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Opinion by
Simpson, C.:
Suit to recover damages for personal injuries received by the defendant in error in the line of his employment as a section hand of the Southern Kansas Railroad Company, commenced on the 12th day of July, 1886. Tried at the March term, 1887, of the district court of Allen county, resulting in a judgment in favor of the defendant in error for $2,654.88.
The defendant in error, Walter Croker, was employed as a section hand by the railroad company in August, 1885. ■ He is a young man about twenty-two years of age, and before his'employment by the plaintiff in error had never worked on any public works. From the time of his employment until the 30th day of March, 1886, he had been engaged in the ordinary duties of a section hand, doing all that he was ordered to do to keep the track in good repair. On the 30th day of March, 1886, in the afternoon, he was engaged in breaking rock for ballast, using for that purpose a stone-hammer that weighed three and one-half pounds. The handle of the hammer was a green stick, cut from the brush adjoining the track, and was crooked. The defendant in error had complained directly to the section foreman about the handle being defective, he having been slightly injured before by the use of such a handle. The foreman told him to work with this one as it was, and that he would get good handles in a few days. He struck a blow on a limestone rock with the hammer, and a small particle of the stone struck him in the eye and destroyed its sight. In two days after the injury the eye was taken out by oculists in Kansas City. The jury, in answer to special interrogatories, found as follows:
“ 1. Was the plaintiff, at the time of his employment by the defendant, a man of ordinary intelligence and information? A. Yes.
“ 2. How long had the plaintiff been in the employment of the defendant at the time of the injury complained of? A. About seven or eight months.
“ 3. Did the plaintiff understand what he was expected to do under his employment at the time he entered the service of the defendant ? A. Yes.
“ 4. How long had the plaintiff been engaged iu the use of the stone-hammer in question, before the day on which he was injured? A. About three or four days.
“ 5. Was the plaintiff familiar with the use of the stone-hammer in question, at the time of the injury received by him? A. Yes.
6. Did the plaintiff know of all the defects, if any existed, in the handle of the hammer he was using, at the time he worked with it, and at the time of the injury he received? A. Yes.
“ 7. Could the plaintiff have put a new handle in the hammer-head if he had chosen so to do ? A. No.
“ 8. Was the plaintiff at work for the defendant by the day, or by the month, at the time of his injury? A. By the day.
“ 9. Was the work of breaking rock while iu the employ of the defendant such work as the plaintiff was competent to do? A. Yes.
“ 10. Which one of the three handles introduced in evidence is the one that plaintiff was using at the time a piece of the rock flew off and hit him prior to the day on which he was hurt, as alleged in this case? A. Either exhibits ‘2’ or ‘3.’
“11. Were the three hammer-handles introduced in evidence, made by the workmen who were repairing the track and breaking rock with the plaintiff? [Objected.] A. Don’t know.
“12. Did the foreman, Neely Frame, give the men who made the three hammer-handles in evidence, any directions as to the character of the handles that they should make ? A. Don’t know.
“13. Did the foreman, Neely Frame, give the men who made the handles any instructions whatever as to the length, thickness, straightness, or elasticity of the handles they were to procure? A. Don’t know.
“ 14. How much, if anythiug, did you allow to the plaintiff for the services of the doctors in Kansas City ? A. $50.
“15. How much, if anything, did you allow to the plaintiff for the loss of time during period of time following the injury? A. $100.”
The motion for a new trial was overruled, and the exceptions saved present the questions discussed by counsel for plaintiff in error. There are only two. The first is that at the trial the defendant in error was allowed to testify, that before he entered the employment of the railroad company, in August, 1885, he had not labored on public works of any kind. It is said that this was a mere subterfuge to excuse the plaintiff’s own carelessness and negligence; that the court having allowed this to go to the jury, they had license thus given them to conclude that the plaintiff was not bound to exercise ordinary care and sense in doing the work. While we doubt very much whether any importance was attached to this evidence by either the court or jury, we will discuss it as if it was an important and controlling fact in the case. Giving the plaintiff in error the benefit of the ruling in the case of U. P. Rly. Co. v. Estes, 37 Kas. 715, to the fullest extent, and holding that his employment as a section hand was an assertion on his part that he could break stone for ballast, and the result is that the company would not be liable for any accidental injury that happened in the line of that employment. This is upon the theory that the company furnished him with the usual tools that were used to do such work, and that these tools were in good condition. But his employment was not an assertion on his part that he could break rock for ballast with stone-hammers with crooked handles. The record shows that he had complained of the hammers, and the foreman had promised to procure new and better handles. The duty of the company is plainly understood to be, to furnish reasonably safe tools for doing this kind of work; these hammers were defective; a protest was made against their use; a promise given that good new handles would be forthcoming'; and this promise was accompanied by an order “to go ahead and work with them;” the work proceeded, and the injury was the result of the use of the defective handle of the hammer. The conclusion is irresistible that the railroad company did not exercise that degree of care required by law, in furnishing proper tools with which to do the work required of the section men, and was,guilty of negligence in requiring the use of defective hammers.
The other objection is confined to the answers to the seventh and tenth special questions submitted to the jury. We do not deem these very important or influential in determining the result. If the answers to these questions had been yes, they would not have changed the result, neither would these answers have been inconsistent with the general verdict of the jury. Was it the duty of the defendant in error, under the terms of his employment, to put a new handle in the hammerhead? If it was, the foreman ought to have ordered him to do so when he complained of the defect; but instead of that, he was told to go ahead and work with it until the new one arrived. Again, what difference does it make who made the handles that were used ? — the natural inquiry being whether or not they were reasonably adapted to their use, and were safe. We have read this record carefully, and with the exception of the evidence of the witness Lorance, there is no testimony to show that two of the handles were made by the workmen. Lorance says he made one of them, but as to the other two, it is not disclosed who made them. The answer in this respect is truthful. However, no matter how the question is answered, we regard it as an immaterial matter, for if it was the duty of the workmen to make them, they must make good and safe ones.
This case was fairly tried; the railroad company produced no evidence; there are no exceptions to the instructions of the court; these two immaterial matters are the only complaints made; the verdict, and the means by which it was arrived at, are approved by a trial judge who is unusually careful and considerate; and justice requires that such a verdict should not be lightly disposed of. Having no doubt but that substantial justice has been done, we recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Atchison county by Kenley B. Wyley against John F. Bull, to recover for work and labor alleged to have been performed by the plaintiff for the defendant from February 1, 1875, up to February 3, 1882. The case was tried before the court and a jury, and the court instructed the jury, in effect, that they should find for the defendant, and they did so, and judgment was rendered upon their verdict in favor of the defendant and against the plaintiff for costs; and to obtain a reversal of this judgment, the plaintiff, as plaintiff in error, brings the case to this court.
It appears from the evidence in this case substantially as follows: On February 1, 1875, the plaintiff, who then lacked just two days of being twelve years old, together with his two brothers and three sisters, all minors, resided with their uncle and guardian, George Tedrick, of Brown county, upon whom they all depended for care, sustenance, and support. Their father and mother were dead. About that time the plaintiff, under an arrangement made between his uncle and guardian, Tedrick, and the defendant, went to live with the defendant as one of his family, doing such work for the defendant as he reasonably could, and the defendant was to board him, clothe him, and send him to school, etc., as though he were his own son. This arrangement was to continue until the plaintiff should arrive at the age of twenty-one years. Nothing was said at the time nor at any other time between the defendant and the plaintiff’s uncle, or between the defendant and the plaintiff, with respect to the payment of wages or the payment for the boarding, clothing, schooling, etc., to be furnished by the defendant, and no account was ever kept, or to be kept by any one of the parties with reference to wages, or with reference to the boarding, clothing, schooling, etc., or with reference to anything else. The plaintiff continued to reside with the defendant as one of his family up to about February 3, 1882, when he and the defendant had a quarrel and a fight, and the plaintiff left. During the time while the plaintiff resided with the defendant, he lived with him in the same manner as though he had been a son of the defendant. The defendant and his wife treated him as a son, and he called the defendant “pa,” and the defendant’s wife “ma,” and they called him their boy. They had no ohildren of their own. The plaintiff was treated well, furnished with good food, clothing and lodging, sent regularly to school, and all at the defendant’s expense; and the defendant occasionally gave him holidays, permitted him to go to shows and other places of amusement, and furnished him with spending-money. On the other side, it is admitted that the plaintiff was a good boy, and worked well for the defendant. In fact, the relationship existing between the plaintiff and the defendant and his wife was generally pleasant and satisfactory, and was almost precisely the same as though the plaintiff had in fact been their son. After the plaintiff became twenty-one years of age, and on September 12, 1884, he commenced this action.
We are inclined to think that the decision of the court below is correct. Where a person lives with a relative as one of the relative’s family, neither has a cause of action against °ther for compensation, for wages on the one s^ej or f°r boarding, lodging, etc., on the other or for anything else furnished by the one to the other as a member of the family, except where an express contract is shown to exist between the parties requiring that one or the other shall have compensation. (Ayers v. Hull, 5 Kas. 419; Greenwell v. Greenwell, 28 id. 675; Ensey v. Hines, 30 id. 704; Shane v. Smith, 37 id. 55; 26 Cent. L. J., 51-55, and the numerous cases there cited.) And this rule applies with equal force and to an equal extent as between strangers living together as one family, except as we shall hereafter state. (Windland v. Deeds, 44 Iowa, 98; Smith v. Johnson, 45 id. 308; Ryan v. Lynch, 9 Mo. App. 18; Hartman’s Appeal, 3 Grant’s Cases, 271; Livingston v. Ackeston, 5 Cow. 531; Griffin v. Potter, 14 Wend. 209; Mountain v. Fisher, 22 Wis. 93; Cooper v. Cooper, Mass., 17 N. E. Rep. 892; 26 Cent. L. J. 53, and cases there cited.)
About the only difference in the rule of law as between relatives and the rule of law as between strangers living together as one family is, that as to relatives no contract for compensation to be made on either side will be implied, but any contract claimed to exist must be specifically and affirmatively shown, while as between strangers a contract for compensation will be implied unless the contrary is shown either expressly or impliedly, from the affirmative circumstances expressly shown to exist in the case. In all cases, however, when the exact relation between the parties is clearly shown, when it is shown that the parties though strangers to each other have nevertheless lived together as one family, as parent and child, for instance, and that no express contract was made for compensation to either party, none on the one side for wages, and none on the other side for board, lodging, clothing, schooling, spending-money, etc., then the same rule will apply as though the parties were near relatives. Of course the contract made in the present case between the plaintiff’s uncle and the defendant, that the plaintiff should reside with the defendant as one of his family for nine years, was void under the statute of frauds. None of the parties was bound by it; and each had a right to treat it as a nullity; but the plaintiff did live with the defendant seven years as a part of his family, and the aforesaid void contract was some evidence as tending to show the exact status or relation that existed between the plaintiff and the defendant while the plaintiff so lived with the defendant, and as the contract was not binding upon anybody, and as no binding contract was ever made between the defendant and the plaintiff, or between the defendant and the plaintiff’s uncle and guardian, the relation existing between the plaintiff and the defendant was one which they permitted to exist merely by sufferance, and each had a right to annul it at any time. It was therefore wholly immaterial as to which, the plaintiff or the defendant, was at fault at the time when the plaintiff and the defendant severed their relations with each other, and when the plaintiff ceased to further reside with the defendant. While they lived together they did so as parent and son, being mutually beneficial to each other, and neither expected any additional compensation, and neither can now recover any such additional compensation. Under the evidence the severing of their relations two years prior to the time when by the original void contract they were to be severed, caused a loss to the defendant and not to the plaintiff.
After the jury had returned their verdict to the court they were polled, and each juror, with one exception, answered that the verdict returned was his verdict, and that juror, a Mr. Chaplin, at first answered that he “consented to it under protest,” and again he answered “ I did consent under protest.” The court then said to the juror, “Mr. Chaplin, is this your verdict?” and the juror answered “It is; but I consented to it under protest.” The court then discharged the jury. Immediately after the discharge of the jury and not before, the counsel for the plaintiff objected to the receiving of the verdict, but the court overruled the objection. Under the circumstances of this case we think no error was committed in this respect. Nor do we think that the court below committed any substantial error in any other respect.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The defendant in error suggests that the case-made fails to show that all the evidence introduced' at the trial is contained therein, and that the judgment- should be affirmed for that reason. If he were correct in his claim, the judgment should be affirmed under the questions submitted for determination here. It is stated however in the case-made following the evidence: “And this Avas all the evidence in the case.'” The attention of some of the witnesses Avas called to a paper executed at the time the note sued upon was signed by the defendant; but there is nothing in the record to show that it Avas offered in evidence or read to the jury. It may have been the paper set forth in the ansAver, Avhich was not denied under oath in the reply of plaintiff, and therefore admitted to be true; in any event, against any inference there Avas other evidence offered at the trial, we have the certificate that all the evidence is brought here. The positive statement of the trial judge must outweigh any mere inference that arises from the record in this case.
The defendant in error, as plaintiff, brought an action upon a promissory note for $820, signed by defendant on July 22, 1882, made payable to the order of M. II. Brown, and by him indorsed. The plaintiff claims to have bought the note in good faith before maturity; the defendant establishes by proof that the note was given by him to BroAvn as an earnest of good faith in a contract between himself and Brown to sell the right to put up a patent slat-wire fence in certain territory of Lyon and Chase counties. At the time of the giving of the note, the following contract was made:
“Emporia, Kansas, July 22, 1882.— I hereby agree to cause the sale of five miles of my fence in the district controlled by R. H. McCormick, before September 1, 1882, with his assistance, or return all notes, papers, etc., to him.
B. B. Bernard, per M. H. Broavn, Gen. Agt.”
The contract and note were put in an envelope; Brown and defendant took them to the Merchants’ Hotel in Emporia to leave with the landlord; Avhen they reached there he was absent, and Brown placed the package in a drawer of a table in the office of the hotel, and the landlord’s wife said she would turn the envelope over to her husband. This was the last the defendant saw of the note until it was produced in court.
Defendant claims there was no delivery of the note. We believe, under the evidence in this case, this defense cannot be interposed against plaintiff if he is the purchaser of the note in good faith before maturity. (Whitmore v. Nickerson, 125 Mass. 496; Clarke v. Johnson, 54 Ill. 296; Burson v. Huntington, 21 Mich. 415; Angel v. Insurance Co., 92 U. S. 330; Morris v. Morton, 14 Neb. 359; Randolph on Commercial Paper, §230; Daniel, Neg. Inst., §854, etseq.)
On the 24th day of July, 1882, Brown brought the note to plaintiff for sale, and one given by Clarke, also payable to his order. He purchased the note against Clarke, but did not buy the one sued on, at that time. He told Brown that if he would get a statement from defendant that the note was all right he would buy it; Brown afterward produced a statement purporting .to be that of defendant, and which plaintiff then believed to be genuine, but now conceded to be a forgery; plaintiff then bought the note, paying $250 therefor. Plaintiff testified — and it is all the positive testimony on that subject— that he had no knowledge when he bought the note of the transaction out of which it was given other than what appeared from the face of the note and the statements of Brown; and he says the only reason he wanted a statement from the defendant was that one Griffith had told him “ that defendant would pay what he promised to, though he owned but eighty acres of laud;” “that he might not be legally good, but was really good for all he said he would pay.” After the introduction of all the testimony at the trial, the court, over the objection of the defendant, instructed the jury as follows:
“This ease has been tried three times. The evidence has been the same every time. I have felt the necessity of setting aside two verdicts because I did not agree with the jury, and I will take the responsibility now of ordering a verdict.”
He then directed the jury to ascertain the amount of the note, and return a verdict therefor for plaintiff.
The defendant urges that the burden of proving the plain tiff bought the note in good faith was upon him. It is immaterial where the burden of proof belongs as an abstract matter of law, when all the evidence of the transaction has been introduced, and it establishes that the note was purchased in good faith, and without notice of any facts that would have led the plaintiff to a knowledge of the consideration of the note. If there was no substantial testimony from which the jury could have found a verdict for defendant, then the direction of the court to find for plaintiff was correct. There is nothing in the testimony that would indicate that at the time of his purchase of the note he knew, or had any intimation even, that there was a failure of consideration, or that there was not an ordinary delivery of the same by the defendant to the payee. He did find out afterward that Brown was obtaining notes by dishonest methods, and then refused to buy any other notes of him; but that knowledge came to him first several days after he purchased this one.
Under the evidence, we think the instruction of the court ordering a verdict for the plaintiff was correct. He was an innocent purchaser of the note for value before maturity, and the defenses that might have been set up> against the original payee of the note could not avail against one who purchased it in good faith. We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, brought originally before a justice of the peace of Saline county by Hester A. Head against J. B. Johns and J. M. Johns, partners as Johns Brothers, to recover two head of cattle, to wit, a two-year-old bull and a cow. The case was appealed to the district court, where a trial was had before the court and a jury, and a verdict and judgment were rendered in favor of the plaintiff and against the defendants; and the defendants, as plaintiffs in error, bring the case to this court.
It appears that the Johns Brothers lived in Salina, and owned a farm about twelve miles distant therefrom, in the country. The plaintiff and her husband A. R. Head, and their family, resided upon and occupied an adjoining farm, the title to which was in A. R. Head. The Johns Brothers owned some live stock which they kept upon their farm, and the Heads also owned some live stock which they kept upon their farm, and the stock from one farm sometimes trespassed upon the other farm; for instance, the hogs of the defendants trespassed upon the farm of the Heads, two of which hogs were taken into custody by Head under the statutes. Also, the cattle in question trespassed upon the defendants’ farm at different times, and were finally taken into custody by the defendants as hereafter stated, under chapter 193 of the Laws of 1872. (Comp. Laws of 1885, pp. 934, 935.) Out of these various •occurrences considerable ill-feeling arose between the parties. The Johns Brothers had two or three men employed to work for them upon their farm, and they themselves were also there a large proportion of the time. They instructed these men, and especially Charles D. Evarts, who was their nephew, to take up any stock which might come upon their premises. Afterward, and on Sunday evening, November 8, 1885, the oattle in question got loose from the Heads’ farm and strayed upon the premises of the Johns Brothers, and Evarts took them up as he had been previously instructed to do. These oattle belonged to Mrs. Head, the plaintiff in this action. On the next morning A. R. Head, the plaintiff’s husband and agent, and the general manager of her property and business, and also Robert A. Brown, the plaintiff’s special agent, came to the farm of the Johns Brothers and demanded of Evarts the cattle in question, and offered to Evarts at first $1 and afterward $2, to pay for any damages which the cattle might have committed or caused. It is not shown, however, that the cattle committed or caused any damage. Evarts told them that he had no authority to surrender the cattle, and refused to do so. On that same morning Evarts met the Johns Brothers between Salina and the farm, and told them all that had happened. The Johns Brothers were then on their way to the farm, and arrived there about noon. They kept the cattle, without giving any notice to any of the Pleads or to Brown, and without commencing any action against anyone for damages. On the next Saturday, November 14, 1885, A. R. Head saw one of the Johns brothers in Salina, and again demanded the cattle, but Johns refused to surrender them except, possibly, upon a certain condition which would not amount to any legal justification or excuse. Afterward the plaintiff commenced this action.
Pt is admitted that the cattle in controversy belonged to Mrs. Head, and that she had the right to the immediate possession thereof unless the defendants’ claim thereto was paramount to hers. Pt is also admitted that the defendants through Evarts rightfully took the cattle up, and rightfully obtained the possession thereof in the first instance, leaving the following as the only disputed question in the case, to wit: Did the possession of the cattle by the defendants at any time after they were taken up and before the commencement of this action become wrongful? The defendants claim that it did not. They claim that the demand made upon Evarts and the tender made to him by the plaintiff’s agents were insufficient, for the reason that Evarts was at the time a mere servant of the defendants having no authority to surrender the cattle to anyone, and this although in fact Evarts was the person who actually took the cattle up, and who in fact had the actual possession, custody and control thereof, and this although the defendants were at the time twelve miles away, at Salina, without any knowledge whatever that the cattle had ever been taken up. And the defendants also claim that “what took place in Salina between Head and Johns [that is, the second demand] cannot constitute a demand and refusal, because the property was not there, and there was no positive refusal to deliver the cattle if called for.” The defendants further claim that both these demands are insufficient for the reason that it was not disclosed at the time of making these demands that the cattle belonged to Mrs. Head, but it was supposed at the time by the Johns Brothers and by Evarts that they belonged to A. R. Head; and it is claimed that they were demanded in the name of A. R. Head. We think, however, for the reasons hereafter to be given, that the possession by the defendants of the aforesaid cattle became wrongful after they were taken up by Evarts and before the commencement of this action. In the first place, it may be claimed with great plausibility, if not with absolute correctness, that the demand made upon and the tender made to Evarts were entirely sufficient. ( Goldsmith v. Bryant, 26 Wis. 34; Ratcliff v. Vance, 2 Mills S. C. 239; West v. Kimball, 1 Bailey S. C. 193.) Evarts took the cattle up; had the actual possession, custody and control of the same; the Johns Brothers were twelve miles away, at Salina, and did not have the slightest knowledge that the cattle had been taken up. It would therefore seem that the demand made upon Evarts and the tender made to him ought in all justice and fairness and in law to be sufficient. What if the Johns Brothers had at the time been one hundred miles away, or out of the state, and non-residents? Besides, the Johns Brothers were afterward informed of this demand and of this tender and of Evarts’s refusal to surrender the cattle, and they never repudiated Evarts’s acts, but really approved the same and ratified them. And further, the cattle were taken up on November 8, 1885, and the defendants failed to give any notice, as the statute requires, to the owner thereof, or to her agents, or to any other person in charge of the cattle within 48 hours thereafter, or at any other time, unless the interview with Evarts on November 9, 1885, or the interview with Johns on November 14, 1885, constituted such a notice. (See Laws of 1872, chapter 193, §4.) And the defendants failed in still other particulars. They did not within five days after the taking up of the cattle, or at any other time, commence any action against the owner of the cattle for any damages which the cattle may have committed or caused, and hence at the end of the five days they lost all lien which they may have had upon the cattle and all right to retain the same for any such damages. Section- 3 of chapter 193 of the Laws of 1872, (Compiled Laws of 1885, pp. 934, 935,) the chapter under which these cattle were taken up, reads as follows:
“Sec. 3. Any person injured in property by the running at large of any of the animals specified in the said order of the board of commissioners shall have a lien, without regard to fences, upon the animals so running at large, for the full amount of all damages committed by them upon the property of said person, from the time of the commission of said injury, and may take the same into custody until all such damages are paid: Provided, That the person so taking said animals into custody shall not have the right to retain the same for more than five days without commencing action against the owner thereof for such damages.”
After these five days had elapsed, and on November 14, 1885, A. R. Head again demanded the cattle of one of the Johns brothers, and, notwithstanding all the quibbling and evasions apparent in the evidence, he refused to surrender them. He himself, among other things, testified as follows:
“Mr. Head said, ‘I understand you have some of my cattle;’ I said, ‘We have some cattle over there;’ ‘Well,’ he says, ‘I demand them;’ I told him, ‘All right, demand them; that we had demanded our hogs, and he wouldn’t let them go.’ He said, ‘I am going to have them;’ I said, ‘All right; get them.’ I told him to return the hogs and we would return the cattle.”
This was certainly in effect a refusal to surrender the cattle unless Head should first surrender the hogs, which Head never agreed to do, and which so far as is shown in this case he was not in duty bound to do; but even if he was, that matter is wholly immaterial to this case. Head’s testimony upon this subject of the demand and refusal is still more unfavorable to the Johns Brothers than this testimony of Johns, and the jury both generally and specially found in favor of Mrs. Head and against the Johns Brothers. Head among other things testified that instead of using the words “my cattle,” as Johns testified that he did, he in fact used the words “stock” “belonging to us,” or words of similar import. Head also testified that Johns gave him no satisfaction, and did not consent to a surrender of the cattle upon any terms, not even upon a condition. But there is no use of discussing these matters. It was a sufficient demand and a sufficient refusal. All the parties, the Johns Brothers and Evarts, as well as Head and Brown, knew what cattle were taken up, what cattle were wanted; that a demand for them was intended at each of the times at which it is now claimed a demand was made, what cattle were intended to be demanded, and to whom the cattle belonged; or at least they all knew that they belonged to the Head family, although probably the Johns Brothers and Evarts supposed at the time of the two demands that they belonged to A. R. Head; and no question was raised at the time as to the ownership of the cattle, or as to Head’s right or authority to make a sufficient demand for them, or as to the sufficiency of the demands that were made, or as to Head’s or Brown’s right or authority to do anything that was necessary to procure the possession of the cattle. And both Head and Brown had ample authority to make the demand, and to do whatever was necessary to procure the possession of the cattle. No claim was made at the time of either demand that the cattle had caused any damage or expense; and no claim was made for any damage, expenses or charges caused by the cattle; nor was the refusal to surrender the cattle based upon any such things; and certainly there was a refusal at the time of each demand, not in specific terms at the last demand, it is true, but in effect, and in terms which could not be mistaken. This second demand and refusal were probably sufficient in and of themselves to render the possession of the Johns Brothers wrongful from the time of such demand and refusal, even if up to that time they had been holding the cattle lawfully and rightfully, and had obtained and retained a lien upon them for damages. But taking this demand and refusal along with all the other facts in the case, and it cannot be held that the possession of the cattle by the Johns Brothers was after such demand and refusal rightful. The jury that tried this case found specifically as well as by their general verdict, that both the demands made in this case were sufficient. They also found that the tender made in the case was sufficient, and that the amount tendered was sufficient to pay all the damages and legal charges; and under the evidence we think their verdict and their special findings are undoubtedly correct as findings of fact; and while the first demand and tender and refusal are perhaps sufficient in law to render the defendants’ possession wrongful, we think the second demand and refusal, with the preceding facts, are undoubtedly sufficient in law to render the defendants’ possession wrongful.
It is unnecessary to discuss any of the other questions presented by counsel. We do not think that any material or substantial error was committed by the court below, and therefore its judgment will be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The defendant insists that the written instruments do not constitute the entire contract between the parties, but in ¿ddition thereto it was agreed that after defendant was satisfied with the working of the mill, then these written agreements should be put in force, and not till then. Plaintiff complains of the introduction of testimony tending to show there was such an oral agreement. We are not certain that the testimony introduced would have established it. We will state, however, that it was error to admit testimony of such a character. There was a special and distinct provision in both the written instruments constituting the agreement about the time given for a trial of the windmill. The testimony offered would have been inadmissible, for the reason that it would have changed the contract on a point which had been definitely agreed upon between the parties and reduced to writing. Taking the statement signed by Kelsey and the order of defendant together as the entire agreement, we can, we believe, correctly arrive at the intentions of the parties. Plaintiff, through its agent Kelsey, states that it had let defendant have an I. X. L. windmill on trial, and defendant in his order states “if the windmill does not work well for thirty days after its erection,” he was to notify the company and give it thirty days after receipt of such notice to remedy any defects. Now it is evident, construing these written instruments together, that the notice mentioned in the statement of Kelsey had reference to the notice stipulated for by Piercy. The statement signed by Kelsey was given to Piercy evidently for the purpose of furnishing him with evidence that he might retain in his possession, that there was such an agreement in the order he had made. We are unwilling, under this belief, to allow parol testimony to contradict or vary these mutual stipulations. It will be remembered that this statement of Kelsey and the order of defendant were made at the same time and concerning the same transaction, and, construed together, make the contract. It is also further provided in terms in the order of Piercy, that it was understood his order embodied all their agreements of any nature whatsoever. The fact that Piercy was anxious to notify the company within thirty days of the failure of the mill to do satisfactory work, and to ask the company to take it back, would indicate that he at that time believed that the time of trial was agreed to be thirty days as mentioned in his order.
Construing this contract in this way, it would have been the duty of the defendant to point out to the agents of plaintiff, when they came to his farm, the defects which he asked the company to remedy. His failure to do so was an excuse for the company for not remedying them. It is probably true in this case that the grinding and churning attachments were practically valueless, and it is urged by the attorneys for plaintiff that after striking out the amount they were listed for, they would be willing to have this court give judgment for the balance. The verdict of the jury was a general verdict for the defendant, and without special findings of fact we could not render a judgment as attorneys for plaintiff desire. Moreover, it is fairly deducible from the evidence that the grinder and churn, although called attachments, did not work by reason of some imperfections in the mill — either from the lack of a governor, or possibly the failure of defendant to understand its use, or the lack of power in the mill; hence it would hardly be a fair construction of the contract to compel the defendant to pay for the full value of the mill less these attachments when the attachments themselves may have been without defect, but did not perform the work intended for them to do because of some defect in the mill itself or some part of it.
The plaintiff asks for a reversal of this case for the reason, among others, that the verdict is contrary to the evidence. We believe upon the facts in the case, which are substantially uncontradicted, and the testimony of defendant himself, and under the construction we have given this contract, that it was entitled to a new trial. It is certain that the mill was of some value, and the defendant failed to point out the defects in the mill or its attachments within the time provided in his order for the same.
We therefore recommend that the judgment be reversed, and a new trial granted.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
Harry E. Phillips, deceased, was employed by the Kansas Pacific Railway Company as a switch-man in its yards at Wamego, Kansas, and on the afternoon of the 6th day of June, 1886, while so employed, was killed. J. W. Springsteen, defendant in error, was duly appointed and qualified as his administrator, and as such brought this action against the company, and at the February term, 1887, of the Pottawatomie district court obtained a judgment for $6,000. The company is in this court as plaintiff in error.
The facts surrounding the death of Phillips are substantially these: The engineer and fireman of the switch engine, with Phillips, were moving a caboose from the main to a sidetrack, known as the “caboose track;” in order to do so the engine, facing west, pushed the caboose westward on the track on which it stood beyond where the caboose track joined with the main track; then by backing down toward the east, while in motion the caboose would be uncoupled from the engine, which passing down the main track faster than the caboose would pass the point where the caboose track was joined to it, when the switchman would open the switch and the caboose coming down more slowly would run in upon the caboose track. This was the usual method of running cabooses upon this side-track. On this afternoon, while the engine was backing down with the caboose attached to it, Phillips stepped in between the caboose and engine at the Ash-street crossing, for the purpose of uncoupling the caboose from the engine. (Ash street is a public street in the city of Wamego.) After he had pulled the coupling-pin and was stepping out from between the engine and caboose, his foot slipped in between the rail and the plank next to it on the crossing, and being unable to extricate it the caboose broke him down and crushed him under its wheels.
The plaintiff alleges in his petition in substance, that the defendant was guilty of gross negligence and carelessness in providing and using a defective, faulty and improper plank at the crossing, and that by the gross negligence and carelessness of said defendant in allowing and suffering said plank to be and remain at said crossing in an unsafe and dangerous condition, it made the crossing unsafe and dangerous. Concerning this plank there is evidence showing that a part of it was “ wany-edged; ” that is, that its edge was not square for the entire thickness of the plank. From its appearance it was evidently sawed from the log next after the outside slab had been cut off. In laying it down it was placed with the broad side up, presenting on the surface the appearance of a perfect plank, but the side which appeared square was, in fact,, tapering and uneven. In laying down planks at a crossing there should be a space of two and a quarter to two and three-quarters inches left between the rail and the plank on the surface; this was the distance of this plank from the rail at the surface, but underneath, on account of the plank diminishing back from the edge at the surface, there was a cavity of six or seven inches between the lower part of the plank and the rail. It is in evidence that the upper part of the edge of this plank next to the rail had been broken, slivered or bruised off, probably by the travel over the street, so that instead of the surface presenting a distance of two and a quarter to two and three-quarters inches as it should have done, there was a space of eighteen inches or two feet long at the place where this plank was “wany-edged,” where the edge of the plank was from three to three and three-quarters inches from the side of the rail at the surface. Phillips in some way put his foot through this opening; as soon as his shoe passed through it at the top there was plenty of room for it beneath; attempting to pull it out, and leaning over the track to the south, he was not able to do so in that position, and the caboose coming upon him he was broken down, and then his foot was dragged from this hole and he was carried some distance on the crossing; the sole, heel and the upper-leather of the shoe were considsiderably broken. There was evidence introduced to show that this defect was not apparent by casual observation, and that those in charge of the track, after inspection, had failed to detect the defect in the plank. There was testimony, however, that a Mr. Coulter, at that time a clergyman at Warnego, but who had formerly been a railroad employé, had called the ■attention of some of the railroad officials to this hole.
