1936, the Farm Mortgage Holding Company gave to J. E. Bocock, a real-estate broker at Cottonwood Falls, the exclusive option for thirty days to sell the ranch for $80,000. To facilitate the sale Bocock divided the ranch into three parts, the grazing land into two parts, and a third part consisting of the farm land with a small pasture. This action is concerned only with this third part, on which are the ranch improvements. On December 10,1936, Bocock entered into a written contract with Carl B. Cowley (acting for himself and C. A. Cowley) for the sale of this tract. This sufficiently described the land, but in general terms, and the Cowleys agreed to pay $70 per acre for the farm land and $18 per acre for the small pasture, the land to be surveyed to ascertain the exact acreage and the aggregate price, which it was thought would amount to about $30,000. The Cowleys paid $1,000 on the purchase price at the time the contract was entered into and agreed to pay the balance by March 1, 1937, at which time they were to have possession of the property. This contract contained appropriate provisions for the furnishing of abstracts and deed by the seller, and was contingent upon Bocock’s ability to sell the two tracts of grazing land at a price so the aggregate sale price of the ranch would be as much as $80,000. The record appears to take it for granted that Bocock was able to do this, and on December 29, 1936, a formal contract was executed between the Farm Mortgage Holding Company and Carl B. Cowley for the sale of this property. In it the land was specifically described. The purchase price was fixed at $29,322.58, of which $2,000 was acknowledged as paid, the balance to be paid in cash on the delivery of the deed on or before March 1, 1937. It contained appropriate provisions for the furnishing of abstracts, and recited the property was then leased or rented to the plaintiffs herein until March 1, 1937, and the seller agreed to give possession on that date.
In December, 1936, plaintiffs were still trying to get a loan from the Federal Land Bank that would enable them to buy the ranch. They learned of the Cowley contract and one of them told Carl B. Cowley that his contract interfered with their plans to get a loan and buy the ranch. Cowley said he would turn his contract over to them if he was paid the money he had paid on it. Bocock hesitated to take plaintiffs on the contract in lieu of the Cowleys, being fearful they would not be able to pay the balance of the purchase price by March 1,1937. Plaintiffs then went to the defendant, Ludvig Nelson, and entered into an oral agreement with him whereby Nelson agreed to purchase the real estate for the benefit of plaintiffs, and plaintiffs agreed to pay Nelson the purchase price he had to pay for the property plus the sum of $1,000, which money plaintiffs were to obtain by a loan on the property through the Federal Land Bank, and when Nelson was so paid he was to deliver abstracts and convey the property to plaintiffs. No time was agreed upon for the consummation of the transaction. Plaintiffs were to secure the payment to Nelson of the extra $1,000 by a deed or mortgage on a quarter section of land in Butler county which they represented to own, but this security never was given.
After making this oral agreement plaintiffs and Ludvig Nelson had a conference with Bocock and Carl B. Cowley, as a result of which Cowley assigned to Nelson the contract he had for the purchase of the land, and Nelson agreed to carry out its provisions and to hold Cowley harmless from any liability on the contract. This assignment was executed January 7,1937. Thereafter and on about March 1, 1937, Ludvig Nelson paid the balance of the purchase price and received and recorded a deed to him for the property from the Farm Mortgage Holding Company. The court specifically found “that the plaintiffs did not, prior to the execution and delivery of said deed, on March 1, 1937, pay to the defendant, Ludvig Nelson, the purchase money, or any part thereof, that they had agreed to pay pursuant to said oral contract.”
Thereafter, and on March 19,1937, after some talk between plaintiffs and defendant as to whether they could farm the place and when they might pay him the money they had agreed to pay him, the parties entered into a written agreement, by the terms of which Nelson leased to plaintiffs the property for the period from that date to February 28, 1938. This is a somewhat usual form of farm lease, providing for cash rental for the small pasture on the premises and for a share of the grain and hay on the farm land, and contained this paragraph:
“It is mutually understood and agreed between the parties hereto that this lease is made with the understanding that said second parties have been granted an option to buy said premises for the cash purchase price paid to party of the first part in the sum of $31,529.10 to be paid to him on or before April 1, 1937. -In the event said second parties shall exercise said option and pay said first party or offer to pay him said sum of $31,529.10 on or before April 1, 1937, then this lease shall be null and void, otherwise to remain in full force and effect during said period of one year, that is to say, ending February 28, 1938.”
The sum named in this paragraph was the amount Nelson had paid for the property, plus the $1,000 plaintiffs had originally agreed to pay him. This, lease, containing the above option, was executed by the plaintiffs and by the defendant Ludvig Nelson. Plaintiffs continued in possession of the property and renewed their efforts to get a loan from the Federal Land Bank which would enable them to buy it, which at that time they thought could be done in a few days. The court specifically found that after the execution of the lease and option agreement, and before April 1, 1937, plaintiffs and Ludvig Nelson entered into an oral agreement whereby the time and mode of performance of the written option contract was modified and the time of performance was by mutual agreement and considerations of the parties extended until plaintiffs could obtain a loan from the Federal Land Bank to pay Nelson for the premises. The court further found that on May 1, 1937, and'before the option agreement as orally extended had expired, the defendant Ludvig Nelson, and his wife Selma, executed a deed to an undivided one-half interest in the property to his brother, O. W. Nelson, who at the time had full knowledge of the oral extension of the written option, and took the deed subject thereto.
The court further found that plaintiffs obtained approval of their loan from the Federal Land Bank on May 13,1937, and immediately advised Ludvig Nelson of such approval, and that without any reason therefor Ludvig Nelson refused to consummate the deal, and refused to deliver plaintiff’s abstract of title which he had received to the premises and which he had agreed to deliver so that the same might be extended and examined for the purpose of the loan to be obtained by plaintiffs.
To save repetition, we will consider the trial court’s conclusions of law in connection with the points argued by appellants.
Appellants contend the trial court erred in finding that no trust arose in favor of plaintiffs, and that their oral contract was unenforceable. One of the court’s conclusions was: “Because the plaintiffs did not pay the purchase money, or any part thereof, at the time or before the land was purchased by defendant Nelson and he acquired title thereto, no trust arose in favor of the plaintiffs and the oral agreement between plaintiffs and defendant Nélson was un enforceable,” citing Kaul v. Hoenshell, 129 Kan. 278, 282 Pac. 697, and “that on March 1,1937, the defendant, Ludvig Nelson, was and became the full legal and equitable owner of the real estate involved in this case.”
Considering the findings of the court respecting the oral agreement between plaintiffs and Ludvig Nelson, made in December, 1936, and the further finding that plaintiffs failed to pay by March 1, 1937, the purchase money, or any part thereof, that they had agreed to pay, pursuant to their oral contract, perhaps this conclusion of law could have been more accurately stated had the court said that such trust relations as had arisen from the oral agreement between plaintiffs and Ludvig Nelson had terminated by plaintiffs’ failure to pay pursuant to the oral agreement. We think this is the correct interpretation of the court’s findings of fact and conclusions of law on this point, and we see nothing wrong with it. Counsel for appellants cite several cases in which courts have held a trust relation grew out of transactions between a principal and agent. Ludvig Nelson can hardly be said to have been the agent of plaintiffs. More properly, they dealt with him at arm’s length. For a consideration, which plaintiffs agreed to pay or secure to Nelson, which payment they never made and which security they never gave, he agreed to take over the Cowley contract and to- turn the property over to plaintiffs on the payment to him of the money he paid out, plus $1,000. Now, if they did not do that, pursuant to their agreement, whatever rights they had under this oral contract necessarily were lost. In the briefs counsel cite our statute of frauds and our statute of trusts and many authorities dealing with various phases of those questions. We shall not review these authorities, or analyze the discussion, for the question whether any trust agreement existed between these parties becomes academic if we approve, as we do, the holding of the trial court that Ludvig Nelson obtained full title to this property by the deed to him from the Farm Mortgage Holding Company of March 1, 1937. The soundness of that holding is made clear by the next point to be considered.
Appellants complain of the conclusion of law of the court that when the written contract and lease containing an option for plaintiffs to purchase the property, was executed between the parties in March, 1937, all prior negotiations with respect to the purchase of the property were merged and became a part of the written contract. We approve of this holding of the trial court. More than that, when plaintiffs executed this instrument they recognized in writing that Ludvig Nelson was the owner of the property, and they became his tenants. Their relation to the property as such tenants is inconsistent with any claim on their part of ownership. The effect of this was to recognize the fact, held by the court in the conclusion of law above discussed, that Nelson became the legal and equitable owner of the property when he made the final payment to the Farm Mortgage Holding Company and procured its deed to him for the property.
Whatever may have been the prior oral agreement between the parties this written instrument effectively fixed the status of plaintiffs as tenants and of Ludvig Nelson as owner. It also fixed the conditions under which plaintiffs could purchase the property, then recognized as being owned by Ludvig Nelson, the amount they would have to pay for it, and the time within which they had to make payment.
The trial court found the time within which plaintiffs were given in the written agreement to exercise their option to purchase was extended by mutual agreement and considerations of the parties, and that within the time so extended plaintiffs were ready to perform, and so advised Ludvig Nelson, who, without reason, refused to recognize their right to do so. The court further found that O. W. Nelson took title to an undivided one half of the property, with full knowledge of plaintiffs’ option to purchase, and that the time for them to do so had been lawfully extended, and held that he took such deed subject to the rights of plaintiffs to exercise their option to purchase. These findings are as favorable to plaintiffs as the evidence pertaining to them warrants, and naturally appellants did not complain of them, and since there is no cross-appeal the correctness of these findings is not before us for review.
The court therefore decreed specific performance in favor of plaintiffs and against Ludvig Nelson and O. W. Nelson. Because the wife of Ludvig Nelson was not a party to the action, and because she had not signed the written agreement by which plaintiffs were given an option to purchase the property, the trial court refused to decree specific performance as against her. Plaintiffs objected to these findings and conclusions, and asked the court to hold that the wife of Ludvig Nelson had no title or interest in the property. This the court declined to do. Since plaintiffs had chosen not to make the wife of Ludvig Nelson a party defendant they were not entitled to ask any decree against her. Appellants concede that if Ludvig Nelson obtained the legal and equitable title to this property by the deed to him from the Farm Mortgage Holding Company, and his wife should outlive him, she would be entitled to have set off to her an undivided one-half interest in the property to which she had not made a conveyance. (G. S. 1935, 22-108.) Since she had joined her husband in the deed to O. W. Nelson for an undivided one-half interest, the share that might be set off to her in the event her husband died before she did would be a one-fourth interest in the entire tract. (But see Bates v. State Savings Bank, 136 Kan. 767, 18 P. 2d 143.)
After the trial court had held that it could not decree specific performance against the wife of Ludvig Nelson, plaintiffs filed a motion asking the court to abate the price which they would have to pay for the property in purchasing it under their option, as extended, by reason of the fact that their title would be imperfect, and offered evidence as to the amount of such abatement. This evidence did not disclose the age or the condition of health of Ludvig Nelson or of his wife. It consisted of the testimony of persons who had seen Ludvig Nelson several times. Some of them were fairly well acquainted with him, but none of them knew his age, with any degree of accuracy, or anything about the condition of his health, except from his general appearance. None of them knew anything about the age or condition of health of Mrs. Ludvig Nelson, and had seen her only casually on the street once, or a few times. The trial court was of the opinion that this evidence was too indefinite and uncertain, and too speculative in its character, to form any basis upon which he could fix an abatement of the price. We agree with the court, that there was no substantial, competent evidence upon which an abatement of the price could be fixed, if, indeed, such abatement would be proper, a question we are not called upon here to determine.
Appellants complain that the trial court, having tentatively received certain testimony, later struck it out. There are two classes of this testimony. One pertains to statements between plaintiffs and third parties about the time of their oral agreement with Ludvig Nelson. As to this complaint, there are two answers: (1) The court found the oral agreement to be substantially in accord with the testimony of plaintiffs, which was controverted in part; and (2) the written agreement executed by the parties in March, 1937, is controlling between the parties since that time. The other class of testimony pertains to conversations between plaintiffs and a third person (and defendants' effort to impeach that in part), which plaintiffs communicated to Ludvig Nelson shortly prior to April 1, 1937, and which, in part at least, induced Nelson to extend the time in which plaintiffs could exercise their option to purchase the property. Since the court found that time was lawfully extended, and no one on this appeal complains of that finding, the soundness of the ruling is unimportant. More than that, we think the ruling of the court was correct in each instance.
We find no error prejudicial to appellants in the record. The judgment of the court below is affirmed-.
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The opinion of the court was delivered by
Smith, J.:
This was an action for workmen’s compensation. The commissioner of workmen’s ■ compensation awarded compensation. On appeal to the district court this award was approved. The respondent appeals.
The workman at the time of his injury was operating a power-driven drill rig. He was drilling prospect holes on a lead and zinc mining lease. The respondent, the Eagle-Picher Mining and Smelting Company, owned this lease. It had entered into an oral contract with respondent Swalley, who owned the drill rig, to drill prospect holes on the lease in question at the rate of one dollar per foot when he completed each hole. The reason for having these holes drilled was that the company would thereby be able to ascertain what minerals were underneath the surface of the earth and, if so, just where would be the best place to sink a shaft. Respondent Swalley employed claimant to operate Swalley’s drill rig in drilling these prospect holes.
On May 5, 1937, the Eagle-Picher Company was engaged in the tri-state mining district operating a number of lead and zinc mines. The work claimant was doing at the time of his injury was explora•tion work on the part of the Eagle-Picher Company to determine if the company would be justified in mining it. Harry J. Meade was assistant field superintendent of exploration work for the company. He looked after the lease and several other leases for the company.
The claimant testified that Mr. Meade was the field man for the company and told him how deep to drill the holes; the ones he drilled before he was injured were 340 feet deep. Mr. Meade came to the lease practically every day; the geologist for the company had already marked the places where the holes were to be drilled. Mr. Meade would measure him out when a particular hole was completed. Mr. Meade instructed him to keep a log of the hole and gave him some paper to keep it on; when he came out he would ask claimant how deep he was, and whenever he thought the hole was deep enough he would measure claimant out, and would point the location to commence drilling the next hole; he told claimant to save drill cuttings every five feet, except when he was in ore, and then to save them every two and one-half feet. Mr. Meade would come out practically every day and look at the cuttings and ask how deep he was. Mr. Meade did not give him any orders.
He further testified that on May 5, 1937, Mr. Meade came out and measured the hole claimant was drilling and told him to move the rig over to the next location. In order to move it he had to loosen a bolt on the clutch lever, and this lever came down and struck him across the face. He continued to work there until about 10 o’clock on the morning of May 8, when the pain became so severe he had to quit. He started to town to a doctor and Swalley drove up; that Swalley said, “I don’t know who their doctor is, let’s go up and ask ‘Bob Hartley’ ”; that they went to the office of Doctor McKinney and Doctor McKinney looked at his eye and gave him some pills; that later that evening Doctor McKinney took claimant to a hospital at Joplin, and on the way to Joplin he met Swalley. Claimant headed Swalley off and showed him the letter Doctor McKinney had given him sending him to Doctor Post at Joplin; that Swalley said, “That is O. K., go ahead”; that he then went to St. Johns Hospital and was treated by him; that later he met Swalley on the street and that Swalley said he would pay no doctor bills; that when he told this to Doctor Post he said that if the insurance company would not pay for the treatments to let him worry; that claimant had to be treated; that since the accident on May 5, 1937, he. had recovered five checks, which he claimed were compensation checks. The last one of these payments was received on September 17, 1937. He filed his claim for compensation on September 20, 1937. The commissioner of workmen’s compensation found that claimant was totally disabled for an indefinite period of time and was entitled to compensation for a period of *not to exceed 415 weeks at the rate of $18 a week. The commissioner further found that the case was an extreme one and the claimant was entitled to medical and hospital expenses in an amount not to exceed $500. The award was made accordingly. On appeal to the district court the award was approved. The appeal is from that order.