There are two theories upon which this case might have been tried and a judgment rendered in favor of the plaintiff: one, that the plank was faulty when it was first laid, and for that reason the defendant was negligent in the construction of the crossing; the other, that after the plank was broken and ■the opening beside the rail was thus enlarged, the defendant had notice, or ought to have known, of such defect, and was negligent in not repairing the crossing and replacing this plank by a suitable one. From the pleadings, the evidence, the instructions and the questions of fact submitted to the jury — from the-entire record — it is apparent that their attention was -directed chiefly to the question of whether the defendant had or had not notice of the breaking-off of a part of the plank, and the enlarged opening beside the rail. A considerable portion of the testimony was directed to that issue. Mr. Coulter testified to notifying certain agents of the ^ ® ® defendant of this hole, but it was plainly shown j-,e not inform anyone who had charge of this part of the track. This evidence was incompetent and misleading, and should have been excluded. (Solomon Rld. Co. v. Jones, 30 Kas. 601.)
The plaintiff says there was evidence showing the plank was faulty and unsuitable when laid, sufficient to sustain the judgment. It appears from the findings of the jury that the 'defendant did not have notice of the breaking-off of the side •of the plank, and therefore this is the only theory upon which the judgment could be sustained. Such contention has great, weight with us, aud would be controlling, but the record compels us to believe that was not the phase of the case tried, and that the contention is an afterthought made for the purpose; of sustaining the judgment. At the trial neither party hadt its attention seriously directed to the question of whether the plank was defective when first put on the crossing. It is not certainly adapted to fairly determine the rights of parties that a judgment should be based entirely upon one phase of an
action that was barely considered at the trial,, wj1pe attenti0n of the court, jury and attorneys; had been directed to another, and by all apparently regarded! to be the pivotal and important part of the case. The want of averments of the petition concerning the original condition;of the plank leads us to the belief that the action was begun,, not on the belief that the company was negligent in making the crossing, but in permitting it to remain in an unsafe condition.
The defendant complains of the refusal of the court to give; the seventeenth instruction asked for by defendant, and the; giving of the seventh instruction, which is substantially the-converse of the one refused. It is as follows:
“If you believe from the evidence in this case that the defendant had made reasonable and proper rules for the guidance; and safety of its employés, and a copy of such rules was furnished by the defendant, and at the time he was killed he was-disobeying one of said rules that were binding upon him, and that his death resulted from such disobedience, then your verdict should be for the defendant, unless you should further-find from the evidence that such rule was habitually disregarded by the defendant and its officers and agents superior in-authority to the deceased, and under whose orders he was acting at the time.”
The defendant objects to that part of it following “ unless-you should further find,” etc., etc. The only rule offered by the company in evidence is rule 89, viz.:
“Conductors and engineers are prohibited from making-flying switches except at stations where switches' are connected only at one end, and in such case the switch and the car brakes must first be tested to see if in working order, and the car must be run slowly with a man at the brakes. The run must be no longer than required for the purpose, and the remainder of the train must be stopped before the run is attempted.”
Young Phillips knew of this rule, but it was not necessarily binding upon him; he was neither a conductor nor an engineer, but a yard switchman at work under an engineer.
There is considerable evidence introduced, both affirming and denying that the switch made that afternoon in placing the caboose upon the side-track was a flying one, most of the witnesses saying they had never heard it called by that name, even if it was one. It was shown very plainly that it was the custom to put cabooses upon the side-track in the way the one was switched at the time of the J accident. We think a brakeman could not be deemed guilty of negligence when the agents of the company to whom this rule was directed and under whom he served, habitually disregarded it.
The court is of the opinion that the judgment should be reversed, and we so recommend.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
An act of the legislature of this state passed at the special session,'1886, entitled “An act to amend sections 1 and 3 of an act entitled ‘An act to enable cities of the second class to extend their corporate limits, and to repeal section 133 of chapter 100 of the Laws of 1872, and chapter 73 of the Laws of 1875/ approved March 4, 1875, and to repeal said original §§ 1 and 3,” provided that “ whenever the city council of any city of the second class desires to enlarge the limits thereof from the territory adjacent thereto, said council shall, in the name of said city, present a petition to the judge of the district court of the county in which said city is situated, setting forth by metes and bounds the territory sought to be added, and asking said judge to make a finding as to the advisability of adding said territory to said city.” Notice of the time and place of the presentation of the petition to the judge shall be published for three consecutive weeks in some newspaper published in the city, and proof of the publication of the notice shall be made at the hearing. Upon the hearing, if the judge “shall be satisfied that the adding of such territory to the city will be to its interest, and will cause no manifest injury to the persons owning real estate in the territory sought to be added, he shall so find, and thereupon the city council of said city may add such territory to said city, by an ordinance providing for the same.”
On the 17th day of March, 1887,■ the city of Junction City, a city of the second class, situate in the county of Davis (now Geary), filed its petition before Judge M. B. Nicholson, judge of the district court in and for that county, to annex lot 2, section 1, township 12 south, range 5, east of the sixth principal meridian, to said city, said land being adjacent to the limits of said city and entirely surrounded by said limits. This land was known as the “Callen field,” and was owned by A. W. Callen, J. B. Callen, and Jim S. Callen, the plaintiffs in error. It embraced about twenty-eight acres of land, and was owned by A. W. Callen prior to the incorporation of the city of Junction City. Among the facts agreed upon are the following : That this land had been used for about fifteen years as farming-land; it was then planted in fruit and shade trees; water-pipes were laid and extended to its various points to water the trees; that the shade trees lived, and are now fifteen years old; that the land is in grass, surrounded by a hedge fence, and for the past eight years has been used as a pasture, being well adapted by reason of the shade, feed and water for that purpose; that a part of the tract had been deeded by A. W. Callen to his sons J. B. and J. S. for future homes; that the same is not divided into lots or blocks, or ever offered for sale; that said parties always intended to reside thereon and occupy it as homesteads; that J. B. Callen owned the city property extending from the south side of this property to Tenth street in said city, and had a house thereon; and that in 1883 the plaintiffs in error petitioned the board of county commissioners to vacate the north end of Adams street, so as to render the land more suitable for residence property, which order was granted. The judge of the district, court on the hearing made findings that it will be for the interest of the city to extend its corporate limits so as to include this land, and that it will be of no manifest injury to the owners to have the land included within the corporate limits of the city. On the hearing, however, the plaintiffs in error made a special appearance, and objected to the power of the judge to make any findings; that the act of the legislature was unconstitu tional and void for several reasons; that the notice of publication was defective, and that there was no proof of the publication. A demurrer was also filed to the petition of the city, for various causes. All of which was overruled by the judge, and proper exceptions duly saved. The case is here by petition in error, and it is claimed by the city as defendant in error that we have no authority to review the findings of the judge of the district court in proceedings of this character.
The statute does not in terms provide for any method by which these findings may be reviewed in this court, and unless they fall within section 542 of the code of civil procedure, the objection must be sustained. That section provides “that the supreme court may vacate or modify any of the following orders of the district court or a judge thereof: First, a final order; second, an order that grants or refuses a continuance, discharges vacates or modifies a provisional remedy; or grants, refuses or vacates an injunction; that grants or refuses a new trial; or that confirms or refuses to confirm the report of a referee; or that sustains or overrules a demurrer.”
By § 543 a final order is defined, among other things, as one affecting a substantial right made in a special proceeding. If this petition in error can be sustained, it must be under such a construction of this section as holds these findings to be an order in a special proceeding. There are many difficulties to be encountered and overcome to reach such a conclusion. It would be a strange perversion of terms to call a finding an order. The judge is not authorized by the statute to make any order or render any judgment. The findings are made the basis of action by the city council, and are conditions precedent to the exercise of power by the council. The pi’oceeding is not an action, but may come under the head of special proceedings, as contemplated by § 543. In any view, the judge has made no order that is reviewable in this court.
It is recommended that the petition in error be dismissed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
At the May term, 1887, of the Bourbon county district court, the plaintiff in error, as plaintiff, recovered a judgment against the defendants for $5,912.50. The defendants made a motion for a new trial. The record brought here contains the pleadings, .the findings of fact by the court, conclusions of law, motion for a new trial, and judgment. Upon the hearing of the defendant’s motion the plaintiff confessed it, and consented to a new trial; but the court, refusing to allow the same, overruled it, and rendered judgment for the full amount of its findings. The plaintiff complains of this ruling.
The sole question to be determined is, whether when all the parties consent to a new trial and rehearing of the case, it is error for a court to refuse to allow it; or in other words, is the court compelled to proceed with the trial of the issues of a cause until one of the parties litigant professes himself content with the verdict of a jury or the findings of a court? Will the court be compelled to grant a new trial until one of the parties is either satisfied with the result or exhausted, when it is satisfied that no material error has been committed, substantial justice done between the parties and the judgment is correct, because one of the parties thinks the verdict or findings too small and the other believes it too large ?
We believe the rule contended for by the plaintiff is unsound in theory, and would be pernicious in practice. If the rule contended for was adopted there would be an accumulation of business, a delay in the trial of cases, and a cumbering of court records, an incentive to prolong litigation — and all this when the judgment may have been correct and substantial justice been done between the parties, simply because the parties, looking at the matter from their own' standpoint, may have thought that the judgment was too small or too great, according to the relative relations of the parties either as plaintiffs or defendants. It is in the interest of the public that there should be an end of litigation.
We believe in these matters the trial judge is not divested of his discretion by the action of the parties, when their actions lead to prolonged and protracted litigation. If the parties should agree to settle their matters and fix the amount, it would be a duty as well as a pleasure for the trial court to ratify such agreement by a judgment; but when they agree upon a Dew trial for the purpose of trying again the same issues, a different rule ought to apply. It is true, probably, that when both agree in asking for a new trial the court might more readily grant it than when one party was requesting and the other opposing.
It is recommended that the judgment and ruling of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
This is an action in replevin, brought by plaintiff in error against defendant in error for the wrongful detention of lumber in a lumber-yard. The defendant is sheriff of Trego county, and as such held the property by virtue of an order of attachment in an action wherein the Lansing Lumber Co. was plaintiff and Eli Sheldon was defendant. The plaintiff claims that he purchased the lumber of Sheldon. In the action of the Lansing Lumber Co. against Sheldon, the defendant, Sheldon, made a motion to discharge the property attached. Upon the hearing of that motion, the plaintiff in this action, Thomas, appeared in person and by attorney, and aided and assisted in the management and conduct of the trial of said motion to discharge said attachment. The judge found that said transfer of the lumber from said Sheldon to Thomas was made with the intent to hinder, delay and defraud the creditors of said Sheldon, and was fraudulent and void. These facts were set up in the second count of the answer of Baker to the petition of Thomas. A demurrer to said count was overruled, and judgment rendered thereon against plaintiff.
The defendant claims that the plaintiff, Thomas, by his appearance at the hearing of the motion to discharge the property from attachment, is pi'ecluded from again litigating the question of the validity of the sale from Sheldon to him, and that the judgment on the motion was final, being unreversed and unappealed from; and although the controversy on the motion was not nominally between the same parties, yet Thomas, as the vendee of Sheldon, obtaining all the interest he had in the property by virtue of said sale, cannot now claim it to be valid, after it has been adjudged void upon the hearing of a motion at which he appeared. The defendant also contends that after appearing at the hearing of the motion, he should have come into the case either by motion or interplea, and have directly joined issue with the lumber company as to his ownership. He insists that the subject-matter in dispute is res judicata, and cites Green v. McMurtry, 20 Kas. 193, and Hoge v. Norton, 22 id. 377.
The authorities cited are not applicable. The decision of Sheldon’s motion to discharge the attachment had reference only to the transactions of Sheldon so far as they concerned this property. The judge hearing this motion found that the sale was made by Sheldon for the purpose of hindering, delaying and defrauding his creditors, and therefore was fraudulent and void. That judgment may have been entirely proper and correct; we must treat it so, at least. In this action the issue to be tried is not only whether Sheldon intended to defraud his creditors, but whether Thomas knew of such intention. If he did not, nor knew of any facts that would have led to such knowledge, then he was an innocent purchaser, and entitled to the property in controversy as against the Lansing Lumber Company, or this defendant. It is readily seen that not only the parties are different in this action from those in the motion, but that the question on the motion is not the one to be decided in this action. If Thomas appeared and participated in the hearing of the motion, it could have been only for the purpose raised under the issues presented by it, namely, of investigating whether Sheldon intended to hinder, delay and defraud the Lansing Lumber Company in the collection of its claims againsthim, and he would not be bound in that judgment upon a question that could not, under the motion, have been investigated.
The defendant contends that because of his appearance he was bound to become a party to the action by interplea or otherwise, and failing to do what was his plain duty, he should now be treated in this action as doing then what he ought to have done. Section 45a, chapter 80, Compiled Laws of 1885, gives a party who may claim property attached the privilege of interpleading in an action between the attachment creditor and debtor, but it does not compel him to do so; and his failure to avail himself of the provisions of that section will not preclude him from asserting his claim to the property attached in another action. The Lansing Lumber Company took no steps to make Thomas a party to this action against Sheldon. The appearance of Thomas himself at the hearing of the motion would not of itself compel him to litigate a matter which was not embraced therein, nor to place himself in a position to have a matter determined upon a motion which he might very naturally have wished tried before a court and jury. (Watson v. Jackson, 24 Kas. 442.)
We are of the opinion that there has been no adjudication of the_ rights of Thomas to this property, nor has he placed himself in such relation or situation that he could not assert them at any time. We believe the court erred in overruling the demurrer, and recommend that the action be reversed, and the court instructed to sustain the demurrer to the second count of defendant's answer.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
In December, 1903, Charles M. Smith, a tax-deed holder in possession, brought a suit to quiet his title to certain real estate. He made H. Lewellyn Jones, assignee of the Farmers’ Loan and Trust Company, and Jennie White defendants, with other persons. The amended petition stated that the interest of Jones, assignee, in the land arose by virtue of a mortgage thereon for $150, executed by Jennie White, and set forth facts showing that all remedies for the enforcement of the mortgage were barred by the statute of limitations. Jones, assignee, and Jennie White were served by publication. Jones appeared, the plaintiff effected an adjustment of the controversy with him whereby his claims were satisfied, and on October 11, 1904, judgment was rendered quieting the plaintiff’s title against the defendants and all persons claiming under them.
Afterward, and in due time, Jennie White, who had become Jennie Ferrell, procured the judgment to be opened up and was given leave to defend. Her answer attacked the plaintiff’s tax deed as void on its face, and prayed that her title be established against the plaintiff and all her codefendants. Judgment was rendered on July 16, 1906, setting aside the tax deed as a conveyance, giving the plaintiff a first lien for taxes, and quieting Ferrell’s title except as to this lien.
At the succeeding term of court, and on October 9, 1906, Charles E. Gibson filed a motion for leave to intervene, which reads thus:
“Comes now Charles E. Gibson and moves the court to open up the judgment heretofore rendered in this action, and to let the said Gibson in to defend in said action and to file an interplea therein, setting up a first mortgage of $150 on said premises, made, executed and delivered to the defendant, the Farmers’Loan and Trust Company, of Kansas, and by it assigned, long prior to the commencement of this action, to Mrs. - Griswold, who at the time of the commencement of said action had died, and which said mortgage was thereafter assigned, and is now held by, and is the property of, the said Gibson. That no notice of any kind was given the estate of the said Griswold, or her legal representatives, of the pendency of said action; that H. Lewellyn Jones, as assignee of the said the Farmers’ Loan and Trust Company of Kansas, appeared in said action and defended his interest as such assignee to protect a second mortgage, and that only, and that as.a result of such appearance, and during the pendency of said action, he sold the interest of said company in said second mortgage to the plaintiff herein, and informed plaintiff that said company had no interest in, and was not the owner of, the said first mortgage on said premises, but that the same had been transferred by it long prior thereto; that no intervening rights have been acquired on the faith of the said judgment heretofore rendered herein.”
The motion was presented to the court the day it was filed, and after due consideration was denied. Gibson prosecutes error.
The application to intervene falls within no provision of the code of civil procedure, but notwithstanding this fact a district court, acting upon principles of manifest justice, may in cases not covered by the code permit one not a party to the suit to intervene, either before or after judgment, for the protection or advancement of some right with reference to the subject-matter of the litigation which he holds. In all cases lying without the purview of the statutes the application for leave- to intervene must necessarily be addressed to the sound discretion of the court. The applicant must show himself to be in a situation which appeals to the conscience of the court. He should at least disclose, and if required to do so should satisfy the court that he possesses, a substantial right to be conserved by the intervention; that a remedy may be afforded him in the pending proceeding consistent with its object and purpose; that the intervention will not unduly interrupt or retard the orderly conduct of the proceeding or result in the frustration of what already has been properly and regularly accomplished by the suit; and especially that the applicant appears with clean hands and has been active in seeking the aid of the court. The preliminary motion or petition need not exhibit the applicant’s claim and the relief to which he deems himself entitled with the fulness and accuracy demanded in a pleading; but unless excused.by the court it ought to be verified, and merit, good faith and diligence must always clearly appear.
In the present case the action had been pending for more than two and a half years before the application to intervene was presented; final judgment had twice been rendered, and the term at which the last judgment had been entered had lapsed. Still the applicant sought to have the result of the proceeding entirely overturned, and to begin the litigation anew, without offering the slightest reason or excuse for his delay. So far as the motion discloses the applicant may have been sitting by during the entire period the suit was pending,- watching the progress of events, waiting to see what would develop, and only after the end had been reached and he found the result to be unsatisfactory did he conclude to try his own hand. The motion having been addressed to the discretion of the court, its ruling cannot be reversed without a clear showing that it abused its authority. Manifestly the applicant withheld altogether too much for this to be said.
The case of Erving v. Windmill Co., 52 Kan. 787, 35 Pac. 800, is appealed to in the argument- in support of the motion. There the intervenor had no notice of the pendency of the suit. At the first opportunity he presented his application, tendered a formal pleading and was actually made ’a party for the purpose of protecting an admitted first lien. Meantime a codefendant in the same situation had given a bond to indemnify the plaintiff in the action against loss occasioned" by the delay of the proceeding. With the case in that condition the court revoked the permission to intervene, and of course that order was held to be erroneous.
The plaintiff in error contends that the trial court had no power to enter a judgment quieting title against a mortgage at the suit of a tax-title holder who merely pleaded the statute of limitations, and had' no power to adjudge a tax deed plainly void on its facé to be valid. Manifestly this is not true. The court might err in deciding who may plead the> statute of limitations, what grounds are sufficient upon which to base a decree quieting title, and what recitals are sufficient to make a good tax deed, but it had jurisdiction to decide those questions and was obliged to decide them. It could not lose jurisdiction the moment it commenced to pronounce an erroneous judgment. .
The defendant in ’error contends that after the term goes by a judgment cannot be opened except by pursuing some method prescribed by statute. Since she succeeds upon other grounds, doubtless she will not complain that the question is not discussed. .
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
S. G. Stiles recovered a judgment against Valley Township, in Miami county,'for damages for injury to a mare, caused by a defective culvert in a township road. The township complains.
The case turns upon the question whether plaintiff’s proof was sufficient to show actual notice to the township trustee of the defective condition of the culvert, five days before the injury was received, as required by section 579 of the General Statutes of 1901. The plaintiff claimed that he notified Mr. Frank, the township trustee, of the defect in the culvert. His testimony on direct examination was as follows:
“Ques'. Did you speak to any of the township officers in regard to the condition of the bridge? Ans. Yes, sir.
“Q. Who do? A. Mr. Frank. I told him about that bridge — that it was n’t safe; there was a hole in the culvert. He asked me who was road-overseer; I told him. He said, ‘Ain’t it Mr. Eckert?’ I told him I did n’t think so. He said, T will go on my way home that night and see that bridge is fixed.’ ”
On cross-examination he testified:
“Ques. You say you had talked with Mr. Frank about that culvert? Ans. Yes, sir.
_ “Q. When did you have your first conversation with him about it? A. About a week or ten days before my horse got hurt.
“Q. Where? A. In front of Mr. Condon’s seed store. I told Mr. Frank there was a culvert on my road to town and it was becoming dangerous; I notified Mr. Busby two or three times and he. ain’t fixed it. He says, T think it is Mr. Eckert’; he says, T will go on my way home and see that culvert is fixed.’
“Q. There are two culverts on that road? A. Yes, sir.
“Q. This culvert where you claim the mare was injured was the farthest one west? A. Yes, sir.
“Q. In that conversation with Mr. Frank did you tell him that it was the farthest one west? A. No, sir; I told him it was one west and one east of the Willow Branch schoolhouse.
“Q. You did n’t tell him which one you wanted repaired. A. I don’t think I stated the culvert.”
August Frank, the trustee, was a witness called by the plaintiff, and his testimony follows:
“Ques. You may state just what was said. Ans. He spoke to me about a bridge being out of fix — a hole —I don’t know just how to put it. He spoke about being a hole in the foundation or plank of the bridge somewhere near the Willow Branch schoolhouse. The way I understood him the bridge was south of the schoolhouse — the big bridge south of the schoolhouse— first bridge there, but whether he meant that bridge I can’t say positively; that is the way I understood it— that he meant that bridge.”
At the conclusion of plaintiff’s evidence the township demurred and the court-overruled the demurrer.
The law places the burden upon the plaintiff to prove notice to the township trustee of the defects which it is- claimed caused the injury, and we have repeatedly held that to charge the township or the county with liability under the statute the notice to the trustee or to the chairman of the board of county commissioners must be actual notice of the particular defect. (Murray v. Woodson County, 58 Kan. 1, 48 Pac. 554; Parr v. Shawnee County, 70 Kan. 111, 78 Pac. 449; Erie Township v. Beamer, 71 Kan. 182, 79 Pac. 1017; Scruggs v. Leavenworth County, 71 Kan. 848, 80 Pac. 595; Finley v. Labette County, post.) Were the question here merely one of a conflict between the plaintiff’s testimony in chief and upon cross-examination which required a weighing of the testimony we would be compelled to uphold the ruling of. the court, because in that kind of,a case it is for the jury to determine the conflict. (Acker v. Norman, 72 Kan. 586, 84 Pac. 531.) In that case it was said:
“Doubtless there are instances where a demurrer should be sustained because, upon cross-examination, a party testifies in direct contradiction to his testimony in chief upon some vital fact essential to his recovery, where the latter controls the former statement and practically admits that the former was a mistake or untrue. If a demand be necessary to be shown to entitle the plaintiff to recover, and upon examination in chief he should state that he had made the demand, but upon cross-examination should correct his former testimony and state that he had not made the demand, or had made it upon the wrong person, and if no other evidence were given upon that essential point, a demurrer would lie.” (Page 589.)
We have quoted the testimony of the township trustee, not for the reason that it contradicts in some respects that given by the plaintiff, for manifestly the plaintiff is not bound by the contradictions of a witness he is compelled to call who may be said to occupy an unfriendly position, but for the reason that it tends to corroborate the entire testimony given by the plaintiff himself as to the indefinite character of the notice conveyed by the conversation. The case therefore falls within the exception noted in Acker v. Norman, supra, and the later statement of the plaintiff in explanation of the conversation had with the trustee must be held to control the general statement testified to on direct examination.
There was considerable testimony to the effect that there were other culverts on this particular road — two west of the schoolhouse and one east; and the plaintiff admits that he referred in the conversation to at least two of these, and that he did not call particular attention to the one he desired repaired. We are of the opinion that, in view of the construction that has heretofore been placed upon this statute, the plaintiff failed to show actual notice to the township trustee of the particular defect which caused the injury.
The judgment is reversed and a new trial ordered. | [
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Per Curiam:
In this case the contract sued upon contained a provision for a gift to each purchaser of jewelry in furtherance of an advertising scheme, and the claim is that it is void as a gift-enterprise under chapter 152 of the Laws of 1895. (Gen. Stat. 1901, §§ 2897-2402.)
Every scheme prohibited by that statute, no matter what the device employed, involves the element of chance as the determining factor upon which money or property may be procured. Here there is no chance. Each purchaser receives a certificate of purchase entitling him to a hat-pin, which so far as the contract discloses is the same in all cases. If by answer it should be made to appear that chance enters into the distribution of the hat-pins, so that some purchasers may receive advantages over others, a gift-enterprise might be made out.
The judgment of the district court is reversed and the cause is remanded, with direction to overrule the demurrer to the petition. | [
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The opinion of the court was delivered by
Benson, J.:
This controversy is over the measure of damages for the breach of a covenant of G. F. Miller, the lessor, to make repairs, whereby a stock of pictures, picture-frames and mouldings in the leased premises, belonging to James D. Sullivan, the lessee, were injured by rain descending through a defective roof, which the lessor had agreed to keep in repair. The court instructed the jury that they might allow-the plaintiff to recover the difference between the reasonable value of the goods before and after the injury. The defendant contends- that the diminution in the rental value consequent upon the failure to repair is the true measure of damages.
The lease was of a storeroom for a term of two years. When the first heavy rains came leaks appeared in the roof, causing damage to the lessee’s goods, of which due notice was given. The lessor promised to, and did, make repairs, but they were not effective; and subsequent rains showed other leaks, causing further damage, and this continued during the lessee’s occupancy. Whenever leaks appeared notice was given and efforts were made to repair, but the repairs were unavailing. About six months before the term expired the lessee commenced an action to recover such damages, having, soon after the first damage occurred, presented a bill therefor, which the lessor refused to consider. A supplemental petition was filed, including claims for further damages. The tenant paid his rent promptly, and gave proper notices of the defects as they appeared, and the landlord appears to have made efforts to repair whenever notified. Whether the failure to stop the leaks was because the roof was too old and dilapidated to admit of successful repair or whether the repairs were improperly made does not clearly appear, but whatever the reason may have been they were unavailing.
Evidence was offered showing the losses and injuries to the goods, and their consequent diminution in value. No objection was offered to this testimony, and the case appears to have been tried upon the theory that such resulting loss afforded the true measure of damages. To the instruction of the court, however, that this was the proper measure of damages the defendant excepted, and this presents the question to be determined.
The general rule is that on a breach of the covenant by the landlord to make repairs the measure of damages is the difference between the rental value of the premises as they were and what it would have been if they had been put and kept in repair. (24 Cyc. 1097; Cook v. Soule et al., 56 N. Y. 420; T. H. E. Co. v. D. L. I. Co., 144 N. Y. 34, 39 N. E. 7.)
This rule, however, is not of universal application. Thus, in Culver v. Hill, 68 Ala. 66, 44 Am. Rep. 134, it was held that where the landlord agreed to keep fences in repair the tenant had the right to rely upon his performance, and could recover for the destruction of crops resulting from his failure so to do. In Indiana it was held that, upon the breach of a covenant of the landlord to repair, the tenant may make the repairs and charge the landlord therewith or he may rely upon the covenant and recover all damages flowing from the breach. (McCoy v. Oldham, 1 Ind. App. 372, 27 N. E. 647, 50 Am. St. Rep. 208.) In that case the covenant was to clear a part of the land, and the court approved the rule allowing the diminution in rental'value as the measure of damages, saying that this is ordinarily the measure of recovery. In Parker v. Meadows, 86 Tenn. 181, 6 S. W. 49, it was held that the diminution in rental value was the proper measure of damages where the landlord had failed to build new fences upon the leased lands, as he had agreed to do, but the court said:
“We do not wish to be understood as intimating that there are not cases where the failure of the landlord to repair, where he has contracted so to do, may not render him liable for injury to crops or other property of the tenant, even to the point of special and consequential damages that are not remote, and are shown with sufficient certainty, the well-established general principles being equal to the emergencies of particular cases, though often difficult of application.” (Page 188.)
Where the lessor had covenanted to clean out certain ditches on the leased premises, and failed to do so, he was held liable for the diminution in value of the crops caused by such default. (Spencer v. Hamilton, 113 N. C. 49, 18 S. E. 167, 37 Am. St. Rep. 611.) It was said in the opinion that the damages thus allowed were “immediate, necessary and reasonably certain, and such as viere in the contemplation of the parties.” (Page 52.) In a case in New York, where household effects were injured because of a defective roof, which the owner had covenanted to repair, the court sustained a recovery, saying:
“On two occasions, when the roof leaked, she had called defendant’s attention to its condition, and he told her that he would have it fixed; and plaintiff, in reliance on defendant’s promise, was induced to remain and continue her tenancy. She was justified in assuming that defendant had fulfilled his promise, and was ignorant that the. roof was in a defective condition till the storm came which produced the damage complained of. Under these circumstances, we think that the defendant became liable for the damages suffered by plaintiff, for it was in consequence of his failure to put the roof in proper repair, as he agreéd to do, that plaintiff was damaged. That defendant failed to properly repair the roof is, we think, abundantly shown by its utter insufficiency to shield plaintiff’s property from the storm of February 22.” (Phillips v. Ehrmann, 28 N. Y. Supp. 519, 520.)
It is true that in this case the plaintiff knew of the defective condition of the roof from past experiences, but after each rain the landlord essayed to repair it, and he is not in a position to say that his tenant ought to have known that he could not, or would not, do that which he thus undertook to do. Damages for the breach of a contract should be such as may fairly and reasonably be considered as arising naturally — that is, in the usual course of things — from such breach; such as may reasonably be supposed to have been in the contemplation of the parties. (Note to Spencer v. Hamilton, supra, in 87 Am. St. Rep. 611.) The party who makes default should pay such damages as fairly result from his failure, when proof is reasonably certain and definite, and not vague or speculative. (3 Suth. Dam., 3d ed., § 874; Kohne v. White, 12 Wash. 199, 40 Pac. 794.) The damages here consisted in the loss and injury to certain pictures, picture-frames, and moulding, and were shown with reasonable certainty by the testimony and by the production of samples of the injured goods before the jury; all vague and speculative claims were withdrawn, and the case was fairly presented t<p the jury.
It is argued .that the plaintiff should have made the repairs himself. It has often been held that, where the repairs are slight and inexpensive, and the consequences of a failure serious, the tenant may make the repairs and charge the cost to the owner. Again, it is argued that the tenant should have moved out, and mot remained to suffer continued loss, and authorities are not wanting to show that such is the tenant’s duty in some cases. Neither of these rules apply here. The tenant was not required to attempt these repairs when the landlord was himself endeavoring to make them. For the same reason he was not required to move out. The owner, both by his promises and conduct, invited the lessee to remain. If the owner intended to remedy the defect, as his efforts indicated, the tenant cannot be charged with knowledge that such efforts would be unavailing. In such a situation the tenant was neither bound to make the repairs himself nor to move out. (Keyes v. Western Vt. Slate Company, 34 Vt. 81; Rauth v. Davenport, 67 N. Y. Supr. Ct. 70, 14 N. Y. Supp. 69; Vandegrift, Adm’r, v. Abbott, 75 Ala. 487.) The tenant was, however, bound to make all reasonable efforts to protect his property, and the court so instructed the jury. It is not shown that he was negligent in this respect.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The plaintiffs move that the answer to the alternative writ be stricken from the files, and that a peremptory writ as prayed for in the petition be allowed.
One objection to the answer is that it does not make a physical return of the alternative writ served. We think, however, the answer meets the requirements of section 5190 of the General Statutes of 1901, which prescribes thé procedure and does not require the actual return of the writ.
Another objection is to the appearance of certain attorneys for the county commissioners. If, however, there was any misunderstanding in regard to the matter, the action of the attorneys in question has been fully ratified by the county commissioners and by the county attorney.
The motion is denied.
If the plaintiffs are entitled to any relief in this case it must be under sections 5184 and 6839 of the General Statutes of 1901, construed together. Section 5184 provides, in substance, that this court may issue a writ of mandamus “to any inferior tribunal, corporation, board or person, to compel the performance of any act which the law specially enjoins as a duty resulting from an office, trust or station.” Section 6339, so far as it applies to the matter now under consideration, reads:
“Whenever twenty householders of any organized township in which the land is situated shall petition the superintendent of public instruction of such county to expose to sale any portion or portions of said land, describing the same, he shall, by and with the consent of the county commissioners of his county, appoint in writing three disinterested householders, . . . who . . . shall appraise each legal subdivision.”
In Bushey v. Hardin, 74 Kan. 285, 86 Pac. 146, it was said:
“Under the provisions of section 6339 of the General Statutes of 1901, relating to the sale of school-land, it is the duty of the county commissioners of a county to give their consent to the appointment of appraisers made by the county superintendent of public instruction of that county in proper proceedings for the sale of school-land, when such appraisers are duly qualified and satisfactory.” (Syllabus.)
In that case, upon the answer of the board of county commissioners and the showing made, this court compelled the board to give its consent to the appointment in question.
It is a well-recognized principle of equity that courts will not employ the extraordinary remedy of mandamus to relieve a party who has an adequate remedy at law; also, that this extraordinary remedy should be exercised with caution, and only in furtherance of justice, and to this end its exercise is not bound by any hard and fast rules but is always largely in the discretion of the court.
Now, can it be said under the facts of this case that the consent of the county commissioners was sought in proper proceedings for the sale of school-land, or that, in the situation, the law specially enjoined upon the commissioners the duty resulting from their office to consent to the appointment of such appraisers? We answer both branches of this question in the negative. Upon the face of the records of the county the land in question was not school-land, and the state had parted with all title thereto. The board of county commissioners was under no obligation, probably had no right, to assume that the conveyance from the state was illegal or to proceed in direct opposition to the facts as they appeared upon the records. To hold the contrary would be to say that county commissioners might be required on petition and action of the county superintendent in their counties to take these steps toward the resale of any land in the state which at some time had been school-land. Indeed, it is not within the province of this court in this cáse to decide whether the land in question was legally patented to Jones. We presume, however, that if the title to the land has been illegally conveyed from the state the attorney-general in a proper action in a court of competent jurisdiction might cause it to be restored and the illegal conveyance set aside. However this may be, the situation is such that it does not appear to be in furtherance of justice that the peremptory writ of mandamus prayed for should be granted in this case, and the same is refused.
Judgment is rendered against the plaintiffs for the costs. | [
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The opinion of the court was delivered by
Benson, J.:
The plaintiffs are owners of several tracts of land within the Shunganunga drainage district, organized under the provisions of the drainage law (Laws 1905, ch. 215), and seek to enjoin the collection of special assessments upon their property made by the district board under that law. The plaintiffs allege that the assessments are void because their lands, although situated within the district, “are not, never have been and can never be subject to overflow,” and lie from twenty to forty feet above flood overflow or high-water mark. The regularity of the proceedings for the organization of the drainage district is not questioned, and the only objections urged against the assessments are that the lands of the plaintiffs, not being subject to overflow, cannot be lawfully assessed for such improvements, and that the drainage act is invalid.
The act provides that the petition for the organization of a drainage district shall describe the territory to be included, and shall state “that the lands and property therein embraced are subject to injury and damage from the overflow.” (Laws 1905, ch. 215, § 3.) On the hearing the county commissioners, before organizing the district, must find that the statements of the petition are true. The drainage board is given power to determine what improvements shall be made to protect the district from overflow or damage resulting therefrom, and is authorized to make improvements that will prevent the overflow of natural watercourses, and thereby protect all the lands within such drainage district from such injury and be conducive to the public health, convenience or welfare. It provides that if, upon the report of the engineer, the board: shall determine that a levee shall be constructed or that other work shall be done to protect land in any part of the district from overflow, and that the cost thereof ought to be paid by levying special assessments on the real estate to be benefited by such improvements, then it shall so declare, and shall appoint assessors “to assess all of the lands within the district which will in their opinion to any extent be protected from overflow or be benefited by the proposed work, . . . and determine the proportion of the estimated cost of such work with which each lot, piece or parcel of land so benefited ought justly to be charged.” (Laws 1905, ch. 215, § 21.) The statute requires a notice of the filing of the report of the assessors and of a hearing thereon before the drainage board to be given, when all persons aggrieved may be heard to contest the justness of the same. The report may be amended as may be equitable, and upon confirmation by the board the amounts charged against each tract become special assessments thereon. Suits to set aside or enjoin such assessments are barred in thirty days after such confirmation. Section 2 of the act is as follows:
“That any drainage district may include lands within the county subject to overflow from the same natural watercourse, whether the same be situated partly within and partly without or wholly within or without any incorporated city.” (Laws 1905, ch. 215.)
The primary purpose of this section is to authorize the formation of districts to include city property with other territory, and the expression “subject to overflow” is not, when considered in connection with other parts of the act, a restriction of the power to include lands which, although not subject to actual overflow, .are nevertheless subject to injury and damage from the overflow of other lands. The property injured by the overflow, as well as that which may be submerged, is to be assessed for the proposed improvement, each tract in proportion to the benefits to be received. The fact, as alleged, that the plaintiffs’ lands cannot be actually overflowed, considered alone, affords no ground for relief; and there is no direct averment in the petition that they will not be benefited by the improvement for which the assessments were made. It is alleged that the act in question attempts to place under contribution for improvements property which cannot be benefited thereby, but this is an attack upon the law itself and not an averment that the improvement in question will not be beneficial in this instance to the property described.
The organization of the district having been, as we must presume, effected after due notice to the plaintiffs and others, it must be held that the plaintiffs’ lands were properly included within its limits. (Reclamation Dist. 531 v. Phillips, 108 Cal. 306, 39 Pac. 630, 41 Pac. 335; Comrs. of Highways v. Drainage Comrs., 127 Ill. 581, 21 N. E. 206.) The power of the legislature to create districts for. the purposes of drainage and to provide for assessments to be made therein by the drainage board to pay for such improvements cannot be successfully questioned. (Ross v. Supervisors, 128 Iowa, 427, 104 N. W. 506, 1 L. R. A., n. s., 431 and note.) This may be done through a corporation thus organized, or through county or township boards (Gen. Stat. 1901, ch. 34), or by creating sewer districts as provided in the laws governing cities. When the nature of the case does not conclusively fix it, the power to determine what shall be the taxing district for any particular burden is a legislative power, not restricted except by constitutional limitations. (1 Cooley, Tax., 3d ed., 234.) The benefits of a highway, a levee or a drain may be so peculiar that justice would require the cost to be levied upon a part off a township or county, or upon parts of several subdivisions of the state. (1 Cooley, Tax., 3d ed., 239; In re Madera Irrigation District, 92 Cal. 296, 28 Pac. 272, 675, 14 L. R. A. 755, 27 Am. St. Rep. 106; The State v. Freeman, 61 Kan. 90, 58 Pac. 959, 47 L. R. A. 67; Wulf v. Kansas City, ante, p. 358.)
The law cannot be held invalid upon the claim that it permits the inclusion of land within the drainage dis trict which cannot be benefited. That all the lands so included were subject to injury and damage from overflow was alleged in the petition to organize the district, and was found true upon the hearing, after due notice; and that these particular tracts would be benefited by the specific improvement for which assessments were made, and the proportion of the cost thereof justly chargeable thereon, were facts found by the assessors and confirmed by the drainage board. (Laws 1905, ch. 215, §§ 18, 23.) We must presume that such determinaton was made by the board after such notice and hearing or opportunity to be heard; and upon these proceedings the court cannot give relief to the taxpayers affected, unless it can be held as a matter of law that their property could not by any possibility be benefited by any improvements for which assessments could be levied, or unless the board áeted oppressively and fraudulently, so that their acts were an abuse, rather than a use, of the power conferred. (Coates v. Nugent, 76 Kan. 556, 92 Pac. 597.) We cannot hold as a matter of law that the plaintiffs’ lands could not be benefited, since injuries may occur, from an overflow of lands within the district, to other lands noj; subject to overflow, and the fact that the plaintiffs’ lands might be so injured has been determined by the local tribunal appointed for that purpose. No charge of fraudulent or oppressive conduct being made, such finding must be accepted as true.
The constitutionality of the act in question is assailed upon several grounds.^ The objection based upon the fact that only resident taxpayers are allowed to vote in the district is answered in The State v. Monahan, 72 Kan. 492, 84 Pac. 130, 115 Am. St. Rep. 224, where this provision of the law is upheld. The provisions giving to the drainage board the right to order the elevation of railway tracks, to change the channels of watercourses, and to construct levees, drains and the like in cities, are also criticized as being in violation of the constitution, but no specific provision of that in strument supposed to be violated is pointed out. Even if some of these provisions should be found invalid, it does not follow that the act in its general scope and operation is void. It does not appear that the plaintiffs will be injured by the exercise of such powers, and until some party injuriously affected presents the question we are not called upon carefully to examine all these provisions and determine their possible effect.
That the district includes a part of the city of Topeka affords no legal objection. The area of the state is divided into counties, townships, and cities. Any system of drainage must include some of these subdivisions, or parts of them. The efficiency of drainage would be greatly impaired if the powers of the governing board were limited to the lines of existing governmental subdivisions. The city is the creature of the legislative will as well as the drainage district; both are public corporations, and the legislature may rightfully prescribe the powers of each, subject only to constitutional restrictions. (The State, ex rel., v. Hunter, 38 Kan. 578, 17 Pac. 177; Wulf v. Kansas City, ante, p. 358; 1 Cooley, Tax., 3d 6d., 238.) The supreme court of California, in considering the irrigation law of that state and in speaking of the legislative power, said:
“It may create municipal organizations or agencies within the several counties, or it may avail itself of the county or other municipal organizations for the, purposes of such legislation. . . . This principle is not contravened by the fact that it may even operate injuriously upon some of the individuals or proprietors of land within the district, or by the fact that there may be some who for personal motives may wish to resist the improvement. Such result is only a sacrifice which the individual makes to the general good in compensation for the advantages enjoyed by virtue of the social compact.” (In re Madera Irrigation District, 92 Cal. 296, 308, 315, 28 Pac. 272, 675, 14 L. R. A. 755, 27 Am. St. Rep. 106.)
We do not mean to decide, however, that lands may be assessed which are not benefited by the improve ment; such benefit has been determined in this case by the tribunal created for that purpose.
“Drainage laws áre closely akin to sewer laws. . . . If private property that is benefited by a sewer can be charged for the benefits it receives against the wishes of the owners, so also can the agricultural lands be charged for the benefits conferred upon them. . . . It is competent for the state to raise up a governmental agency for the enforcement of its police pow-, ers. . . . The' agency thus created is an arm of the state, a political subdivision of the state, and exercises prescribed functions of government.” (Land & Stock Co. v. Miller, 170 Mo. 240, 252, 253, 70 S. W. 721, 94 Am. St. Rep. 727, 60 L. R. A. 190 and note.)
Similar acts have been generally upheld in other jurisdictions. (Cribbs v. Benedict, 64 Ark. 555, 44 S. W. 707; Badger et al. v. Inlet Drainage District, 141 Ill. 540, 31 N. E. 170; Reclamation Dist. 531 v. Phillips, 108 Cal. 306 ; Zigler v. Menges et al., 121 Ind. 99, 22 N. E. 782, 16 Am. St. Rep. 357; Donnelly v. Decker and others, 58 Wis. 461, 17 N. W. 389, 46 Am. St. Rep. 637; Taylor v. Crawford, 72 Ohio St. 560, 74 N. E. 1065, 69 L. R. A. 805; Comrs. of Highways v. Drainage Comrs., 127 Ill. 581; Fallbrook Irrigation District v. Bradley, 164 U. S. 112, 17 Sup. Ct. 56, 41 L. Ed. 369; Wurts v. Hoagland, 114 U. S. 606, 5 Sup. Ct. 1086, 29 L. Ed. 229.)
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Per Curiam:
The controlling fact and the questions of law involved in this case are practically the same as in the case of The State v. Jepson, 76 Kan. 644, 92 Pac. 600, and on the authority of that case the- judgment of the district court herein is reversed, with directions to grant a temporary injunction and proceed with the case in accordance with the instructions in the Jepson decision. | [
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The opinion of the court was delivered by
Graves, J.:
The plaintiffs are prevented from recovering in this case because of the contributory negligence of the person injured. The facts found by the jury clearly indicate that Charles E. Stone was fully aware of the defective condition of the blow-off pipe when he used it. While there is no direct evidence of this fact, it is beyond the range of reasonable possibility that it could escape his notice. He, better than any other person, had an opportunity to see and know its condition. He had it in his hands and screwed it into the blow-off cock. Its defective condition was open to the casual observation of any person. His duty and safety both required him to examine the blow-off pipe as to its sufficiency. If he did not know, then his want of knowledge was the result of gross negligence, and is unavailing. It was his duty to select a good blow-off pipe, if there was one, and if not, then it was his duty to apply to the hostler for one which was not defective. Not having done this, his use of the defective pipe was voluntary and at his own risk. He was familiar with the work and aware of its danger. It has long been settled by the decisions of this state that a person cannot voluntarily and recklessly place himself in danger, and then shift the responsibility after an injury has been received. (Jackson v. K. C. L. & S. K. Rld. Co., 31 Kan. 761, 3 Pac. 501; Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 Kan. 129, 12 Pac. 582; A. T. & S. F. Rld. v. Schroeder, 47 Kan. 315, 27 Pac. 965; Clark v. Mo. Pac. Rly. Co., 48 Kan. 654, 29 Pac. 1138; S. K. Rly. Co. v. Moore, 49 Kan. 616, 31 Pac. 138; S. K. Rly. Co. v. Drake, 53 Kan. 1, 35 Pac. 825; Railway Co. v. Puckett, 62 Kan. 770, 64 Pac. 631; Walker v. Scott, 67 Kan. 814, 64 Pac. 615; Lanyon v. Bell, 64 Kan. 739, 68 Pac. 609; Gillaspie v. Iron-works Co., 76 Kan. 70, 90 Pac. 760; Railway Co. v. Weikal, 73 Kan. 763, 84 Pac. 720.)
The facts having been fully found by the jury, judgment may be ordered. The judgment of the district court is reversed, with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff owned blocks I, J, O and P in Dodd’s addition to the city of Erie. Blocks J and 0 adjoin I and P on the west and are divided into lots. The defendant condemned for railroad purposes a strip of land on the west end of blocks J and 0, whereby the lots were very much shortened. The plaintiff appealed from the award of damages, and in compliance with an order of court filed a petition setting forth his claim. The relief asked was limited to damages for land taken in blocks J and 0 and damages for the injury to the remainder of blocks J and 0.
On the trial the plaintiff was the first witness in his own behalf. On direct examination his evidence was confined to damages according to the theory of his petition. On cross-examination, however, and over the objection of his attorneys, he was led to say that his entire holding constituted about eight acres, nearly in the form of a square; that it was fenced in one body, with cross-fences; that the alleys were not opened; and that the streets and alleys in that part of the town were not yet recognized. On the basis of this evidence he was asked by the defendant to estimate his damages, taking the four blocks as a single and entire tract and as a farm. His attorneys objected, but the court held the testimony to be admissible, and it was given. After that, in the progress of the trial, the plaintiff, over the objection of the defendant, offered'evidence under both theories of the case.
The defendant now complains because the court ad mitted evidence of damages according to the assumption that the four blocks formed a single tract, and asserts that such evidence was outside the issue tendered by the petition. If so the error was induced by the defendant and it cannot complain; and if so the error was cured by the instructions to the jury, which confined the award of damages to the value of the portions of blocks J and 0 taken and the injury to the remaining portions of those two blocks.
The defendant insists, however, that the petition and the instructions were both framed upon the wrong theory. It calls the plaintiff’s property a farm, and says that in all' such cases the damages must be the difference between the value of. the farm as a whole immediately before and immediately after the condemnation.
It is perfectly true that in estimating the damages to a farm occasioned by the condemnation of a portion of it for railroad purposes the various subdivisions of the farm, like wheat-field, corn-field, meadow, pasture, house-lot, garden-lot, barn-yard, etc., cannot be considered separately and damages assigned to each. An entire tract, when occupied,’ improved and used as .a farm, cannot be valued in such detached parcels. But no such question is presented here. The property in controversy is city property. It was recognized by the defendant itself in its condemnation proceedings as lots and blocks of an addition to a city, was proved by the evidence to be city property, and the jury foúnd specially that it is city property. The plaintiff made no arbitrary or whimsical division of his land in his petition, but merely yielded to the fact that it had been platted into lots and blocks and claimed damages to such portion of those lots and blocks as he believed was injured.
In framing his petition the plaintiff was entitled to claim damages according to the most advantageous use he could make of his land: If, for example, taking the entire body of lots as a whole, they could be used most profitably for fruit-raising, or as a vegetable garden, or for a dairy, he might have sued for and recovered damages-to the entire tract on that theory, and the circumstance that the lots were separated by streets and alleys would not have stood in the way. On the other hand, if the chief value of the property, or some of it, should lie in its marketability as ordinary city lots, the plaintiff would have the right to take advantage of the municipal subdivisions and claim damages to all those, and to those only, which were decreased in value by reason of the condemnation. If the depreciation in value should extend across lot- or block-lines or streets or alleys the damages should be coextensive with the injury, since nothing less would afford compensation, and it is the purpose of the law to secure to the landowner full compensation. (Irrigation Co. v. McLain, 69 Kan. 384, 76 Pac. 853.)
If in this case the plaintiff has counted upon the less valuable of two purposes to which his land might be devoted the defendant cannot complain. But the defendant cannot insist upon an enlargement of area for the purpose of depriving the plaintiff of the damages sustained, regarding his lots as city property. It cannot select a less advantageous or less profitable use as a basis for damages and compel the plaintiff to hold his city lots as farm land to minimize them.
It is claimed a witness was incompetent to testify. When all his testimony is considered it is plain that he was abundantly qualified.
There is nothing whatever in the record to indicate that the jury awarded damages in violation of the instructions.
The judgment of the district court is affirmed.
The foregoing considerations control the decision of the case of The Missouri, Kansas & Texas Railway Company v. John Berry, No. 15,037, except in respect to a claim of a waiver of damages, which is without merit, and the judgment of the district court in that caséis affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Error is assigned under three heads: (1) Overruling the demurrer to plaintiff’s evidence.. (2) Refusal to instruct the jury to return a verdict for defendant. (3) Denying the motion for a new triaL The only grounds for reversal urged are aimed at the weakness of plaintiff’s evidence — in that it shows contributory negligence — and error in giving and refusing instructions.
If, then, the plaintiff’s evidence be taken as true, and all reasonable inferences which may be drawn therefrom favorable to the plaintiff fairly tend to establish every fact essential to his right to recover, the demurrer to the evidence and the request for an instructed verdict were properly overruled; and if there', was no reversible error in the instructions given, or hr refusing to give those requested, the motion for a new-trial also was properly denied.
We have read the evidence bearing upon the question of Clinkenbeard’s negligence and observe that it: differs considerably from the evidence upon the former trial. In instances Where witnesses who had testified' before modified or changed their statements, the at tention of the court and jury was called to the fact on cross-examination. Under such circumstances it is the province of the jury to determine the real fact, and, after their determination has been approved by the trial court, it is conclusive of the fact in this court.
The principal contention of the railway company is that Clinkenbeard’s own testimony, as well as that of the witnesses produced by him, shows that he was guilty of contributory negligence. Clinkenbeard testified that just before he took up his lines to drive out between the obstructions and the main railroad track he stepped upon the main track and looked and listened for a train, but could neither see nor hear any; that he could see about half a mile to the east, the direction from which the train came; that after he started to drive out he did not look in that direction until some one shouted to him, when he glanced back and saw the engine within forty or fifty feet of him. The engineer testified that when his train was.a half-mile east of the depot he was running forty-five to fifty-five miles per hour, and that he slowed down to twenty or twenty-five miles per hour by the time he reached the house-track switch, which the jury found was about 400 feet from where the accident occurred. So it appears to have been only about a minute from the time the train could have been seen till the accident occurred.
•We cannot say, as a proposition of law, that Clinkenbeard was bound to anticipate as great danger ánd was bound to as great a degree of care in driving between the obstructions and the track as he would have been had he been about to cross the track. It is also apparent that the difficulties of driving the heavily loaded wagon, lengthened out as it was, through the narrow passage were so great that, in the opinion of the jury, it may have been nearly impossible for Clinkenbeard to divert his attention to anything else. If the evidence permits but one conclusion as to the conduct of Clinkenbeard, the question of his negligence is one of law; if, on the other hand, different minds might reach different conclusions in reference thereto, it was for the jury to determine. (Kansas Pacific R. Co. v. Butts, 7 Kan. 308; Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586, 24 Pac. 1101.) We cannot say the court erred in submitting the case to the jury, who determined this question in favor of Clinkenbeard.
As to the negligence of the engineer there can be no question, unless his testimony be acceptéd that Clinkenbeard was four or five feet from the north rail of the main track until the engine was within forty or fifty feet of him, when he came close to the rail, and that at the speed the train was moving it required a distance of 225 to 250 feet in which to stop it. Other witnesses testified that Clinkenbeard was walking upon the ends of the ties from the time the engine passed the house-track switch,-which was 300 to 400 feet from the place of the accident. The j ury evidently found that the defendant was guilty of negligence, and that Clinkenbeard was not guilty of such negligence as barred his right of- recovery, under the eighth instruction given by the court. It reads:
“Ordinarily an engineer who sees a person on or dangerously near a railway track, in front of his moving train, is not bound to stop his train, but he has the right to assume that such person will get out of such dangerous position in time to avoid a collision and injury. If, however, such person is in a position of danger, and there are obstructions or other conditions which render it impossible for such person to get out of such dangerous position in time to avoid a collision and injury to himself, and the engineer in charge of such train saw him in such position of danger, or, by the. exercise of reasonable care and diligence, should have seen him in .such dangerous position in time to have stopped his train and avoided a collision, the engineer is in such case required, after discovering such person’s perilous position and his inability to get out of such place of danger in time to avoid a collision, to use ordinary and reasonable care and diligence to'avoid a collision and injury to such person.
“And if you find from the evidence in this case that the plaintiff herein, at and shortly before the collision in question, was in a position of danger while walking along or upon defendant’s railway track, or while driving his team along near said track, and that the plaintiff at such times used reasonable and ordinary care and prudence to avoid injury to himself, and that the engineer then and there in charge of the said engine of said defendant’s railway-train in question saw the said plaintiff in such- position of danger, if he was in a dangerous position, or should by the exercise of reasonable and ordinary diligence have seen him in such position in time, by the exercise of reasonable and ordinary diligence on his part, to have stopped his train and avoided the collision and injury to the plaintiff, if any, and that such engineer failed to do so, and such failure, if any, upon his part was the direct and proximate cause of the injuries, or any of the injuries complained of by the plaintiff herein, and proved by the greater weight of evidence, if such has been so proved, then in such case you should find for the plaintiff.”
This instruction, except perhaps for the qualification referred to later, appears to be in accord with the principles enunciated in Dyerson v. Railroad Co.. 74 Kan. 528, 87 Pac. 680, and the numerous authorities there digested. Eead in connection with the other instructions given, it places two propositions prominently before the jury: First, if the plaintiff was guilty of negligence which contributed to his injury he cannot recover; second, even if the plaintiff was guilty of negligence in driving into a perilous place, but thereafter exercised due care to protect himself, and the engineer, in time to avoid the accident, saw or should have seen that plaintiff was in peril and that he probably could not extricate himself therefrom, and the engineer then failed to exercise diligence in stopping the train, the plaintiff should recover. In other words, if the negligence of both the plaintiff and the engineer contributed, as proximate causes, to the injury, the plaintiff could not recover; but if, of the two causes, the engineer’s negligence only was proximate, the plaintiff could recover:
As before suggested, the evidence is conflicting, but there is sufficient in support of plaintiff’s claim to sustain the verdict. The conflict in the evidence is not as to the time when the engineer first saw Clinkenbeard but as to where He was when the engineer first saw him. The engineer testified, in part, as follows:
“Ques. Was n’t it in as plain sight as Mr. Clinkenbeard was? Ans. Mr. Clinkenbeard was nearer the track than the wagon was.
“Q. He backed over there? A. He was walking on the south side of his wagon on the north side of the track.
“Q.' And his wagon was five feet north of him just before you hit him? A. I should judge it was about that.
“Q. At the time you hit him? A. It come up closer to the track when I hit him; the team had drawed it over; you were talking about when I first noticed him.
“Q. When you arrived at the house-track switch you saw Mr. Clinkenbeard? A. Not particularly.
“Q. You saw the man you afterward hit? A. No, sir; he had n’t got out there close enough for me to notice him any more than any of the rest of the teams.
“Q. You saw the man that you afterward found out was Clinkenbeard? A. Not at the house-track switch; I might have saw him, but I didn’t take any more notice of him than I did of anybody else.
“Q. I am asking you whether you saw Mr. Clinkenbeard, the man that you afterward hit — whether you saw that man in there at the time you crossed this switch? A. If I did,' I did n’t notice him particularly.
“Q. Didn’t you say that you saw everything that was in the yards? A. Yes, sir; I expect I saw him.
“Q. If he was in the yards you saw him? A. I expect I saw him if he was there.
“Q. At the time you passed this house-track switch, in whatever position he was in you saw him, did you? A. Likely did.”
Other witnesses testified that the south wheels of Clinkenbeard’s wagon were, at all times after the train was at the house-track switch, within four to six inches of the ends of the railroad ties, and that Clinkenbeard was between the wagon and the rail. The jury found the distance from the south wheels of Clinkenbeard’s wagon to the end of the ties to have been four-inches at the time the engine was at the house-track switch. It does not appear, therefore, that the qualification “or,, by the exercise of reasonable care and diligence, should have seen him in such dangerous position in time to have stopped his train and avoided a collision,” etc., in the eighth instruction, above quoted, was prejudicial, .even though erroneous.'
We have considered the other questions presented and find no prejudicial error.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Flora Shelton brought this action to recover damages for the unlawful acts of the defendants in forceably depriving her of the possession of two rooms in a dwelling-house and in removing therefrom her household goods. The petition set forth that on January 9, 1902, she was in the lawful possession of two rooms in a dwelling-house in Salina; that on that date the defendants, with wanton and malicious intent to injure, damage and humiliate the plaintiff, unlawfully broke into, entered and took possession of the rooms and removed therefrom plaintiff’s household goods and pitched them into the street. She sued for $1000 damages.
The case was tried to the court and a jury. At the conclusion of plaintiff’s testimony the court sustained a demurrer to the evidence, and this is alleged as error. The evidence disclosed the following facts: The defendants are husband and wife. The dwelling-house in question belonged to the wife, but the husband had some care and control over it, made repairs, and served notices to tenants, as agent. Defendants lived in another house'on an adjoining lot. In August, 1901, they rented the dwelling-house to L. S. Conner, who was to have possession until the following May. On November 30, 1901, Conner rented two of the rooms-to plaintiff, and she paid him six dollars for the first month. He gave her a receipt and also a written statement that she was to have the privilege of occupying the rooms on the same terms until March 1, 1902. About January 1 Conner arranged to move to Missouri. He surrendered his lease and served the following written notice upon plaintiff: '
“Salina, Kan., January 4, 1902.
“Mrs. Shelton, you are hereby notified to vacate the two rooms you now occupy on or before January 7, 1902. Reason why, I no longer occupy building.
“L. Bornt, Agent. L. S. Conner, Renter.”
She told Conner she would get out as soon as she could find rooms. On January 7 L. Bornt, as agent, served her with another written notice to leave.
On the 9th day of January plaintiff had arranged to vacate the premises and had secured another house. She was down town for the purpose of procuring a dray to remove her goods. During her absence Mr. Bornt took some men and entered the rooms and began to remove her household goods and place them in the street. When she returned and found the men removing her goods in this manner she was frightened and went down town and complained to the county attorney and to the mayor. She returned to the house and found both defendants there, and inquired if she could go in and get some of her property, which was missing. The husband, in the presence of the wife, informed plaintiff that the house was locked to her. The wife said, “You had better let her in.” She secured the rest of her goods, and soon afterward they were loaded upon a dray and taken to her new quarters. The evidence showed that the weather was clear and that the damages, if any, to the property were trifling. No act of assault or violence was offered to plaintiff or any member of her family. In fact, there is no allegation in the petition of any damages to plaintiff’s person or property. During the trial the following admission was made by plaintiff, as shown by the record:
“It was conceded by the plaintiff on the trial of this cause that her amended petition did not entitle her to any recovery of damage on account of the injury, if any, .to her property, and that she based her right of recovery upon alleged trespass upon her personal rights and not upon her property rights.”
The purpose or object of the foregoing admission on the part of, plaintiff’s attorney is inexplicable except upon the theory that the petition failed to allege that the person or property of plaintiff was injured. In view of the admission that the property sustained no damage, and the fact that the evidence shows that plaintiff suffered no physical injury, there remained nothing upon which to base a claim of damages except mental suffering caused by the humiliation and disgrace which would naturally follow from having one’s household goods emptied into the street. The rule adopted by this court years ago, and followed in numerous cases, denies recovery for mental pain, anguish or humiliation except when accompanied by some physical injury to the person. (City of Salina v. Trosper, 27 Kan. 544; West v. Telegraph Co., 39 Kan. 93, 17 Pac. 807, 7 Am. St. Rep. 530; A. T. & S. F. Rld. Co. v. McGinnis, 46 Kan. 109, 26 Pac. 453; Railroad Co. v. Dalton, 65 Kan. 661, 70 Pac. 645; Manser v. Collins, 69 Kan. 290, 76 Pac. 851.) It therefore becomes unnecessary to look further into the record for alleged error, because, in case we were to determine that the court erred in sustaining the demurrer, the judgment must nevertheless be affirmed on the ground that nothing but nominal damages were shown. The judgment is affirmed.
Johnston, C. J., Burch, Mason, Smith, Graves, Benson, JJ., concurring. | [
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The opinion of the court was delivered by
Mason, J.:
Nona Groff recovered a judgment against the Kansas City Elevated Railway Company on account of personal injuries claimed by her to have been occasioned by its negligence. The defendant prosecutes error.
The case turns upon the question whether there was any evidence to support the verdict.. Testimony was given tending to establish these facts: The defendant’s road is operated by electricity, by means of an over head wire. The plaintiff was standing by the side of the track waiting for a car, at a place ordinarily used for that purpose. As the car she intended to take reached the spot the trolley left the wire and the pole flew up, striking and breaking the globe of an electric light. The broken pieces of glass fell and cut the plaintiff’s wrist, causing the injury for which she asked damages. The light was about three feet above and seven and one-half feet to one side of the wire. The rope by which the trolley-pole was controlled was not fastened to the car, as the rules of the company required, but was hanging loose. The car at the time of the accident had just been switched from one to the other of two parallel tracks, the trolley of course passing from one main wire to the other by a wire connecting them and overhanging the cross-over track. Trolleys had previously jumped the wire at this point, and witnesses who testified to this also said that the globe of the same light had previously been broken by the trolley-pole more than once. There was also evidence that a few years before the globe had been broken, at a time when it was suspended only a foot and a half above the wire, bya careless handling of the pole while the trolley was being turned to reverse the direction of the car, but it was not affirmatively shown that this testimony referred to the same incidents.
In Nelson v. Union Railroad Company, 26 R. I. 251, 58 Atl. 780, the plaintiff brought an action against an electric railway company upon a very similar state of facts. At the conclusion of the plaintiff’s evidence the trial court granted a non-suit. On review the plaintiff assigned as error the granting of the non-suit and the rejection of evidence that electric-light globes had previously been broken in the same manner at the same place and at other places. Both assignments were held to be well taken, although only the second was discussed in the opinion. The case is therefore an authority for the affirmance of the judgment here involved. Moreover, in an action brought against the electric-light company for the same injury the supreme court said:
“Even conceding that the slipping of the trolley-pole from the wire was a pure accident, as argued, yet it certainly cannot be said, as a matter of law at any rate, that it was an accident for which no person was responsible; for the trolley-pole was a mechanical appliance connected with the running of an electric car which was being operated by the Union Railroad Company, an undoubtedly responsible person.