The first argument of respondent is that the part of the award where not to exceed $500 was awarded claimant for medical and hospital expenses cannot stand. The allowance was based on G. S. 1935, 44-510. That statute reads in part as follows:
“(1) Treatment and care oj injured employees. It shall be the duty of the employer to provide the services of a physician, or surgeon and such medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, ambulance, crutches and apparatus, as may be reasonably necessary to cure and relieve the workman from the effects of the injury; but the cost thereof shall not be more than $100, nor shall the period of time during which same are to be provided exceed sixty (60) days from date of accident: Provided, That in extreme cases the commission may, after proper showing, require the employer to provide medical, surgical and hospital treatment in an amount not in excess of $500: And provided further, That all fees and charges under this section shall be fair and reasonable, shall be subject to regulation by the commission, and shall be limited to such as are fair and reasonable for similar treatment of injured persons of a like standard of living. The commission shall have jurisdiction to hear and determine all disputes as to such charges. No employer shall be liable for any medical, surgical or hospital treatment, including nursing, medicines, medical and surgical supplies, ambulance, crutches and apparatus, nor for any physician’s or surgeon’s fees in excess of the amounts hereinbefore expressed. If the employer has knowledge of the accidental injury and refuses or neglects to seasonably provide the benefits herein required, the employee may provide the same for himself and the employer shall be liable for such expense subject to the limitations herein expressed: Provided further, That if the services of the physician or surgeon furnished as above provided are not satisfactory to the injured workman the commission may authorize the appointment of some other physician or surgeon, subject to the limitations as to total charges for the benefits in this section provided and the period over which same shall extend as hereinbefore expressed.”
Respondent points out the provision that the employer shall furnish such surgical and medical expenses as are reasonably necessary, but “the cost thereof shall not be more than $100, nor shall the period of time during which same are to be provided exceed sixty (60) days from date'of accident.” Respondent argues that under the above language there are three limitations on the payment of surgical and hospital expenses — first, they must be in reasonable amounts; second, they must not ordinarily be in a greater amount than $100; and third, they must not be provided for a longer period than sixty days from the date of accident. The following provision providing for an allowance of $500 in extreme cases is noted, but respondent argues that there is no evidence in this record that the case is an extreme case, and further, that the sixty-day limitation applies to the extreme case as well as the ordinary case.
In the first place, the commissioner found that the case was an extreme. one. The trial court approved this finding. There was some evidence introduced before the commissioner upon which such a finding could be based. Under such circumstances this court is limited in its right to review to questions of law. Where there is any substantial evidence to sustain a finding of fact made by the commissioner it will not be reviewed on appeal in this court. Further more, the record brought to this court on appeal is not such as would warrant this court in reviewing such a finding. There was apparently some medical testimony which was not abstracted and brought to this court.
In the second place, the sixty-day limitation does not apply to the payment for treatment in extreme cases. The plain language of the statute convinces us that such was not the intention of the legislature. Good reason leads us to this conclusion. The very circumstances which would make it necessary to allow a payment of $500 on account of the case being an extreme one might render it necessary that the treatment should extend over a longer period of time than sixty days. Nor is this necessarily a hardship on the employer. One of the theories of surgical treatment for a workman is that he may be rehabilitated so that he can go back into industry. Where payments for disability have been awarded, and subsequently the condition of the workman improves, the whole case may be reexamined with the idea of reducing or modifying the amount of the award. (G. S. 1935, 44-528.) It might very well be that an award could be reduced after such an examination as the result of treatments extended past the sixty-day period on account of the case being an extreme one. Furthermore, the award is not for $500. It was for an amount not to exceed $500. The statute provides that the charges shall be fair and reasonable, shall be subject to regulation by the commission,' and shall be such as are fair and reasonable for similar treatment of injured persons of a like standard of living. It is also provided that the commissioner shall have jurisdiction to hear and .determine all disputes as to such charges. A compliance with these provisions requires that the commission shall hear each case of this kind as to reasonableness of the charges. This must of necessity mean an examination other than the hearing on the question of whether or not compensation will be awarded. We hold, therefore, that the allowance of an amount not to exceed $500 was proper in this case.
Respondent next argues that the workmen’s compensation act does not cover the work in which claimant was engaged. In support of this argument, respondent points out that only two persons were employed on the job where claimant was working, while the act provides that it shall not apply unless at least five people are employed. The exception in the act as to mines is noted, but respondent-makes a vigorous argument that claimant was not working around a mine when he was injured.
The first section with which we are interested is G. S. 1935, 44-507. That section reads in part as follows:
. . . this act shall apply to mines .' . . without regard to the number of workmen employed. . . .”
G. S. 1935, 44-508, reads in part as follows:
“(c) ‘Mine’ means any opening in the earth for the purpose of extracting any minerals and all underground workings, slopes, shafts, galleries, and tunnels, and other ways, cuts and openings connected therewith, including those in the course' of being opened, sunk or driven, prospecting for and obtaining petroleum and natural gas and all other valuable products formed or existing beneath the earth’s surface; and includes all the appurtenant structures at or about the openings of the mine and any adjoining adjacent work place where the materials from the mine is [are] prepared for use or shipment.”
Our question then is whether a man operating a drill rig drilling holes on a mining lease for the purpose of ascertaining what, if any, minerals lie beneath the surface of the earth and where they lie, is working in a mine within the meaning of the statute. Respondent argues that the above statute refers only to an actual opening in the earth’s surface for the purpose of taking out minerals, and that since there was no such opening here, and in fact no shaft being sunk at all, then what the claimant was doing was not mining but prospecting, and since he was not prospecting for oil and gas, but for lead and zinc, the section does not apply. We hold that this is too narrow a construction of the section. There is evidence in this record that it was the general practice of the mine operators in that district to carry on exploration work such as the claimant was doing in this case before actually starting to sink a shaft. The reason for this is clear. The information gained by drilling these holes would not only permit the operators to. learn whether it would pay them to sink a mine, but gives them information as to the best place to sink it. The work was so important that the mining company had its geologist make a survey and fix where the holes should be drilled, and had its assistant superintendent of exploration keep check on the holes and watch the logs of the holes. Under such circumstances, we hold that the work of drilling these prospect holes was as much working in a mine as turning over the first spadeful of dirt in sinking the shaft. The language of the statute bears us out in this. It says “ ‘mine’ means any- opening in the earth for the purpose of extracting any minerals.” The definition might very well have stopped there. It provides further, however, among other things, “and all underground workings . . . cuts and openings connected therewith.” Re spondent argues that this means the cuts or openings must be physically connected with the opening in the earth for the purpose of extracting minerals. We have concluded, however, that the more logical construction means that the cut or “opening” must have some connection with the business of sinking the shaft. The drilling of the prospect holes was done in connection with the business of sinking a shaft for the purpose of extracting the minerals, for, in the exercise of good judgment in mining, the opening in the earth would never be made unless the prospect holes were first drilled.
Respondent argues next that the Eagle-Picher Company is not liable to claimant because he was working for Swalley, not the company. Respondent admits that should Swalley be held to be a subcontractor and the Eagle-Picher Company the principal, then the company would be liable. The section dealing with subcontracting is G. S. 1935, 44-503. That section reads as follows:
“Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; . . . This section shall not apply to any case where the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken to execute work or which are otherwise under his control or management.”
In this case we have seen that the Eagle-Picher Company had undertaken to operate a mine, as defined in our statutes, on the lease in question. It had contracted with Swalley to do part of this work, that of drilling the prospect holes. Claimant was a workman employed by Swalley. This is just the situation the statute was intended to cover. In Williams v. Cities Service Gas Co., 139 Kan. 166, 30 P. 2d 97, the appellant was a gas company. It made a contract with a second party to dig a ditch for pipe. The workman was in the employ of the second party when he was injured. This court held the gas ‘Company as principal under the above section. To the same effect is Purkable v. Greenland Oil Co., 122 Kan. 720, 253 Pac. 219. In that case a workman was killed while working on an oil derrick. He was employed by an oil derrick builder who had a contract with the oil company. This court held the oil company under the subcontracting lease.
Respondent realizes the force of these two cases, but argues that in the former case the ditch was being dug where the gas company was actually laying pipe and the latter case the derrick was being built on a lease where the company was actually preparing to drill. We have, however, heretofore demonstrated in this opinion that drilling the holes in this case was as much operating a mine as digging a ditch was the work of transporting gas or building an oil derrick was drilling an oil well. Respondent next refers to the subdivision (d) of the section. (G. S. 1935, 44-503.) That subdivision provides as follows:
“ ‘This section shall not apply to any cáse where the accident occurred elsewhere than on, in, or about the premises on which the principal has undertaken to execute work or which are otherwise under his control or management, or on, in, or about the execution of such work under his control or management.’ ”
Respondent argues that this provision prevents the subcontractor section from applying to this case. What we have already said of the interest in and control of the Eagle-Picher Company over this drilling is an answer to this argument. We hold that the company had undertaken to execute the work of operating a mine on this lease and the work carried on was under its control and management.
Respondent next argues that if the award made against it is sustained the record shows that it has been denied due process of law. This argument requires an examination of what happened at the hearing before the commissioner. It will be noted that the claim for compensation was made much more than ninety days after the accident. When the claim was made it referred to medical treatment as the only compensation received. Later this application was amended so as to refer to other payments of compensation. On the hearing the claimant testified to certain payments of compensation he had been paid by Swalley. Respondents argue that these payments were not paid as compensation but were the proceeds of an insurance policy for which claimant had applied and which was taken out for the benefit of claimant. As a matter of fact, if these payments be not treated as compensation then the application • for compensation was not made in time. Respondent argues that to let this award stand would deprive it of its property without due process of law, because it was not permitted to show the circumstances surrounding the taking out of the policy for the benefit of the claimant.
G. S. 1935, 44-537, provides as follows:
“If the commission by and with the advice and written approval of the at torney general certifies that any scheme of compensation, benefit or insurance for the workmen of an employer in any employment to which this act applies, whether or not such scheme includes other employers and their workmen, provides scales or compensations not less favorable to the workmen and their dependents than the corresponding scales contained in this act; or that where the scheme provides for contributions by the workmen, the scheme confers benefits at least equivalent to those contributions, in addition to the benefits to which the workman would' have been entitled under this act or their equivalent, the employer may, while the certificate is in force, contract with any of his workmen that the provisions of his scheme shall be substituted for the provisions of this act; and thereupon the employer shall be liable only in accordance with that scheme, but, save as aforesaid, this section shall not apply, notwithstanding any contract to the contrary, made after this act becomes a law.”
■ It is not claimed that the policy in this case complied with the provisions of the above section. Except as provided in the above section, an employer is either under the act and subject to its terms, or he is not. It would not do to permit an employer to arrange some scheme of insurance which would provide for payments other than those provided by the terms of the act and by the making of a few payments under the scheme cause the claimant to wait until it was too late to file a claim for compensation under the act. We see no error in this record.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Hutchison, J.:
This was an action for partition brought by the husband of a deceased wife who owned land and town property. She left four sons and one daughter surviving her, all of whom were of age. One of the sons died since her death and left surviving him a wife and two children who were made parties defendant in the partition suit.
The wife executed a will on July 25, 1933. She died on April 12, 1936. On April 28, 1936, the father and the five children borrowed $1,600 from the First National Bank of Chanute, Kan., and all of them signed a note to the bank for that amount, which amount was used in paying medical, hospital and funeral expenses of the deceased wife and mother. The will which she had executed was presented by her daughter and filed for probate on May 22, 1937, and was admitted to probate by order of that court on October 7, 1937. The husband filed his election with the probate court to take under the law rather than under the will coincident with the order admitting the will to probate.
This action was commenced by the husband on September 6,1937, for partition of the real property of the deceased wife, claiming one half of it under his election to take under the law. Under the will he was given a life estate in all of her property and the remainder in fee was devised to the children. The will also provided for the payment of the wife’s funeral expenses out of her estate. The deceased, in the will, named her children as executors of her estate, but the probate court appointed the husband of the deceased and he qualified and gave the required bond.
Several matters were involved in the partition suit, but the appeal brings here for review only one of those several matters, and that is concerning the $1,600 note. The finding- and ruling of the trial court concerning that note is the only question here for review, and the children, except Frank, assign such rulings as error. That finding is No. 10, and is as follows:
“I find that the $1,600 note which was given to the First National Bank of Chanute, Kan., on the 28th day of April, 1936, and signed by the plaintiff and the children of his deceased wife was given for money to be used in the payment of the funeral expenses and of the expenses of the last sickness of plaintiff’s wife, and while such items would have been a legal obligation of the plaintiff, as such debts are now paid and no claim has been filed against the estate of Mary May Young, that this note of $1,600 has no place in this suit and the court should make no order concerning it, as it is not a lien on the property involved in the partition suit and the payments were made by said parties voluntarily.”
The journal entry of judgment makes the memorandum opinion ■of the court a part of the journal entry the same as if written therein. The portion of the memorandum opinion of the trial court ■concerning the $1,600 note is as follows:
. while there is no question in the mind of the court but what these items were an obligation of the plaintiff, the fact that the plaintiff and defendants have voluntarily paid these obligations and no claim having been filed against her estate within the time provided by law, it is the opinion of the court that this item has nothing to do with the partition suit and that the court can make no order concerning the matter.”
Appellants assign several errors in finding No. 10 and the conclusion reached in the memorandum opinion concerning the same, but as a preliminary matter it will be proper to refer to the criticism of the use of the word “voluntarily” in both the finding and the memorandum opinion. Some of the citations refer to cases where there was a subsequent ratification, which is different from the claimed ratification here by the execution of the note. Voluntarily, as generally defined, means intentionally, and without coercion and without any evidence on that particular subject the execution of a note is presumed by the court to have been made voluntarily. It is said in 12 Am. Jur. 747:
“The law presumes that the parties understood the import of their contract and that they had the intention which its terms manifest. It is not within the function of the judiciary to look outside of the instrument to get at the intention of the parties.”
So we, too, will consider this note' for the purpose of this review as voluntarily executed for the purpose of paying the expenses of the wife and mother’s last illness.
We shall first consider the error assigned in portions of the first, second and third assignments of error to the effect that under the issues as joined and for the purpose of adjusting all the equities between the parties, those issues should have been determined, and that it was error to hold that the note of $1,600 had no place in the suit and that the court should make no order concerning it. One of the unquestionable issues in the partition action was concerning the making of this note by agreement or otherwise. One of the defendants, Frank Young, a son of the plaintiff and the deceased, in his answer to plaintiff’s petition, after making certain admissions, made the following allegations:
“For further answer to the petition of the plaintiff filed herein, this defendant alleges and avers that Mary May Young died in Chanute, Neosho county, Kansas, on or about the twelfth day of April, 1936, leaving a purported will, which said purported will was admitted to probate in the probate court of Neosho county, Kansas, to wit, on about the seventh day of October, 1937.
“For further answer to the petition of the plaintiff filed herein, this defend ant alleges and avers that after the death of Mary May Young, deceased, who was the mother of this defendant, and on or about the twenty-eighth day of April, 1936, S. L. Young, plaintiff herein and the husband of Mary May Young, deceased, and (naming the four sons and one daughter of the deceased) agreed that there were debts against the estate of Mary May Young, deceased, in the sum of approximately sixteen hundred ($1,600) dollars, which debts should be paid, and that in order to avoid selling any of the assets of the estate of Mary May Young, deceased, that they would, and they did agree to borrow from the First National Bank of Chanute, Kan., a corporation, the sum of sixteen hundred ($1,600) dollars for the payment of said indebtedness, and, in keeping with said agreement, they did on April 28, 1936, borrow from the First National Bank of Chanute, Kan., the said sum of sixteen hundred ($1,600) dollars, and gave their promissory note therefor, signed by S. L. Young, Frank Young, Bert Young, Elmer Young, Ray Young, and Daisy Jordan; that the money borrowed by said parties, heirs at law of Mary May Young, deceased, was used for the purpose of payment of the debts of Mary May Young, deceased; that it was further agreed by and between said parties that the payment of the said note in the sum of sixteen hundred ($1,600) dollars to and in favor of the First National Bank of Chanute, Kan., should be paid from the proceeds of the sale of any of the property, real or personal, sold belonging to the estate of Mary May Young, deceased; that said obligation in the sum of sixteen hundred ($1,600) dollars is a joint obligation of the makers of said note and payment of said note should be made from the proceeds derived from the sale of property belonging to the estate of Mary May Young, deceased.”
The plaintiff in his reply admitted the allegations in the answer of his son, Frank. The defendants, Elmer and Ray Young, sons of the plaintiff and the deceased, and Daisy Jordan, daughter of plaintiff and the deceased, filed their answer, a part of which is as follows: >
“Further answering and also by way of reply to the answer of the defendant, Frank Young, these defendants deny the alleged agreement as set out in said defendant’s answer, but aver that if said agreement or if any agreement was made and evidenced by said note, the same was without consideration as to these answering defendants, for that all of the obligations which said note paid were and are the obligations of the plaintiff herein, and at no time were they the obligations of these defendants nor of the estate of the deceased.”
There can be no question about there having been an issue raised by these pleadings as to there being'an agreement as to the making of the $1,600 note and the purpose for which it was made. We know of no good reason why such issue of fact should not have been decided. The note was apparently signed by all the parties interested in the real property sought to be partitioned.
G. S. 1935, 60-2114, is as follows:
“The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.”
A just and equitable partition of the property between the parties seems to require a determination as to the legal or agreeable obligation to pay this note. It may not be strictly a lien upon the property to be partitioned as an advancement or loan by the deceased, but as in partition relations these matters are properly considered in reaching an equitable division.
It was held in Thresher Co. v. Judd, 104 Kan. 757, 180 Pac. 763, that—
“As a general rule, a court in decreeing partition has power to adjust the equitable rights of all the parties interested in the estate, so far as they relate to and grow out of the relation of the parties to the common property.” (Syl. ¶ 1.)
This was a partition action where an outside party, a creditor of one of the cotenants, was made a party and there was a mistake as to the amount of one party’s indebtedness.
In Myers v. Noble, 141 Kan. 432, 41 P. 2d 1021, it was held:
“Beneficiaries under a will have the right and power to contract between themselves for distribution of their respective portions of the estate in a manner different from that provided in the will; and such an agreement containing the mutual promises of the contracting parties is based upon a sufficient consideration.” (Syl. ¶ 1.) (See, also, Parks v. Snyder, 126 Kan. 446, 268 Pac. 814; and Wright v. Simpson, 142 Kan. 507, 51 P. 2d 1.)
Of course, the plaintiff herein having elected to take under the law cannot claim any benefits under the provisions of the will. But he, by laying aside the will, is not prohibited from making a contract with other beneficiaries, if such contract or agreement was made. Besides, unless and until there was a will the plaintiff was presumed to take under the law. (Williams v. Campbell, 85 Kan. 631, 118 Pac. 1074; Long v. Anderson, 114 Kan. 133, 216 Pac. 1097; and Gardner v. Goble, 121 Kan. 215, 246 Pac. 987.)
It is said in 21 C. J. 137;
“By virtue of this rule, a court of equity, when its jurisdiction has been invoked for any equitable purpose, will proceed to determine any other equities existing between the parties, connected with the main subject of the suit, and grant all relief necessary to an entire adjustment of such subject, provided it is authorized by the pleadings.”
It is said in 47 C. J. 458:
“On partition the court may grant such incidental relief, consistent with the pleadings and proof, as may be necessary to a complete adjustment of the rights of the parties arising out of the cotenancy and to afford protection to such rights, although in so doing it becomes necessary to establish purely legal rights or to grant legal remedies. This rule applies to the adjustment of claims and equities between the parties; the determination and adjustment of liens and encumbrances, and of claims by or against decedents’ estates; the ascertainment and protection of dower and homestead rights, the determination and protection of future interests, and of the rights of the transferees and unknown or after-born persons.” (See, also, Holmes v. Holt, 90 Kan. 774, 136 Pac. 246.)
While this note so given was not a lien upon the property involved in this action and the right of lien or subrogation may not be available to any one, yet the determination of the issue made by the pleadings may affect the equitable rights and interests of some or all the parties among themselves in and to the real property described in the petition, as where similar matters affect the partitioning of partnership property.
We think it was error not to determine this issue made by the pleadings and not to use such determination in making a just and equitable partition between the parties as authorized by statute. This conclusion requires a reversal of the judgment heretofore rendered on this particular point, namely, the $1,600 feature only, and a direction that the cause be remanded for additional and further hearing and determination thereof and thereon. It is therefore unnecessary to consider any of the other points assigned as error.
The judgment should therefore be reversed and the cause remanded for further hearing and determination as herein indicated. It is so ordered.
Allen, J., dissenting.
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The opinion of the court was delivered by
Wedell, J.:
This was an action in which the plaintiffs sought, under their first cause of action, to obtain a decree of title to land on the theory a constructive trust had been created in their favor by virtue of an oral contract, and wherein they also sought, under the second cause of action, to obtain damages on the ground defendant had slandered their title. The specifications of error are:
"1. The trial court erred in refusing appellants’ request for a jury trial.
“2. In holding that the case only involved an equitable issue, and was not a jury case.
“3. In dismissing the appellants’ cause of action for damages.”
The alleged errors may be treated together. The ruling of the trial court was that before plaintiffs could recover damages under their second cause of action they were first obliged to establish the equitable title to the land alleged in the first cause of action. Obviously that ruling was correct. The question of equitable title presented primarily a question of law for the determination of the court. True, G. S. 1935, 60-2903, provides:
“Issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by a jury, unless a jury trial is waived or a reference be ordered as hereinafter provided. All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury or referred as provided in this code. [L. 1909, ch. 182, § 279; May 29; R. S. 1923, § 60-2903.3” (Italics inserted.)
The action is primarily one for relief in equity. The mere fact there might be or were some issues of fact to be determined did not change the essential nature or form of the action to one at law. The action being essentially equitable in its nature, plaintiffs were not entitled to a jury trial as a matter of right. (Fisher v. Rakestraw et al., 117 Kan. 441, 232 Pac. 605, and cases therein cited.) See, also, Cooper v. Cooper, 147 Kan. 256, 76 P. 2d 867. The trial court might, of course, have called a jury, but its function would have been purely advisory. It follows that alleged error is without merit.
An equitable title was not established. Plaintiffs having no title which could be slandered, they, of course, were not damaged. Under the specifications of error alleged the opinion might well end at this point. A brief review of pertinent facts will, however, clearly disclose plaintiffs would not be entitled to a reversal, even though they had urged other errors which they now argue.
Beth Rogler Hutchinson is the daughter of the plaintiffs, Flora H. Rogler and Albert Rogler. In July of 1928, Beth Rogler Hutchinson, and her husband, Dewey Hutchinson, the then record title owners of the land, executed a mortgage on the land to the Bankers Mortgage Company of Topeka. The mortgage was foreclosed and the receiver of that company purchased the property at sheriff’s sale. The sheriff’s sale was confirmed and the period of redemption fixed at eighteen months. No redemption was made and a sheriff’s deed was issued and delivered to the purchaser. During the period of redemption the plaintiff, Albert Rogler, and Beth Rogler Hutchinson entered into an oral agreement with the defendant, J. E. Bocoolc, whereby the defendant orally agreed to purchase the premises foreclosed from the purchaser at sheriff’s sale, with the understanding that the plaintiff, Albert Rogler, and Beth Rogler Hutchinson were to pay the defendant the price he had paid for the land. The plaintiff Flora H. Rogler was not a party to that oral contract. The defendant purchased the property and became the holder and owner of the legal title. Albert Rogler and Beth Rogler Hutchinson did not pay the defendant nor tender to him the amount so advanced by him. In 1936 Albert Rogler and Beth Rogler Hutchinson filed an action against the defendant for the specific performance of the oral agreement. In that action they sought a judgment which would decree the defendant to be the holder of the title in trust for them upon the payment by them of the purchase price. Later they filed a motion to dismiss that action with prejudice, for the reason that all matters in controversy had been amicably settled between the parties thereto. Pursuant to that motion the court dismissed the action with prejudice and at plaintiffs’ costs. In September of 1936 the present plaintiff, Albert Rogler, and Beth Rogler Hutchinson entered into a written agreement with the defendant and Margery Bocook, defendant’s wife, by which the land was leased to the plaintiffs and Beth Rogler Hutchinson for a term of six months. The lease also contained an option to purchase. The plaintiff, Flora H. Rogler, did not sign that written agreement, but thereafter she did join in an action against the defendant and his wife to compel the specific performance of that agreement. That action was decided in favor of the defendant, J. E. Bocook, and Margery Bocook, his wife. On appeal to this court the judgment was affirmed. (Rogler v. Bocook, 146 Kan. 933, 73 P. 2d 1100.) It was there held:
“The parties had executed a written lease, in which lessees were given an option to buy at a price and withirn a time stated. Lessees, alleging the time for exercising the option had been extended orally and that they had tendered the price within the extended time, -sued for specific performance. Held, the trial court correctly ruled the evidence was insufficient to show the time had been extended, or the tender made, as alleged.” (Syl.)
In the present action plaintiffs are again endeavoring to litigate the question of equitable title on the theory a constructive trust was created in their favor by virtue of the original oral agreement.
Clearly, the plaintiff, Albert Rogler, and Beth Rogler Hutchinson, having dismissed, with prejudice, their former action to have a trust declared in their favor on the identical oral contract involved in the instant case, cannot relitigate that same question. (Hargis v. Robinson, 70 Kan. 589, 79 Pac. 119.) Obviously, the plaintiff, Flora H. Rogler, acknowledged the title of the defendant when she joined in the action for the specific performance of the written lease and option contract. (Rogler v. Bocook, supra.)
The trial court expressly found the defendant was guilty of no fraud or misconduct of any kind or character. The above facts were all found and appropriate conclusions of law were made by the trial court. We find no error in them.
Plaintiffs also contend the property was their homestead and that the wife, Flora H. Rogler, had not signed the written lease and option contract. Clearly, she is in no position to urge that contention now. She joined in an action to compel the specific performance of that contract. (Rogler v. Bocook, supra.) Furthermore, she is entirely precluded from asserting a homestead interest in the property. She and her husband had conveyed this property to their daughter, Beth Rogler Hutchinson, and her husband. They executed the mortgage to the Bankers Mortgage Company of Topeka. That mortgage was foreclosed and the property was sold at sheriff’s sale. No redemption was made. Obviously, she cannot now assert a homestead interest therein. The judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
At the time defendant filed his motion asking the court to determine certain questions of law prior to the trial of issues of fact, which motion was allowed, and later the questions submitted were briefed and argued and in due time determined in our opinion (State, ex rel., v. Gleason, ante, p. 1, 79 P. 2d 911), defendant also filed a motion for judgment on the pleadings. This motion was held in abeyance pending the determination of the specific questions sub- ■ mitted. At the close of our opinion on these questions (ante, pp. 1 to 15, 79 P. 2d 911, 920), we invited suggestions of counsel as to what further orders should be made or proceedings had in the action. In response to this invitation plaintiff filed a motion for judgment on the pleadings in harmony with the court’s opinion. Defendant, without withdrawing his motion for judgment on the pleadings, filed a motion for the appointment of a commissioner to take evidence and make findings of fact and conclusions of law. He also filed a motion for rehearing. Thereafter, having considered the matter, the court overruled the motion for rehearing, and set for hearing in open court, upon briefs and oral arguments, the motions of the respective parties for judgment upon the. pleadings. In doing so we invited counsel to suggest, and, if possible, to agree upon the form of an appropriate decree in harmony with the opinion of the court. In the order for this hearing it was pointed out that if the motions for judgment were sustained there would be no necessity of considering the motion for the appointment of a commissioner, but if counsel desired to press that motion it would be heard on the same day, and in that event the court would like counsels’ views as to the matters to be inquired into by the commissioner.
Upon the hearing of these motions we were informed by the assistant attorney general, who has handled the case on behalf of plaintiff from the beginning, that this action was brought at the request of those licensed in this state to practice osteopathy, including the defendant, and for the sole purpose of having the decision of this court upon the major questions of law involved, which questions were formulated by defendant and were submitted to the court and decided in its opinion, and that it was not contemplated to ask the court in this case to go into the details of the narrow field where the two systems of healing, otherwise well outlined as being separate and distinct, might have some things in common, and to say that a specific act or thing could or could not be done lawfully by an osteopath. These statements as to the circumstances under which the action was brought, and the purposes it is designed to accomplish, were not controverted by defendant. We think, therefore, that final judgment should be entered in this case in harmony with our opinion, and that the motion for the appointment of a commissioner should be overruled.
In its petition plaintiff alleged defendant owns and operates a hospital in which he practices medicine and surgery generally, and in which he permits other persons licensed only as osteopaths to practice medicine and surgery generally. We are asked to oust defendant from so practicing medicine and surgery in his hospital, and this will be done. We are asked also to oust him from permitting others, licensed only as osteopaths, to practice medicine and surgery generally in his hospital. We decline to make that order, since it would require defendant to watch continuously what other licensed osteopaths are doing in his hospital. We think that burden should not be put on defendant; that those licensed as osteopaths only should guard their own conduct in this respect. The hospital, of course, may be operated lawfully for the practice of osteopathy. Persons licensed only as osteopaths, if heretofore mistaken as to their authority with respect .to the practice of medicine and surgery, and who, because of such mistake, had extended their practice into a field in which they are not authorized to engage, should, and in all probability will, hereafter' conform their practice to the science or system of osteopathy as distinct from the practice of medicine and surgery, in harmony with our statutes as construed in our opinion in this case. If defendant, or any other person licensed only as an osteopath, should fail to confine his practice of the healing art to the science or system of osteopathy, as that term is used in our statutes, as interpreted and construed in our opinion, any remedies the state or others have with respect thereto are not abrogated or decreased by anything we have said in this case.
Therefore, it is by the court considered, adjudged and decreed that the defendant, B. L. Gleason, be and he is hereby ousted from the practice of medicine and surgery; and it is further adjudged and decreed that under his license to practice osteopathy he is limited in the practice of the healing art to the practice of the science or system of osteopathy authorized by our statutes pertaining thereto, as such statutes have been defined and construed in the opinion of the court heretofore rendered in this cause.