“If this trolley-pole had not slipped from the wire the accident would not have happened. And as it was prima-facie negligence on the part of the street-railway company in not keeping it on the wire where it belonged, or at any rate in not preventing it from coming in contact with said electric-light globe, such negligence, being the independent act of a responsible person, and intervening between the negligence of the defendant (if it was negligent in the premises) and the happening of the accident, broke the causal connection between the two, and hence became and was the proximate cause of the accident.” (Nelson v. Narragansett Electric Lighting Co., 26 R. I. 258, 260.)
The facts testified to do not necessarily establish.a liability against the railroad company, but with the inferences which may reasonably be drawn from them they make a fair case for presentation to a jury to determine the question whether any negligence of the defendant was the proximate cause of the injury to the plaintiff. The evidence on the subject is vague, but it seems sufficient to justify the belief that the globe of the same light had previously been broken in the same manner. That at the time of such earlier breakage the light was a little nearer the wire cannot be very important, for the trolley-pole when swinging free could as-readily reach it in one position as in the. other. The trolley was abundantly shown to have .repeatedly left the wire at this place, and if unrestrained it was manifestly likely to break any globe within the length of the pole, the probability of such occurrence depending somewhat upon the distance of the light from the wire laterally. True, this distance in the present case was considerable — seven and a half feet. But even this distance cannot be said, as a matter of law, to be so great as to excuse the railroad company from anticipating that a loose trolley-pole might reach the light. Certainly if the lamp had been but a foot or two to one side of the wire the fact would not have had this effect, and just what position could be regarded as insuring safety was a matter for the jury to determine. If the accident was one that could reasonably have been anticipated the jury were warranted in finding that the defendant was negligent in not taking effective measures to prevent it, either by causing the rope to be tied to the car or in some other manner.
In defense the company produced a witness who testified that the injury was the fault of a prospective passenger who attempted to climb upon the car before the gates were opened,' and, losing his balance, grasped, the rope, thus pulling the trolley off the wire and causing it to swing to one side and strike the lamp. The argument is made that as this evidence was uncontradicted the jury were bound to credit it, and that it was therefore fatal to the plaintiff’s recovery. The jury, however, were the judges of the credibility of the witness, and even if their verdict was necessarily inconsistent with his testimony this court cannot on that account set it aside. (Harrod v. Latham, ante p. 466.)
The judgment is affirmed. | [
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Per Curiam:
This case was submitted to the court (a jury, having been waived) upon an agreed statement of facts, on June 2, 1906, and no other evidence was produced or offered. On the 16th day of the same month, the court having taken the case under advisement, judgment was rendered in favor of the defendant and against the plaintiff for costs. No order extending the time for making and serving a case-made for appeal was asked for or entered by the court. A motion for a new trial, however, was filed within the time prescribed by statute, and this motion was heard and denied November 14, 1906. A Case-made was served within ten days thereafter, and was settled and signed December 4, 1906. As there was no issue of fact tried there could be no new trial of such an issue (Darling v. Railway Co., 76 Kan. 893, 94 Pac. 202) ; also, as the decision involved only the determination of a question of law, no new trial was necessary, and the filing of such motion did not. extend the time for making and serving a case-made. (Wagner v. Railway Co., 73 Kan. 283, 85 Pac. 299.)
It follows that the judgment became final and the court lost jurisdiction to settle and sign a case-made upon the expiration of ten days after the rendition of the judgment.
The proceeding in error is dismissed. | [
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Per Curiam:
The allegation in the petition that the sidewalk was condemned by ordinance went to the question of notice of its condition at the time of the accident. A reference to the ordinance in the petition was unnecessary, but as no proof was offered to sustain the averment we cannot say that the city was prejudiced. That there was a variance between the first instruction and the allegation of the petition as to the place where the accident occurred is too technical.
Instruction No. 16 went to the question of notice. There was some evidence to justify the giving of it. The allegation that plaintiff below sustained bodily injuries was sustained by proof of injury to her hands and wrists. “For the body is not one member, but many.” (I Cor. 12:14.)
We have examined the findings of the jury, and find no inconsistencies sufficient to justify a new trial.
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The opinion of the court was delivered by
William R. Smith, J. :
Main street in the city of Hutchinson is crossed by the tracks of the Atchison, Topeka & Santa Fe Railway Company at a place where there is much travel along the street. Gates, operated by compressed air applied by a gatekeeper, are maintained by the railway company to guard the crossing. The gates are wooden arms which,'when raised, stand perpendicular at the sides of the street; when lowered during the movement of trains the arms meet near the center of the roadway, forming an effectual barrier against the passage of teams or vehicles over the railway. There are two of these arms on the south side of the railway-crossing, and two on the north side, which, when lowered, reach over the street. Main street runs north and south. The railway-tracks cross it at right angles.
In August, 1900, plaintiff below was driving two horses to a buggy, going north along Main street. When he approached the railway-crossing the gates on the south side were up, indicating that the tracks were clear for passage over them. There was testimony tending to show that the west arm of the north gate was raised — standing straight up — when plaintiff below crossed the railway-tracks going north ; that he did not see the east arm until it was lowered before his face about four feet in front of him ; that he dodged back, and an iron prod, or rest, attached to the wooden arm of the gate struck him in the groin. For the injury alleged to have been thus sustained this action was brought against the railway company. There was a general verdict in favor of the company. Sager instituted proceedings in error to reverse the judgment.
The trial court refused to give the following instructions requested by the plaintiff below :
“5. I instruct you that a person has the right to cross a railway-crossing at a public street, and is not required to look out for or anticipate that an arm of the gate crossing will fall or be let all on him as he is about to leave the crossing.”
“7. It was the duty of the gateman at that crossing to shut the gates to prevent passing vehicles from entering on the tracks on the unexpected approach to the crossing of engines, cars and trains, and to open the gates for the crossing of travel at such time as it could cross in safety, upon the tracks being cleared and remaining cleared from the.expected approach to the crossing of such engines, cars and trains ; and that the open gate, on the raising of the gate, would be an invitation to travel that this crossing was clear and that it could cross, and a person under such circumstances would have the right with his vehicles to start to cross.”
Counsel for the railway company, in defending the action of the court below refusing instruction No. 5, above set out, invoke the general rule that a railway-track itself is a warning of danger, and that a traveler before crossing must exercise his faculties of sight and hearing to determine whether he can proceed with safety. Conceding the rule, it can have no application to the facts of this case. Sager was not injured by a passing train. A failure to look and listen before crossing a railway has never been held by this court to constitute contributory negligence except in cases where the traveler on the highway was injured or killed by a train moving on the tracks. The contention of counsel for defendant in error, if followed out, would lead to the conclusion that railway-tracks at a road-crossing are a warning to a person going over them — a notification in advance of every species of negligence of which the company or its servants might be guilty in any or all departments of its business. The absurdity of this argument is evident, when considered in its application to hypothetical cases.
The signal of danger given by the presence of railway-tracks would certainly not impose on a person passing over them on the highway the duty of looking and listening for the approach of a mad steer which by negligence of the company’s servants had escaped from a cattle car, ran along the track, and gored the traveler at the crossing. Nor would such warning in any degree affect the right to recover from the company for injuries sustained by reason of its servant’s negligently running a truck against another, to his damage. Nor would any number of tracks in sight of an intending passenger have the slightest influence in defeating a recovery against the company for an assault and battery on him by its ticket agent.
In the present base no injury was received until after Sager had crossed the tracks going north. His cause of action rested on the negligence of the gate-man in letting down the east arm of the north gate after the two south arms of the gate and the railway-tracks had been passed. The only question of contributory negligence which could possibly come into the case under the evidence before us must have relation to the knowledge of plaintiff below respecting the falling of the gate which hurt him. If he neglected to avoid the injury, when it was imminent, by stopping his horses or jumping from his buggy, provided he had sufficient notice of the impending danger and it was practicable to do so, he was guilty of contributory negligence. His negligence, if any, is to be determined by ascertaining what he omitted to do that was legally required of him immediately after the gate-arm which struck him began to descend.
The gates were erected by the railway company for the security of persons having occasion to use the crossing. The open gates at the south side were an affirmative assurance that it was safe to go over. Plaintiff below drove over the tracks without delay. We can see no element of contributory negligence in the case, unless it might have arisen at or about the time the east arm of the north gate began to descend, as before stated.
Instruction No. 7, quoted above, which was refused, is somewhat involved in its phraseology, yet it states the law fairly. Nowhere in the instructions given did the court inform the jury concerning'the duty of the gatekeeper or of the traveler at the crossing. The nearest approach to the relative duties of each is found in instruction No. 4. It reads :
“You are instructed that as the gates of the defendant are over a public highway, not only must the defendant use due care and caution in handling the gates, but parties using the highway must also use due care and caution with reference to the presence of the gates and their operation ; and if persons using the highway are also guilty of carelesness which contributed to their injury in passing along the street where the gates are located, it would constitute contributory negligence, and the party or parties could not recover although he or they in fact received an injury, and that by the negligence of the defendant.”
The respective care required to be exercised by the parties is here stated in the most general way. The court referred to the contributory negligence of plaintiff below four times in the instructions given, but in no manner particularized respecting the right of the traveler to cross, under the circumstances of this case, without anticipating that an arm of a raised gate would fall upon him, as set forth in instruction No. 5, which was refused. The following language in the last instruction quoted was misleading :.
“If persons using the highway are alio guilty of carelessness which contributed to their injury in passing along the street where the gates are located, it would constitute contributory negligence.”
If instructions numbered 5 and 7, requested by counsel for Sager, had been given, no doubt could have remained in the minds of the jury whether it was a negligent act for plaintiff below to go over the railway-crossing. It might be inferred from the directions given that the mere passing over the crossing of itself, under the circumstances, showed contributory negligence on the part of Sager. Such is the theory of counsel for defendant in error in this court, and this same view was probably taken by the trial court.
The judgment of the court below is reversed, and a new trial granted.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
The plaintiffs, for themselves and 400 others similarly situated, brought this suit to restrain the board of education of the city of Lawrence, a city of the second class, from enforcing one of its resolutions previously adopted, authorizing the superintendent of its city schools to expel from the high school all resident pupils who should refuse to pay a tuition fee of $2.50 per term. The petition alleged that the plaintiffs are residents and taxpayers of the city of Lawrence, and the parents of children between the ages of six and twenty years ; that the board of education had previously passed a resolution to the effect that all pupils attending such school should be required to pay a tuition fee of $2.50 per term, and had authorized the superintendent of schools of the city to expel from such school all children then attending who should refuse to pay such tuition fee on or before a certain day therein named. Upon the application of plaintiffs a temporary restraining order, prohibiting the board from enforcing the conditions of the resolution, was allowed and finally made permanent. It was held generally that the board of education had no power to impose a tuition fee-upon the resident pupils as a condition precedent to attending such school.
The question involved is, Has the legislature of the state of Kansas power to authorize the board of education of cities of the second class to impose a tuition fee upon resident pupils attending the high school ? If this question be answered in the affirmative it must be held that the board acted with authority. The legislature attempted to confer such authority upon the boards of education of cities of the second class within the state by the enactment of section 6305, General Statutes of 1901. This section reads :
“The board of education shall have power to elect their own officers, except the treasurer; to make their own rules and regulations, subject to the provisions of this article ; to organize and maintain a system of graded schools ; to establish a high school whenever in their opinion the educational interests of the city demand ; and to exercise the sole control over the schools and school property of the city ; and maintain such high school, in whole or in part, by demanding, collecting and receiving a tuition fee for and from each and every scholar or pupil attending such high school.”
Plaintiffs contend that the common schools of Kansas are free schools, and that this section, in so far as it attempts to confer power upon the boards of education of cities of the second class to impose a tuition fee upon pupils attending such schools, contravenes section 2 of article 6 of the constitution of Kansas and is void. The constitutional provision invoked reads :
“The legislature shall encourage the promotion of intellectual, moral, scientific and agricultural improvement, by establishing a uniform system of common schools, and schoolsmf a higher grade, embracing normal, preparatory, collegiate and university departments.”
The one great hope of the republic lies in the intelligence and morality of the individual citizen. To encourage, promote and inculcate intelligence and morality, large bodies of land were reserved by the government from the public domain to many of the states upon their admission into the Union, to be used for a permanent school fund. Section 34 of our organic act provides :
“That when the lands in the said territory shall be surveyed under the direction of the government of the United States, preparatory to bringing the same into market, sections numbered sixteen and thirty-six in each township in said territory shall be, and the same are hereby, reserved for the purpose of being applied to schools in said territory and in the states and territories hereafter t.o be erected out of the same.”
Recognizing the great need of popular education the framers of our constitution, in addition to the provisions hereinbefore quoted making it compulsory upon the legislature to establish a uniform system of common schools, inserted section 3 of article 6, which reads :
“The proceeds of all lands that have been, or may be, granted by the United States to the state, for the support of schools, and the five hundred thousand acres of land granted to the new states, under an act of congress distributing the proceeds of public lands among the several states of the union, approved September 4, a. d. 1841, and all estates of persons dying without heir or will, and such per cent, as may be granted by congress, on the sale of lands in this state, shall be the common property of the state, and shall be a perpetual school fund, which shall not be diminished, but the interest of which, together with all the rents of the lands, and such other means as the legislature may provide, by tax or otherwise, shall be inviolably appropriated to the support of common schools.”
Ample provisions are found elsewhere for the annual distribution of this fund to the several county treasurers of the state, to be used in the support of the common schools. In addition to the fund thus provided the legislature has made provisions for the assessment and collection of taxes for the support of the common schools, and enacted rules for their general management by officers to be elected by the voters of the locality where the schools are to be maintained.
In view of the numerous provisions made by the general government and the constitution of this state, as well as the history of its legislative enactments for the establishment and maintenance of a common-school system under which the children .have been educated free for the past forty years, the suggestion that such schools are not free comes as a surprise, at least. This, however, cannot change the provisions of our constitution, and it is to such provisions we must look to determine whether the system of common schools it commands the legislature to encourage was to be a system of free common schools, or pay common schools. We can only determine this by ascertaining what was meant by the words “common schools,” as therein used. If we find that they have acquired a technical meaning we must assume that they were used in the constitution in their technical sense. The high school, in cities of the second class, is a department of the common-school system of such cities, in which the higher grades are taught. (Board of Education v. Welch, 51 Kan. 792, 33 Pac. 654; Whitlock v. State, ex rel. School District, 30 Neb. 815, 47 N. W. 284.)
The term “common schools” is synonymous with “'public schools.” (Jenkins v. Andover, 103 Mass. 94.) Both have been defined by lexicographers and by judicial interpretation to mean “free schools.” (Merrick & others v. Inhabitants of Amherst & others, 12 Allen, 500, 509; Roach v. The Board of President and Directors of the St. Louis Public Schools, 77 Mo. 484; Collins v. Henderson, &c., 74 Ky. 74; Irvin v. Gregory, 86 Ga. 605, 13 S. E. 120; Roach, App., v. The Board of President and Directors of the St. Louis Public Schools, Resp., 7 Mo. App. 567; The People v. The Board of Education of Brooklyn, 13 Barb. 400.)
In volume 25 of the American and English Encyclopedia of Law, second edition, at page 8, it is said:
“Common or public schools are, as a general rule, schools supported by general taxation, open to all of suitable age and attainments, free of expense, and under the control of agents appointed by the voters.”
• Black, in his Law Dictionary, defines common schools thus :
“Schools maintained at the public expense and administered by a bureau of the state, district, or municipal government, for the gratuitous education of the children of all citizens without distinction.”
Anderson, in his Law Dictionary, says :
“Common or public schools are schools supported by general taxation, open to all free of expense, and under the control of agents appointed by the voters.”
Rapalje and Lawrence define common schools to be :
“Public, or free schools, maintained at public expense, for the elementary education of the children of all classes.”
Bouvier, in his Law Dictionary, says that common schools are “schools for general elementary instruction, free to all the public.”
Chancellor Kent, in his Commentaries, volume 2, page • 196, in discussing free common schools in the several states of the Union, and in many European countries, uses the phrase, “common schools” exclusively.
It must be assumed that the men who wrote our constitution used the phrase “common schools” in its technical sense as we find it defined. We think it follows, therefore, both from authority and reason, that the phrase "common schools” was used in the constitution in its technical sense, which means free schools, and that the common schools of Kansas are free schools. The act of the legislature attempting to authorize boards of education of cities of the second class to collect tuition fees for the admission of resident pupils into such schools violates this provision of the constitution of the state, and is therefore void.
A contention is made that the word "otherwise,” found in the latter part of section 3 of article 6 of the constitution, by which the legislature is directed to add to the permanent school fund by taxes, or otherwise, is an express authority to add to it by charging a tuition fee. The word "otherwise,” as there used, •simply means that the legislature may set apart for public-school purposes such moneys as may come into the public treasury incidentally — such as fines imposed for violation of the laws of the state and items of a similar character. To charge and collect a tuition fee would not be adding to the permanent school fund.
The objection that the plaintiffs cannot maintain this suit on the ground that an individual cannot maintain a suit to restrain public officers from performing a public duty, unless such party can show some personal, pecuniary or special interest, or some injury which he may sustain other than the public generally, cannot be sustained. The exclusion of the plaintiffs’ children from the public schools is a question in which they have a special and peculiar interest not held in common by the people of the state. While the people of the state and county have a general interest in the education of children, the exclusion of any particular child directly affects the parents of that child in a much greater degree than it does the public. In Craft v. Jackson Co., 5 Kan. 518, 521, it was said:
“If the injury is one that peculiarly affects a person, he has his right of action.”
The judgment of the court below is affirmed.
All the Justices concurring. | [
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Per Curiam:
By this proceeding in error it is sought to review the action of the trial court .in granting a new trial. The action was for personal injuries, and was tried to a jury. A verdict was returned in favor of plaintiff below, plaintiff in error here.
There were several grounds set forth in the motion for a new trial; among others, that the verdict was not sustained by sufficient evidence; and that the verdict of the jury was contrary to law. We do not know on what particular point the motion was sustained. We must find an abuse of discretion committed by the trial court in order to reverse his order. We cannot say that there was not a conflict of testimony in the case. In City of Sedan v. Church, 29 Kan. 190, 192, Mr. Justice Valentine, speaking for the court, said:
“For, unless the supreme court can see, beyond all reasonable doubt, that the trial court has manifestly and materially erred with reference to some pure, simple and unmixed question of law, and that except for such error the ruling of the trial court would not have been made as it was made, and that it ought not to have been so made, the supreme court will not reverse the order of the trial court granting the new trial.”
See, also, K. P. Rly. Co. v. Kunkel, 17 Kan. 145; Mc Crum v. Corby, 15 id. 112; K. C. W. & N. W. Rld. Co. v. Ryan, 49 id. 1, 30 Pac. 108; Land Co. v. Lewis, 53 id. 750, 37 Pac. 108; Ireton v. Ireton, 62 id. 358, 63 Pac. 429.
The ruling of the court below is affirmed. | [
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Per Curiam:
By its action plaintiff in error sought to restrain the obstruction of a public street in the town of Haviland, Kiowa county, by the erection of an elevator thereon. No other relief was sought.
There is nothing in the record or elsewhere to show that the amount involved exceeds $100, nor is there any certificate of the judge showing that the case falls within any of the excepted classes.
We are, therefore, without jurisdiction to pass upon the meritorious questions involved. (Hayden v. Stewart, 77 Pac. 697.)
The petition in error is dismissed. | [
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The opinion of the court was delivered by
Smith, J. :
H. Parker and others, partners as the H. Parker Grain Company, brought an action against the Chicago, Rock Island & Pacific Railway Company, defendant in error, before L. G. Disney, a justice of the peace of Topeka township, Shawnee county, which township is situated outside of the city of Topeka. The action was brought to recover $220 as damages and a reasonable attorney’s fee for failure of the company to deliver a stated amount of wheat shipped by plaintiffs below over the road. The return of the constable recited that a certified copy of the summons was served on the railway company by delivering it to its chief clerk at Topeka, Kan. Judgment was rendered by default against the railway company by the justice of the peace, it having made no appearance on the return-day of the summons. Within ten days the company filed an appeal bond.
A motion was made in the district court by the railway company to dismiss the action, supported by an affidavit of its superintendent. There was no other evidence' introduced on the hearing. The district court sustained the motion and dismissed the action, of which ruling plaintiffs in error complain.
The transcript of the justice sent to the district court contains a copy of the bill of particulars, in which defendant below was alleged to be a corporation “organized and exisiting under and by virtue of the laws of the state of-There is nothing in the motion to dismiss, or in the affidavit, showing that the railway company was a foreign corporation. Counsel for plaintiff in error assert in their brief that it was admitted on the hearing that the Chicago, Rock Island & Pacific Railway Company was a foreign corporation. It does not appear so from the record. The affidavit filed to support the motion to dismiss shows that at the time the action was begun the railway company did no,t keep or maintain any depot, office, agency or place of business in Topeka township ; that it had its general offices, west of the Missouri river, in the city of Topeka; that it had a local superintendent of repairs, four freight agents, three agents to sell tickets, and a station-keeper, all of whom resided in the city of Topeka; that it operated its road into and through the city of Topeka, and carried on a general railroad business in said city, and maintained three depots therein for the transaction of business.
We must presume from the allegations of the bill of particulars and the showing in the affidavit used on the motion to dismiss that defendant in error was a Kansas corporation, created under the laws of this state. Section 1293, General Statutes of 1901, requires that every corporation created or existing under the laws of Kansas shall keep a general office within the state, and, in the case of a railway corporation, it shall have such general office on or near the main route of its road mentioned in its charter, at which the office of the superintendent and other officers and agents mentioned, with the books, shall be kept. In the absence of evidence to the contrai’y, we must presume that the railway company conformed to the requirements of this statute when it established a general office in Topeka, which requirement applies to domestic corporations only. The maintaining of a general office in this state, enjoined by the statute under penalty of forfeiture, aids the presumption that the corporation was created under our laws, if any such aid be needed. It was not shown that defendant in error maintained a station at any place outside the city of Topeka. Section 5228, General Statutes of 1901, reads:
“The jurisdiction of justices of the peace in civil actions shall be coextensive with the county wherein they may have been elected, and wherein they shall reside; provided, that in any county in which a city court has been or shall be created, justices of the peace outside of the city wherein such court is located shall not have jurisdiction of cases in which any defendant resides in such city.”
A city court existed in Topeka when the action was .brought. The proviso in the above section devests a justice of the peace outside of a city of jurisdiction over the subject-matter involved in cases where any defendant resides in a city in which a city court has been established, and also over the person of a party defendant in such suit. He cannot act in such cases, nor render a valid judgment. If the justice had jurisdiction over the subject-matter of the action, the filing of an appeal bond by the railway company would have given him jurisdiction over the person of de fendant, even though no summons had been served. (Haas v. Lees, 18 Kan. 449.)
The district court had appellate jurisdiction only. If jurisdiction over the subject-matter of the action was lacking in the justice of the peace, it was not conferred on the district court by the appeal. ( Wagstaff v. Challiss, 31 Kan. 212, 1 Pac. 631; Ball v. Biggam, 43 id. 327, 23 Pac. 565.)
The only question remaining is whether the railway company was to be regarded as a resident of the city of Topeka. If so, the action was rightfully dismissed. The evidence heard on the motion did not show that-the railway company had what might be called a residence elsewhere in the state of Kansas. In Robinson v. Railway Co., 67 Kan. 278, 281, 72 Pac. 854, it was decided that the residence of a railway corporation for the purpose of service under section 5228,. General Statutes of 1901, is that place where its habitation is fixed and permanent. In the case cited an action was brought against the Missouri Pacific Railway Company before this same justice of the peace, and service had on an agent of the company in Topeka. The principal office of the company was in Wyandotte county. The court said :
“The defendant in error [railway company] may have a residence in Kansas within the meaning of this section [§ 5228, supra] , but it can have but one ; and if it can have such residence it must be in the city where its general offices are located and its corporate business conducted. It is not contended in this case that such general office was' maintained in the city of Topeka.”
If the Rock Island company did not have a general office in Topeka, but did have one elsewhere in Shawnee county, or in any other county in the state, sery: ice obtained on it anywhere in Shawnee county in accordance with section 4501, General Statutes of 1901, would have given the justice of the peace jurisdiction. Under the showing made in the court below, the railway company must be treated as having been a resident of Topeka at the time the summons was served.
The order of the district court dismissing the case is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
We are met with a motion to dismiss this action because the same was not commenced within one year after the rendition of the final judgment. The judgment was rendered on the 24th day of October, 1902. The petition in error was filed and the summons issued on the 26th day of October, 1903. On the face of the papers, therefore, it seems to have been filed out of time.
The plaintiff in error seeks to excuse the default in this respect by showing that the papers were committed to an express company at Wichita on the 23d of October, came to the office of the company in Topeka on Saturday, October 24, and were brought by its agent to the office of the clerk of this court on that, day, between the hours of four and five p. m. The office, however, was locked and no one was there found, as under the rules it is closed to business at four o’clock on Saturday afternoons. Thus failing,, no further effort was made to find the clerk, or any of the deputies, so as to lodge the petition in the office in time, and it was not filed until Monday, October 26.
The language of the statute leaves no room for construction as to the time of commencing a proceeding to reverse the order or judgment of an inferior court. No such proceeding shall be commenced unless within one year after the rendition of the judgment. Granting that there might be a case where, the plaintiff having exercised the utmost diligence, excuse could be found in law for his failure to procure his suit to be commenced within the time fixed by the statute, we must hold that this case is not such a one.
The rule of the office to close at four o’clock on one day of the week is not an unreasonable one, and of itself affords no excuse for failure to file the case in time. . The plaintiff in error waited until the afternoon of the last day, and then, finding the clerk’s office closed, as was usual, made no further attempt to remedy the result of his tardiness.
The motion to dismiss is allowed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Clank A. Smith, J. :
On November 16, 1896, H. L. Sturgeon was indebted to the Citizens’ State Bank of Sterling, Kansas, in the sum of $856.33, and gave his note therefor, due on or before April 1, 1897. To secure its payment he gave the bank a chattel mortgage on 12,000 bushels of corn, a portion of which was described as having been gathered and cribbed, the remainder to be gathered and cribbed on lot 280 on Broadway, Sterling, Kan. This chattel mortgage was filed for record in the office of the register of deeds of Rice county, Kansas, where the parties resided and the mortgaged property was located, on the day following its execution.
On October 26, 1897, a renewal affidavit in regular form, made by Thomas Atkinson, the cashier of the bank, was filed in the office of the register of deeds of said county. This affidavit was made before Curtis A. Stubbs, a notary public, who, at the time, was assistant cashier and a stockholder of the bank.
Lots 280 and 282 on Broadway are in the same block, and being in the same enclosure they are evidently contiguous. The corn in controversy was cribbed on lot 282 and not 280, as described in the mortgage ; there was no corn cribbed on lot 280. There is also some question as to the particular tract of land upon which the corn was raised. We have examined the evidence with much care and conclude that the mortgage is not void for uncertainty of description of the property. It seems quite possible that a third person, having the description given in the chattel mortgages, could, by the aid of such inquiries as the chattel mortgage itself- suggests, identify the corn which was mortgaged. (Mills v. Kansas Lumber Co., 26 Kan. 374 )
A portion of the corn cribbed on said lot 282 was shelled by Sturgeon and sold to plaintiffs in error about September 1, 1898. This action was brought in the district court of Rice county by the bank to recover from them for so much of the value of the corn as would pay the amount remaining due on the note given by Sturgeon. After one mistrial and a second trial that resulted in a judgment in favor of the plaintiff in error, which was reversed by this court (66 Kan. 761, 71 Pac. 1125), a third trial resulted in a judgment in favor of the bank. The defendants bring the case here again for review.
The plaintiffs in error in their brief make twenty assignments of error, but urge only a few of them. The first and most difficult question presented is, Was the renewal affidavit void by reason of the fact that the notary public who administered the oath was at the time an officer and stockholder of the mortgagee? It is a question upon which the authorities differ. Some, by analogy at least, hold it void ; others that it is voidable only. Some reason that such act of an officer interested would be void or voidable accordingly as the transaction is or is not tainted with fraud or undue advantage taken. That one who is of counsel, or is related to either party, or is otherwise interested in the event of an action, should be barred, even in the absence of our statutory provision, is too evident for discussion. Administering the oath to one making an affidavit in a judicial proceeding, by an officer interested in establishing the facts sworn to, especially as the officer may also write the affidavit, apparently gives opportunity for undue advantage, and the act savors more of a judicial proceeding.
In the case at bar, the statute, by implication, makes the filing of the chattel mortgage or a copy of it in the office of the register of deeds of the proper county notice of the right of the mortgagee for the period of one year from the date of the mortgage, and if within thirty days prior to the expiration of the year an affidavit be filed setting forth the required facts such notice is, by implication, extended for another year. The affidavit proves no fact upon which any tribunal or person has to pass ; in fact, it expressly provides, differing from most other records, that a duly certified copy of the same shall be received as evidence of no other fact except that “such affidavit was received and filed according to the indorsement.” It simply allows the warning to creditors, subsequent purchasers and mortgagees to stand for another year. It is not apparent how any one other than the mortgagee could be prejudiced even by a false statement in the affidavit, unless it should state an exaggerated or fictitious amount due on the mortgage, to shield the property of the debtor from the other creditors who might look to it to satisfy their claims. If such a case should arise a remedy could be found.
The instrument in question is “ a written declaration under oath, made without notice to the adverse party.” (Gen. Stat. 1901, §4739.) It was sworn to before an officer authorized by law to administer oaths. It states the facts required by statute to be stated in a renewal affidavit. It is sufficient in all respects to continue the life and notice of the mortgage lien unless it is absolutely void by reason of the interest of the ’ notary public who administered the oath. The weight of authority seems to be that it is not void, but only voidable. In Swearingen v. Howser, 37 Kan. 126, 14 Pac. 436, an affidavit in a judicial proceeding sworn to before a notary public who was the attorney of record of the affiant in the proceeding was held to be, at most, only voidable, and the reasons for holding the affidavit void in that case seem much stronger than in this.
The case of Wills v. Wood, 28 Kan. 400, 411, is not in point. It decided that an interested party was incompetent to take an acknowledgment to a conveyance of an estate, it being a gwcm-j udieial proceeding. In such case the officer conclusively determines and certifies to a fact, and his certificate of the same is taken as evidence thereof the civilized world over. The case of Wills v. Wood was decided before that of Swearingen v. Howser, supra, yet it was not mentioned in the latter case, as it probably would have been if this court had considered it conflicting, or that it needed to be distinguished. In this case the notary public simply administered the oath and certified to that fact. He determined nothing. His act was purely ministerial, and, at most, only voidable, by reason of his interest. We do not decide that it was voidable even.
The other assignments of error do not present any unsettled questions of law. The court did not err in overruling the demurrer to plaintiff's evidence, nor in admitting or excluding evidence, nor in giving or refusing to give instructions.
The judgment of the district is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J. :
This action was brought by C. C. Straughan against the Queen Insurance Company of America to recover a loss by fire on a policy for $1700 issued to plaintiff by defendant. The trial was before the court and a jury, resulting in a verdict and judgment for plaintiff in the sum of $1500.
The policy of insurance sued upon was issued to plaintiff on the 26th day of February, 1901, through P. L. Snyder, defendant’s local agent at Arkansas City, where the property was situated. The policy insured plaintiff against loss by fire; on his dwelling in the sum of $1200, and on walks, fences and trees in the sum of $500. Concurrent insurance was permitted on the dwelling. At the time of the loss by fire, March 12, 1901, there was upon the dwelling concurrent insurance in the sum of $1300 in the Providence Washington Insurance Company, placed thereon February 26, 1901, by said P. L. Snyder, who was also the local agent of said company at Arkansas City.