The motion for the appointment of a commissioner is overruled.
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The opinion of the court was delivered by
Allen, J.:
This action was one to cancel and set aside a will and a deed. The executor under the will filed a demurrer to the third amended petition on the ground that .several causes of action were improperly joined. The demurrer was sustained, and plaintiff has appealed from that ruling.
On December 17, 1936, one Clara B. Mills, who was the owner of real and personal property, executed a will under which the defendant, Bessie Kington, was chief beneficiary. On February 13, 1937, Clara B. Mills executed a deed purporting to convey to the same Bessie Kington real estate in Topeka of the alleged value of $5,000. Clara B. Mills died April 15, 1937.
The action was brought by E. May Osborne, a sister and one of the heirs at law of Clara B. Mills. The defendants in the action are Bessie Kington, M. T. Kelsey, executor of the will of Clara B. Mills, deceased, and other heirs of Clara B. Mills.
The first cause of action was to set aside the will on the ground of mental incapacity and undue influence. The second cause of action was to set aside the deed on similar grounds.
The demurrer to the petition was sustained by the trial court on the ground that several causes of action were improperly joined therein.
The will of Clara B. Mills provided:
"... I devise that all my belongings, both real and personal, that I may possess be sold and the proceeds to pay my funeral expenses and buy a marker for my husband and myself to be bought of ffm. P. Supple not to exceed $125; after all bills are paid I bequeath to Mrs. E. May Osborne, % the rentals of property until sold, all the remainder I bequeath to Bessie Kington, 108 Morris, Topeka, for her services in caring for me and I appoint Mrs. Kington and Mr. Kelsey to take care of my affairs. . . .”
Our statute G. S. 1935, 60-601, provides that the plaintiff may unite several causes of action in the same petition, “but the causes of action so united must affect all the parties to the action, except in actions to enforce mortgages or other liens.”
Manifestly the executor under the will in the first cause of action is neither a necessary nor a proper party to the second cause of action to set aside the deed. The cause of action to set aside the deed does not affect the executor of the will in the first cause of action.
Confronted with this dilemma, plaintiff inserted in the second cause of action an allegation that the defendant Kelsey was the duly qualified and acting executor under the will “and as such executor, M. T. Kelsey has failed and refused to take any steps to recover any of the above-described real property of Clara B. Mills for the benefit of said legatees.”
Plaintiff then asserts that under G. S. 1935, 22-525 and 22-727, it was the duty of the executor to collect the assets and close the estate within one year. She contends that under the statutes G. S. 1935, 22-801, 22-803, and our decisions, McGuire v. Davis, 95 Kan. 486, 148 Pac. 755; Barker v. Battey, 62 Kan. 584, 64 Pac. 75, and Horton v. Jones, 110 Kan. 540, 204 Pac. 1001, it was the duty of the executor to bring an action to set aside the deed fraudulently procured from Mrs. Mills. Plaintiff further argues that since the executor failed and refused to bring the proper action to cancel the deed and collect the assets, a creditor or an heir could bring the action and join the executor as a defendant. See G. S. 1935, 60-412; Barker v. Battey, 62 Kan. 584, 64 Pac. 75; Farmers State Bank v. Mitchell, 143 Kan. 286, 55 P. 2d 423.
By this mode of reasoning plaintiff concludes that the executor is a necessary party to the second cause of action to cancel the deed.
But may plaintiff assume inconsistent positions? In the first cause of action she asserts the testatrix was insane and the will is void. She next contends the executor under this void will violated his duty in not bringing an action to set aside the deed alleged to have been procured through fraud, and that by reason of his default he may be joined as defendant in the action to set aside the deed. A litigant may not blow hot and cold at the same time. Plaintiff may not claim the will is void and in the same breath claim an advantage under it.
In Losch v. Pickett, 36 Kan. 216, 12 Pac. 822, paragraph 2 of the syllabus, in part, reads:
“A thing cannot be true and untrue at the same time; and any pleading containing allegations made by the same party both affirming and denying a particular thing carries falsehood upon its face, and in such a case the court may consider as true such, of the allegations as are against the pleader.” (Munn v. Tallman, 1 Kan. 254; Auld v. Butcher, 2 Kan. 135; Wiley v. Keokuk, 6 Kan. 94, 105; Butler v. Kaulback, 8 Kan. 668, 671, et seq.)
See, also, 21 C. J. 1226.
Plaintiff may not assert the will is valid for some purposes and at the same time ask that it be canceled on the ground it is void in to to.
In Fairbank v. Fairbank, 92 Kan. 45, 139 Pac. 1011, Elizabeth Fairbank executed a deed to her son Rudolph, and later executed a will giving Rudolph almost the whole of her property. An action to set aside the deed and will was brought by the grandchildren of Elizabeth. It seems that a daughter, Eliza Carter, a defendant, filed an answer. The opinion states that a “demurrer to her answer for misjoinder” was overruled. It does not appear whether the executor under the will was a party or whether there was a demurrer to the petition for misjoinder. It is clear the question of misjoinder of causes of action in the petition was not considered by the court.
In Hoff v. Hoff, 106 Kan. 542, 189 Pac. 613, also relied upon by the plaintiff, there was a consolidation of two actions — one originating in Crawford county to set aside a will, and one in Ellis county to set aside certain deeds. The case is not in point.
We conclude that Kelsey, as executor under the will, was neither a necessary nor proper party to the second cause of action to cancel the deed, and, therefore, the two causes of action so united did not affect all the parties to the action as required by our statute G. S. 1935, 60-601.
The judgment is affirmed.
Harvey, J., not sitting.
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The opinion of the court was delivered by
Hutchison, J.:
This action was one brought by an eight-year-old boy, by his mother as his next friend, against a corporation which owned a truck, and the man who drove the truck, to recover from both of them $10,000 for injuries to the boy by reason of the right front fender or bumper of the defendants’ track striking the boy, which collision broke his right leg and otherwise scratched and bruised him, from which he had practically recovered at the time of the trial except that the leg that had been injured was shorter and he was somewhat nervous.
The accident occurred on January 23, 1937, in Wichita, about four o’clock in the afternoon, on Second street between St. Francis and Emporia avenues. The defendants’ track was going west on Second street and stopped at the east edge of the intersection with St. Francis avenue for the signal "Go," and it was the first car to go after the signal changed for that purpose. There was nothing ahead of this truck on the street. The visibility was good. The sun was shining, and the accident happened about forty feet beyond the intersection of the alley, which would make it'about 280 feet from the east edge of the St. Francis intersection. A good deal of snow liad fallen a few days before, and the city had scraped the ice and snow on Second street to a pile in the center thereof, which was about three feet wide and eighteen inches high. Second street was forty feet wide, and there was diagonal parking space on the north which occupied approximately twelve feet, and a horizontal parking space on the south side thereof which occupied about seven feet. This left two narrow driving spaces, one on either side of the snow bank in the center. The space from the parked cars on the south to the center of the street or center of the snow bank would be about thirteen feet. The streets were icy in spots and some other spots were wet from melted snow.
The defendant Tucker, driving the truck in a westerly direction, testified that he did not see the boy until he was within about ten feet of him and that the boy at that time was in front of another truck going east, that as soon as he saw the boy he put on his brakes and turned to the left into the snow bank. The boy had about crossed the snow bank when the right bumper or fender struck him. The truck stopped with the front wheels in the snow bank in the center of the street and headed almost directly south. Three other witnesses saw the accident and described it fully, and the driver of the car going east saw the boy crossing the street just in front of his car.
The parents of the boy and others were witnesses and testified about the boy and his mental and physical condition and about his being sent that day to the bakery for bread with two boys who had evidently crossed the street before he did.
Several witnesses testified that the track was going about fifteen or twenty miles per hour before the driver saw the boy. There were no chains on the truck. The city ordinance limited the speed on the streets to thirty miles per hour and not at any time a greater rate than is reasonable, safe and proper with due regard to the use, condition and occupancy of the street.
At the close of the evidence offered by the plaintiff the defendants filed a demurrer thereto, which was overruled by the trial court, and then the defendants introduced the evidence of one witness, Robert H. Tucker, the driver of the truck. The court gave instructions and submitted special questions to the jury. The jury rendered a verdict in favor of the plaintiff for $1,500 and answered the questions. The defendants then filed a motion to vacate and set aside the answers to questions 3, 5, 7, 8 and 10, also presented a motion for judgment in favor of the defendants notwithstanding the general verdict and also a motion for a new trial. These motions were all.overruled and judgment was rendered for the plaintiff, from which the defendants have appealed.
Appellants argue the errors assigned under four different headings or concerning four different points involved. The first is that the demurrer to the evidence of the plaintiff should have been sustained because there was no actionable negligence shown and because that which was .relied upon by the plaintiff necessarily required the jury to resort to speculation in order to arrive at such a finding. The second point is that the demurrer to the evidence should have been sustained because the evidence showed the plaintiff to have been guilty of contributory negligence which caused the accident. The third point is that there was error in the failure of the trial court to set aside answers to certain questions, in failing to render judgment in favor of defendants on the answers notwithstanding the general verdict, and in the failure to sustain the motion for new trial for the reason that the answers to certain questions are inconsistent with answers to other questions and with the general verdict. The fourth and last point is that the trial court erred in giving instruction No. 21, because there was no substantial evidence for the jury to consider in carrying out the provisions of such instruction.
The special questions and answers thereto were as follows:
“1. Immediately prior to the accident in question, was plaintiff an intelligent and normal child for his age? A. Yes.
“2. Did plaintiff immediately prior to the accident understand and appreciate that he was likely to be injured in crossing the street unless he was careful in avoiding moving vehicles? A. Yes.
“3. Did plaintiff take the ordinary precautions for his own safety that a reasonable, normal child of his age, understanding and intelligence would have taken under the circumstances? A. Yes.
“4. Did plaintiff run out from behind parked cars at a place other than the regular crosswalk in attempting to cross the street? A. Yes.
“5. Was plaintiff guilty of any act of negligence or carelessness that proximately contributed to his injury? A. No.
“6. Did the defendant Tucker in the position he found himself to be immediately before the accident use the care and caution that an ordinary person would have used under the same circumstances? A. Yes.
“7. Was the defendant Tucker guilty of any act or acts of negligence that proximately caused the accident? A. Yes.
“8. If you answer the foregoing question in the affirmative, and only in that event, state specifically the nature of such act or acts of negligence. A. We believe in view of condition of street at the time of the accident the truck should have been driving more slowly and should have been equipped with chains.
“9. How fast was defendant Tucker driving his truck just prior to the accident? A. Fifteen to twenty miles per hour.
“10. How far was defendants’ truck from plaintiff at the time defendant, Tucker, was first able to see plaintiff crossing the street? A. Approximately 100 feet.”
We shall consider the first and third points together. In the first point the appellants complain that the negligence claimed by the plaintiff to have been proved was not attempted to be established by facts, but only by circumstances. It was held in Canestro v. Joplin-Pittsburg Rld. Co., 135 Kan. 337,10 P. 2d 902:
“The rule is well established by this court that negligence may be proven by circumstantial evidence, but the- circumstances must be of such a nature and so related to each other that it is the only conclusion that can reasonably be drawn from them. A fact is not proven by circumstances which are merely consistent with its existence.” (p. 340.)
In Hendren v. Snyder, 143 Kan. 34, 53 P. 2d 472, it was held:
“In an action for damages for personal injuries sustained in an automobile casualty, a judgment for plaintiff predicated upon mere conjecture as to defendant’s negligence cannot be'permitted to stand.” (Syl.)
Appellants cite Cornwell v. O’Connor, 134 Kan. 269, 5 P. 2d 861; Crowe v. Moore, 144 Kan. 794, 62 P. 2d 846; Lindenstruth v. Leveque, 138 Kan. 93, 23 P. 2d 486, and many other automobile negligence cases along the same line, and in some of which the demurrer to the evidence was sustained because the proof of negligence was based upon circumstances instead of facts.
Our attention is directed particularly to the answers to special questions Nos. 8 and 10. All the evidence we can find as to the answer to question No. 8 as to its being negligence for the truck not to be equipped with chains is the fact that it was not so equipped, and the further fact that it was in January and the street was icy in spots and that there was some snow, ice and water in the street. Are these facts and the circumstances drawn from them of such a nature and so related that negligence is the only conclusion that can reasonably be drawn from them? Must all kinds of trucks, in January, where the streets are icy in spots and there is some ice, snow and water in the streets, be equipped with chains? Surely a truck driver or automobile man would know better than others as to when it was best or necessary to use chains. There are evidently some times and circumstances under which it is not necessary or helpful to equip with chains. The fact that many or most people nowadays know something about the use of automobiles does not dispense with the necessity of opinion testimony. Appellee cites, together with other references and decisions from other states, the following text, 42 C. J. 897:
“It has been held that, where the conditions are such that an ordinarily Ijrudent person would use chains on the wheels of his automobile, a failure to do so constitutes negligence, but there is also authority for the view that it is not negligent to drive at a reasonable rate of speed and with reasonable care, without chains, on an icy and slippery street. A car which is equipped with skid chains may, under some circumstances, require less care in approaching a street crossing or a pedestrian than it would require if it did not have chains.”
As to question No. 10 there is even less evidence- — -in fact, none that has been pointed out to us. Appellee refers to the clear, unobstructed view and visibility for the distance of 280 feet, and if the question were, how far the defendant could have seen a boy that day crossing a street, perhaps the 280 feet would have been evidence on the subject from which the jury could have given its answer for that or a shorter distance. But that was not the question asked. It was how far Tucker was able to see the boy crossing the street. The only evidence was the 280 feet of unobstructed view and that he did see ten feet away. The jury must have done some speculating to have reached this answer. Were these and other answers given by the jury inconsistent with each other and with the general verdict?
The answers to questions Nos. 3 and 4 are apparently inconsistent with each other and with the general verdict. Taking ordinary precautions for one’s own safety and running “out from behind parked cars at a place other than the regular crosswalk in attempting to cross the street” are not in harmony, and the answer to No. 4 is apparently inconsistent with the general verdict.
The answer to question No. 7 found the driver of the truck guilty of negligence which proximately caused the accident, while the answer to question No. 6 said the truck driver in the position he found himself to be immediately before the accident used the care and caution that an ordinary person would have used under the same circumstances. What more is one required to do than to use the care and caution that an ordinary person would use under the same circumstances? Plaintiff lays special stress on the word “immediately” in question No. 6 and applies the question and answer to the period of time after the truck driver saw the boy ten feet away, but falls back to the answer to question 10 by not looking or seeing the boy 100 feet away from the place of the accident. We have spoken of the lack of evidence to support the answer to question No. 10 and will further say that such failure to keep a lookout and see the boy crossing the street sooner is not one of the two points of negligence found by the jury in answer to question No. 8 and therefore cannot be considered as such and a proximate cause of the accident. We regard the answer to question No. 6 as inconsistent with the general verdict. The following decisions were made in cases under similar circumstances:
“When in a case involving the alleged negligence of the employer in providing proper oil, numerous findings of fact are returned by the jury, some of which show negligence and others proper care, the latter being not only inconsistent with the former but with the general verdict, a new trial should be granted.” (Anders v. Railway Co., 91 Kan. 378, syl. ¶ 5, 137 Pac. 966.)