The dwelling was vacant at the time the fire occurred. The policy sued upon contained a clause providing, in substance, that the policy should be void if the building insured thereby be or become vacant or unoccupied and so remain for a period of ten days, unless otherwise provided by agreement indorsed on the policy. On the part of plaintiff it was claimed that this provision of the policy had been waived by defendant, through its agent, Snyder, who had actual knowledge at the time the policy was issued that the house was vacant; that on the 7th day of March, less than ten days from the date of the issuing of the policy, plaintiff had requested the agent, Snyder, to indorse upon the policy a permit to make repairs, and also a permit for thirty days’ vacancy of the building ; that the agent, Snyder, stated at the time that he would place such indorsements upon the policy ; that he did on said day place an indorsement upon the policy giving to plaintiff the right to make repairs, but omitted to add the vacancy clause, of which omission plaintiff had no knowledge until after the fire, and that defendant, through its agent, Snyder, had thereby waived the placing of an indorsement of a vacancy clause upon the policy. Defendant denied a waiver, and denied the authority of the agent, Snyder, to make such waiver, there being a clause in the policy to the effect that no agent or officer of the company could waive any of the provisions of the policy otherwise than in writing indorsed thereon.
Snyder was the agent of defendant, with authority to issue and countersign policies of insurance and collect premiums, and occasionally he adjusted losses. Such an agent may waive the conditions of a policy otherwise than in writing indorsed thereon. (Am. Cent. Ins. Co. v. McLanathan, 11 Kan. 533; Insurance Co. v. Barnes, 41 id. 161, 2 Pac. 165; Insurance Co. v. Gray, 43 id. 497, 23 Pac. 637; Insurance Co. v. McCarthy, 69 id. 555, 77 Pac. 90.)
Upon the trial plaintiff, with reference to the vacancy of the dwelling, testified to the state of facts, claimed by him as a waiver. Snyder, the former agent of defendant, testified to the same facts, and gave as his reason for not indorsing a vacancy clause upon the policy that he did not think it necessary to do so, because he knew the premises were vacant at the time the policy was issued and at the time the indorsement was requested by plaintiff. This knowledge of the agent was knowledge of the company. (Insurance Co. v. Bank of Pleasanton, 50 Kan. 449, 31 Pac. 1069.) The verdict of the jury was a finding that the insurance company had waived the indorsement of a vacancy clause upon the policy, and we think there was sufficient evidence to justify this finding.
Plaintiff in error cites Insurance Co. v. Russell, 65 Kan. 373, 69 Pac. 345, 58 L. R. A. 234, and contends that it denies the right of defendant in error to recover. That case is not in point. There the policy contained a provision that it should be void if the buildings be or become vacant. The build ings insured became vacant and unoccupied, and continued so for a period of twelve days, without the knowledge or consent of the insurance company, but were reoccupied before the loss occurred. The question of waiver did not arise, and the point decided was that a policy of insurance containing such a provision became forfeited immediately upon the vacancy of the buildings without the knowledge and consent of the company, and that the reoccupancy of the buildings did not operate to revive the policy.
The next objection of the insurance company is that the proof of loss did not conform to the requirements of the policy. The plaintiff contends that the proof of loss had been waived by the agent of the. insurance company. It is well settled that an insurance company may waive its right to notice and proof of loss, and that such a waiver may be made by its agent. (Insurance Co. v. Munger, 49 Kan. 178, 30 Pac. 120.) If the proof of loss was insufficient, thei'e was evidence before the jury that its sufficiency had been waived by the agent of the insurance company, and the verdict of the jury renders further consideration of this matter unnecessary.
The contention of the insurance company that there had been no arbitration to ascertain the amount of the loss before the commencement of this action is also concluded by the verdict of the jury. There is much evidence in the record tending to show that the loss was a total one within the rule announced in Insurance Co. v. Heckman, 64 Kan. 388, 67 Pac. 879, in which event there was nothing to arbitrate, and there is also evidence that, if the insurance company ever demanded arbitration, it was subsequently waived by the company through its agent, Snyder.
The instructions given by the court fairly state the law applicable to the case, and no error was committed in refusing to give the instructions requested by the defendant. Nor do we find any prejudicial error in the rulings on evidence.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The city court of Wichita is given the same jurisdiction, with an increase as to amount, that is conferred by law on justices of the peace. (Laws 1899, ch. 130.) By express statutory provision jurisdiction is denied to justices of the peace “in actions on contracts for real estate.” (Gen. Stat. 1901, §5235.)
The court below dismissed the case because in its judgment the bill of particulars disclosed that it came within the class of actions over which a justice of the peace was prohibited from taking cognizance. If the action was one “on a contract for real estate” the court below was right. If not, its ruling must be reversed. A reading of the bill of particulars, epitomized in the statement, will show that the contract for the purchase of the real estate was at an end before Fry brought his action in the city court. It was terminated for several reasons, principally on account of the failure of plaintiff below to borrow $600 or $700 by mortgage on the property, which was a condition precedent to a purchase of the real estate under the contract. -While plaintiff below was under the necessity of proving the contract, to make out a cause of action in his favor, yet the action was not founded thereon, but was collateral and incidental to it.
It has been held in an action of forcible entry and detainer, which is possessory merely, that the title to. real estate is not involved, although proof of title may. be incidentally offered in support of the claim of pos-, session. (McClain v. Jones, 60 Kan. 639, 57 Pac. 500.) Such actions often require that the plaintiff introduce a complete chain of title for the purpose of showing a wrongful possession by the defendant. Proof of this kind and the judgment in such cases do not establish a link in the chain of title. (Armour v. Howe, 62 Kan. 587, 64 Pac. 42.)
In Duff v. Morrison, 44 Kan. 562, 24 Pac. 1105, real estate was sold under a contract, and in it the grantor. agreed to pay the costs of transferring the title, consisting of an abstract and recording fees. In a suit against him, brought by the grantee to recover such costs, it was held that a justice of the peace had jurisdiction of the action. The court commented on the fact that a contract for the purchase and sale of real estate was connected with the cause of action, but that everything relating to the purchase and sale had been completed except payment of the costs. So, in this case, nothing remained to be done after Ery failed to obtain a loan on the property except the repayment to him of the $300 by defendants in error. Plaintiff below in this action sought neither to rescind the contract nor to enforce it. By its express terms, its validity and existence depended on Pry’s obtaining the loan above mentioned.
The following cases sustain the right of a justice of the peace to take jurisdiction in such actions : Schroeder v. Wittram, 66 Cal. 636, 6 Pac. 737; Mushrush v. Devereaux, 20 Neb. 49, 28 N. W. 847; Campbell v. McClure, 45 id. 608; 63 N. W. 920; Lorius v. Abbott, 49 id. 214, 68 N. W. 486; Benton v. Marshall, 47 Ark. 241, 1 S. W. 201; Newell et al. v. Long-Bell Lumber Co., 78 Pac. (Okla.) 104.
The judgment of the district court is reversed, with directions to set aside the order of dismissal and proceed with the trial of the cause.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J.:
This is an action brought by Matilda Bowers in the district court of Pottawatomie county against her husband, William Howard Bowers, for a divorce and a division of property. When plaintiff rested her case a demurrer was interposed on the ground that the evidence introduced proved no cause of action in favor of plaintiff and against defendant. The court sustained the demurrer'as against plaintiff's claim for a divorce. Subsequently the court heard further testimony, and entered judgment making an equal division between the parties of a 240-acre tract of land owned by defendant. Defendant complains of the proceedings of the trial court subsequent to sustaining the demurrer, and asks a reversal of the judgment.
It is urged by defendant that the proceedings of the court in taking testimony in the matter of a division of property, after having sustained a demurrer to the evidence, was unauthorized ; that the court had lost jurisdiction to proceed with a further hearing of the case. It is further urged by defendant that whether the allowance to plaintiff be designated alimony, or a division of property, it was error to grant it; that since by statute (Gen. Stat. 1901, § 5144) the grounds for which alimony may be awarded are the same as the grounds for which the court may grant a divorce, the decision of the court in sustaining the demurrer to plaintiff’s evidence constituted a finding by the court that no grounds had been proved for which alimony could be awarded plaintiff. It is also urged by defendant that the statute contemplates a división of property only when both plaintiff and defendant are in equal wrong, and a divorce for that reason is refused; and that, the testimony of defendant not having been heard, the court could not find that defendant was in the wrong.
The petition of plaintiff contained two causes of action, one charging gross neglect of duty, and one charging extreme cruelty. No claim was • therein made for permanent alimony. There was, however, an averment that plaintiff was entitled to an equal division of defendant’s property. A request for. an equal division of the property of defendant is found in the prayer for relief. Defendant asked no affirmative relief. In his answer defendant denied that he had been guilty of neglect of duty, or extreme cruelty, as charged by plaintiff; averred that prior to the commencement of the action there had been a division of the property ; alleged numerous shortcomings on the part of plaintiff, but averred his willingness to support and maintain plaintiff in such comfort as her health demanded.
Upon the trial it was admitted that prior to the commencement of the action the property, aside from the 240-acre tract, had been divided between plaintiff and defendant. The tract in controversy was the joint accumulation of plaintiff and defendant since their marriage.
An examination of the record discloses that the court, while sustaining the demurrer to plaintiff’s evidence, sustained the»same only upon the matter of granting a divorce, and retained the case for further hearing upon the question of a division of the property. Upon the matter of a further hearing the journal entry reads :
“And thereupon, for the purpose of considering the evidence already introduced, and the admissions made by the parties in reference to the property of the parties, and also such other evidence as the parties might produce to the court, the court adjourned the further hearing of-said cause until September 16, 1902.”
Subsequently a further hearing of the case was had, at which defendant appeared with counsel and gave testimony, and additional testimony was offered by plaintiff. At the conclusion of the trial the court en-entered judgment for an equal division of the 240-acre tract between plaintiff and defendant, and appointed commissioners to make the division, as in an action of partition.
- As has been observed, the petition involved an application for divorce, and, in addition thereto, an ap plication for a division of defendant’s property. The demurrer to plaintiff’s evidence raised the question of the sufficiency of the evidence to grant the relief asked by plaintiff in her petition. While it was the duty of the court to apply the challenge of the sufficiency of the evidence to both of plaintiff’s claims, it was within the province of the court to apply it to each claim separately, if under the statute plaintiff was entitled to claim a division of defendant’s property.
So much of section 5136 of the General Statutes of 1901 as provides for a division of property reads :
“When the parties appear to be in equal wrong, the court may in its discretion refuse to grant a divorce, and in any such case or in any other case where a divorce is refused, the court may for good cause shown make such order as may be proper for the custody, maintenance and education of the children, and for the control and equitable division and disposition of the property of the parties, or of either of them, as may be proper, equitable, and just.’’
It is clear that under said section 5136, in any case where a divorce is refused, the court is authorized to make such order as may be proper for the control and equitable division of the property of the parties, or the property of either of them. Nor is there in this section a conflict with the provisions of section 5144 of the statute, which provides that alimony shall be awarded for the same causes for which a divorce may be granted. In enacting the two sections the legislature undoubtedly had in view the distinction recognized between alimony and an equitable division of property. The principal distinction appears to be that alimony has for its basis maintenance only, while a division of property has for its basis the giving to each party the portion of the property justly and equitably due, without regard necessarily to the necessities of the case.
The record does not contain the testimony produced by plaintiff prior to'the sustaining of the demurrer to the evidence, which from the record it appears the court considered in making a division of the property. We cannot therefore review the testimony. We must presume-that it warranted the court in making an. equal division between plaintiff and defendant of the 240-acre tract of land, and that the court did not abuse its discretionary powers in doing so.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
This proceeding is brought to review a judgment for defendant rendered in an action brought to recover $126 as commission for a sale of real estate. The defense was that the amount of the commission had been submitted to arbitration and had been fixed at twenty-five dollars by an award that was conclusive upon the parties. The fact of the submission to arbitration was admitted, but it was contended that the award was void because it had been joined in by only two of the three arbitrators chosen, without the concurrence of the third. The case was tried without a jury. The trial court held that under the circumstances shown the award was binding, and the correctness of this ruling is the only question here presented.
The agreement for arbitration was made without reference to the statute. There was a singular confusion in the evidence as to its precise terms, and as to exactly what was done under it; but there was some evidence, and it may be deemed to have been found by the court, that the controversy was left to the decision of two arbitrators, with the understanding that if they could not agree they should select a third to act with them, and that the two first named failed to agree, and for that reason called in a third who, with one of those originally chosen, made the award. It is the general rule that where a dispute is submitted by private agreement to a stated number of arbitrators all must join in the award to give it effect. (2 A. & E. Encycl. of L., 2d ed., 645; 3 Cyc. 651; 4 Cent. Dig. c. 156.) But it is, of course, competent for the parties to agree that a decision by a majority shall be valid, and such an agreement may be inferred from circumstances; and it is justly held that an arrangement for two arbitrators named by the parties to select á third only in the event that these two cannot agree necessarily implies an understanding that a determination made by the third or special arbitrator and either of the two others shall be binding.
“Although the agreement to submit to arbitration does not specifically provide for a decision of the majority, such authority may have been intended to be conferred, and this intention is to be inferred from a provision for the selection of a special arbitrator who is authorized to act only upon disagreement of those originally appointed.” (3 Cyc. 653.)
See, also, Morse on Arbitration and Award, 163; 4 Cent. Dig. cc. 171-174; Broadway Insurance Co. v. Doying, 55 N. J. L. 569, 27 Atl. 927; Doyle v. Patterson, 84 Va. 800, 6 S. E. 138.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J. :
In January, 1902, John Bond died testate at his late residence in Washington county, Kansas, leaving an estate to be administered. His last will and testament was duly admitted to probate in Washington county, and James R. Bond and Allen W. Bond, sons of the testator, were appointed executors. They qualified and entered upon the discharge of their duty. Subsequently Allen W. Bond resigned, and James R. Bond continued as sole executor. In February, 1908, Emaline Graves and Arabell McLeod, daughters of the testator and legatees under the will, became dissatisfied with the executor’s • administration of the affairs of the estate, and filed in the probate court their joint petition, asking that the executor be discharged and removed. A hearing was had before the probate court. The application of the petitioners was denied. From this decision proceedings in appeal to the district court were regularly taken within the prescribed time. In the district court the executor moved to dismiss the appeal, on the ground that the statute made no provision for an appeal in proceedings to discharge or remove an executor. The motion was sustained, the appeal dismissed, and the costs assessed to the petitioners.
The jurisdiction of this court to review the judg ment of the district court is challenged. It is claimed that the jurisdiction of the supreme court to review civil actions, as fixed by statute (Gen. Stat. 1901, § 5019), precludes a review of this case. The reasons assigned are that it is not shown by the record, or otherwise, that the amount in controversy, exclusive of costs, exceeds $100; that there is no certificate of the trial judge that the case belongs to the excepted classes ; and, further, that the case does not belong to the excepted classes. This challenge to the jurisdiction gives rise to the following inquiries : (1) What, cases does the statute give the supreme court jurisdiction to review on error? (2) What are the excepted cases ? Section 5019 reads :
“The supreme court may reverse, vacate and modify a judgment of a district court or other court of record, except a probate court for errors appearing on the record ; and in the reversal of such judgment or order may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof. The supreme court may also reverse, vacate or modify any of the following orders of a district court or other court of record, or a judge thereof, except a probate court: 1. A final order. 2. An order that grants or refpses a continuance ; discharges, vacates or modifies a provisional remedy ; that grants, refuses, vacates or modifies an injunction ; that grants or refuses a new trial; or that confirms or refuses to confirm the report of a referee, or that sustains or overrules a demurrer. 3. An order that involves the merits of an action or some part thereof, but shall have no jurisdiction unless the amount or value in controversy exclusive of costs in civil actions exceeds $100, and in misdemeanors. And in cases involving the tax or revenue laws, or the title to real estate, or an action for damages in which slander, libel, malicious prosecution or false imprisonment is declared upon, or the constitution of this state, or the constitution, laws or treaties of the United States, and when the judge of the district or superior court trying any case involving less than $100 shall certify to the supreme court that the case is one belonging to the excepted classes.”
Observing the well-known rules for the construction of statutes, it is plain, from the arrangement of the subdivision of section 5019, and from a careful reading and analysis of the language used, that it was the intention of the legislature to extend and give to the supreme court jurisdiction to review cases such as proceedings in divorce, the removal of one from office, and all controversies involving personal rights or status, and all those matters mentioned in said section, except where limitations are imposed by subdivision 3. Subdivision 3 was designed to relate to cases susceptible of a money valuation. It was evidently the intention of the legislature, by subdivision 3, to place a limitation on the right of the supreme court to review cases susceptible of a money valuation only when the amount in controversy, exclusive of costs, should be less than $100. Subdivision 3 provides, however, for a review by the supreme court of certain cases where the amount involved, exclusive of costs, is less than $100. These excepted cases are therein specifically enumerated, as follow:
! ‘ Cases involving the tax or revenue laws, or the title to real estate, or an action for damages in which slander, libel, malicious prosecution or false imprisonment is declared upon, or the constitution of this state, or the constitution, laws or treaties of the United States.”
These specially enumerated cases, where the amount involved, exclusive of costs, is less than $100, are not reviewable by the supreme court unless the trial judge shall certify to the supreme court that they belong to the enumerated and excepted class.
Returning to the case on its merits, appellate courts have such jurisdiction on appeal as is provided by the statute. The right to an appeal from the probate court to the district court and the grounds for which appeals may be taken are found in section 2994, General Statutes of 1901. Among other grounds therein provided for which an appeal may be taken to the district court is that found in subdivision 9, which reads: “On orders revoking letters testamentary or of administration.”
No express provision is made by statute for an appeal from the probate court to the district court on orders refusing to revoke letters testamentary or of administration. When the legislature in express terms provided for an appeal on orders revoking letters testamentary, or of administration there was then before it for consideration the whole matter of the effect of revoking, and refusing to revoke, such letters. It was seen fit, in express terms, to give the right of appeal to the executor or administrator when his letters were revoked. No such provision for appeal, in express terms, having been given in cases where the probate court, upon application, refuses to revoke letters testamentary or of administration, it must be assumed that the legislature deemed it best that such proceeding should be final with the probate court. The statute provides no appeal to the district court from an order of the probate court refusing, upon application, to revoke letters testamentary or of administration.
The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
The defendant in error moves to dismiss this proceeding because there is here no legal case-made, the same not having been served in time.
The time was extended to August 10,1903. This required the service to be made before the expiration of the 9th of August. (Croco v. Hille, 66 Kan. 512, 72 Pac. 208; The State v. Dyck, 68 id. 558, 75 Pac. 488; Maynes v. Gray, 69 id. 49, 76 Pac. 443.)
However, August 9,1903, fell on Sunday, and it is urged that the time for service was thereby extended by virtue of section 722 of the code of civil procedure (Gen. Stat. 1901, §5218), which reads as follows :
“'The time within which an act is to be done shall be computed by excluding the first day and including the last; if the last day be Sunday, it shall be excluded.”
It was held in Croco v. Hille, supra, that this section did not apply to a case like this, and that the time of service was not thereby extended. We see no reason for changing the rule there laid down.
Finding ourselves without jurisdiction, we are compelled to dismiss this proceeding. | [
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The opinion of the court was delivered by
Cunningham, J. :
This is an original proceeding in this court. The petitioner seeks by a writ of habeas corpus to be discharged from an alleged illegal detention at the hands of A. R. Jessup, sheriff of Finney county. The agreed statement of facts, upon which the case is submitted, shows that the petitioner was informed against in the district court of Hamilton county for a felony. Upon the request of the petitioner the venue was changed to Finney county, where he was convicted, on the 12th day of June, 1903, of a misdemeanor, and was,'on the 8th of July, sentenced by the court to pay a fine of $250 and the costs of the action, and to stand committed to the jail of Finney county until the fine and costs should be paid. Several orders suspending and staying the judgment were made pending the preparation of the bill of exceptions. On the 27th of November, 1903, an order of commitment to the jail of Finney county was issued, no part of the judgment or costs having been paid. On the 28th of November, the petitioner came in person and by his attorneys before the Honorable William Easton •Hutchison, judge of the Finney county district court, at his chambers, and made an application for an order directing that the order of commitment issued out of the district court of Finney county be changed so as to direct that the petitioner be imprisoned in the jail of Hamilton county. This request to the judge was made in writing, and expressly waived the question of the regularity of the making of such an order, and fully consented to the same. Thereupon the following order was made :
“Upon said application’s being made to me, it is hereby ordered that said defendant, M. W. Rex, be transferred to the jail of Hamilton county, Kansas, and that a recommitment of said defendant to the jail of Hamilton county issue herein.
William Easton Hutchison, Judge.
“All objections and exceptions to the foregoing order are hereby waived.
M. W. Rex, Defendant.
G. L. Miller and M. W. Sutton,
Attorneys for Defendant.”
Thereupon an order directed to the sheriff of Hamilton county was issued by the clerk of the district court of Finney county, commanding him to commit the petitioner to the jail of Hamilton county, there to remain until the judgment of the court was complied with. On January 30, 1904, an execution was issued, regular in form, by the clerk of the district court of Finney county to the sheriff of Hamilton county, commanding him to levy upon the goods and chattels of the petitioner, and therefrom to make the amount of the fine and costs assessed against him. This execution, having come to the hands of the sheriff of Hamilton county, was levied by him upon eighty acres of land belonging to petitioner. After due advertisement this land was sold for a sum sufficient to pay the fine and costs assessed against Rex, and the money was paid to the sheriff. Thereupon Rex was discharged from custody by the sheriff of Hamilton county. Afterward, a return of this order of sale having been made, Rex filed in the district court of Finney county a motion to set aside the sale, on the ground that the land sold was his homestead and exempt from seizure and sale. This motion was sus tained, the sale set aside, and the money returned to the purchaser. The same day, and after this orddr was made, the court directed the issuance of an order of commitment by the clerk of the district court of Finney county, commanding the sheriff of that county to take into custody the petitioner, and so hold him until the fine and costs assessed against him should be paid. This the sheriff did, and this is the imprisonment from which the petitioner seeks to be discharged.
At the time of the levy upon the eighty acres in Hamilton county, Rex was the owner of an additional 240 acres, unencumbered, adjoining the eighty acres levied upon, of which, after the sale and before it was set aside, he sold 160 acres.
The principal contention of the petitioner is that the original judgment of the court, directing the commitment to the jail of Finney county, was subsequently changed by the order made by the judge at chambers upon the application of the petitioner ; that this order was, in effect, the changing of the judgment of the court as to the place where the imprisonment should occur, and, having been made within the term at which the judgment was rendered, was effectual and valid; that the qourt, after the adjournment of the term, lost jurisdiction to make further order in respect to this matter, and, therefore, that the order of commitment issued on the 8th of July, 1903, being the one under which petitioner is now detained, was without authority and void, and, hence, ineffectual as authority for his detention in the jail of Finney county. The infirmity in this claim appears from two considerations :
First, section 251 of the code of criminal procedure (Gen. Stat. 1901, §5696) provides that “when the defendant is adjudged to pay any fine and costs, the court shall order him to be committed to the jail of the county until the same are paid.” This would seem to limit the authority of the court in the matter of its judgments and orders, in respect to imprisonment in such cases, to the jail of the county where the defendant was tried and found guilty. If so, the order of the judge made at chambers directing the commitment of the petitioner to the jail of Hamilton county, if otherwise valid, would have been void because directly against the provisions of the statute.
Second, the order made by the judge at chambers was clearly invalid. He was without jurisdiction in that capacity to make it. More than this, it did not even purport to be a change of the judgment originally rendered in the case. The original judgment duly made by the court while in session directed the imprisonment of the petitioner in the jail of Finney county. This judgment was never changed, or attempted to be changed. The fact that the judge at his chambers, while not sitting as a court, made an order at the solicitation of the petitioner, under which the clerk issued an order for his commitment directed to the sheriff of Hamilton county, nowise interfered with, or operated to change, the judgment of the court. The order of commitment to Hamilton county was issued without authority. It was made at petitioner’s solicitation, and his acquiescence therein was wholly voluntary. It had no authoritative effect on any one. Thereafter, when the last order directing the commitment of the petitioner to the jail of Finney county was made, no part of the fine and costs having been paid, the judgment remained in full force and effect, and such order and commitment were in all respects valid.
Again, it is suggested by the petitioner that inasmuch as there were 240 acres of land without encum brance belonging to the petitioner at the time the execution came to the hands of the sheriff of Hamilton county, the judgment became a lien upon this land, and it became the duty of the sheriff to' levy the writ upon the portion of the land that was not exempt ; and the sheriff, having failed to do this, could have been amerced in the amount of this execution, and, therefore, the state having had the right thus to proceed, and to make the amount of the fine and costs, it is in effect a payment of the same, and entitles the petitioner to his discharge. Such is not the law.
The writ is denied, and the petitioner remanded to the custody of the sheriff of Finney county.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
The plaintiff sued on a contract to recover a commission for selling real estate belonging to the defendant. At the conclusion of his evidence the court instructed the jury to find for the defendant. Upon a verdict thus returned judgment was rendered, and plaintiff prosecutes error.
The giving of this instruction is the only error of which complaint is made. The evidence introduced tended to show that plaintiff had a cause of action against the defendant growing out of the sale of defendant’s real estate, but it was not the cause of action pleaded. Presumably it was upon this theory that the court instructed the jury.
It appears that plaintiff was a real-estate broker, and that defendant placed his farm with him for sale and agreed to pay him two and one-half per cent. commission in case of a sale ; that plaintiff found a purchaser who was ready and willing to buy ; that he brought the purchaser and defendant together and they came to an agreement. Pending negotiations, however, the defendant refused to accept the offer made unless the purchaser would agree to pay plaintiff his commission. After some further negotiations between the parties the purchaser agreed that if the trade should be consummated he would pay the plaintiff the commission. The terms of the sale were reduced to writing and signed by both parties. Nothing, however, appears in this agreement concerning the commission. The defendant thereafter refused to execute a deed, and gave as his reason that his wife would not sign it. The plaintiff was thereby deprived of the compensation he had earned. It would thus appear that the plaintiff’s right of action was not on his original contract for commission upon which he sued, but for a violation of this tripartite agreement. The plaintiff failed to sustain the cause of action pleaded, and therefore the instruction was correct.
The judgment is affirmed.
All the Justices concurring. | [
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Per Ouriam:
This is an action brought by the First National Bank of Concordia to recover of D. Pinney on a promissory note for $144, payable to the order of W. S. James and indorsed to plaintiff. Defendant answered that the note was given for the exclusive right to manufacture, use and sell for use a patent invention in a specified territory in the state for a period of two years; that there was not inserted in the note the words “given for apatent right,” as provided by the statutory act regulating the sale of patent rights; that plaintiff acquired the note knowing that it was given for an alleged patent right, and knowing all the circumstances under which it was given. To this answer of defendant a demurrer was interposed by plaintiff, which was sustained by the court. Defendant elected to stand upon his answer, and judgment was rendered for plaintiff. Defendant assigns error to the ruling of the court in sustaining plaintiff’s demurrer. This case involves the identical questions involved in Pinney v. Bank, 68 Kan. 223, 75 Pac. 119. The decision in that case is decisive of this one. For the reasons there stated the demurrer to the answer should have been overruled. The judgment of the district court is reversed, with direction to overrule the demurrer and proceed with the cause. | [
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The opinion of the court was delivered by
Clark A. Smith, J.:
This action was commenced by the defendant in error against the plaintiff in error before a justice of the peace, on a bill of particulars, in which he alleged, in substance, that he was the owner of two large ricks of unthrashed wheat standing on a described quarter-section of land, and of the value of $215 ; that on the 16th day of August, 1901, the defendant negligently and carelessly set fire to some wheat stubble on the ground on which the ricks were standing and caused them to be burned and consumed, to the damage of plaintiff in the sum of $215, for which amount he prayed judgment. No pleading was filed on behalf of defendant. The case was tried to a jury and judgment was rendered for defendant. An appeal was taken to the district court of Sumner county, and a trial therein resulted in a judgment in favor of the plaintiff. The defendant brings the case to this court for review.
Our attention is not called to any alleged error in the introduction of evidence on the trial and no exception was saved to-the giving of, or refusal to give, any instruction. Hence it is necessary only to ascertain where there was error in denying the motion for a new trial.
In the absence of any showing of the facts upon which some of the grounds of the motion were based, and in the absence of any exception to any ruling of the court made in the progress of the trial, only one error alleged in the motion is, or could be, insisted on — that the verdict of the jury was not sustained by sufficient evidence. This ground is not well taken. There was evidence that the ricks of wheat stood in a field covered with high wheat stubble; that the only precaution the defendant took to keep the fire from them was to plow once around each stack with a gang-plow, which consists of two plows operated together on a frame supported by wheels; that by reason of the hardness of the soil and the fact that the plows were gauged to run in the ground a proper depth when one wheel was down in a furrow, and that in passing around the ricks the wheel was not in a furrow, the plows at times only scratched the surface and hardly separated the dense stubble. If the jury believed this evidence they were justified in finding that it was negligence per se to set fire to the stubble in proximity to the stacks.
Again, it is contended that the evidence did not show that plaintiff owned the ricks of wheat burned, nor identify them with the ricks which were described in the bill of particulars as standing on a particular quarter-section of land. The plaintiff testified that it was his wheat; that he had raised it himself on his own land, and had it cut with a header and stacked in the two ricks ; that he had rented the land on which the wheat grew to the defendant for another season. The defendant also testified about renting the land of the plaintiff and plowing the same ; and about the burning of the*ricks of wheat. There was no mistake or misunderstanding possible as to the identity of the wheat burned with the whe'at described in the bill of particulars. The particular numbers or description of the land upon which it stood were immaterial.
There was no material variance between the allegations of the bill of particulars, even regarded as a petition, and the evidence, and there was no lack of evidence upon any essential fact. The verdict was sustained by the evidence, and the motion for a new trial was properly denied.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Clark A. Smith, J. :
This was an action in ejectment. In his original petition the plaintiff described a fraction of lot 23, of block 126, in the city of Concordia, as the property to be recovered. The description was long and unusual. The answer-day,'as fixed by the summons, was May 9, 1902. The defendant, by leave of court,'on June 16, 1902, filed a disclaimer. On September 2, 1902, at the first session of the district court after the filing of the petition, the plaintiff,, by motion,tasked leave to amend his petition by striking out the word “twenty-six” and inserting the word “thirty-six” in lieu thereof, thus changing the-description of the property to a fraction of a lot in-block 186 instead of in block 126. The court allowed the motion without further evidence than the records-of the case and the motion itself, which was not verified. This is the first error complained of.’ The defendant, by her answer, had disclaimed any interest in the property as described in block 126, and there-is nothing to intimate that he had any interest in property thus described. He, so far at least as the defendant was concerned, disclaimed any interest therein by his motion.
Where no injustice is done to the prejudice of the-complaining party, there is no rule as to the exactness of evidence necessary to guide the court in the exercise of its discretion in allowing or refusing; amendments to pleadings. The subsequent proceedings in this case, at least, show that the court made-no mistake, and that the amendment was in the furtherance of justice. It is evident that the plaintiff’ brought the action to recover the lot as described in the amended petition and not as originally described. The amendment corrected a mistake and did not setup a new cause of action. The case is quite similar in this respect to K. P. Rly. Co. v. Kunkel, 17 Kan. 145, and also in that the allowance of the amendment, in each case, made the statute of limitations unavailable as a defense under circumstances where it ought not to be interposed. We cannot say that the court abused its decretion.
The second alleged error relates to the apportion ment of the sewer tax. As no evidence is brought up in the record, and as the court made no finding as to what portion, if any, of the lot in question abutted -upon the sewer, this question is not properly before •us for review.
The only other error complained of is in the adjudication of costs. Upon the only issue presented by the pleadings for trial the plaintiff recovered judgment, and the court could not do otherwise than award him ■costs. Whether any additional costs were made in adjudicating the matters not covered by the pleadings, which were determined by the request and agreement of the parties, the record does not disclose. As additional evidence must have been offered to justify the additional findings of fact and conclusions of law it is to be presumed that additional costs were incurred, which the defendant should recover.
The cause is remanded, with instructions to apportion the costs in accordance with the views herein expressed. (Longworth v. Johnson, 66 Kan. 193, 71 Pac. 259.) In all other respects the judgment is affirmed. The costs of this court are divided equally.