“Where special findings of the jury are in conflict with the general verdict, inconsistent with each other, and part of them are contrary to the evidence in the case, the verdict should be set aside and a new trial ordered.” (Hauck v. Mercantile Co., 99 Kan. 790, syl., 163 Pac. 457.) (See, also, Anderson v. Pierce, 62 Kan. 756, 64 Pac. 633; Healer v. Inkman, 89 Kan. 398, 131 Pac. 611; and Whitacre v. State Bank, 140 Kan. 106, 34 P. 2d 569.)
We have no hesitancy in concluding that the answers to some of these questions are inconsistent with each other and with the general verdict and that the answers to the questions should generally prevail over the general verdict, yet the inconsistency of the answers among themselves prevents the rendering of a judgment upon them in favor of the defendant notwithstanding the general verdict. So since the verdict cannot stand as against the inconsistent answers, the motion for a new trial should be sustained.
The fourth point with reference to the giving of instruction No. 21 we would not need to mention except for the fact that the case may be again tried, and for that reason we simply state that we think it gave the jury unusual power in the absence of opinion or expert evidence.
The judgment is reversed and the cause is remanded with directions to grant a new trial. It is so ordered.
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The opinion of the court was delivered by
Harvey, J.:
This was a controversy respecting the foreclosure of a real-estate mortgage. It is complicated by a previous action attempting to foreclose the mortgage and by certain contracts and acts of the parties both before and since the earlier action.
The pertinent facts may be stated as follows: Eliza C. McKeever, an elderly widow, owned the northwest quarter of section 11, less one acre of school ground, hereinafter referred to as the “quarter section,” and the south 104 acres of the northeast quarter of section 12, hereinafter spoken of as the “104 acres,” all in township 16, range 22 east, in Miami county. On April 15, 1932, she executed to plaintiffs a note for $6,000, due in five years, bearing interest at six percent per annum, payable semiannually, with interest coupons attached, and a mortgage upon the land above described to secure its payment. The validity of this note and mortgage is not questioned. Two weeks later, on April 29, 1932, Mrs. McKeever died intestate, leaving as her sole heirs at law George F. Pullam, her son, Archie R. Pullam, her son, Pearl Pullam Johnston, her daughter, and two grandchildren, Faye Pullam Edwards and Earl Pullam, being children of her deceased son, Clyde Pullam. She left some real and personal property in addition to the mortgaged land above described. On or before May 4, 1932, George F. Pullam was duly appointed and qualified as administrator of the estate of Eliza C. McKeever. Under.the date of May 4, 1932, the heirs entered into a written agreement for the division among themselves of the property of the estate of Mrs. McKeever, in which it was agreed that each should take certain of the property, and that the probate court in its final order might find the interest and shares of the respective parties to be as provided in the written agreement. This instrument contained this provision:
“And, Whereas, there is now a mortgage of $6,000 covering (the land above described), it is the intent of all parties hereto to assume and pay their proportionate share of said sum of $6,000 as follows to wit: George F.Pullam, one fourth, Archie R. Pullam, one fourth, Pearl Johnston, one fourth, Faye Edwards, Earl Pullam, one fourth.”
The first, second, and half of the third interest coupons on the $6,000 note above mentioned were paid by the administrator as they became due. On June 4, 1934, interest payments and taxes being in default, the payees of the note, as plaintiffs, brought an action in the district court, naming as the sole defendant George F. Pullam, administrator of the estate of Eliza C. McKeever, deceased. The petition-alleged the death of Eliza C. McKeever and the fact that George F. Pullam was the administrator of her estate, and otherwise contained the usual allegations of an action on the note and to foreclose the mortgage. The prayer was for a personal judgment against the defendant for the sum due on the note and for the foreclosure of the mortgage and the sale of the mortgaged premises. Summons'was issued and served upon George F. Pullam, administrator of the estate of Eliza C. McKeever, deceased. He made no appearance in the action. On July 9, 1934, a personal judgment for $6,725.35 was rendered by default against George F. Pullam, administrator of the estate of Eliza C. McKeever, deceased, .the court finding that he was the duly qualified and acting administrator of the estate, and the ordinary decree was entered foreclosing the mortgage upon the land described therein. On July 14, 1934, an order of sale was issued, the property was advertised and sold by the sheriff, August 22,1934, and was bid in by the plaintiffs for the full amount of the judgment, interest and costs. The sale was confirmed September 17, 1934, the period of redemption being fixed at eighteen months, and a certificate of purchase was issued to the purchasers at the sale. The plaintiffs paid the costs of the ac tion, including the costs of the sale. On the expiration of the period of redemption a sheriff’s deed, in usual form, was executed and delivered. This was recorded March 3,1936. On March 16,1936, the clerk of the district court filed in the office of the register of deeds a release of the mortgage by virtue of the decree, sale and deed in the foreclosure action.
Soon after the delivery of the sheriff’s deed plaintiffs undertook to get possession of the property. The 104 acres was occupied by Pearl Pullam Johnston and her husband. They were then building a house on other property, which was soon completed, and they moved off the 104 acres. Plaintiffs sold the 104 acres to Henry A. Parker and wife and conveyed the same to them by general warranty deed for $2,600, of which $600 was paid in cash, and Parker and his wife executed a note and mortgage on the 104 acres to plaintiffs for $2,000 and went into possession of the land, and since then have remained in possession. George F. Pullam and his wife were living on the quarter section. Plaintiffs rented this quarter section to Coughlin Brothers in the spring of 1936 and they went' on the premises and farmed the land in cultivation. In March, 1937, plaintiffs leased the quarter section to Ora Cox for one year, and he farmed the land, or part of it, that season. George F. Pullam continued to reside in the residence on the land and to use the garden and at times some other portions of the land. At the trial of the action from which this appeal has been taken — soon to be stated — whether he stayed on the land with no claim of right but by sufferance of plaintiffs and their tenants, or upon a claim of right and objecting to the possession of the tenants, was sharply' controverted. In June, 1936, plaintiffs filed in justice of the peace court an action against George F. Pullam for the forcible detention of the quarter section. This action was contested by George F. Pullam and appears never to have been disposed of fully.
After the death of Mrs. McKeever, and before the action soon to be mentioned was filed, her heirs made various contracts and deeds among themselves. Some of these contracts had been carried.out in whole or in part and some were still pending. A detailed statement of these is deemed unnecessary except to note that in August, 1933, Earl Pullam conveyed his interest in the property to Stella Staves.
On August 27, 1936, plaintiffs filed this action, naming as defendants George F. Pullam, Archie R. Pullam, Pearl Johnston, Earl Pullam, Faye Pullam Edwards, Stella Staves, and their respective spouses, and summons was- served, either personally or by publica tion, upon all of them; and each of them, except Stella Staves, appeared in this action by some pleading. In their petition in this action plaintiffs set úp the $6,000 note and mortgage to secure it, both of which had been executed by Eliza C. McKeever; alleged there was default in the payment of interest and taxes; asked for judgment in rem as to the amount due on the note, and for the foreclosure of the mortgage. In the petition the earlier action was referred to and the proceedings taken therein set out, and it was alleged that under the sheriff’s deed issued in that action plaintiffs had obtained possession of the property, and'that they were mortgagees in possession. Numerous pleadings were filed. It will not be necessary to analyze these in detail. It is sufficient to say the respective defendants contended that the note having been reduced to judgment in the first action could not be used as the basis of the present one, and that in effect it had been paid by the sale had under the decree in the former action. As to the shares or interest in the land of the heirs other than George F. Pullam, it was contended that since the sale in the earlier action paid the debt, and since they were not parties to the action, they were the owners of their respective shares free and clear of the mortgage. As to the share or interest in the land of George F. Pullam, it was variously contended that this was not affected by the prior suit for the reason that he was not made a party defendant in his individual capacity, and on the other hand it was alleged that his share or interest in the land was foreclosed in the earlier action. It was also contended that the land having been sold once under the decree in the first action it could not be sold again under a later decree foreclosing the same mortgage.
Henry A. Parker and wife interpleaded in the action, set up their deed from the plaintiffs, alleged that they went into possession of the 104 acres with the consent of the defendants, and contended they were mortgagees in possession.
Among other things, the trial court found that George F. Pullam had remained in possession under a claim of right and title to an interest in the land; therefore the court held that neither the plaintiffs nor the Parkers were mortgagees in possession.
The trial court found the sum due plaintiffs under the note to be $7,894.88. In doing so it gave no credit to defendants for the amount the property was reported as being sold for at the sheriff’s sale in the earlier action.
The court held that plaintiffs’ mortgage was foreclosed in the earlier action as against the individual share or interest of George F. Pullam in the real property, adjudged to be three eighths, but held that was not a complete foreclosure of the mortgage because other heirs were not defendants, and proceeded to foreclose the mortgage as against the individual shares or interest of the other parties defendant. From this judgment and decree the defendants, George F. Pullam, Pearl Johnston, Faye Pullam Edwards, and their respective spouses, have appealed.
We turn now to the legal questions involved. The first-of these is the legal effect proper to be given to the judgment and decree in the first action, in which an attempt was made to foreclose the mortgage. The only defendant in that action was “George F. Pullam, administrator of the estate of Eliza C. McKeever, deceased.” There are arguments in the briefs as to whether the words, “administrator of the estate of Eliza C. McKeever, deceased,” are descriptive of George F. Pullam only, or whether they denote the representative capacity in which he was sued. Several of our decisions are cited as bearing on this point. It will not be necessary to analyze these decisions with care, for to us it seems clear from the petition that he was sued in his representative capacity only. Nowhere in the petition was he alleged to be an heir of Eliza C. McKeever, nor was it alleged that he had any relation to her or her property other than that of being administrator of her estate. In its judgment and decree the court specifically found “that the said George F. Pullam is the qualified and acting administrator of the estate of Eliza C. Mc-Keever, deceased,” and the judgment on the note was rendered against him in that capacity. He was not liable on the note in any other capacity, nor was he charged with such liability.
We need not stop to determine whether the judgment against him in his representative capacity is valid for any purpose, for that question was not presented to or determined by the trial court. We simply note, if the action were brought with the view of establishing the debt evidenced by the note as a claim against the estate, as it might be under G. S. 1935, 22-704, there is a limitation of the time within which such an action may be brought. (G. S. 1935, 22-727; Forrester v. Falkenstien, 129 Kan. 485, 283 Pac. 263.) This is a matter which could not be waived by the administrator. (See Bristow v. First Trust Co., 140 Kan. 711, 38 P. 2d 108, and authorities there cited.) But it appears from the record that was not the purpose, for we are advised in the briefs that the judgment never was filed in probate court as proof of a claim against the estate.
Was there a valid decree of foreclosure in the first action? Upon the death of Mrs. McKeever, intestate, the title to her real property-passed to her heirs, subject to existing liens and subject to sale, if necessary, to pay the claims of creditors allowed by the probate court as demands against her estate. No title to her real property passed to her administrator. These propositions are so well established in this state that authorities need not be set out.
It is the established rule in this state, and generally elsewhere, that when a mortgagor dies intestate, leaving heirs, such heirs are necessary parties defendant in an action to foreclose the mortgage, and that no valid decree of foreclosure can be rendered when such heirs have not been made parties. In Britton v. Hunt, 9 Kan. 228, where a situation' arose similar to the one here presented, it was held:
“In an action to foreclose a mortgage where the mortgagor is dead, his heir is an indispensable party; and no judgment for the sale of the premises can be the basis of a title, where the administrator is alone the party to the suit.” (Syl.)
To the same effect see Richards v. Thompson, 43 Kan. 209, 23 Pac. 106; 42 C. J. 53; Reinhardt v. Calhoun, 9 N. J. Misc. 914, 156 Atl. 12; 109 N. J. L. 580, 162 Atl. 909; Woods v. First Nat. Bank, 16 F. 2d 856; Thomas v. Barnes, 219 Ala. 652, 123 So. 18; Hill v. Brittain, 178 Ark. 784, 12 S. W. 2d 869; Buff v. Schafer, 157 Minn. 485, 196 N. W. 661; Bank of Prosperity v. Dominick et al., 106 S. C. 120, 90 S. E. 264.
Since there were no parties before the court in the first action upon whom a decree of foreclosure could operate, the decree was void; also, the sheriff’s sale and the sheriff’s deed were void, since, necessarily, they are based on a void decree of foreclosure. The mortgage was not foreclosed in that action. The result is, the plaintiffs obtained no title to the land by virtue of the sheriff’s deed issued to them, and it necessarily follows that their warranty deed to Henry A. Parker and wife conveyed no title.
Appellants contend that since in the first action the note was put in judgment against the administrator it became merged in the judgment and cannot now be made the basis for the present action. That contention at best is more technical than real. Appellants were never personally liable on that note. The first action was not one against them on the note. No personal liability is sought in the present action against them on the note. The principal purpose of pleading the note in this action is to enable the court to determine the amount of the lien upon the property, and it is quite immaterial to appellants whether that be computed from the note or from the judgment against the administrator in the first action.
Appellants argue that the note was in fact paid by the bid of plaintiffs at the sheriff’s sale in the first action, but we have heretofore determined that sale was void; hence, it could not be a valid payment; indeed, it was no payment at all.
Appellants cite G. S. 1935, 60-3460, to the effect that real property once sold under a mortgage is not subject to sale a second time under the same or any inferior lien. That would be true if the first sale were valid,'but since that, sale was void the statute has no application. (See Hubbard v. Corum, 65 Kan. 309, 68 Pac. 1128.) More than that, since appellants were not parties to that action, and not bound by the decree of foreclosure therein, they cannot claim any advantage growing out of it. (Manley v. Debentures Co., 64 Kan. 573, 68 Pac. 31.)
Contracts and conveyances made between the heirs since the death of Mrs. McKeever, and the question whether her property, other than this mortgaged land, is sufficient to pay debts which have been allowed against the estate, are unimportant, since the rights of any such heirs or creditors are necessarily subordinate to the rights of plaintiffs under their mortgage because of the fact that it was a valid lien upon the real property described therein prior to the death of Mrs. McKeever.
The result is, plaintiffs are entitled to have their mortgage foreclosed in this action against all the heirs of Eliza C. McKeever, deceased, and Stella Staves, the grantee of one of them.
On conflicting evidence the court found that neither the plaintiffs nor Henry A. Parker and wife were mortgagees in possession. Since this was largely a question of fact, the judgment of the court on this point will not be disturbed. Plaintiffs, therefore, should account for such rents as they have received.
Since we have held in this case that the warranty deed from plaintiffs to Henry A. Parker and wife conveyed no title — which view was not taken by the trial court — and since their rights as between them have not been determined on this basis, they must be adjusted between the parties, or determined in some subsequent proceeding or future action between them.
The judgment of the trial court is reversed with directions to enter a decree of foreclosure against all the heirs of Eliza C. McKeever, deceased, and Stella Staves, and their respective spouses, in harmony with the views herein expressed.
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The opinion of the court was delivered by
Harvey, J.:
This appeal involves the validity of a bond given by property owners in their attempt to appeal to the district court from an award of commissioners in a condemnation proceeding. In September, 1937, the governing body of the city of Osawatomie desired to acquire about thirty-two acres of land owned by appellants for the purpose of constructing a dam and lake for impounding water for the use of the city. The proceedings were had under G. S. 1935, ch. 26, art. 2. A proper petition was duly presented to the district-court, commissioners were appointed who gave the notice required by statute and proceeded to condemn the property, and made an appraisement and assessment of damages of $1,203.75 for the land taken and $585 for damages to the land not taken. It appears appellants’ title to the property had been acquired by an instrument which named both of them as grantees. Because of that the commissioners divided the damages and awarded each of them one half of the total. The report was filed September 21, 1937. Being dissatisfied with the amount of the award, appellants on October 16, 1937, filed their notice of appeal. There is no substantial controversy respecting this notice. On the same date they filed with the clerk of the district court their appeal bond, the obligation of which reads:
“Now, therefore, we, N. J. Nelson and Mildreth A. Nelson, as principals, and fifty dollars ($50) cash deposit as surety, do hereby, jointly and severally, promise and agree and bind ourselves unto the state of Kansas that said respondents, N. J. Nelson and Mildreth A. Nelson, will pay all costs of said appeal, if they shall be by the court adjudged to pay the same.”
At the same time they deposited $50 cash with the clerk of the court. The clerk receipted for this cash deposit and formally approved the bond October 20, 1937.
On November 5, 1937, the city, through its attorney, filed what is denominated “Motion by special appearance to quash and dismiss purported appeal,” on the grounds: (1) That the district court is without jurisdiction of the persons or of the subject matter involved; (2) that no appeal bond has been filed by appellants, or either of them, as required by law, within the time provided by law; and (3) that no appeal has been perfected by the appellants, or either of them, from the award of the commissioners filed in the office of the city clerk September 21, 1937, as required by law.
On December 20, 1937, appellants, without admitting any defect or insúfficiency of the. appeal bond filed, moved for leave to file a good and sufficient appeal bond if the court should determine the one previously filed to be insufficient.
These motions were considered and ruled upon January 17, 1938. The court sustained the city’s motion to dismiss the appeal and overruled the appellants’ motion for leave to file an amended appeal bond. »
On January 22, 1938, appellants filed their notice of appeal to this court. It was entitled in the cause, and stated the appeal was taken to the supreme court of the state “from all findings, orders and judgment of the district court of Miami county, Kansas, made and entered in the above-entitled cause on January 17, 1937, particularly appealing from the finding and order overruling the application of N. J. Nelson and Mildreth A. Nelson for leave to file an amended appeal bond, and from the finding and order sustaining the special appearance motion of the city of Osawatomie, Kan., to quash and dismiss the appeal of N. J. Nelson and Mildreth A. Nelson, and from the finding, order and judgment dismissing said appeal and taxing the costs thereof to said N. J. Nelson and Mildreth A. Nelson.”
In this court we are first confronted with a motion of the appellee to dismiss this appeal, on the ground that the notice of appeal gave the date of the rulings appealed from as January 17, 1937. It is argued that, having been served on appellee January 21, 1938, the notice shows on its face that it is too late. The use of the figures 1937, as representing the year, in the body of the notice of appeal, obviously is a clerical error. None of this condemnation proceeding was pending that early. The notice specifically applies to this condemnation proceeding; the appeal is specifically from the orders sustaining the city’s motion to dismiss, and overruling appellants’ motion for leave to file an amended appeal bond. These matters are stated in the notice of appeal. Appellee could not have been misled by the inaccurate date used in the notice. Courts, in the interest of justice, disregard inaccuracies of that character.
In support of the trial court’s ruling it is pointed out that the bond runs to the state of Kansas. Appellee contends that the state is not a party to this proceeding, that the bond should have run to the city of Osawatomie. It is argued that the bond, having been given to a stranger to the action, is void and serves no purpose. We think the point is not well taken. This is a cost bond, given under Laws of 1937, ch. 228, for the purpose of converting the' condemnation proceeding, insofar as it affects these appellants, into an action in the district court. It is given not only for the benefit of the city itself, but of any witness or other person who may be entitled to costs in the action. The statute (Laws of 1937,' ch. 228) does not say to whom the bond shall run. It is not unusual for bonds of this character to run to the state of Kansas, and they may be sued upon by any person entitled to costs, or otherwise entitled to recover on the bond.
On behalf of appellee it is argued that since each of the appellants had an interest in the property separate bonds should have been given. There is nothing in this record from which it could be determined whether appellants are tenants in common, or joint tenants, or whether they own separate moieties or fractional shares of this property. All that was indicated is that they have some type of ownership in common. We see no occasion for separate bonds. Certainly the record does not disclose the land condemned consisted of separate tracts of land, owned separately by the parties.
It is next argued there are no- sureties. The statute (Laws of 1937, ch. 228) does not specifically require sureties, but as the bond is framed, each of the signers is surety for the other. More than that, they made a special cash deposit as security. While this is unusual, and perhaps a cash bond alone would have been insufficient, we do not see why that should require a holding that the bond is invalid. Certainly the fact that cash is deposited with the clerk, perhaps ample to pay costs, is not a detriment to appellee. But what is more important, the clerk of the district court approved this bond. He is the official whose duty it is to pass upon the sufficiency of the bond, and that of necessity means to pass upon the sufficiency of the surety, or the security furnished by the bond. Since the official designated by the statute to pass upon and approve the bond has done so, his acts should not be regarded as nugatory. If the bond is insufficient with respect to the surety afforded, the court has authority to require an additional bond. The entire matter of the sufficiency of bonds given in this kind of a proceeding has been gone over recently in Glover v. State Highway Comm., 147 Kan. 279, 77 P. 2d 189, and followed in Russell v. State Highway Comm., 147 Kan. 297, 77 P. 2d 199, and need not be repeated here. It is true the statute then under consideration was G. S. 1935, 26-102, while the bond here in question was given under Laws of 1937, ch. 228. We regard the differences in the statute, however, as not being so great as to make the holdings in the cases just cited inapplicable.
Our conclusion is that the bond was sufficient to give the district court jurisdiction Of the action. At any time the bond proves to be insufficient with respect to the security it affords, the court, upon a showing of that kind, may require additional security.
The result is the judgment of the trial court should be reversed, with directions to deny the motion of the city of Osawatomie to dismiss the appeal and to proceed with the action.
It is so ordered.
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The opinion of the court was delivered by
Thiele, J.:
On the trial of an action to recover damages for injuries sustained in a collision of automobiles, the trial court sustained a demurrer to plaintiff’s evidence. From that ruling plaintiff appeals to this court.
In testing the sufficiency of evidence as against a demurrer, it has been repeatedly held that the court shall consider all of the plaintiff’s evidence as true, shall consider that favorable to the plaintiff and disregard that unfavorable, shall make all inferences favorable to the plaintiff, and shall not weigh any part that is con tradictory, nor weigh any differences between his direct and cross-examination, and if, so considered, there is any evidence which sustains the plaintiff’s case the demurrer - should be overruled. (See Shoup v. First Nat’l Bank, 145 Kan. 971, 975, 67 P. 2d 569, and cases cited.) We shall test the evidence under that rule.
The demurrer was sustained on the ground that plaintiff’s evidence showed her guilty of negligence which contributed to her injuries.
The place of the accident and its relation to other points is as follows: U. S. Highway 24 runs east and west, and outside of the city of Goodland has an oil mat surface. The first north-and-south road completely intersecting this highway is Cattle Trail Road and is about eight blocks west of the west city limits of Goodland. Near the intersection is a café where plaintiff was employed. Between the west city limits and the café, roads or streets come up from the south, but do not continue north of the highway. On the north side of the highway and some distance west of the west city limits is a road from the O. K. Packing Company leading to the highway, but not continuing south.
Plaintiff’s evidence showed the following with respect to the accident in which she was injured: Plaintiff had been employed for about three weeks at the café mentioned. She lived in Goodland and drove her employer’s car to the café and was familiar with the highway and the road from the packing plant. On February 15, 1937, at about 8:30 in the morning, she started driving from the hotel in Goodland, where she lived, to the café. A duststorm was in progress. She was able to see at least three blocks from the time she left the hotel and until she got out on the highway. As abstracted, she testified on direct examination:
“After I turned and started west on the highway there was a decided change in the visibility and a great increase in dust about four blocks out from town. As I left the edge of the city I could see about fifteen feet ahead of me. And when I got on the oil pavement I could not see the road from the O. K. Packing Company. When I hit the worst part of the dust I couldn’t see more than ■three feet in front of my car.
“When I came out of town on highway 24 I was traveling about twenty-five miles per hour, and as I came into the dust I decreased my speed to around fifteen miles per hour. I pulled out the throttle and took my foot off the foot-feed and I had my hands on the steering wheel. I was familiar with the car, and the mechanical condition of the car, including the brakes, was good. When I pulled out the throttle and quit feeding the gas with my foot my speed was decreased. I was watching the road carefully and didn’t see the truck until I was right on it, when I put my brakes on and threw in the clutch and at the same time hit the truck; it all happened at once. There were no lights on the truck and I did not hear the sound of any horn before the crash.”
On cross-examination she testified to the same general effect and, in part, as follows:
“Q. How far could you see? A. Oh, when I first left town I could see for, maybe, three blocks.
”Q. When you first went on to highway 24? A. Yes.
“Q. And how far did you go before your visibility was reduced? A. It was about, oh, three and a half or four blocks.
“Q. And then how far could you see? A. I couldn’t see more than-three feet in front of my radiator.
“Q. After you had proceeded about four blocks? A. Yes.
“Q. How long did that condition exist? A. Until I hit Mr. Short.
“Q. Do you have any idea how far you drove when your visibility was only three feet, before the collision occurred? A. No, I have not.”
Plaintiff also testified that at the time of the accident defendant’s truck was in motion and the front of her car hit the side of the truck near its left front fender; that the left window of her car was down and the other windows were up, and that her lights were not on, and that she was driving on the right-hand side of the road. One Bracken testified he was near the accident; that he was driving west on highway 24 and as he left town the dust got a little worse, got heavier; he heard the crash but could not see the cars. He heard no horn sounded. There was testimony that plaintiff was taken to her employer’s café, and that Bracken and defendant were also there. Her employer testified he asked plaintiff how badly the car was torn up, and that defendant said, “Now, it wasn’t her fault. . . . There ain’t no use saying anything to her about that.”
Plaintiff’s employer also testified that it was dusty and windy; that some work had been done in a field near the O. K. Packing Company road and dust was coming from this field; that the wind was coming from the north and west- — -not a gale, but a steady wind.
Much evidence was offered 'about plaintiff’s injuries and treatment which we need not notice.
As has been indicated, the trial court sustained a demurrer to this evidence, and this appeal followed. Appellant here says that there was no general dust storm, and that at places the visibility was fairly good; that it was necessary that plaintiff be on the highway to get to her place of employment, and contends the trial court erred in holding as a matter of law that it was negligence for plaintiff to drive an automobile on a public highway where the visibility was such that the driver could not see more than three feet ahead of the front of her car.
The test for determining whether plaintiff was guilty of contributory negligence as a matter of law was stated thus in Sponable v. Thomas, 139 Kan. 710, syl. ¶ 4, 38 P. 2d 721, and in Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, syl. ¶ 2, 53 P. 2d 923:
“In determining whether as a matter of law a plaintiff is guilty of contributory negligence which precludes his recovery for injuries sustained, all of the testimony favorable to the plaintiff must be accepted as true, and if the facts are such that reasonable minds reach different conclusions thereon, the question must be submitted to the jury and cannot be determined by the court as a matter of law.”
See, also, Crowe v. Moore, 144 Kan. 794, 798, 62 P. 2d 846.
In Fisher v. O’Brien, 99 Kan. 621, 162 Pac. 317, the driver of an automobile, whose headlights failed, procured a lantern which he hung on the front of the radiator. He then drove his car at such a speed he could not stop within the range of his vision and collided with a spring wagon proceeding in the same direction. In determining negligence it was held:
“Independently of any statute it is negligence as a matter of law to drive an automobile along the highway on a dark night at such speed that it cannot be stopped within the distance that objects can be- seen ahead of it.” (Syl. ¶ 1.)
The rule was followed in Haines v. Carroll, 126 Kan. 408, 267 Pac. 986, and in Knox v. Stevens County Comm’rs, 128 Kan. 22, 276 Pac. 84. It was likewise discussed rather fully in Watson v. Travelers Mutual Cas. Co., 146 Kan. 623, 627, 73 P. 2d 64, although not there applied.
In Jones v. Atchison, T. & S. F. Rly. Co., 129 Kan. 314, 316, 282 Pac. 593, it was said:
“The petition alleged that plaintiff did not know he was near a railway track, had no notice or knowledge of the obstruction, and on account of extreme darkness, fog, and dense smoke of the engine, he drove his truck against the side of a freight car and demolished the truck. He should have operated the truck in accordance with his ability to see.
“In the absence of statute it is negligence for a driver to operate his auto vehicle at night without lights which will enable him to see objects ahead of him in time to avoid accident. The statute requiring lights was not enacted merely to secure the giving of notice of approach of the vehicle carrying the lights. One of the purposes of the statute was to require equipment which will enable a driver to see ahead of him, and it is negligence for him to proceed at such speed that he cannot stop within the distance he can see ahead of him. The rule has been applied to one driving at night (Giles v. Ternes, 93 Kan. 140, 143, 143 Pac. 491); to one driving with dim lights (Fisher v. O’Brien, 99 Kan. 621 162 Pac. 317); to one driving at night who could not see because of brightness of the lights of an automobile coming toward him (Howard v. Zimmerman, 120 Kan. 77, 80, 242 Pac. 131); to one driving at night when it is misting or raining (Rhodes v. Atchison, T. & S. F. Rly. Co., 121 Kan. 324, 246 Pac. 994); to one driving in foggy weather (O’Connell v. Lush, 122 Kan. 186, 250 Pac. 1059); and to one driving at night on a grade which caused his lights to be projected above an obstruction (Haines v. Carroll, 126 Kan. 408, 267 Pac. 986). The result is that if the night be very dark and the fog very thick and the engine smoke very dense, the driver of an auto vehicle who is just driving along the road proceeds at his own risk, unless he correlates speed and ability to stop with ability to see.” (p. 316.)
The above-mentioned cases, with one exception, dealt with nighttime driving.
In Gage v. Railway Co., 91 Kan. 253, 137 Pac. 938, it was held:
“An automobile driver approaching a railway crossing was driving his car at a speed of something less than ten miles an hour when he was within fifteen feet of the railway track. The highway on which he was driving was wet, and his vision was so obscured by rain and snow that he could see only about three hundred feet. He was fully conscious of the conditions and was familiar with the management of an automobile. When fifteen feet from the track he saw an approaching train about three hundred feet away. He then used all appliances for stopping his car, but it ‘skidded’ on the slippery ground until it went upon the railway track, where the engine of the car stopped, and it was struck by the train. . Held, he was guilty 9Í negligence contributing to the injury.” (Syl.)
And in Mowrer v. Osage Township, 135 Kan. 278, 10 P. 2d 906, it was held :
“The plaintiff drove his automobile in the darkness and when there was a dense fog which prevented him from seeing the road and the intersection of another road on which he desired to turn, and on which there was a washout and ditch. He ündertook to make the turn without seeing or knowing where he was going and drove into the washout or ditch, the existence of which he was familiar with: Held, that his own negligence contributed to his injury and bars a recovery of damages.” (Syl. ¶2.)