All the Justices concurring. | [
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The opinion of the court was delivered by
William R. Smith, J. :
This was an action brought by the Hailwood Cash Register Company to recover from Frederick Schroeder and John 0. Dailey, as partners, the amount of eighteen promissory notes of ten dollars each, with interest, executed by the latter to plaintiff in error, as part of the purchase-price of a cash register. Five additional notes were given and paid. Defendant Daily answered alleging that there were defects in the cash register which rendered it useless for the purpose for which it was bought, praying judgment against plaintiff below for $110, the amount paid to it before the defects were discovered. Dailey alleged that his copartnership with Schroeder had been dissolved, and that the latter had disposed of all interest in the partnership to him. Schroeder made default.
A trial by jury was had, resulting in a verdict in favor of Dailey against the cash register company for $110, on which judgment was entered. It has come here assigning error. Counsel for defendant in error ask for a dismissal of the petition in error because Schroeder was not made a party, nor was the case-made served on him. He “did not appear at the trial and take part in the proceedings,” for which reason, under section 5020, General Statutes of 1901, he was not a necessary party. (Haas v. Tough, 67 Kan. 253, 255, 72 Pac. 856.)
Two of the assignments of error relate to the refusing of twenty-two instructions requested by plaintiff below and refused by the court, and to the giving of seven instructions tendered by defendant. None of these instructions is set out in the brief of plaintiff in error. Clause 3 of rule 10 of this court requires :
“When the error alleged relates to instructions given or refused by the court or to a ruling on the sufficiency of the petition or other pleading, or of an affidavit or the construction or effect of a contract or any document, order, entry, or paper, the instructions given or refused, the pleading, contract, document, order, entry or paper shall be set out in full.”
This rule was ignored entirely by counsel for plaintiff in error, and for that reason any errors committed respecting the instructions given or refused will not be considered.
Plaintiff below contended that Dailey was in no position to refuse payment of the purchase-money notes for the reason that after he discovered the defective condition of the register he continued to use it for several months. The following particular question of fact was asked and answered by the jury:
“Ques. 2. Did the defendants keep the register and use it in their place of business after the defendant Dailey claims to have discovered that it could be manipulated to his detriment by dishonest people, and he notified the plaintiff that he would rescind the contract? Ans. Yes.”
The following questions and responses were returned by the jury with their general verdict:
“Ques. 1. When did the defendant Dailey discover that the register was not such as was ordered, if he did discover such to be a fact? Ans. We do not know.”
“Q. 3. How long did the defendants continue to use the register after the defendant Dailey claims to have discovered the defect therein, and notified the plaintiff to that effect, and that he would not pay for the register ?. A. We do not know.”
Counsel for plaintiff below requested the court to instruct the jury to return to their room and answer these questions specifically. The request was denied. In this the court erred. (Baehler v. Ranch Company, 31 Kan. 502, 3 Pac. 343.) The answer to the second question is a finding that Dailey did use the register after knowing its defects, and after notice to the seller. The time of such use was a material consideration in determining whether the conduct of defendant below amounted to a waiver of his right to interpose the defense of rescission of the contract of sale. (Cookingham v. Dusa, 41 Kan. 229, 21 Pac. 95; Aultman v. Mickey, 41 id. 348, 21 Pac. 254; Manufacturing Co. v. Moore, 46 id. 324, 26 Pac. 703; Tufts v. Mabie, 7 Kan. App. 129, 53 Pac. 84.) Answers fixing the time of use would have presented the matter sharply to the court as a question of law.
The judgment of the court below is reversed, and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The questions involved in this case we decide as follows:
I. The statutes of Kansas authorizing real estate to be appropriated to the use of a railroad company for a right of way (Gen. Stat., pp. 212 to 215, ch. 23, §§81 to 89; Laws of 1870, pp. 155, 156, §§ 1, 2,) so far as they apply to this case do not contravene the provisions of § 4, article 12, of the constitution, and are not unconstitutional or void.
II. An owner of land is not in the actual occupancy of the same within the meaning of § 49 of the act concerning private corporations, (ch. 23, Gen. Stat., p. 203,) unless he is an actual resident thereon; and where such owner is not an actual occupant of the land notice of the appropriation of a part of the same for a right of way for a railroad given by publication in a newspaper, as provided by amended § 86 of said act, (Laws of 1870, p. 155, §1,) is sufficient. See also Gen. Stat., p. 1000, § 1, subdivisions 23, 24, 25.
III. It is not necessary under § 48 of said ch. 23, concerning private corporations, that a railroad company should file with the county clerk a map and profile of the entire line of their proposed road through the county before they can apply under amended § 87 of said act, (Laws of 1870, 156, §2,) to have commissioners appointed to make an appraisement and assessment of damages to any part of the property along the line of said road. A map and profile of what the company desires to have appraised, etc., is sufficient.
IY. Such commissioners must appraise the value of the land appropriated, and assess the damages to that not appropriated, irrespective of any supposed benefits to that not appropriated. St. Joseph & Denver C. Rld. Co. v. Orr, 8 Kas., 419.
y. It is not necessary that the report of the commissioners should show upon its face more specifically what portion of any particular tract of land was appropriated or appraised, or for the taking of which damages were assessed, than to show that the land appropriated was a strip through a certain quarter-section of land (describing particularly the quarter-section,) one hundred feet wide along the line proposed by the railroad company; for such strip cannot vary from that shown by the map and profile of the company filed in-the county clerk’s office, and such map and profile make it definite and certain what land is appropriated.
VI. It is not necessary where only a strip of land one hundred feet wide is taken, that the report should show expressly that the commissioners deemed such strip necessary. ,
VII. Where the commissioners in their report use numerals only to express the valuation of the land taken, and the damages to that not taken, and where it is evident from the report that the commissioners intended that such numerals should represent dollars and cents, the report is not void because the commissioners omitted to use either the dollar-mark, or the words “dollars” and “cents,” or some abbreviation of the same.
VIII. Nor is the report void because it does not show that any crops, buildings, or improvements were valued, or damages thereto assessed, or that there were no such crops, buildings or improvements on the land to be taken or damaged by the appropriation of such right of way.
IX. Nor is the report void because it simply shows that the commissioners valued the land taken, and assessed the damages to that not taken, and does not show affirmatively that they did not deduct from the said value or damages anything for benefits to the land not taken..
We shall not discuss the several questions herein decided except the seventh. We shall however here quote the very able opinion delivered by the judge of the court below, which we think sufficiently discusses them, and which we think gives sufficient reasons for the decision of the questions therein discussed. The said opinion reads as follows .-
“The plaintiff has been the owner of the premises de“eribqd in his petition since the 4th of September 1869, and has been in possession of the same continuously from that time to the present, part of the time personally, and part of the time by tenants. They are partially improved, and have upon them a dwelling-house and two. stables. Since the 1st of May last no person has resided on them, but the plaintiff has had the key to the dwelling-house during this time, and every few days has visited them to look after and care for the same. No part has been in cultivation during the present year-
“The railroad company, with a view to obtaining the right of way for a road running westwardly from the city of Leavenworth across the premises of the plaintiff to the westexm bouxxdaxy of the county, and thence on to the city of Dexxver, in Colorado, instituted px’oceediixgs to coxxdemn such x’ight of way through this coixxxty, and claiming to have complied with the provisioxxs of the statute relating thereto, have entex-ed upon the plaintiff’s land axxd commenced to gx’ade the road. It is now claimed by the plaintiff that these proceedixigswere irregular and void; and that the defendants should be enjoined fronx constructing their road across his prenxises until a right so to do is acquired by a strict compliance with the provisioxxs of the law pertaining thereto. It is claimed the statute under which these proceedings were had is, in an essential particular, in coxxflict with the provisioxxs of the constitution, axxd therefore xnxll axxd void in whole. I caxxxiot yield assent to this proposition. The constitxxtioxi provides in substance, that xxo right of way shall be appropriated by any corporation until full compensation be made iix xnoxxey, or. secured by a deposit of money, irrespective of any beixefit from any improvement proposed by such corporation; and it is claimed that the statxxte contemplates that the benefits which may accrue from the proposed railway shall be taken into consideratioxi in the assessment of damages. It is xxnnecessary to quote the provisions of the statute bearing upon this question. It is sufficient to say that they do not in terms, or by fair implication, provide that the benefits which may accrue from the construction of the road shall be taken into consideration in determining the compensation to be made to the owner. Nor is it conceded that the statute would be void, even though the repugnance claimed by the plaintiff actually existed; but it is unnecessary to determine this question, and therefore I pass it without any fux’ther observation.
“Several Objections ax’e made to the regularity of the proceedings to condemn the right of way. Tlxe law' requires a map axxd profile of the route of the proposed road into or through, the county, to be filed with'the county clerk before commencing the construction of the road. The distance of the company’s road in this county is about eighteen miles. At the time the commissioners fo .lay off-the route and assess the damages were' appointed by the judge, (Oct. 3, 1871,) a map and profile .of only the first division of ten miles bad been made and filed with the clerk, and a map and profile of the entire distance through this county was not filed until the 9th instant, (Nov., 1871,) on which day the report of the commissioners wa$ also filed in the same office; but the plaintiff’s premises are situate within the limits of the first division. If no map and profile of that part of the road which runs across the land of the plaintiff had been filed, as the law requires, at the time the commissioners were appointed and the published notice of thirty days given, it is possible the omission would have been fatal, and the entire proceedings void as to the plaintiff. But a map and profile from the initial point for a distance extending beyond the premises of the plaintiff had been filed in due time, and this secured to the plaintiff every benefit and advantage that could possibly result from the filing of a map and profile of the remaining part of the road in this county, and • every 'purpose of the statute, so far as the plaintiff was concerned, was thereby subserved.
“It is also claimed the report of the commissioners does not state that it is necessary to take the quantity of land the company seek to appropriate, nor sufficiently show what quantity was actually condemned. As to the last point, I think it does show with reasonable certainty the quantity taken. It shows it to be a strip 100 feet in width along the line proposed by the company, which I understand as referring to the map and profile filed with the county clerk; and that it amounts to seven and 63.100 acres. This is sufficient both as a description and designation of the quantity of land taken. As to the other point, § 82, p. 211, Gen. Stat., provides: 'Upon application being so made in writing, such board of county commissioners shall forthwith proceed to lay off such route, side tracks, etc., for such distance through their said county as may be so desired-, and of such width within the limits aforesaid, and upon such location as may be desired by such corporation, having the same carefully surveyed, and ascertaining correctly the quantity of land necessary for such purposes.’ The report contains no statement that the 100 feet in width is .necessary, but I do not think the statute requires this. It says the commissioners, within the limits prescribed by law, are to lay off the route, side tracks, etc., of such width and upon such location as may be desired by the corporation; and having done this, they are then to carefully ascertain the quantity necessary to be taken. When the statute says the route shall be laid off of such width and on such location as the corporation may desire, it does not mean that the width and location of the route shall be left to the judgment of the commissioners. They are not to determine whether it is necessary or not to take the quantity of land sought to be appropriated by the company, but are to lay off the route as wide as the company may desiré, so long as the limits of the statute are not transcended. If, then, the commissioners are not to determine the necessity of taking the quantity of land desired by the company, there would be a manifest impropriety “in requiring of them a statement that there was a necessity for the quantity taken.
“Another objection to the report is, that it does not show that the damages were assessed as the law requires; that is, irrespective of any benefits which may be supposed to accrue from the construction of the road. It is true the report does not state that the commissioners, in assessing the damages, did not take into consideration the benefits which might result from the proposed road; but it does state that, having taken the oath required by law, they met at the proper time and place ‘and proceeded to lay off the route for said railroad along the line proposed by said company, and to appraise the land to be taken by said company, and assess the damages occasioned thereby;’ and that they ‘do award compensation and damages in the premises as follows, . viz.’ And- then follows a tabular statement showing the owner’s name, description and quantity of the several tracts over which the route passes, the width and quantity of the land appraised, its value, the damages assessed to each several tract, and the total compensation allowed, including therein the appraised value of the land taken, and the damage awarded the owner. The law requires the report to embrace the proceedings of the commissioners, which are, in respect to the matter now under consideration, the assessment of all proper damages occasioned by taking the right of way for the purpose proposed. The report says the damages are assessed at a certain sum stated. There is no statement or suggestion that any supposed benefits were taken into consideration. As the law expressly requires that the commissioners shall not take the accruing benefits into consideration, I think the presumption should be, that the law was obeyed by them in this respect, and therefore-that their report need not in terms state that the law was not violated in this particular.
“But a further and final objection presents a serious and difficult question to satisfactorily determine. Sec. 49, p. 203, Gen. Stat., is as follows: ‘The company shall give Avritten notice to all actual occupants of the land over Avhich the route of the road is so designated, and Avhich has not been purchased by or donated to the corporation.’ The plaintiff has not. donated or sold the right of Avay to the company, and no Avritten notice has been given him, though verbal notice of -the' route over his premises was given him by the chief engineer; but I cannot consider such a notice as sufficient under the statute, and if the plaintiff Avas an actual, occupant,of-his.-premises.within' the- scope and meaning of this proAdsion of the laiv, I should be compelled to hold the omission to give the Avritten notice fatal, and that the company acquired no right Avhatever to the right of Avay, and the plaintiff Avould be entitled to his order of injunction. It Avill be borne in mind that the premises of the plaintiff have not been in cultivation during the present year, and that Avhile the plaintiff has had the key to the dwelling-house, and every few days has vdsited his place to look after and care for it, no one has liA^ed thereon since the first of May last. The question is, is the plaintiff an ‘actual occupant’ Avithin the meaning of the section just quoted, and therefore entitled to the personal Avritten notice therein provided for? The law requires a general notice to all, to be published for thirty days, and for special reasons requires an additional personal notice •in Avriting to each actual occupant.' Noav it Avill be conceded as a general rule that the OAvner of real estate Avhich he cultivates,or improves, is to be deemed an occupant of it, although he does not reside thereon; but in my judgment the Avords ‘actual occupants,’ as used in this section, arc to be interpreted according to their more general and popular usage and acceptation. I think the Avord ‘actual’ AVas intended to qualify and explain the Avord ‘ occupants,’ and that Avhil'c the last-mentioned Avord, standing alone, might be considered as equivalent to the phrase ‘ parties in possession,’ yet as limited and qualified by the Avord ‘actual’ preceding it, it has a more restricted and popular signification. It certainly emphasizes and adds force, or rather intensity, to the idea, and it seems to me was only intended to apply to persons actually residing upon the premises at the time the notice should be given. It will be observed that the notice is not to be served upon the owner, but upon the ‘actual occupant’ wherever he may be, or whatever his right or title to the premises he is occupying; from which I think it is evident, the intention in requiring the special notice in writing to the person actually a resident upon the land over which the route runs; was to afford him an opportunity to protect his interests whatever they might be, and in case he was a mere tenant, that he could give timely information to the owner, it being supposed that if the party residing on the land was not himself the owner he would know the whereabouts of the latter. (Gen. Stat., 1000, clauses 23, 24, 25.) To hold that because land over which the route of a proposed railway passes, is improved in whole or in part, but upon which no one is residing, the railroad cpmpany must at their peril give this written notice to the person making these improvements, no matter Avhere he may be, Avould in effect substantially render the laAV ineffectual, in my judgment. Suppose he is in the military or naval service, or on a journey in a foreign country, or possibly a citizen and inhabitant of another country, must these great highways of commerce, so vital and necessary to the development and prosperity of our state, Avait on the performance of an act in many cases quite difficult, and in not a feAV impossible for months and even years? for example, a rude dwelling on the prairie, Avith perhaps a feAV acres broken up, but no inclosure, and upon AA'hich no one resides, the party far away, -or unknoAvn, etc. I cannot think the legislature have conferred on companies the right to appropriate the way for railroads upon an impossible condition. The injunction prayed for Avill be refused.”
So far as said opinion reaches, Ave agree with the district court. But it is claimed that because the commissioners did not use the dollar-mark, or the Arords “dollars” or “cents,” or some abbreviation thereof, or some other express Avord or character to show that the numerals Avhich they used in their report to express the valuation of the land taken, and the damages to that not taken, that the report is void. We do not think so. The commissioners reported among other things that they “proceeded to lay off a route for said railroad along the line proposed by said company, and to appraise the land to be taken by said company, and assess the damages occasioned thereby, and to award compensation and damages in the premises as follows, viz.: * * * Owners’ names, F. R. Hunt; description, N.E.-|- section 21, township 8, range 22; acres in tract, 160; feet in width appropriated, 100; acres appropriated, 7.63; value thereof, 572.25; damages sustained, 527.75; total value and damages, 11.00.00.” The latter part of this quotation, commencing with the words “ owners’ names,” is in tabular form. The commissioners, as will bo seen from this quotation, used the words “appraise,” “assess,” “aAvard,” “compensation,” “damages,”and “aMuc” AAdth reference to said numerals—Avords AAfhich in contemplation of laAV can have no meaning at all unless the figures they refer to are intended to represent money. In legal contemplation land cannot be assessed, appraised, or valued, nor can compensation or damages be awarded therefor, except in money. Money is the legal representativa of all other property, and is the only legal representative of other property. When any one speaks of value or damages he must mean value or damages in money, as that is the only legal measure of value or damages knoAvn to the business Avorld. This latter proposition is established not only by the laws of this country, but is also established by the universal custom and usage of all ciAdlized nations. But it may be claimed that there is nothing in this report to shoAv AArhat kind of money the commissioners intended by said numerals, Avhether American or Foreign, Avhether eagles, dollars, dimes, cents, or mills. There certainly need be no difficulty upon this point. If these numerals are intended to represent money at all, they must represent Avhatever may be legally denominated .money in this country, and nothing else. They must 'represent AArhatever the laws of the United States declare to be or recognize as money. Neither can there be any difficulty in determining Avhat denomination of money said numerals are intended to express. Dollars are the legal money-units of this country, made" so by tl\e laAArs of the United States. 1 Stat. at Large, 248, § 9; 1 Bouvier’s Law Diet., title, Dollar. Hence, Avhenever figures are used intending to represent money such figures must of course be understood to represent '“dollars,” unless a different intention is clearly expressed. The point or dot, resembling a period in punctuation, separating certain figures on the right from those on the left, is the decimal point. It makes the figures on the right decimals of a unit of whatever is intended to bo expressed by those on the left-. Those on the left as we have already seen are intended to represent dollars, hence those on the right must represent decimals of dollars. As only two figures on the right arc thus separated from the others, these two figures must represent hundredths of dollars, or in other words, •“cents.” This is well-settled by almost universal usage everywhere in the United States. It is not necessary that every word or phrase used in any instrument should be written out in full in order that the instrument shall be valid. In many cases characters, figures, symbols, signs, marks, points, or abbreviations, may be used instead of the words which they represent. Thus, the character “&” stands for •“and;” the Arabic numerals 1, 2, 3, 4, etc., stand for one, two, three, four, etc.; “ &c.” and “ etc.,” respectively stand for ■“and so forth;” “!$” for dollars; “c.,” “ct.,” “cts.,” for cent, or cents; “m.,” for mills; “It.,” for lot; “bk” for block; •“tx.,” for tax; “vl.,” for valuation; “T.,” for township; '“R.,” for range; “sec.,” for section; “qr-scc.,” for “quarter-.section,” and “ pt.,” for part, etc. (Blackwell on Tax Titles, (2 ed.) 202, and cases there cited.) We suppose that all the usual signs or symbols used in mathematics, chemistry, music, astronomy, and other sciences, the characters used for denoting certain weights and measures, the marks of punctuation, and the ordinary abbreviations used in written composition, might be used in proper cases without invalidating the instrument in which they should be used. Even in some cases whole words or whole phrases may be omitted entirely— siihply being understood—without in the least invalidating or affecting the instrument from which they are thus omitted. Scarcely anything is more common in written composition than what is termed in grammar an “ellipsis,” and yet it is seldom that an ellipsis would invalidate an instrument. The language is just as good English, and just as valid in law, as a rule, with the ellipsis as with every word and phrase written out in full. Even many of the characters, figures, signs, symbols, marks, points, and abbreviations we have mentioned are by immemorial usage just as much a part of the English language as the letters of the alphabet themselves; and just as much a part of the English language as the words formed by combinations of these letters. Even these letters are only arbitrary characters, borrowed from the Latin at not a very remote period. In our language there are many words each of which have many different significations, or shades of meaning; there are many different words which express nearly the same idea, that is, which are nearly synonymous; and there is scarcely any limit to the order or arrangement of words in a sentence. A wide and almost unlimited discretion is allowed in the use of language. All that is required isy that the language shall be intelligible. The great end and object of all language is attained when the person using the language has made himself to be perfectly understood. This we think the commissioners in their report have done. No one can read the report of the commissioners and mistake their intention.
We have been probably more elaborate upon this point than is necessary. The reason we have discussed the question at such length is because counsel for plaintiff in error have referred us to certain decisions concerning the validity of tax titles which seem to lay down a different doctrine. It is well known that courts have usually construed everything strictly, and sometimes illiberally, as against the holders of tax titles. Such should not be so in this case. The owner of the land can, in condemnation proceedings, appeal from the valuation and appraisement of the commissioners if he be dissatisfied with the same, and have his appeal tried before a jury in the district court. (Laws of 1870, page 155, §1.) We think therefore that we should not construe the report of the commissioners upon tills subject cither liberally or illiberally, strictly or loosely, but should construe it reasonably. In> those tax cases referred to courts themselves admit that they construed the proceedings strictly as against the holder of the-tax title, and do not claim that they construed them reasonably. The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Kingman, C. J.:
On the night of the 4th of January 1870 an armed mob took from the jail of Atchison county, in the city of Atchison, one George Johnson, and with other brutal treatment finally hung- him 'until he was dead. His-widow, Eliza Ann Johnson, brought an action against the city of Atchison to recover damages for the killing of her’ husband. After the issues were 'made up, the cause was-removed to Doniphan county for trial, where, on motion of plaintiff, William M. Twine, as administrator of the estate of George Johnson, deceased, was substituted as plaintiff instead of Eliza Ann Johnson; and his letters of administration were filed. This order appears on the journal, but no^ change was made in the petition.
The liability of the city for acts of this character is created by § 1 of ch. 32, Gen. Stat., p. 390, and the method of procedure is pointed out by § 422 of the civil code, p. 709-.. The first section referred to is no novelty in our system of jurisprudence. It was one of the laws of Canute, the Dane,, which was afterwards recognized by our Saxon ancestors, from whom we inherited the common law, that when any person was killed, and the slayer escaped, the ville should pay forty marks for his death; and if the sum could not be raised in ’the ville, then the hundred should pay it. The public reason for the law was, that every one should have an interest in the prevention and prosecution of such offenses. 1 Reeves’ Hist, of English Law, 17. A sketch of the modifications of this law from time to time will be seen by reading the case of Darlington v. The Mayor of New York, 31 N. Y., 185. The remedy, when death ensues from the wrong done, is by an action in the name of the personal representative of the deceased, and the amount recovered will be for the benefit of the widow and children, if any, or next of kin. This action was therefore improperly brought by the widow; and the plaintiff not having the legal right to bring the action, and that fact appearing upon the face of the petition, it was a suitable case for the interposition of a demurrer: Second -clause of § 89 of the code. No objection having been taken by demurrer or answer, the defect was waived: §91. But the court very properly permitted an amendment making the ¡administrator the plaintiff.
A much graver question arises as to whether the administrator should not have amended the petition, so as to show his connection with the suit in the pleadings. The plaintiff in error claims that this should have been done, as the question, as to whether Mr. Twine was administrator, was a fact on which the defendant could have taken issue, and had a right to have the fact appear in the plaintiff's pleadings, and could not take issue without the appearance of such fact in the petition. .The power of the court to allow the amendment is undoubted. Code, §139; Stevens v. Thompson, 5 Kas., 308; Hubler v. Pullen, 9 Ind., 273. But the difficulty does not grow out of the want of power in the court to allow the amendment, or because the court did not make the order .as requested. Nor should wo hesitate, if it were the mere substitution of one name for another. But there is the fact, that the change of parties, by substituting one who could only succeed by reason of his being an administrator, a fact which the defendant had a right to controvert, is not alleged in the petition; and this must we think be held a fatal error. See "Voorhies’ Code, 188; Breech v. King, 17 Wend., 197; White v. Joy, 13 N. Y., 83. It is said that as the letters of administration of Twine were filed they became, and were ■ considered, a part of the petition. But they are not made by reference a part of the petition. Profert of them was not ■necessary. They were but evidence to be used upon proper allegations, and on a sufficient issue.
We are not able to perceive any error in the ruling of the -.court in giving and refusing instructions. As we understand the statute, the fact that injury to property, or to life and limb, is inflicted by a mob, in a city, makes the city respon.sible therefor. It is in itself evidence of a wrongful act, or • omission, on the part of the city, for which they are respon- . sible, and this is what the court said in substance in the second and third instructions given at the request of the plaintiff. The third, ninth and tenth instructions asked by the defendant, and refused, are not law, as it was not essential to recovery that the deceased should have left a wife or child. If he left neither, the recovery could have been had for the benefit of the next of kin.
There was no error in taxing costs. As has been already observed, the defect of proper party plaintiff was waived by the answer. Judgment reversed, and new trial awarded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
The defendant in error brought a suit upon a note and mortgage—in one count setting up the note and mortgage, and in a second count a claim for an attorney’s fee for foreclosing the mortgage. On the 5th of March 1871 an answer ivas filed to the count on the note, averring payment thereof in full, and a demurrer was filed to the second count. The court sustained the demurrer. The plaintiff then obtained leave to file amended petition, which was literally a copy of the count in the original petition to which an answer was filed with the addition of a prayer for foreclosure. This amended petition was filed on the 27th of March 1871. On the 22d of July thereafter the plaintiff obtained leave to reply to defendant’s answer, which reply was filed the same day. When the cause came on for trial, the defendant demanded a jury, which the court refused, but on the hearing offered to allow the defendant to introduce proof of payment. The court at first treated the case as though the defendant was in default; but as proof of payment could only be admitted under the answer, the court seems to have changed its ground before the judgment.
Upon the principles decided . in the case of Stevens v. Thompson, 5 Kas., 305, and Cohen v. Hamill, 8 Kas., 621, the defendant was not in default. The plaintiff below sought by his petition and obtained from the court a personal judgment against the plaintiff in error, as well as the foreclosure of a mortgage. The answer setting up payment, with the reply to it denying the payment, made an issue which under our code entitled the defendant below to a jury. See Clemensen v. Chandler, 4 Kas., 558. The refusal of the court to give a jury trial doubtless grew out of the view which it took that the defendant was in default, which we have seen was erroneous. The judgment is reversed, and a new trial ordered.
All the Justices concurring. | [
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By the Court,
Kingman, C. J.:
For the reasons given in the preceding case of Higginbotham v. Thomas, the judgment in this case is affirmed.
Valentine, J.,'concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs commenced this action to enjoin the collection of taxes levied on certain real property. A demurrer was sustained to their petition, and they appeal.
The petition, in substance, alleges that the plaintiffs are partners in the construction and maintenance of a mausoleum, on a tract of land 179 by 239 feet adjoining Elmwood cemetery, in the city of Chanute; that the land and the mausoleum building constructed thereon are used exclusively for the burial of the dead; that—
“A plat of the crypts in said building, wherein the caskets containing dead bodies are placed, has been placed of record in the office of the register of deeds of Neosho county, Kansas, each crypt being, numbered and by such numbers are sold and conveyed by the complainants by warranty deed, the same as any other conveyance or right in real property;”
That—
“The mausoleum building contains 216 crypts, including two private rooms therein of eight crypts each, and on March 1, 1916, 89 of said crypts had been sold to 36 different people, and deeds thereto had been delivered to the purchasers for all but three of said crypts. At the time of filing this petition 104 of said crypts, including one of the private rooms, have been sold to 40 different people and deeds thereto delivered accordingly and fourteen bodies buried therein and are now resting -in said mausoleum.”
The petition further alleges that the property is exempt from taxation; and that the defendants have assessed the property at $23,000 and will place the same on the tax rolls of Neosho county, and will levy a tax thereon in violation of law.
There is but one proposition argued, and that proposition is that the. property is exempt from taxation. Section 11151 of the General Statutes of 1915, in part, reads:
“That the property described in this section,' to the extent herein limited, shall be exempt from taxation: . . .
“Second, All lands used exclusively as graveyards.”
If a mausoleum is a graveyard, within the meaning of this statute, the property is exempt from taxation, and the plaintiffs must prevail. What is a graveyard? It is a place for the burial of the dead. Usually the dead are buried in the ground, but that is not necessary, and is not always done. Sometimes they are placed in vaults, or mausoleums, built on top of the ground. Each of these vaults, or mausoleums, may contain more than one body, but these facts do not deprive the property of its character as a graveyard.
When the statute was enacted, mausoleums, other than those found in graveyards, were little known in this country. Within a comparatively few years, mausoleums, such as the one built by the plaintiffs, have come into use as places for the interment of the dead. The manner in which the plaintiffs have disposed of crypts in which to deposit dead bodies is very similar to the manner in which lots are ordinarily disposed of in graveyards in this state. Every reason that can be urged in favor of exempting graveyards from, taxation can likewise be urged in favor of exempting mausoleums.
The defendants invoke the rule that statutes exempting property from taxation must be strictly construed. The rule is correct, and must be followed; but the statute must be cpnstrued so as to give it effect, and so as to include all property that comes within the meaning of the term “graveyard.”
In support of their contention that the mausoleum is taxable, the defendants cite Mausoleum Bldrs. of N. J. v. State Bd. Taxes, 88 N. J. L. 592. The reasoning in that case is not convincing when applied to a- mausoleum as a burial place for the dead. In addition to this, the decision was based on a statute exempting buildings for cemetery use. This exemption was held to include buildings essential and necessarily incidental for the use of a cemetery, but not to include mausoleums. We have no such provision in our statute. Our statute exempts graveyards. A mausoleum comes within the terms of our statute.
The judgment is reversed, and the cause is remanded with directions to overrule the demurrer and to proceed in accordance with this opinion. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover the unpaid portion of the price of farm machinery, and for other relief. A demurrer was sustained to the petition on the ground it disclosed failure of consideration of the contract of sale. The plaintiff appeals.
The plaintiff delivered the machinery under an accepted order, signed by the defendant, which stated the terms of sale. The defendant agreed to pay cash on. or before delivery in the sum of $1,700, execute certain notes and a mortgage securing them, and deliver to the plaintiff, certain old machinery. The defendant also agreed that if he failed to settle for the machinery according to the terms of the order, the order should stand as his written obligation to pay the price. It was further provided that the right, title and interest in and to the' goods sold should remain vested in the seller until settlement therefor was concluded according to the terms of the order, but that reservation of title should not be deemed or construed as a waiver of the purchaser’s obligation to pay the full amount of the price. The cash payment of $1,700 was not made on delivery of the machinery, and the seller subsequently took possession of it. The petition alleged that possession was taken to preserve the seller’s lien, and that the property was held for the use of the purchaser. The prayer was for judgment for $1,700 and interest, for foreclosure of the lien, for sale of the property, and for application of the proceeds of sale to payment of the judgment.
Whether or not the demurrer was properly sustained depends on two factors — the proper interpretation of the contract, and the conduct of the plaintiff.
In the case of Christie v. Scott, 77 Kan. 257, 94 Pac. 214, the contract reserved title and right of possession on default, and provided the vendor might sell the property and apply the proceeds to payment of the notes given for the price. The authorities on which the present defendant relies, holding that when the seller takes possession under reservation of title the consideration for the obligation to pay the price fails, were adverted to, and it was held that the provision for sale of the property and application of the proceeds constituted a plain recognition of the buyer’s obligation to pay after possession retaken; consequently the contract was interpreted as one of security, and it was given the effect of a chattel mortgage. In this instance the contract itself provided that in no event should reservation of title operate as a waiver of the buyer’s obligation to pay. What was implied from the provision for sale and application of proceeds in the Christie case — recognition of the obligation to pay after possession retaken — is here expressed, and the expression necessarily controls interpretation of the instrument, and characterizes it as one for security. The seller parted with possession without payment of the price in cash on the consideration, in part, that in no event should reservation of title operate as a waiver of the buyer’s obligation to pay. The seller was authorized to rely on the covenant, and to act accordingly. The right to take possession was implied from reservation of title, or the reservation was meaningless. The right of possession is an incident of title, and taking possession was merely an evént in the proper assertion of title reserved.
I,t will not be assumed that the intention was the seller should eat the cake and have it, too, and consequently the contract ■should be regarded as an obligation to pay, and of security, and should be enforced as such, unless the seller has elected to treat the instrument otherwise.
The suit is brought on the contract. The buyer’s right to pay and enjoy the fruit of his bargain is recognized, so that an ■election by the seller to rescind or disaffirm cannot be implied. It is alleged that possession was taken to preserve the seller’s lien, so that an election to forego payment of the price and resume absolute ownership cannot be implied. The action for the price* includes enforcement of the lien in the usual way. Consequently the conduct of the seller has been consistent throughout with the right to recover the price and to enforce the instrument as security for payment of the price.
In L. R. A. 1916A, pages 915'and 925, may be found annotations dealing with the subject of the effect of retaking property by the seller on the rights and remedies of the parties to a contract of conditional sale. Among the cases cited is that of Utterson Lumber Co. v. H. W. Petrie, Ltd., 17 Ont. L. R. 570, in which a provision that retaking should not affect liability for purchase money was considered. A seller recovered judgment against a buyer for the price of a machine, and subsequently took the machine from the possession of one who had received it from the buyer with notice complying with the act respecting conditional sales of chattels. The action was one against the seller for conversion. The court recognized the general principle that ordinarily if the seller' sue for the price he cannot claim .title did not pass, and that if he retake possession under a reservation of title he cannot sue for the price; but the court said:
“Here the terms of the agreement between the parties are different, and in case of Bird’s-default the defendants are not by the terms of the contract put to their election, but are left in the full enjoyment of the right to demand payment of the purchase money, and until payment to resume possession. If the general proposition contended for by Mr. Raney were the law, then were a vendor to resume possession and thereafter sue for the whole purchase money, the right' to possession would at once be lost, and the property in the chattel would at once pass to the purchaser. But this result would be contrary to the express agreement of 'the parties, which provides that ‘the title . . . shall not pass . . . until all moneys payable . . . have been fully paid . . . and in case of default of any of the payments . . . and without affecting my liability for purchase money . . . you are at liberty ... to remove the said machinery,’ etc.
“Thus it was expressly agreed between the parties that the defendants might resume possession without thereby affecting Bird’s liability for the purchase money — that is, the vendor was to be entitled to possession until payment of the purchase money.” (p. 575.)
In the defendant’s brief it is said that the buyer had an option to give a mortgage or to allow the accepted order to stand as his obligation. If this were true, the accepted order would still be treated as ah instrument of security because of the special feature of the contract already considered; but as the court reads it, the provision for giving a mortgage did not apply to the cash payment.
The judgment of the district court is reversed, and the cause is remanded with direction to overrule the demurrer. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued the defendant, Nate Smith, to recover a part of the reward offered for the arrest and conviction of the murderers of one M. C. Murphy. The plaintiff prevailed, but the court set aside the verdict on the ground that the findings showed the contract sued on to be against public policy. The plaintiff appeals, and assigns this ruling as the principal error. The defendant also appeals, and complains of the court’s refusal to sustain his demurrer to the plaintiff’s evidence.
During the time covered by the transactions involved herein Bert Ziegenfuss was deputy sheriff of Montgomery county. It was alleged, in substance, that the plaintiff had information and evidence tending to prove that certain persons had murdered Murphy; that Ziegenfuss was sent for to examine such evidence; that he enlisted the services of Nate Smith and H. H. Shaw whom he brought with him; that the plaintiff had secured most of his evidence from one Henry Wiley, and so informed the three others; and that the services of Wiley were also secured. It was further alleged that the five met together at different times and places, talking over various plans and schemes for locating the murderers and securing their arrest and conviction, and
“that during one of the meetings held by the above named parties Nate Smith, H. H. Shaw, H. Wiley and Bert Ziegenfuss and the plaintiff . . . the matter of reward was discussed and Nate Smith made the following proposal: ‘No matter which one of us catches the murderers ■ihe reward ought to be divided equally.’ To this proposal the plaintiff, H. H. Shaw, H. Wiley and Bert Ziegenfuss each orally assented.”
It was also alleged that a few days later Ziegenfuss’again orally assented to the same proposition; that several weeks were spent in the effort, with the result that the murderers were arrested and convicted; that Thacker, Shaw and Wiley per-. mitted Smith to collect $750 as rewards; that Smith paid the plaintiff $100 as his share, and Shaw and Wiley $50 each upon their shares; and that Smith still owed $50 to Thacker, who had the assignments of Shaw and Wiley of their claims of $100 each against Smith, making $250, for .which amount he asked judgment.
The jury found that Ziegenfuss agreed to the terms of the alleged arrangement; that he was at all times thereafter, up to and including the conviction, deputy sheriff of Montgomery county; and that Smith had actually collected $650, and had paid out as expenses $51.50. Two of the findings of the jury read:
“Q. 9: Do you find that at the time the alleged contract was entered into it was contemplated by the parties that the work or any parts' thereof including the reward should be done in Montgomery county? A. Yes.
“Q. 10: Was any part of the work done by Bert Ziegenfuss to earn said reward done in Montgomery county? A. Yes.”
It seems that the county board and the sheriff offered rewards of $300 and $100 respectively; that a certain sum was paid to Smith, who gave bond to indemnify the county, and that other parties claiming the reward appealed from its dis-allowance to the district court.
It is urged by the plaintiff that, while the deputy sheriff could not accept a reward in such a case, there is no reason why the plaintiff could not be permitted to collect his portion, as he was in a position to accept the offers made and, having performed effective service, should be allowed to recover; that his portion of the contract and reward may and should be separated from the invalid part; and that Shaw and Wiley could establish their contract “without relying in any manner upon the unenforceable agreement between the defendant and Bert Ziegenfuss.” He further urged that, Smith being the leader of the group of five, the money in his hands is a trust fund belonging to the plaintiff “and should be divided among the various parties entitled to receive it as specified in the trust agreement — that is, equally.”
In the brief of the defendant it is claimed that the action was premature, on account of the claim of other parties pending In the' district court for the, rewa'rd offered in the county, but we are not advised what answer was filed in this case, or that such defense was interposed.
It is settled and conceded that the deputy sheriff could not lawfully claim or, receive any of the reward in this case. (Smith v. Fenner, 102 Kan. 830, 172 Pac. 514.) Neither is this an action in which the claimant is seeking to recover the reward from the parties who-offered it. It is a claim by one of the five parties to the division agreement, against another, that he has collected more than his share and failed to account therefor. The basis of the claim is that the proper share for which it was his' duty to account was settled by the “trust agreement,” by which the reward was to be divided equally among them. Counsel for the plaintiff says:
“The same agreement existed between Shaw and the defendant and Wiley and the defendant, and their suit is based upon the agreement of the defendant to pay them their portion of the reward, and is not based upon the agreement between Ziegenfuss a,nd the defendant.”
The trouble with this is that the amount and share due the plaintiff, if any, is that fixed by the contract between the five parties, which i,s the basis on which the plaintiff’s claim against the defendant rests. Hence, if the foundation be sand, the structure must fall.
Contracts to do two things, one lawful and the other unlawful, have been held void, and inseparable. (Kansas Pacific Rly. Co. v. McCoy, 8 Kan. 538; McBratney v. Chandler, 22 Kan. 692; Gerlach v. Skinner, 34 Kan. 86, 8 Pac. 257; Flersheim v. Cary, 39 Kan. 178, 17 Pac. 825; Bowman v. Phillips, 41 Kan. 364, 21 Pac. 230; Patterson v. Glass Co., 91 Kan. 201, 137 Pac. 955; Crawford v. Investment Co., 91 Kan. 748, 139 Pac. 481.)
In Bowman v. Phillips it was said:
“As between the original parties and all persons in pari delicto, the courts will not enforce illegal contracts nor any supposed rights founded upon them, but will leave the parties and those in pari delcto just where they find them and leave each in the possession of just what he has already obtained.” (p. 369.)
“One of two parties to an illegal contract, who receives profits through the execution of it, will not be compelled to account to the other, because to require him to do so would be the enforcement of an illegal agreement.” (Alexander v. Barker, 64 Kan. 396, syl. ¶ 3, 67 Pac. 829.)
(See, also, Hutchins v. Stanley, 88 Kan. 739, 129 Pac. 1180; Carey v. Myers, 92 Kan. 493, 141 Pac. 602; Investment Co. v. McFarlin, 93 Kan. 526, 144 Pac. 842; Dancigar v. Cooley, 98 Kan. 38, 157 Pac. 453.)
Usually when parties have been permitted to obtain relief in such cases they have been fraudulently induced to enter into the agreement. (13 C. J. 498.) But no such exception to the rule arises here.
There is no way to separate-the contract into void and valid parts, for the insuperable reason that it was all void. Pursuant to such void contract the parties thereto proceeded to earn the reward, and the defendant owes the plaintiff, not because he has collected more than ohe-fifth of the amount, but because of the agreement thus to divide the money among the five, including the deputy sheriff, who could not lawfully participate in the fund. As between the immediate parties to this agreement neither can call on the other to account, because the law leaves them where it found them. It is the same in law as if the officer had contracted with the defendant alone to earn and divide the reward equally, and had sued him for failing to pay over his half.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to recover on a promissory note due September 4, 1910. It was signed by the defendants as makers, and contained the following provision:
“Interest payable semi-annually, and if not paid when due to bear the same rate of interest as the principal. The makers, sureties, guarantors, and endorsers hereof severally waive demand of payment, protest and notice of non-payment of this note, and consent that it may be extended from time to time, without releasing either or any of them, or in any way affecting their liability thereon.”
Full interest payments were made by Cline in August, 1910, 1911, 1912, 1913; and $24.95 was paid in August, 1914. Each payment, except the one for $24.95, was made in pursuance of an oral agreement between the plaintiff and Cline that the maturity of the note should be extended one year. The $24.95 was paid under an agreement that $20 of that amount was for the interest for the year ending September 4, 1914; that $4.95 of that amount should apply on the interest for the year ending September 4, 1915; and that the maturity of the note should be extended to September 4, 1915. Gray was not a party to any of the extension agreements. He was surety for Cline, and that fact was known to the plaintiff at the time the note was signed. No part of the note has been paid, except as above set forth. The action was commenced April 28, 1916. Gray pleads the statute of limitations.
In Steele v. Souder, 20 Kan. 39, this court said:
“Partial payment made by one debtor on a note, will not suspend the running of the statute of limitations in favor of the other debtors thereon, although the party paying be the principal debtor, and the others only sureties.” (syl.)
This rule has been declared in a number of decisions rendered by this court; (Mullen v. Mullock, 22 Kan. 598, 602; Elder v. Dyer, 26 Kan. 604, 607; Letson v. Kenyon, 31 Kan. 301, 303, 1 Pac. 562; Davis v. Clark, 58 Kan. 454, 459, 49 Pac. 665; McLane v. Allison, 60 Kan. 441, 443, 56 Pac. 747; Good v. Ehrlich, 67 Kan. 94, 96, 72 Pac. 545; Elmore v. Fanning, 85 Kan. 501, 502, 117 Pac. 1019.)
In Bank v. Bowdon, 98 Kan. 140, 157 Pac. 429, this court said:
“Under the provisions of the uniform negotiable instruments act, one who signs a note as comaker, although in fact a surety, is not released by an extension of time granted to the principal in consideration of the payment of interest in advance.” (syl. ¶1.)
(See, also, Bank v. Livermore, 90 Kan. 395, 397, 133 Pac. 734.)
The right of Gray to plead the statute of limitations is not affected by any payment made by Cline, and the obligation of Gray to pay as he promised to pay is not changed by such payments. He consented that the note might be extended from time to time without releasing him, or in any way affecting his liability. His liability on the note continued from the time of its maturity until five years thereafter. If that provision of the note is to he given effect, no change was made in Gray’s situation by the payments made by Cline. It follows that, as to Gray, the note was barred by the statute of limitations at the time this action was commenced.
The judgment as to defendant Gray is reversed, and judgment is rendered in his favor. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff appeals from an order granting a new trial. This is the second time this action has been in this court. (Chamberlain Co. v. Bank, 98 Kan. 611, 160 Pac. 1138.) The plaintiff commenced the action to recover from the defendant the amount named in a check on the defendant bank, signed by Mrs. S. J. Ellis, and made payable to the plaintiff. The check was delivered to Sprague T. Haskell and was indorsed and signed by him, and he received the money thereon. He had taken an order from Mrs. Ellis for metal weather-strips to be placed in the doors and windows of her residence. She gave the check to Haskell to pay for the installed strips. The plaintiff alleged that Haskell had no authority to cash the check or indorse the plaintiff’s name thereon. The cause was tried and judgment was rendered in favor of the plaintiff on May 4, 1917, and within proper time thereafter a motion for a new trial was filed. That motion was not heard until the succeeding term of court, when it was denied on August 27, 1917. On September 25, 1917, the court, on the motion of the defendant, set aside the order of the court denying the defendant’s motion for a new trial, but did not then grant a new trial. On October 19, 1917, the defendant filed a petition' in this action asking that the judgment against the defendant be vacated and that a new trial be granted. This petition of the defendant set out an answer'to the plaintiff’s petition. Both the motion to set aside the order denyjng the motion for a new trial and the defendant’s answer to the plaintiff’s petition alleged that James D. Snoddy, who was the defendant’s attorney, had, on account of a mental breakdown, failed to notify the defendant of the time set for the trial of this action and had failed to properly present the defense on the trial; and that, for those reasons, judgment had been rendered against the defendant without its defense having been presented to the court. The motion for a new trial and the petition to set aside the judgment and grant a new trial were heard on November 2, 1917. The order of the court entered on that day recites, among other things:
“The court, being fully advised in the premises, finds the issues under the petition of the defendant to vacate the judgment herein rendered on May 4, 1917, and for an order granting a new trial herein to be with the defendant, and finds .that the motion for a new trial heretofore filed herein by this defendant should be granted, and that the judgment herein rendered May 4, 1917, should be vacated and set aside.
“Be .It, Therefore, Considered, Ordered and Adjudged, That the judgment herein rendered on May 4, 1917, in favor of this plaintiff and against this defendant, be and the same hereby is vacated and set aside and a hew trial is granted herein; that the defendant shall pay the costs of this action to this date herein taxed at $-—
From that order the plaintiff appeals. The order setting aside the judgment denying the motion for a new trial and the order granting a new trial were made at the same term of court., The court had control of the judgment during that term and had jurisdiction to make both orders. (Sylvester v. Riebolt, 100 Kan. 245, 164 Pac. 176.) The reasons given in the application to set aside the order denying the motion for a new trial, and in the petition to. vacate .the judgment and grant a new trial, bring this cause within the rule declared in Patterson v. Oil Co., 101 Kan. 40, 165 Pac. 661. Those reasons were sufficient to justify the district court in setting aside the judgment and in granting a new trial, and the judgment is therefore affirmed. •„ | [
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The opinion of the court was delivered by
Marshall, J.:
Defendant Art Cox appeals from a judgment dismissing his cross petition against his codefendants, J. D. Dunn and A. J. Bellport, jr. The plaintiff commenced this action in Harvey county to compel the specific performance of a contract to convey to him certain real estate in Scott county, or to recover damages if specific performance could not be enforced. The contract was signed by the plantiff and by Art Cox. Summons was served on Cox in Harvey county, and on Dunn and Bellport in Sedgwick county. On September 9, 1915, Dunn and Bellport appeared specially, excepted to the jurisdiction of the court, and moved to quash the summons served on them. That motion was denied November 3, 1915. They filed their answer to the plaintiff’s petition on March 6, 1916. On May 23,1916, Cox filed a cross petition against Dunn and Bellport, alleging that they had practiced fraud on Cox in an exchange of real property owned by him in Harvey county for the real property in controversy in Scott county and for other real property in the city of Wichita. In that petition Cox asked for judgment for $3,700, and for the possession of a promissory note for $1,334.95. Summons was neither issued nor served under the cross petition. On May 29, 1916, Dunn and Bellport filed their motion to strike out certain portions of the cross petition, and to make more definite and certain other portions thereof. That motion was denied on July 1, 1916, In their counter-abstract, Dunn and Bellport say that, immediately prior to filing that motion, they lodged, against the cross petition, the motion to quash that had been previously filed against the petition of the plaintiff; and that the court found and ruled that the motion to quash had been and would be considered as lodged against the cross petition. They also say that in all proceedings had in court thereafter, the motion to quash was expressly saved and lodged against the cross petition. Cox challenges the correctness of the statement contained in the counter-abstract.
The judgment from which-this appeal was taken was rendered on March 6, 1917. It recites that the cause came on for hearing on the plea to the jurisdiction filed by Dunn and Bell-port, and that the pleas were designated as motions. The court found:
“That within due time after the filing of the petition in this cause, the defendants, A. J. Bellport Jr., Mrs. A. J. Bellport Jr., J. D. Dunn, J. H. Eberhard and Harry Mellor, as Eberhard & Mellor filed their motion and plea to the jurisdiction of this Court, contending among other things that the Court did not have jurisdiction of the subject matter and the persons of the defendants last above named or either of them.”
The court further found:
“That the cause of action set out in said cross petition is a cause of action in law for damages and is not a cause of action existing in favor of the defendant Art Cox and against the plaintiff, and is u transitory action and that the District Court of Harvey County, Kansas, has no jurisdiction of the defendants.”
The counter-abstract contains a quotation from a communication from the judge of the district court, in which he states that the question of jurisdiction had never been waived, and that the defendants had objected to the jurisdiction of the court from the start. That communication cannot be considered as a part of the record.
On February 7,1916, Dunn and Bellport filed their demurrer to the plaintiff’s petition on the grounds that the petition did not state facts sufficient to constitute a cause of action; that the court did not have jurisdiction of the defendants nor of the subject matter of the actions; that several causes of action were improperly joined; and that there was a misjoinder of parties defendant. That demurrer was overruled on February 7, 1916. On March 6, 1917, Dunn and Bellport filed another motion to quash the service of summons, for the reason that they were not residents of Harvey cojmty; that the summons had not been served on them as provided by law; and that the cross petition showed that the defendants were neither necessary nor proper parties defendant. On that day, the service of summons was quashed and the cross petition was dismissed. On July 3, 1917, Cox filed his motion to vacate and modify the order quashing the service of summons and dismissing the action. That motion was denied on July 16, 1917-.
Cox appeals from the order quashing the service of summons and dismissing the action. He also appeals from the order refusing to vacate and modify the former order. He contends that his cross petition must be treated the same as though it had been filed in a separate action with a separate number and title; he contends that by their motion to strike out certain parts of his cross petition and to make other parts more definite and certain, Dunn and Bellport submitted themselves to the jurisdiction of the court for the purpose of trying the cause of action set out in the cross petition. Cox also urges that if he is mistaken in these contentions, Dunn and Bellport, by their answer to the plaintiff’s petition, and by their appearance to that petition, were in court for all purposes. If the proceedings by Cox are treated as a separate and independent action, it was commenced in the wrong county, and the court did not have jurisdiction to try that action over proper objections. If those proceedings are not treated as a separate and independent action, and if Dunn and Bellport'made timely objections, the court was without jurisdiction to try the action presented by the cross petition, for the reason that the plaintiff was not interested therein and the cause of action was foreign to that set out in plaintiff’s petition.
The controversy that exists concerning the appearance to the cross petition must be resolved so as to uphold the judgment of the trial court, for the reason that the presumption is that the court proceeded regularly and according to law. The burden is on Cox to establish the contrary. He must show that the court committed error. That he has failed to do. The court has examined the original files, and they do not reveal that the trial court committed error in rendering the judgment from which this appeal is taken.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to recover on a promissory note. The defendant set up a counterclaim, apd recovered judgment for $76. The plaintiff appeals.
In 1913, the defendant purchased a silo from the plaintiff, and, in part payment thereof, gave the note sued on in this action. On January 31, 1914, the defendant wrote the plaintiff that there were men looking at the silo sold to the defendant, and said:
“I am writing .you to know what terms you could make and what commission you could pay, if I could draw up the contracts and sell 8 or 10 of these silos. I would try to get these contracts as early as possible, so please give me the best terms you can make and state whether or not you would let me give them the price, and terms of payment. I would want all this understood; also state whether or not you will send me catalogues and literature to distribute among prospective buyers.”
On February 6, 1914, the plaintiff replied to this letter as follows:
“Replying to your letter, will say that we have requested our Mr. J. P. Viers, who has charge of the sale of Columbian silos in the southern and central portions of Kansas, and is at present at Rosalia, Kansas, to call on you at his earliest convenience with a view of quoting you commissions for selling Columbian Silos in your immediate neighborhood. If you do not hear from Mr. Viers within a few days, please communicate with us again. We are sending you our new catalogue under separate cover.”
Viers visited the defendant in February, and contracted with him for the sale of silos in Butler county. By that contract the defendant was to receive, as commission, 20 percent on all sales of silos made by him without assistance, and 15 percent on all sales made by him in which he received assistance from the plaintiff or his agents. The plaintiff sent the defendant a catalogue and other printed advertising matter, and also sent ■forms of contracts to be signed by the purchasers of silos. Those contracts contained limitations on the authority of the agent making the sale. The plaintiff'also wrote the defendant to visit some parties who had ordered silos and were about to cancel their orders, and to “get them lined up.” Under the agreement made with Viers, the defendant sold and assisted in selling a number of silos in Butler county. The commissions for those sales were not paid, and were set up as a counterclaim against the note.
The plaintiff contends that there was not sufficient evidence of the employment of the defendant by the plaintiff to warrant the submission of that issue to the jury. This contention is not good. There was evidence which tended to show that the plaintiff, through Viers, the plaintiff’s agent, employed the defendant to sell Silos for the plaintiff in Butler county. That evidence was the defendant’s letter of inquiry, the plaintiff’s reply thereto, the visit of J. P. Viers in accordance with that reply, the contract made by Viers with the defendant concerning commissions, and the letters written by the plaintiff to the defendant requesting him to see certain purchasers of silos and get those purchasers “lined up.”
Another matter argued by the plaintiff is that it was error to submit the defendant’s counterclaim to the jury, for the reason that the defendant knew that Viers had no authority to employ him as agent for the plaintiff. The answer to this matter is that there was no evidence which tended to show that the defendant had any knowledge of any limitation on the authority of Viers at the time the contract was made.
In May or June, 1915, after the defendant had performed the labor for which he claimed compensation, the plaintiff informed the defendant that Viers had no authority to make the contract; but, until the letters were received in which this information was given, the defendant did not have any knowledge that any limitation had been placed on the -authority of Viers as agent for the plaintiff.
The plaintiff also insists that the limitations contained in the contracts to be taken by the defendant and to be signed by the purchasers of silos constituted notice of the limitation on the authority of Viers. This conclusion cannot be properly drawn from anything contained in those contracts. The limitations therein contained were to be observed by the defendant in selling silos. Those limitations did not concern the authority of Viers in making the contract with the defendant.
The plaintiff argues that there was no contract between him and the defendant, because their minds never met on the terms of the contract. This argument is not good. The minds of the defendant and of .Viers, the plaintiff’s agent, did meet. According to the defendant’s evidence, there was no misunderstanding between him and Viers concerning the contract. Viers represented the plaintiff when the contract was made, and the plaintiff was bound thereby.
The plaintiff’s final complaint is that there was no consideration for the contract. The plaintiff agreed to pay certain commissions for the sale of silos. The defendant agreed to sell silos for those commissions. These agreements constituted a contract. The promise of each was a sufficient consideration for the promise of the other. (Spencer v. Taylor, 69 Kan. 493, 77 Pac. 276; Hawkins v. Windhorst, 82 Kan. 522, 108 Pac. 805.) The defendant performed his part of the contract, and was thereafter entitled to the agreed compensation for the services rendered by him.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered judgment against the defendant for a real-estate agent’s commission, and the defendant appeals. The plaintiff commenced the action to recover from the defendant $450 commission alleged by the plaintiff to have been earned by him in effecting an exchange of real property between the defendant and Marion Moore. The petition alleged that the defendant had agreed to pay the plaintiff a commission for procuring an exchange of real property; that the plaintiff brought together the defendant and Marion Moore, who signed a written contract providing for the exchange of real estate; that the defendant refused to make the exchange; and that the plaintiff had earned his commission, amounting to $450. The defendant’s answer alleged that the defendant was to pay the plaintiff a commission of $400, provided a trade was consummated; and that the contract signed by the defendant and Marion Moore provided—
“That the abstract to each property or properties owned by each of the parties hereto shall be subject to the approval of the other party or his attorney, before papers in the nature of deeds or other conveyances are made. . . .
“. . . It is hereby agreed that no commission shall be collected untill the deal is consummated.”
The contract was not signed by the plaintiff.
There was evidence which tended to prove the allegations of the petition, and there was other evidence which tended to establish the defense set up in the answer. The defendant’s attorney refused to approve the abstract of the title to- Moore’s property, and the exchange was never made. At the conclusion of the defendant’s evidence, the court directed the jury to return a verdict in favor of the plaintiff for $400. The defendant insists that the court erred in so doing; that all the questions presented were questions of fact; and that the cause should have been submitted to the jury under proper instructions. '
There was evidence introduced which should be specifically noticed before reaching a conclusion on the question presented by the court’s directing a verdict. The wife of the defendant at first refused to sign any deed conveying the property. A part of the property to be conveyed by the defendant was the homestead of himself and of his wife. Afterward she concluded to sign the deed, and did so. After the controversy arose between the defendant and Moore concerning the exchange of property, the defendant conveyed to his father-in-law eighty acres of the land for the purpose of securing an indebtedness owing by the defendant to his father-in-law and for the further purpose of compelling Moore to commence in the state of Kansas any action that he might desire to bring arising- out of the contract. The deed signed by the defendant and his wife conveying the property to Moore included the property that had been conveyed to the defendant’s father-in-law. After the defendant and his wife had signed the deed to Moore, the defendant and Moore submitted to each other abstracts of title to the property to be conveyed, and those abstracts were deposited in a bank. The attorney for the defendant, after examining the abstracts submitted by Moore, refused to approve them, but did not give any specific reason for so doing; although he did suggest that new abstracts might be made or that those submitted might be brought down to date.
Did the defendant’s deed to his father-in-law render the defendant unable to comply with his contract? Did he, in good faith, refuse to comply with his contract? What was the contract between the plaintiff and the defendant? These were questions of fact to be determined by the jury. Every ques tion presented by the evidence was a question of fact that should have been submitted to the jury under proper instructions, and it was error for the court to withdraw from the jury the consideration of those questions.
The defendant complains of the exclusion of evidence offered by him. In view of the conclusion reached on the main question presented, it is not deemed necessary to (discuss the questions of law arising out of the exclusion of the evidence offered. The evidence excluded was not produced on the motion for a hew trial, and the questions presented by the exclusion of that evidence cannot be considered. (Civ. Code, § 307, Gen. Stat. 1915, § 7209.)
Because of the error in directing a verdict in favor of’ the plaintiff, the judgment is reversed, and a new trial is dirécted. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant, the Garnett Light and Fuel Company, hereinafter termed the company, sought a temporary injunction to restrain the plaintiff from permitting natural gas to escape from a well producing both gas and oil. The temporary injunction was denied, and the company appeals.
Another phase of this action has heretofore been presented to this court. The-conclusion then reached is found in Arnold v. Light and Fuel Co., 103 Kan. 166, 172 Pac. 1012. Most of the facts there stated are material in solving the present controversy, and they will not be repeated; but, in order to determine the questions now urged, it is necessary to state some additional facts disclosed by the record. The contract, under which both the plaintiff and the company claim to operate as between themselves, contains the following provision:
“12. It is agreed by and between the parties that no oil well shall be drilled closer than one thousand feet to any gas well so long as the same is producing % million cubic feet per day.”
The plaintiff drilled a well on the property leased. That well produces both gas and oil in paying quantities. The plaintiff has- retained the well and, in securing the oil therefrom, has allowed the gas to escape into the open air. The evidence tended to show, and the court in substance found, that the oil cannot be secured without allowing the gas to escape.
The company contends that under the contract it has a right to an injunction to stop the waste of gas. The rights of the plaintiff and of the- company, as between themselves, are fixed by the contract. It contemplates that each in operating his property may necessarily interfere with the property of the other. The well is the property of the plaintiff, and, until it is turned over to the company, its products belong to the plaintiff. So far as the company is concerned the plaintiff can do with those products as he sees fit. He can utilize them, or he can waste them. The company has no right to them nor any control over them. It has no right to the injunction asked for.
It is urged that an injunction should have been granted to restrain the plaintiff from drilling an oil well within one thousand feet of a producing gas well of the company. The landowners, John Ross and Mary Ross, successors to the original lessors, are parties to this action, and their rights under the lease are involved. The lease does not contain any one-thousand-foot restriction. ' As against these landowners that restriction in the contract between the plaintiff and the company cannot be enforced. The landowners have a right to a proper development of the property, without regard to the contract between the plaintiff and the company, and an injunction should not be granted in violation of that right.
It is contended that an injunction should be granted because gas is allowed to escape in violation of section 4970 of the General Statutes of 1915, which section, in part, reads:
“That it shall he unlawful for any person, firm or corporation having possession or control of any natural-gas or oil well, whether as a contractor, owner, lessee, agent, or manager, to use or permit the use of gas by direct well pressure for pumping of oil or for blowing oil out of wells, or for operating any machinery by direct well pressure of gas, or to allow or permit the flow of gas or oil from any such well' to escape into the open air without being confined within such well or proper pipes or other safe receptacle for a longer period than two days after gas or oil shall have been struck in such well.”
The enforcement of this statute is a public duty, and prosecutions under it must be in the name of the state; but, if property rights of an individual are injured by á violation of the statute, an appropriate action will also lie in favor of that individual. What has been said concerning the rights of the plaintiff and of the.company under the contract between them is applicable here. The company cannot prosecute an action to enjoin the plaintiff from permitting gas to escape from the well into the open air.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The parties hereto were married October 5, 1916. The plaintiff alleged that they lived together until December 27; her petition was filed December 28, alleging extreme cruelty consisting of physical violence and abuse, with injunctions to leave lest a worse evil befall her. The cross petition charged gross neglect of duty by a causeless abandonment and certain other mistreatment, including a statement that she married the defendant for his money.
It appears that the plaintiff lived with her first husband 24 years. After his death she married a second and a third, being divorced from one after living with him a few months and from the other after living with him a few weeks. When she married the defendant she was 49 years of age and he 78, a widower with property worth in the neighborhood of $20,000. The day before the marriage he presented to her an antenuptial contract which they signed, providing that should he die first, or in case of a separation, he should give her a thousand dollars and certain lots in Bucyrus as her share of his estate and property. This was pleaded and introduced, but the plaintiff did not ask its fulfillment, merely stating her desire that the court do the right thing in the case.
While plaintiff, corroborated by others, testified to the charges in her petition, the court found that she had not established a cause of action, but that the defendant had, and gave him a decree requiring him to pay costs and $200 alimony.
The plaintiff appeals, and insists that her evidence fully éstablished her case, while the defendant by his own admissions utterly failed to sustain his cross petition. The result reached by the trial court indicates that the testimony could not have been deemed sufficient to show a justification of the plaintiff’s abandonment of the defendant. The court, which had granted one of the former decrees to the plaintiff, had the parties and witnesses' present and could note their manner and appearance, and, whatever conclusion this court might, reach, and some of its members feel compelled to reach, it is clear that the court below was not impressed with the plaintiff’s claims and probably regarded this, her fourth matrimonial venture, as mercenary.
It is held that under all the' circumstances the result reached below should not be disturbed. The decree is • therefore affirmed.