We are not unaware of that class of cases where, because of circumstances therein, the plaintiff was relieved from a harsh application of the above rule, such as Hayden v. Jack Cooper Transport Co., 134 Kan. 172, 5 P. 2d 837; Sponable v. Thomas, supra, and cases cited therein. And annotations on duty of driver of automobile whose view is obscured by dust, smoke or atmospheric conditions may be found in 37 A. L. R. 587, 73 A. L. R. 1020, and on driving automobile at speed which prevents stopping within length of vision as negligence may be found in 87 A. L. R. 900, 97 A. L. R. 546, from which it may be concluded that, as a general rule, whether plaintiff is guilty of negligence as a matter of law depends in a large measure on the circumstances of the particular case.
In the case before us plaintiff’s evidence shows clearly that she was well aware as she drove along the highway that visibility was poor and that, notwithstanding, she continued to proceed, and for some distance drove when she could not see over three feet ahead of her car. Whether it would have increased her visibility had the headlights been lighted may be debatable, but if they would have helped she did not have them on. Because of the dust she drove in about the same circumstances as one would who drove an unlighted car on a dark night. That she did not correlate her speed with her ability to stop is clear, for she testified that as soon as she saw defendant’s truck she put on her brakes, which were in good condition, but notwithstanding, she simultaneously hit the truck. We do not believe that reasonable minds could come to different conclusions respecting her negligence. Under the situation presented by the evidence, the trial court properly ruled that plaintiff was guilty of negligence which contributed to her injuries, and that defendant’s demurrer to her evidence should be sustained.
The ruling of the trial court is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This appeal was taken by defendant from an order overruling its demurrer to plaintiff’s petition. The pertinent portions of the petition and exhibits thereto may be stated or quoted as follows: In November, 1932, John D. Kahm was the owner of the north half and the fractional southwest quarter of section 14, township 35, range 2 east, containing 476.71 acres, more or less, in Sumner county, subject to a mortgage held by plaintiff. On November 18, 1932, Kahm executed to the Empire Oil and Refining Company, the name of which was changed to Cities Service Oil Company, the defendant here, three separate oil and gas leases, one covering the southwest quarter of section 14, another covering the northwest quarter of section 14, and the other covering the northeast quarter of section 14, all in township 35, range 2 east. Other than the description of the land covered, these leases were identical in all respects, except that two of them were to begin as of August 1, 1932, and the other as of November 18,1932. Each was to remain in force for a term of six years and as long thereafter as oil and gas could be produced, subject to payment of rentals as therein provided. Each lease contained the following provisions, specifically commented upon by counsel:
“6. If operations for the drilling of a well for oil or gas are not begun on said land on or before (six months from the date of the lease), this lease shall terminate as to both parties unless the lessee on or before that date shall pay or tender to the lessor or for the lessor’s credit in (the Home National Bank, Arkansas City, Kansas) . . . the sum of ($80) as rental, which . . . shall operate to confer on the lessee the privilege of deferring the commencement of such well for six months; provided, however, the default in whole or in part in such payment or any subsequent payment occasioned by mistake, inadvertence, oversight, failure of mails, error in calculation or other misfortune, shall not operate to terminate this lease for thirty days after receipt of written notice from lessor of such default and not then if such payment be ma.de within such thirty days. In like manner and upon like payments or tenders of said amount the commencement of said well may be further deferred for additional periods of six years [months]. . . .
“7. The lessee shall not be bound by . . . the assignment of the rentals or royalties hereunder until furnished with an abstract of title to said land prepared by a bonded abstracter at least thirty days before said rentals or royalties are due showing to the lessee’s satisfaction that assignee is the owner of the interest claimed; otherwise payment to purchaser’s predecessor in title shall bind such purchaser. . . .
“9. It is understood and agreed that all considerations recited herein cover not only the privileges granted to the date when the first well is to be commenced, but also the lessee’s option to extend this lease from time to time and any and all other rights conferred. As an additional consideration for the execution of this lease, lessee hez-eby agrees that if during the period of this lease or during any period for which drilling has been delayed by the payment herein provided foi-, there shall be drilled on adjoining land and within thi-ee hundred feet of any line of said leased land an oil or gas well producing sufficient oil or gas to pay all costs of drilling and equipment thereof and of production therefrom and a reasonable pi-ofit the lessee will with reasonable diligence begin and prosecute the drilling of an offset well on said leased land; provided, however, That if said well on the adjoining land is a paying gas well, pi’oducing gas only, the said lessee may pay to the lessor the same amount of royalty as herein provided for a gas well on the leased premises in lieu of drilling an offset well; . . .
“12. Lessee shall have the right at any time to surrender and cancel this lease in whole or in part, after which all payments and liabilities thereafter accruing hereunder as to the portion canceled (any rentals may be apportioned on an acreage basis) shall cease and determine.
“13. This lease and all its terms and conditions shall extend to and be binding upon the heirs, devisees, executors, administrators, and successors and assigns of the parties hereto.”
It was further alleged in the petition that thereafter and on December 9, 1932, John D. Kahm, being still the owner of all of the land above mentioned, for value received, executed and delivered to plaintiff a certain instrument in writing whereby he did sell, transfer and assign to plaintiff all his right, title and interest in and to the rents, royalties, rights and benefits from the above-mentioned and described oil and gas lease. A copy of this assignment is attached as an exhibit. And that thereafter and on February 9, 1933, plaintiff duly notified the defendant, in writing, of this assignment by mail. A copy of the letter is attached as an exhibit. This reads:
“This company holds an assignment from John D. Kahm of the oil land and gas lease in your favor on the N% of the fractional SW14 of section 14, township 35, range 2 east of the sixth principal meridian, Sumner county, Kansas, containing 476.71 acres, and if you desire for your protection, I shall obtain from the home office of this company a photostatic copy of the lease.”
That defendant replied to such letter as follows:
“We have your letter of the 9th stating that your company holds an assignment from John D. Kahm 'covering the above-described land (John D. Kahm lease, N% Frl. SW% section 14-35-2E, Sumner county, Kansas), and that future benefits derived from our lease should be paid to your company. Before we can change our records to show this transfer, it is necessary that we have the assignment or a true copy thereof for examination. If you will furnish same to us, it will be appreciated.”
That on February 21, 1933, plaintiff replied to defendant as follows:
“In accordance with your letter of February 14, I inclose herewith copy of assignment of lease, rents and profits given to this company by John D. Kahm.”
and enclosed therewith a copy of the assignment, the pertinent portions of which are as follows:
“Assignment of Lease, Rents and Profits
“For value received, I hereby sell, transfer and assign, to the Union Central Life Insurance 'Company, of Cincinnati, Ohio, its successors and assigns, all my right, title and interest in and to the rents, profits, revenues, royalties, rights and benefits from the following-described property: The north half and the fractional southwest quarter of section fourteen (14), township thirty-five (35), range two (2), east of the sixth principal meridian.
“It is especially provided and understood that in signing this assignment that all crops are to be retained by John D. Kahm. The signing of this is merely for the purpose of the oil and gas lease that is on said premises. . . .
“I further make, constitute and appoint, during the term of this assignment, as hereinbefore set out the Union Central Life Insurance Company, its agent, or attorney, true and lawful attorney for me and in my name, to renew any and all leases of said premises, from time to time, or agree to renew the same and also make such new leases, agreements and writings in regard to the leasing of said premises, and to make or have made any and all repairs necessary for the preservation of said property, or that may be required for the better renting of same, as it or they shall think proper.”
This instrument was duly acknowledged, but appears not to have been recorded with the register of deeds.
It is alleged that defendant received this last letter, with the true copy of the assignment, on or about February 25,1935, and accepted the assignment as full compliance with and as a showing to the lessee's satisfaction that the plaintiff, as assignee, was the owner of and entitled to the rental, and waived any further compliance therewith by making proper transfer on its books and records so far as the southwest quarter of section 14 was concerned, but failed and neglected to make transfers on its books so far as the northwest quarter and the northeast quarter of section 14 were concerned; that defendant made no further request or requirement for any additional showing of plaintiff’s right to collect and receive the rentals specified in the leases, and although it held the leases and claimed all the rights and privileges granted by the terms of the leases, it failed, neglected and refused to pay plaintiff or to make a deposit of the leases or rental moneys therein provided to the credit of this plaintiff, as required by the leases and the assignment in the Home National Bank of Arkansas City, which depository never had been changed, but on the contrary deposited said lease money and rentals to keep the leases in force in that bank to the credit of John D. Kahm in sums stated, aggregating $800, which sums were by the bank paid to Kahm. These allegations pertain to the payments on the two leases covering the northwest quarter and the northeast quarter of section 14. While not definitely stated in the petition, it appears therefrom that the rentals for the' lease covering the fractional southwest quarter of the section were deposited to the credit of plaintiff.
It was further alleged that during all that time (until this action was brought, April 29,1937) defendant has kept and held the leases, exercising and claiming the right to exercise all the privileges and benefits thereof, and claiming the leases were and are in full force and effect, and has not surrendered them or any part thereof; that by reason of the premises defendant is justly indebted to plaintiff in the sum of $800, and that plaintiff has demanded payment of such rentals, which payment defendant has refused. The prayer is for judgment against defendant for $800, with interest and costs.
Appellant argues that each of the leases in question is an “unless” lease; that if the lessee did not commence drilling operations the lease terminated by its own terms in six months from its date unless the lessee paid or tendered the rental; that under such a lease the lessee has the option to continue the lease in force by the payment of rentals; that he has not bound himself to pay such rentals, and if he does not do so the lessor cannot maintain an action against him to recover them. This point is well taken. The question was before the court in O’Neill v. Risinger, 77 Kan. 63, 93 Pac. 340. There the lease contained a similar provision. No well was started within six months, or at any time, and no rental was paid. After the six months had expired the lessor' sued the lessee for the rent. It was held the lessee had a mere naked option to continue the lease in force and was under no duty or obligation to pay the rentals. This court directed that the demurrer to the petition should be sustained. Other cases to the same effect are: Eastern Oil Co. v. Smith, 80 Okla. 207, 195 Pac. 773; Snodgrass v. South Penn Oil Co., 47 W. Va. 509, 35 S. E. 820; Hays, Appellant, v. Forest Oil Co., 213 Pa. 556, 62 A. 1072; Van Etten et al. v. Kelly, 66 Ohio St. 605, 64 N. E. 560.
The leases before us differ materially from those considered in Farlow v. Frankson, 110 Kan. 197, 203 Pac. 299, and Benson v. Nyman, 136 Kan. 455, 16 P. 2d 963, where the rentals were to be paid until the royalties from producing wells on the premises equalled or exceeded the rentals. There is no such provision in the leases being considered here. No case is cited by counsel, and our own research discloses none in which the lessor was permitted to recover rentals where the lease merely gave the lessee the right or privilege of continuing the lease in force by the payment of rentals.
Quite a little is said in the briefs and arguments about mistakes with respect to sending the assignment to defendant and its action thereon. That there were mistakes seems obvious. Plaintiff’s first letter to defendant described the lease as the of the fractional SW1^” and used the word “lease” in the singular, as though there were but one. This described only 80 acres, but the acreage was stated to be 476.71. The other letters between the parties contained abbreviated descriptions, which were at best misleading, perhaps inaccurate. But defendant did not depend upon plaintiff’s letters. It asked for the assignment, or a true copy thereof, which was furnished. This contained a correct description of the three quarter sections, “the north half and the fractional southwest quarter of” the proper section, but still used the word “lease” in the singular. Defendant entered its assignment on its records as pertaining to but one quarter section, when it described three, and thereafter paid rentals on the separate leases to the parties entitled thereto, as shown by its records, which appear to be mistakes of defendant.
Appellee cites the provision of the lease (paragraph 6) to the effect that default in payment of rentals occasioned by mistake, etc., shall not operate to terminate the lease “for thirty days after receipt of written notice from lessor of such default and not then if such payment be made within such thirty days.” We see nothing in this provision which binds the lessee to pay within the thirty-day period. It could still decline to pay rents, so far as this provision is concerned, without being liable in an action for rentals. Before the lessee is liable in an action for rentals there must be found in the lease a promise or duty on his part to pay rentals. The lease fixed the conditions under which the lessee was to pay rentals. (Wilson v. Texas Company, 147 Kan. 449, 453, 76 P. 2d 779.) We find in the lease a right of the lessee to pay rentals by certain specified times, and if the failure to pay by such times was occasioned by mistake, the right to pay within thirty days after the mistake was called to his attention by the lessor. But we find no obligation or duty imposed upon the lessee to pay in either event.
There is some discussion in the briefs as to the rights of the plaintiff as an assignee of the rents compared with what would have been the rights of the lessor if the assignment had not been made. We think the assignee had the same rights; no greater, no less, with respect to the receipt of rentals, than the original lessor had before the assignment was made. The fact that the assignment described all the land and referred to the leases as though there were but one is of no importance. The lessee held separate leases. It could pay on one and not pay on the others. It should be noted that the assignment gave the assignee the right to renew the leases, or, if they expired, to make new ones. So, with respect to the payment of rentals, the lessee could handle the matters with the assignee just as it could have handled them with the lessor if no assignment had been made.
Appellee calls attention to its allegations that the lessee did in fact pay the rentals to the original lessor, and alleged the leases were still in force. This action is not framed to determine whether all the leases are still in force; it is simply an action to recover a money judgment for rentals. But with respect to the payments alleged to have been made to the lessor, either those were valid payments or they were not. If those payments were valid, appellant owes nothing for rentals. To have any basis to recover anything plaintiff must take the position that the payments were not valid; hence, whether they were made to the lessor or not is immaterial and of no more effect than if the money had been given to some third person, or not paid to anyone. Plaintiff can recover only if defendant had a duty to pay plaintiff. As we read the lease, it had no duty to pay anyone; it had only the right or option to make such payments, and from this it necessarily follows that it had no duty to pay plaintiff,
Appellee refers to paragraph 12 of the lease and argues that it limits to some extent the effect of the provisions of paragraph 6, hereinbefore discussed. There was a somewhat similar clause and a similar argument made- respecting it in O’Neill v. Risinger, supra. With respect to it the court said:
“The clause in the lease providing that the lessee shall have the right at any time to terminate the lease by surrendering it canceled is a general provision, and must be construed in connection with the other clause which expressly declares that a failure to drill within six months or to pay rent shall terminate the lease. The latter clause does not pretend to exclude the first from becoming operative.” (p. 66.)
We think the same conclusion applies here.
Other questions are discussed in the briefs, but we find it unnecessary to consider them. From what has been said it follows that the judgment of the trial court should be reversed, with directions to sustain the demurrer to the petition. It is so ordered.
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The opinion of the court was delivered by
Allen, J.;
The action was brought to enjoin defendants from using and maintaining an underground lateral sewer drain through and across plaintiff’s land. The case was tried by the court, judgment was rendered in favor of defendants, and plaintiff appeals.
In the city of Chanute, Highland avenue, running north and south, intersects Tenth street running east and west. In the early part of 1904 Laura A. J. Bailey was the owner of a plot of ground lying east of Highland avenue and south of Tenth street. Running east from Highland avenue and facing north on Tenth street the lots are numbered respectively, 19, 20 and 4. In 1904 the residence of Mrs. Bailey was on lot 4 on the east part of her land.
In the latter part of 1903 or the early part of 1904, the city of Chanute constructed a public sewer in Highland avenue, west of lot 19. About the same time a private lateral drain was constructed from the Bailey residence on lot 4 running in a westerly direction through and across lots 20 and 19 to the public sewer.
On January 15, 1904, Laura A. J. Bailey conveyed lot 19 to John J. Jones, by general warranty deed with usual covenants against encumbrances, and containing no exceptions or reservations. Jones erected a dwelling on the north part of the lot. In 1920 Jones conveyed the north 156 feet of lot 19 to Carl D. Reynolds; in 1924 Reynolds conveyed to the plaintiff, who has owned and occupied the premises since that time.
In 1904 Laura A. J. Bailey conveyed lot 20 to one Murphy, who built a house thereon, and by mesne conveyances the title passed ÍS» to the defendant, Louise H. Royster. The deed to Murphy was a general warranty deed without exceptions or reservations. The defendant Gray has succeeded to the title to lot 4 upon which the old Bailey home stood at the time Laura A. J. Bailey sold lots 19 and 20.
In March, 1936, plaintiff discovered his basement flooded with sewage and filth to a depth of six or eight inches, and upon investigation he found for the first time that there existed on and across his property a sewer drain extending in an easterly direction across the property of Royster to the property of Gray. The refusal of defendants to cease draining and discharging their sewage across plaintiff's land resulted in this lawsuit.
The trial court returned findings of fact, from which we quote:
“1. The plaintiff and the defendants Louise Royster and Lael Bailey Gray are the present owners, respectively, of properties adjoining one another in Bailey’s addition to the city of Chanute, Kan., on each of which properties there is a residence, the plaintiff being the owner of part of lot 19, the defendant Louise Royster being the owner of part of lot 20, and the defendant Lael Bailey Gray being the owner of lot 4, part of original lot 9 in block 3, in said addition. All of said properties front to the north on Tenth street. Plaintiff’s property is farthest west. Immediately adjoining it on the east is the Royster property and immediately adjoining the Royster property on the east is the Gray property. Immediately adjoining plaintiff’s property on the west is Highland avenue, a public street.
“2. Laura A. J. Bailey was originally the owner of all the above-described properties and other land adjacent thereto, and^orior to the summer of 1904 the only residence or dwelling house on any of said properties was the house on the property farthest east, namely lot 4, being the property now owned by Gray.
“3. On January 15, 1904, Laura A. J. Bailey sold to John J. Jones said lot 19 (and other land) and conveyed same to him by general warranty deed, with usual covenants against encumbrances, and containing no exceptions or reservations whatsoever. The deed was duly recorded. John Jones erected a dwelling house on the north 156 feet of lot 19. On January 12, 1920, John Jones conveyed the north 156 feet of lot 19 to Carl D. Reynolds by general warranty deed containing usual convenants against encumbrances, and containing no exceptions or reservations whatsoever, but also included the ‘appurtenances thereunto belonging,’ etc. This deed was duly recorded. On November 7, 1924, Carl D. Reynolds conveyed said last-described property to plaintiff by general warranty deed with usual covenants, against encumbrances excepting only a mortgage thereon, but also including the ‘appurtenances thereunto belonging,’ etc. Plaintiff has owned and occupied said property ever since.
“4. On April 14, 1904, Laura A. J. Bailey conveyed part of lot 20 to W. P. Murphy, who erected a dwelling house on the lot and later sold that property to W. E. Royster, conveying the same by general warranty deed without reservation, but including the ‘appurtenances thereunto belonging,’ etc., and from said W. E. Royster the property passed to the defendant Louise Royster.
“5. The defendant, Lael Bailey Gray, has succeeded to the title to lot 4 upon which the old Bailey house stood at the time Laura Bailey sold the other lots.
“6. In the latter part of the year 1903 or the early part of 1904 the city of Chanute extended its public sewer system and constructed a public sewer running north and south in Highland avenue immediately west of lot 19 above mentioned. When this public sewer was constructed a private sewer was laid from the old Bailey house on lot 4 in a general westerly direction across lots 20 and 19 to the public sewer in Highland avenue, and the old Bailey house was connected through this private sewer to the public sewer. When the houses were erected on lot 19 and lot 20, respectively, these houses were connected with this private sewer, and the same has been in continuous use for all of said properties ever since.
“7. At the time Laura A. J. Bailey sold lot 19 to Jones she owned lot 18, which lies south of lots 19 and 20, extends in an east-and-west direction from the west boundary of lot 4 (or original lot 9) near the southwest corner thereof to Highland avenue. The east boundary of lot 18 is contiguous with the west boundary of original lot 9 for a distance of at least twenty feet north from the southwest comer of said lot 9. Lot 18 was not sold by Mrs. Bailey until November, 1905.
“8. There is not now and was not at the time plaintiff purchased his property anything on record in the office of the register of deeds of the county pertaining to the private sewer above referred to.
“9. At the time plaintiff purchased his property he and his wife made á careful and thorough inspection of the same, knew that the house they were buying was equipped with modern plumbing and knew that the plumbing had to drain into a sewer, but otherwise had no further knowledge of the existence of said lateral sewer.
“10. That the lateral sewer in controversy ywas installed prior to the sale of the property by Mrs. Laura A. J. Bailey to John J. Jones on January 15, 1904; but if not, the said lateral sewer certainly was installed shortly after the sale to John J. Jones and with the knowledge and acquiescence of said John J. Jones, and that the said John J. Jones paid the said Mrs. Laura A. J. Bailey one third of the cost of the installation of the said sewer.
“11. That all of the original owners of the three properties in controversy, to wit, Laura A. J. Bailey, John J. Jones and W. P. Murphy, had notice and knowledge of the existence of the lateral sewer in controversy, and all acquiesced in the use of the sewer by all parties, and the use of the sewer by the said parties and their successors in interest has been continuous from the time of its installation to the present time — a period of more than thirty-three years —and has been a mutual enterprise, and the said lateral sewer was an appurtenance to the properties belonging to plaintiff and Louise Royster, and the same is necessary to the reasonable use and enjoyment of the said properties of the parties.”
The drain pipe in the lateral sewer was several feet under the surface of the ground. There was nothing visible on the ground in the rear of the houses to indicate the existence of the drain or the connection of the drain with the houses.
As a conclusion of law the court found that “an appurtenant easement existed in the said lateral sewer as to all three of the properties involved in the. controversy here.” Plaintiff’s prayer for relief was denied and it was decreed that plaintiff be restrained from interfering in any way with the lateral drain or sewer.
Plaintiff contends that the evidence fails to show that an easement was ever created in his land, and, assuming there was an easement created as alleged, that he took the premises free from the burden of the easement for the reason that he was a bona fide ^purchaser, without notice, actual or constructive.
Defendants contend: (1) That an easement was created by implied reservation on the severance of the servient from the dominant estate of the deed from Mrs. Bailey to Jones; (2) there is a valid easement by prescription.
In finding No. 11, the court found that the lateral sewer “was an appurtenance to the properties belonging to plaintiff and Louise Royster, and the same is necessary to the reasonable use and enjoyment of the said properties of the parties.”
As an easement is an interest which a person has in land in the possession of another, it necessarily follows that an owner cannot have an easement in his own land. (Johnston v. City of Kingman, 141 Kan. 131, 39 P. 2d 924; Ferguson v. Ferguson, 106 Kan. 823, 189 Pac. 925.)
However, an owner may make use of one part of his land for the benefit of another part, and this is very frequently spoken of as a quasi easement.
“When one thus utilizes part of his land for the benefit of another part, it is frequently said lhat a quasi easement exists, the part of the land which is benefited being referred to as the ‘quasi dominant tenement’ and the part which is utilized for the benefit of the other part being referred to as the ‘-quasi servient tenement.’ The so-called quasi easement is evidently not a legal relation in any sense, but the expression is a convenient one to describe the particular mode in which the owner utilizes one part of the land for the benefit of the other.
“If the owner of land, one part of which is subject to a’quasi easement in favor of another part, conveys the quasi dominant tenement, an easement corresponding to such quasi easement is ordinarily regarded as thereby vested in the grantee of the land, provided, it is said, the quasi easement is of an apparent continuous and necessary character.” (2 Tiffany on Real Property, 2d ed. 1272, 1273.)
Following the famous case of Pyer v. Carter, 1 Hurl & N. 916, some :of the English cases and many early American cases held that upon'the transfer of the quasi-servient tenement there was an implied reservation of an easement in favor of the conveyor. Under the doctrine of Pyer v. Carter, no distinction was made between an implied reservation and an implied grant.
The case, however, was overthrown in England by Suffield v. Brown, 4 De G. J. & S. 185, and Wheeldon v. Burrows, L. R. 12 Ch. D. 31. In the former case the court said:
“It seems to me more reasonable and just to hold that if the grantor intends to reserve any right over the property granted, it is his duty to reserve it expressly in the^ grant, rather than to limit and cut down the operation of a plain grant (which is not pretended to be otherwise than in conformity with the contract between the parties), by the fiction of an implied reservation. If this plain rule be adhered to, men will know what they have to trust, and will place confidence in the language of their contracts and assurances. . . . But I cannot agree that the grantor can derogate from his own absolute grant so as to claim rights over the thing granted, even if they were at the time of the grant continuous and apparent easements enjoyed by an adjoining tenement which remains the property of him the grantor.” (pp. 190, 194.)
Many American courts of high standing assert that the rule regarding implied grants and implied reservations is reciprocal and that the rule applies with equal force and in like circumstances to both grants and reservations. (Washburn on Easements, 4th ed. 75; Miller v. Skaggs, 79 W. Va. 645, 91 S. E. 536, Ann. Cas. 1918 D. 929.)
On the other hand, perhaps a majority of the cases hold that in order to establish an easement by implied reservation in favor of the grantor the easement must be one of strict necessity, even when there was an existing drain or sewer at the time of the severance.
Thus in Howley v. Chaffee et al., 88 Vt. 468, 474, 93 Atl. 120, L. R. A. 1915 D. 1010, the court said:
“With the character and extent of implied grants, we now have nothing to do. We are here only concerned with determining the circumstances which will give rise to an implied reservation. On this precise question the authorities are in conflict. Courts of high standing assert that the rule regarding implied grants and implied reservation of ‘visible servitudes’ is reciprocal, and that it applies with equal force and in like circumstances to both grants and reservations. But upon a careful consideration of the whole subject, studied in the light of the many cases in which it is discussed, we are convinced that there is a clear distinction between implied grants and implied reservations, and that this distinction is well founded in principle and well supported by authority. It is apparent that no question of public policy is here involved, as we have seen is the case where ^a way of necessity is involved. To say that a grantor reserves to himself ^something out of the property granted, wholly by implication, not only offends the rule that one shall not derogate from his own grant, but conflicts with the grantor’s language in the conveyance, which, by the rule, is to be taken against him, and is wholly inconsistent with the theoiy on which our registry laws are based. If such an illogical result is to follow an absolute grant, it must be by virtue of some legal rule of compelling force. The correct rule is, we think, that where, as here, one grants a parcel of land by metes and bounds, bj' a deed containing full covenants' of warranty and without any express reservation, there can be no reservation by implication, unless the easement claimed is one of strict necessity, within the meaning of that term as explained in Dee v. King, 73 Vt. 375.”
See, also, Brown v. Fuller, 165 Mich. 162, 130 N. W. 621, 33 L. R. A., n. s. 459, Ann. Cas. 1912 C 853. The cases are collected in 58 A. L. R. 837.
We are inclined to the view that the circumstance that the claimant of the easement is the grantor instead of the grantee, is but one of many factors to be considered in determining whether an easement will arise by implication. An easement created by implication arises as an inference of the intentions of the parties to a con veyance of land. The inference is drawn from the circumstances under which the conveyance was made rather than from the language of the conveyance. The easement may arise in favor of the conveyor or the conveyee. In the Restatement of Property, tentativé draft No. 8, section 28, the factors determining the implication of an easement are stated:
“Sec. 28. Factors Determining Implication of Easements or Profits. In determining whether the circumstances under which a^onveyance of land is made imply an easement or a profit, the following factors are important: (a) whether the claimant is the conveyor or the conveyee, (b) the terms of the conveyance, (c) the consideration given for it, (d) whether the claim is made against a simultaneous conveyee, (e) the extent of necessity of the easement or the profit to the claimant, (/) whether reciprocal benefits result to the conveyor and the conveyee, (g) the manner in which the land was used prior to its conveyance, and (h) the extent to which the manner of prior use was or might have been known to the parties.”
Comment j, under the same section, reads:
“The extent to which the manner of prior use was or might have been known to the parties. The effect of the prior use as a circumstance in implying, upon a severance of possession by conveyance, an easement or a profit results from an inference .as to the intention of the parties. To draw such an inference, the prior use must have been known to the parties at the time of the conveyance, or, at least, have been within the possibility of their knowledge at the time.. Each party to a conveyance is bound not merely to what he intended, but also to what he might reasonably have foreseen the other party to the conveyance expected. Parties to a conveyance may, therefore, be assumed to intend the continuance of uses known to them which are in a considerable degree necessary to the continued usefulness of the land. Also they will be assumed to know and to contemplate the continuance of reasonably necessary uses which have so altered the premises as to make them apparent upon reasonably prudent investigation. The degree of necessity required to imply an easement in favor, of the conveyor Is greater than that required in the case of the conveyee.(see comment b). Yet, even in the case of the-conveyor, the implication from necessity will be aided by a previous use made apparent by the physical adaptation of the premises to it.”
Illustrations:
“9. A is the owner of two adjacent tracts of land, Blackacre and Whiteacre. Blackacre has on it a dwelling house. Whiteacre is unim'proved. Drainage from the house to a public sewer is across Whiteacre. This fact is unknown to A, who purchased the two- tracts with the house already built. By reasonable effort, A might discover the manner of drainage and the location of the drain. A sells Blackacre to B, wjio has been informed as to the manner of drainage, and the location of the drain and assumes that A is aware of it. There is created by implication an easement of drainage in favor of B across Whiteacre.
“10. Same facts' as in illustration 9, except that both A and B are unaware of the manner of drainage and the location of the drain. However, each had reasonable opportunity to learn of such facts. A holding that there is created by implication an easement of drainage in favor of B across Whiteacre is proper.”
At the time John J. Jones purchased lot 19 he was aware of the lateral sewer, and knew that it was installed for the benefit of the lots owned by Mrs. Bailey, the common owner. The easement was necessary to the comfortable enjoyment of the grantor’s property. If land may be used without an easement, but cannot be used without disproportionate effort and expense, an easement may still be implied in favor of either the grantor or grantee on the basis of necessity alone. This is the situation as found by the trial court.
Neither can it be claimed that plaintiff purchased withouwiotice. At the time plaintiff purchased the property he and his wife made a careful and thorough inspection of the property. They knew the house was equipped with modern plumbing and that the plumbing had to drain into a sewer. Under the facts as found by the court, we think the purchaser was charged with notice of the lateral sewer. It was an apparent easement as that term is used in the books. (Wiesel v. Smira, 49 R. I. 246, 142 Atl. 148, 58 A. L. R. 818; 19 C. J. 868.)
The author of the annotation on Easements by Implication in 58 A. L. R. 832, states the rule as follows:
“While there is some conflict of authority as to whether existing drains, pipes, and sewers may be properly characterized as apparent, within the rule as to apparent or visible easements, the majority of the cases which have considered the question have taken the view that appearance and visibility are not synonymous, and that the fact that the pipe, sewer, or drain may be hidden underground does not negative its character as an apparent condition; at least, where the appliances connected with and leading to it are obvious.”
As we are clear that an easement by implication was created under the facts as found by the trial court, it is unnecessary to discuss the question of prescription.
The judgment is affirmed.
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