West,, and Dawson, JJ., dissent. | [
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The opinion of the court was delivered by
DAWSON, J.:
The defendant was ousted from his office as chief of police, under section 7608 of the General Statutes of 1915, for willful misconduct in office. The substance of the state’s complaint against him was that he attempted to prevent a constable from arresting a person, the chief’s chauffeur, for a misdemeanor. The constable was armed with a lawful warrant regularly issued.
There is no trouble in this case about the evidence. It was sufficient and satisfactory. The conduct of the chief of police was highly reprehensible. That the prosecution of the chauffeur was ill-advised, if that were true, is of no consequence. It is an absurdity to argue that the constable should have abandoned his efforts to make the arrest when informed that the man whom his warrant called for was the chief’s chauffeur and a special police officer. A constable has nothing to do with the merits or demerits of the prosecutions in which he is ordered to serve warrants and make arrests.' The constable’s duty is to make the arrest though the heavens fall.
But the defendant raises one question which counsel for the state do not attempt to answer — possibly because they recognize that it is unanswerable. The defendant’s official misconduct occurred on April 20, 1917. For that misconduct he forfeited his right to his office and might have been judicially ousted therefrom. His immediate superiors, the city government, might likewise have dealt with him under section 1804 of the General Statutes of 1915. He might also have been prosecuted criminally under section 3554 of the General Statutes of 1915. It appears, however, that the defendant’s official term of office expired before this action to oust him was begun. On May 1, 1917, the defendant was appointed and confirmed as chief of police for a new term. This action was begun on May 22, 1917 — to forfeit defendant’s right to . the office for a term which had then expired. The defendant’s dereliction in one term does not disqualify him from holding the office in a succeeding term. There is no general disqualification in the ouster law barring official delinquents from holding office in any term beginning in the future, and the court cannot write such language into the statute. There seems to be no escape from this conclusion; the alleged official misconduct had become a moot question ere ouster proceedings were begun; and the judgment must therefore be set aside and the cause remanded with instructions that it be dismissed.
It is so ordered. | [
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The opinion of the court was delivered by
Porter, J.:
The action was originally.begun by plaintiffs against the Kansas City, Kaw Valley and Western Railway Company to recover for work and material in the construction of an interurban line extending from Kansas City to Lawrence. The Kaw Valley Construction Company, which was the general contractor and had sublet a portion of the work to the plaintiffs, was not originally a party to the action, but subsequently was made a party, and the court sustained a motion to dismiss the action as to the railway company.
The case was tried by the court, and findings of fact were made, among which is a finding that the parties had agreed upon an account stated showing a certain balance due from the defendant to the plaintiffs, for which the court gave judgment in plaintiffs’ favor. From the judgment plaintiffs appeal.
The findings of fact, some of which we summarize and others quote, are as follows:
The contract between the plaintiffs and the construction company was entered into on'the 19th day of March, 1915, and was for the construction of the roadbed for the railroad from Bonner Springs to Lawrence. As the work progressed monthly estimates were given to the plaintiffs by the chief engineer of the construction company, who was also the chief engineer of the railway company; the work was completed about December 1, 1915. From about October 1, 1915, until February 1, 1916, plaintiffs had'employed a firm of engineers to check up the work and ascertain the true condition of the account against the defendant. While the work was in progress they had an engineer in their employ as a clerk, who gave his entire time to the work connected with the contract. .The plaintiffs are old contractors, thoroughly familiar with the work they were required to do in carrying out their contract.
“From some time in the latter part of December, 1915, up until the 2d day of February, 1916, the plaintiffs and the defendant construction company were engaged from time to time in an endeavor to arrive at a settlement of this entire matter, and on February 2, 1916, had a full, complete and final settlement, and it was at that time ascertained that there was due to the plaintiffs from the defendant construction company, $6,246.32. In arriving at this settlement the construction company had the assistance of its chief engineer, and the plaintiffs had the assistance of their clerk heretofore mentioned, as also the figures of the special engineer employed by them as above stated. After arriving at the settlement, the plaintiffs demanded the amount due as ascertained in that settlement, but were advised by the general manager of the Kaw Construction Company that certain unpaid bills had been presented to it for payment, and the general manager insisted that the plaintiffs should pay these bills or permit the construction company to deduct them from the‘amount so found due. To this the plaintiffs objected for the reason that said bills were not properly chargeable against them, and not properly chargeable against either the construction company or the railway company, and this was the only matter of disagreement between the parties. The evidence does not disclose that these unpaid bills were properly chargeable against the plaintiffs or against either the construction company or the railway company. Neither does it disclose that the general manager was acting in bad faith when he insisted upon their payment, and no claim is made at the trial of this cause that such bills were properly chargeable against the plaintiffs, the construction company or the railway company. When this final settlement was arrived at it was reduced to writing, but was never signed by the parties.”
As conclusions of law the court found—
“The parties having arrived at a full and complete settlement of their differences under the contract in suit, the amount thus found due from the construction company to the plaintiffs is the measure of the plaintiffs’ recovery.
“There should be a judgment in this case in favor of the plaintiffs against the defendant construction company for $6,246.32, with interest thereon at six per cent from February 2, 1916, and for such costs of this action as accrued from and after the date the defendant construction company was made a party to this action.”
There are several complaints with respect to rulings of the trial court, but the only question necessary for us to determine is whether the parties agreed upon the amount due under the contract, and this involves a consideration of what constitutes a stated account.
There is but little conflict in the testimony of the parties with respect to what occurred at the time of the settlement. It appears that on January 27, 1916, C. L. Dolman, who had charge of the matter for the plaintiffs, and his engineer Swope, met .with the chief engineer of the construction company in Dolman’s room in the hotel in Bonner Springs for the purpose, as Dolman testified, “of makinig a complete and final settlement.” He went over the notes of his engineer and “figured different places where I thought it was an error, and checked it.” At this conference it was found that the figures of the engineer for the plaintiffs and the figures of the chief engineer of the construction company should be compared again, and Mr. Dolman authorized his engineer to go over the figures. A typewritten statement of the result was made up and given to Dolman, which showed the result reached by the chief engineer. Afterwards, on February 2, Dolman met with the chief engineer and Mr. Taylor, manager of the defendant company, and there was an agreement that the balance due the plaintiffs was $6,246.32. The amount was agreed upon and reduced to writing, but the writing was not signed by either of the parties. It seems that this was late at night, and the parties agreed to meet the next day, when payment was to be made. They did meet on the following day, and Taylor called the attention of Dolman to the fact that some unpaid bills had been presented by subcontractors, and asked him to arrange for their payment. The defendant’s testimony tended to show that Dolman became angry at this, and left the room, saying that if they did not pay the amount agreed upon, he would bring suit. Dolman himself testified that at the meeting next morning he made a demand for the $6,246.32, the amount due on what he calls “the estimate” of the day before,' and was informed that they “could n’t pay it until some of these bills were settled,” and that he threatened to sue them if the amount was not paid, and then left the meeting.
Mr. Taylor, the manager of the construction company, testified that at the meeting at the bank next morning he toíd Dolman they were ready to pay him, but wanted him to take care of some bills for claims of various kinds, and that Dolman said he expected to be paid the full amount that was due him, and that he would n’t stand for their having any further charge of his affairs; wanted the full amount without regard to the bills. “I told him that he could give these men orders on us to pay the money, due them, or we would forward the money to them and pay him the balance. He said we would pay him the full amount or he would sue us. He referred to the balance due on the estimate, the only amount I ever heard mentioned.”
The facts show all the essential elements of a stated account —a meeting of the minds of the parties upon the correctness of the account, and when this is shown, the law' implies an agreement to pay.
“An account stated in an agreement, express or implied, between par-' ties . . . fixing and determining the amount due from one to the other on account, and when such agreement is made, such account stated becomes a new obligation,’ (Harrison v. Henderson, 67 Kan. 202, syl. ¶ 1, 72 Pac. 878.)
The definition given in 1 C. J. 678, is:
“An account stated is an agreement between parties who have had previous transactions of a monetary character that all the items of the account representing such transactions, and the balance struck, are correct, together with a promise, express or implied, for the payment of such balance.”
“The meeting of the minds of the parties- upon the correctness of an account stated is usually the result, of a statement of account by one party and an acquiescence therein by the other. • The form of the acquiescence or assent is, however, immaterial, and may be implied from the conduct of the parties and the circumstances of the case.” (1. C. J. 687.)
“The statement of the account need not be in writing, nor need the agreement, if oral, be based upon writings evidencing transactions between the parties; and it is no objection that a part thereof is in writing and a part oral. So if the account is stated in writing, it is not necessary that it be signed or acknowledged in writing.” (1 C. J. 682.)
The main contention of the plaintiffs is that there was a failure to show an ’ account stated, because the defendant, through Mr. Taylor, its general manager, “not only refused to agree that the sum so certified was the balance due, or to promise to pay the same, but expressly refused to pay it, claiming that about $4,000 of claims against appellants’ subcontractors should be deducted therefrom.” It is insisted that every essential element of the definition of a stated account was lacking. We do not concur in this contention. The findings do not show that the general manager refused to agree that the sum certified was the balance due, or to promise to pay the same when the settlement was agreed upon. The findings and the evidence are to the contrary; nor is there a finding that the representatives of the defendant “expressly refused to pay it” when the matter of the subcontractors’ claims was discussed. The evidence of both sides is that when Dolman demanded the $6,246.32, he was told they were ready to pay him, but'wanted him to take care of certain bills.
The time when there must be an express or implied agreement to pay, is when the parties agree on the amount due from the debtor to the creditor. The contention that the refusal to pay on the day following destroyed the legal effect of the agreement entered into when the account was stated is not sound. An action may be brought on an account stated where the debtor refuses to comply with his agreement to pay. The settlement set at rest all controversy as to the amount the plaintiffs were entitled to receive from defendant. The debtor cannot destroy the legal effect of the settlement by his refusal to pay at a subsequent time; and on the other hand, neither can the creditor avoid the effect of his agreement by refusing to accept the amount as the balance due; nor can he avoid the force and legal effect of the settlement on the ground of some new disagreement with the debtor. Were it otherwise, either party could subsequently destroy the binding force of the contract of settlement by provoking a disagreement, and thus take advantage of his own wrong, and settlements of disputed accounts would amount to nothing until payment was actually made and accepted.
Another contention is that the chief engineer of the railway company was without authority to enter into a binding contract between the original contractor and the subcontractors. First, it is said that a stated account creates a new obligation, and Harrison v. Henderson, 67 Kan. 202, 72 Pac. 878, is cited, .in which it was said that the stated account “becomes a new obligation and takes the place of the one on the prior account.” (syl. ¶ 1.) Next, it is said that the duties and powers of a chief engineer of a railway company, as between contractors and subcontractors, are such that he had no authority to make a contract for either, and the case of Ritchie v. City of Topeka, 91 Kan. 615, 622, 188 Pac. 618, is cited, in which it was said:
“The fact that the engineer was vested with supervising power and authority to interpret, specifications and determine disputed questions that might arise between the city and the contractor gave him no authority to make a new contract.”
The completed sentence reads, “nor to approve claims for work and material not furnished.”
In that case the engineer, by fraud and collusion with the contractor, had approved claims of the latter, which the city-paid, for removing solid rock, where, in. fact, he had removed only loose rock. In the present case, Taylor, the general manager of the construction company, made the • settlement, and the court finds that he was assisted by the chief engineer of the construction company. Moreover, the parties were not making a new and independent contract for the construction of the railway, but merely a settlement between the construction company and the plaintiffs as to the sum due to plaintiffs' upon the original contract. The stated account became a new obligation, taking the place of the former obligation for- payment, but not the place of the contract for constructing the railway.
The finding that there was a full and complete settlement and an account stated between the parties is supported by abundant evidence and'cannot be disturbed.
In view of the settlement between the parties, the other rulings of the court of which complaint is made become of no importance.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff appeals from a judgment against him in an action brought to recover damages caused by a fire alleged to have been started by the defendant’s, negligence. The petition alleged that the plaintiff conducted a jewelry business in a building in Leavenworth; that the de fendant there negligently maintained a defective electric meter, or a meter that had been defectively installed; and that this defect started the fire and caused the plaintiffs damage. The plaintiff sought to prove, by the chief of the fire department of Leavenworth, by men who were working for the plaintiff, and by an electrician of eighteen or twenty years’ experience, that the fire started at a certain place in the building and was caused by the meter. Some of those witnesses saw the fire, and all of them saw the building after the fire- had been extinguished. They were not permitted to give their opinions.' The plaintiff complains .of the exclusion of that evidence.
There is a field of the law of evidence in which expert opinions are clearly competent, and there is another, but larger, field in which such opinions are clearly incompetent. The latter is the general rule; the former is an exception. Between these two there is a smaller field in which expert opinion evidence may or may not be competent, and its admission is often a question to be determined by the sound discretion of the trial court. (Davis v. United States, 165 U. S. 373, 377; Manufacturers’ Accident Indemnity Co. v. Dorgan, 58 Fed. 945, 948; Gundlach v. Schott, 192 Ill. 509, 514; Dashiell v. Griffith, 84 Md. 363, 378; Martin v. Franklin Fire Insurance Co., 42 N. J. L. 46; Cornell v. The State, 104 Wis. 527, 537; Allen v. Voje, 114 Wis. 1, 13.)
This case comes within the field last mentioned, and, because of that fact, this court cannot say that there was prejudicial error in excluding the evidence offered. The conditions that existed during the fire and thereafter could have been described by the witnesses, and from the evidence of those witnesses the jury could have determined where and how the fire started.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Joi-inston, C. J.:
In a petition for a rehearihg, the defendant says that he makes no complaint as to the principles of law set forth in the opinion, but he does contend that the court was not warranted in the conclusion that the testimony offered tended to show that plaintiff took possession and made a sale of the property under the chattel mortgage. That question was fully considered in the original hearing of the case, and a reexamination of the testimony in the abstracts leaves us in no doubt that there was sufficient evidence to require the submission of the case to the jury. A question was presented, and not determined, as to whether interest is allowable upon any damages that may be recoverable by the defendant under his cross petition. Although the judgment has been reversed, the question may arise on a retrial of the case, and therefore it may be properly determined on this appeal. The general rule, to which there are a few exceptions, is that interest is not allowed on unliquidated damages. The damages sought by defendant are based on tort — the alleged fraudulent withholding of a second mortgage from the record to enable the plaintiff, who held the first mortgage, to dispose of the mortgaged property to an innocent purchaser, free from the lien of defendant’s mortgage, and for a sum- less than its actual value, the claim being that it was willfully done to make the second mortgage worthless and to defeat and to defraud the defendant. The damages, if any, which were sustained by the defendant, depend upon whether a bona fide sale was made of the blacksmith tools, machinery and appliances for their actual value, and what surplus, if any, remained after the satisfaction of the first mortgage debt, together with the necessary expenses incident to the sale. The amount of damages sustained was conditioned on whether there was a surplus, and that depends on the value of the tools and appliances, about which there was much dispute. The uncertainty as to their value is illustrated in the testimony of the witnesses, whose estimates of value ranged from $300, the amount for which the sale was made, up to $1,400. It is clear that the damages, if any were sustained, arose on a tort, were unliquidated, and were not ascertainable by computation. Since the amount of damage was not susceptible of being made certain by any fixed standard, the plaintiff could not know the extent of his liability, and hence could not be in default for failing to pay. The amount due upon such a claim cannot be made certain except by a verdict or judgment, and in such cases interest can only be recovered from the time the amount of damage is so determined. There are some exceptions to the rule that interest is not recoverable on unliquidated damages which are not ascertainable by computation or measured by some fixed standard, but the present case does not come within any of these exceptions. (A. T. & S. F. Rld. Co. v. Ayers, 56 Kan. 176, 42 Pac. 722; Milling Co. v. Buoy, 71 Kan. 293, 80 Pac. 591; Latham v. Harrod, 83 Kan. 323, 111 Pac. 432; Evans v. Moseley, 84 Kan. 322, 114 Pac. 374; Roe v. Snattinger, 91 Kan. 567, 138 Pac. 581; Street Lighting Co. v. City of Wichita, 102 Kan. 4, 169 Pac 193.)
The petition for a rehearing is denied. | [
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The opinion of the court was delivered by
Porter, J.:
The sole question for determination is whether, under the particular facts in this case, the estate of the decedent is liable upon a contract made by his executrix.
J. B. Betts in his lifetime held a contract for the erection of a building for the Y. M. C. A. at Atchison; actual construction of the building had been in progress about a month at the time of his death. His widow was made executrix by his will, and some time after letters of administration issued from the probate court of Shawnee county she went to Atchison and arranged with the owner of the building to allow an estimate of the work already done; the estimate to be sent to .the surety company (which had guaranteed the faithful performance of the contract), presumably, in order to obtain its approval of the payment of the' amount allowed. Without waiting to hear from the surety company, the executrix arranged with the Exchange National Bank of Atchison to make her a loan of $980 on two promissory notes which she executed to the bank and signed “Lulu M. Betts Ex.” The proceeds of these notes went in partial payment for labor and material used in the construction of the building. The surety company never approved the allowance of the estimate, and a week or ten days after the money was obtained from the bank, Mrs. Betts turned over the contract to the surety company, which completed the building with a loss under the original contract. The estate is insolvent; it is said the general creditors will' receive from ten to fifteen cents on the dollar of their claims. The bank’s claim for the amount due on the promissory notes was presented and filed against the estate. The probate court disallowed the claim. The district court held that the notes were not a valid claim against the estate, and rendered judgment against the bank, and from the judgment the bank appeals.
The plaintiff concedes the force of the general rule that the executor or administrator cannot bind the estate by a new contract, and that the only effect of contracts made by him is to bind himself individually. (Shrigley v. Black, 59 Kan. 487, 53 Pac. 477; Campbell v. Faxon, 73 Kan. 675, 85 Pac. 760; Brown v. Quinton, 80 Kan. 44, 102 Pac. 242; Milbourne v. Kelley, 93 Kan. 753, 759, 145 Pac. 816.)
The contention is, that an exception arises in cases of building contracts entered into by the decedent during his lifetime which remain uncompleted at the time of his death, and which the executor or administrator elects to complete.
•The plaintiff contends that the rule upon which it relies has been the law since Chief Justice Coke, as early as 1685, in the case of Quick v. Ludborrow, 3 Bulst. 29, used this language—
“If a man be bound to build a house for another before such a time, and he which is bound dies before the time, his executors are bound to perform this.” (p. 30.)
Plaintiff also quotes from 2 Woerner on the American Law of Administration (2d. ed.), as follows: „
“Thus, if one agrees to build a house before a given time, and dies before that time, his executors are bound to perform the contract; and the completion by an administrator of a decedent’s contract to build a house attaches to his work all the liabilities of the original contract, so that a sub-contractor is entitled to his lien for materials furnished the intestate.” (§ 328.)
From 3 Williams on Executors (7th Am. ed. [1895]), the plaintiff quotes:
“It must be observed, that when the law speaks of executors not carrying on the business of their testator, it means that they are not to buy and sell. There are many cases when executors not only may, but are bound to continue the business to a certain extent. Thus, if a party contracts for himself and his executors to build a house, and dies, the executors must go on, or they will be liable in damages for not completing the work. So, if a party engages to build a house, and dies, after having procured all the necessary materials, it should seem that his executors ought to complete the work; . . . for otherwise those parts which he has purchased, upon the faith of the work being completed, are useless.” (Italics ours.) (p. 311 [*1689].)
These authorities do not go to the extent claimed by the plaintiff. All they decide is that building contracts are binding upon the heirs and executors of a decedent, and must be performed, or the estate “will be liable in damages for not completing the work.” We fail to find any modem authority which upholds the contention that building contracts are in a class by themselves and bind the executor or administrator to carry them out regardless of consequences.
In Lumber Co. v. Tomlinson, 54 Kan. 770, 39 Pac. 694, an action was brought against the executor and heirs to foreclose a mechanic’s lien for material and labor used in erecting a building. In that case two parties made a contract for the erection of a building; one of them died, and the other contractor abandoned the contract before the completion of the building. The executor of the deceased contractor, who was also one of the heirs, entered into a new contract with the plaintiff and completed the building. It was held that he was personally liable, but could not, as executor, without express authority in the will, bind the estate by the new contract. The contention of the plaintiff in the present case, that building contracts stand in a class by themselves, was not considered.
In 40 L. R. A., n. s., 201, 236, there will be found an exhaustive note with numerous citations from the American courts on the question of the powers and liabilities of a personal representative, testamentary trustee, or guardian carrying on business. The author classifies the exceptions to the rule holding the personal representative alone liable, some of the exceptions being based upon statutory provisions, or the fact that the business has been carried on under the order of court, but no reference is made to any exception to the rule based upon building contracts. It is said in the note:
“The weight of authority is to the effect that the executor, even though he carries on a trade or business pursuant to testamentary authority, is individually liable to creditors for all debts contracted by him while so engaged; and that the creditors cannot proceed against the estate in order to satisfy their claims.” (p. 203.)
In 11 R. C. L. the exhaustive article on executors and administrators, while enumerating some of the exceptions to the general rule, makes no mention, so far as we have been able to discover, of any exception based upon building contracts. It is said that—
“To authorize executors to carry on a trade with the property of a testator held by them, there ought to be the most distinct and positive authority and direction given by the will itself for that purpose.” (p. 139.)
Again, it is said:
“Although where a business or trade is carried on under the provisions of a will by virtue of a statute permitting it, or by an order of a competent court, a personal representative will be relieved from individual liability to the estate for losses, he will continue to be bound personally for all debts incurred by him in reference to the business. The courts take the position that he need not carry on the trade and incur this hazard, although authorized or directed to do so by the will; but by engaging in the business he voluntarily assumes the responsibility of making its contracts his personal obligations.” (Italics ours.) (11 R. C. L. p. 140.) -
“So careful have the courts always been to guard against the perilous consequences resulting from embarking the assets of an estate in trade, that even when the will authorizes the executor to carry on the business of the decedent he cannot in so doing create liabilities against the general estate. Hence, such creditors have no claim on the general assets, since to hold the-general assets liable would be attended with great inconvenience and would prevent their distribution- for a considerable period, or disturb a distribution already made.” (11 R. C. L. p. 141.)
In Campbell v. Faxon, supra, which is not, however, directly in point, because the contract there was one which was dissolved by the death of the decedent, it was held that in the absence of a testamentary direction an administrator cannot carry on the business of a deceased person “and if‘he does so* without authority, he will be individually bound for the contracts of the business.” (syl. ¶ 2.) It was said in the opinion that one authorized by will “is not bound to incur the hazard, but if he does the contracts made will be his own, and he will be individually bound by them.” (p. 679.)
In arguing for the necessity of an exception to the general rule, the plaintiff says in its brief that—
“To say in one breath that there are certain contracts' which the representative must complete, and in the next that he will be held personally liable for his acts, would be to create a situation so unjust and repugnant to the present-day standards that it could not be tolerated.”
But the representative is not bound to complete a building contract. There are doubtless situations where it would be the exercise of wise discretion on his part to elect to finish a building, but he is not obliged to do it; and in case he does elect to carry on, he and all those who' deal with him.are charged with knowledge of the law which declares that the estate is interested in the business only to the extent of the profits. Besides, no executor or administrator has general authority to borrow capital or funds with which to carry on or complete a contract made by the decedent. In any event, he would have authority to do no more than to employ capital or funds coming into his hands from the estate. He cannot bind the estate by executing notes for money borrowed by him, no matter whether the proceeds are used for the benefit of the estate or otherwise.
It is insisted that the original contract was not one which requiird the personal skill of J. B. Betts. This may be conceded, and the reason why it is a contract which survives, is that because upon the death of J. B. Betts it would not have been difficult, to find others equally capable of completing the building according to the plans and specifications. But this very test which demonstrates that the services of the contractor were not personal and might have been performed by the successors of the promissor, or some other person employed by them, also demonstrates that the damages likely to be sustained by the owner of the building by the breach of the contract would probably not amount to much. In such a situation, an executor or administrator in determining whether to elect to carry out the contract might well consider the hazard of attempting to carry 'on, compared with the slight damages the owner of the building would be entitled to recover for the breach of the contract.
The judgment is affirmed.
Marshall, J., not sitting. | [
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The opinion of the court was delivered by
West, J.:
The parties were married in 1910, and in September, 1914, they entered into a written agreement as to a division of their property interests by which the husband transferred to the wife certain described personal property, agreed to pay certain indebtedness theretofore made, on which the defendant might be held as joint maker or surety, and to pay her $200 in cash, the receipt of which was acknowledged. He further agreed to pay her $1,000 upon the favorable decision of a certain lawsuit, and agreed that he never would at any time claim any interest in the personal property transferred to her or any other property that she might thereafter acquire, and he agreed to abide by any will that she might make as to any of her property, and she was thereby authorized to dispose of any property she might have at any time, free from all claims by descent or otherwise upon his part. He further agreed to sign any conveyances made by her at any time when called upon, without remuneration. The contract recited that "the wife—
“hereby accepts the above property as her equitable and fair division of the property of said Clyde E. Ross and releases her husband, Clyde E. Ross, from all further obligations toward her support,”
and she also conveyed her title to certain described land and a certain contract and a certain action pending in this court.
“Said Gail E. Ross also in consideration of the delivery and sale to her of the personal property hereinbefore made and of the payment of the money therein specified by Clyde E. Ross hereby agrees that she never will at any time claim any interest in and to any portion of the said property above conveyed and relinquished to Clyde E. Ross, . . . nor in or to any other real or personal property that he may now have or hereafter acquire, and she hereby agrees to abide by any will that he may hereafter make and that he is hereby released of any claims that ;she might make to any of his property at any time by reason of being his wife, and he is hereby authorized to dispose of said property above described or any other property that he may hereafter acquire free from all claims by descent or otherwise upon her part, that he may do this without consulting her. She further agrees that she will sign any and all conveyances for the said property or other property he may acquire at any time when called upon by him; and that she will sign and acknowledge the same without remuneration.”
Upon making this agreement the parties separated, plaintiff going to Missouri and remaining there until the spring of 1915, when she returned to Kansas and the parties resumed the marital relation, living together until July, 1916, when the plaintiff brought suit for divorce, alleging gross neglect of duty and extreme cruelty. The defendant pleaded the separation agreement, and the plaintiff in reply alleged that it was obtained by fraud, and that for the purpose of inducing her to return to him he stated that if she would do so he would furnish her with a home and support, and that the contract would then be annulled and set aside; that when she executed, it she was ignorant of its legal effect, and she prayed that it be vacated.
The court granted her a divorce, and found that the contract was made upon advice of counsel who fully explained the effect to the plaintiff, and that it was fairly made at the time; that there was no new agreement made, upon resuming marital relations, except such as the law would infer from the fact that they were living together; and that the terms of the contract relating to the transfer of property and the payment of money, were fulfilled. In addition to the divorce, the court allowed the plaintiff $1,000 as alimony, and an attorney’s fee, and made the sums a lien on certain lots belonging to the defendant.
Defendant appeals, and assigns error on the allowance of alimony and the holding that the separation contract was annulled by the resumption of marital relations.
While the contract did not mention a separation, no doubt one was intended, and separation in fact took place. When the wife returned to her husband, and while they continued living together, she was entitled to support as any other wife would be, and that part of the agreement relinquishing all claims upon the husband for support must be deemed abrogated. Likewise,. when compelled by his mistreatment to sue for divorce she was entitled to suit money and counsel fees, which were properly allowed; but when the second separation took place nothing had been said or done touching the agreement as to the payment, of money and transfer of property except the mere living together.
It was settled in Dennis v. Perkins, 88 Kan. 428, 129 Pac. 165, that mere resumption does not of itself work abrogation, but that it, with other facts and circumstances, may indicate the intention of the parties as to whether a separation agreement is to be set aside. (9 R. C. L. § 355.) In the case before us all the alleged reasons for annulment met adverse findings by the court. In the Perkins case, it was said that when the contract contains provisions for the wife which might with equal propriety have been made had no separation been contemplated, and others which otherwise would have been idle, the coming together again of the parties and their conduct may be such as to show an intention to avoid the latter and not the former. Also—
“If the contract and circumstances be such that the permanent resumption of the relation of husband and wife would naturally and presumptively imply the abrogation of certain of its terms only, there is no reason why such effect should not be given.” (p. 435.) ■
The agreement which the parties had signed, and which the court found to be fairly made and substantially complied with, would by its terms stand in the road of the further depletion of the defendant’s property in favor of plaintiff by way of alimony. We have, then, a valid contract, properly made by competent parties, which the plaintiff sought to have decreed invalid for various reasons, none of which she was able to substantiate, and, in the absence of all evidence except the mere and insufficient fact that the parties lived together, we find nothing on which abrogation can be based.
The decree required the payment of $1,000 alimony, less $145 already paid in under the order of the court. This would leave $855 still to be paid.
The decree is modified by eliminating this $855, and, thus modified, it is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to recover on an indemnity bond given by the defendants to the plaintiff, while he was sheriff, to indemnify him against loss on account of levying an execution on the personal property of T. N. Marshall, the execution debtor. The plaintiff prayed for judgment in the sum of $629.65 and interest. Judgment was rendered in his favor for $170.85. Each side appeals.
On May 23, 1911) defendant the Linn County Bank caused an execution to issue on a judgment rendered by the district court of Linn county in favor of the bank and' against T. N. Marshall. The execution was held by the bank until July 20, 1911, when it was delivered to H. D. Callison, undersheriff at La Cygne, the place of residence of T. N. Marshall. An indemnity bond of $5,000 was demanded by the sheriff and was given by the bank. The bond was signed by each of the defendants. The execution was levied on certain personal property, and that property was advertised for sale on July 3, 1911. On June.24, 1911, T. N. Marshall filed his petition in bankruptcy, and on .June 30 the referee in bankruptcy ordered that the execution be stayed, and that the bank be restrained from proceeding further thereunder. The property was not sold on July 3, although the bank then demanded of the plaintiff that he hold the property and sell it at once. The plaintiff refused to sell at that time. Part of the property levied on was at Marshall’s farm and was not taken away, and part of the property was in the Frisco stockyard at La Cygne. On July 3, the plaintiff turned over to Marshall all the property levied on, to be held subject to the orders of the plaintiff as sheriff. July 22, 1911, was the return day of the execution. On July 24, the plaintiff, without notice to the bank, obtained an order from the judge of the district court at chambers giving the plaintiff until August 15, 1911, in which to return the execution. On July 24, the plaintiff readvertised the property for sale on August 14. On July 29, the referee in bankruptcy ordered the trustee to relinquish certain of the property levied on by the plaintiff. After that property had been released, the plaintiff’s attorney -asked the bank’s attorney what the bank wanted done with the property. The bank’s attorney declined to give any directions, and replied, in effect, that the plaintiff and his attorney had got into the muddle, and that they could get out of it the best way they could. On August 12, 1911, T. N. Marshall presented to the judge of the district court at chambers an affidavit showing that Marshall had, on June 24, been duly adjudged a bankrupt, and the judge ordered that the levy of the. execution on the property be set aside and the property be discharged. The property was then released.
Marshall presented to the plaintiff a claim for feed used and services rendered in caring for the property. The plaintiff refused to pay the claim, and Marshall brought an action to recover thereon. The plaintiff did not notify any of the defendants that the action had been commenced and did not request them to defend or assist in the defense therein. A judgment was rendered against the plaintiff for $478.21 and costs. The plaintiff afterward paid that judgment.
The present action is to recover the amount paid on that judgment, to recover attorney’s fees in that action, to recover attorney’s fees in the bankruptcy proceeding, to recover mileage of the plaintiff on the execution, to recover the cost of the last notice of sale, and to recover $50 for feed used prior to July 3. The bank paid for all the feed used and for the care of the property to July 3, except the $50, and three other items amounting to $19.48. The court rendered judgment in favor of the plaintiff for feed and.pasture for nineteen days, and for the items that made up the $19.48. The nineteen days must have been from July 3, the day first advertised for the sale, to July 22, the return day of the execution. The court evidently refused to render judgment for any feed furnished, or services rendered, after July 22. The court also refused to allow anything for attorney’s fees, for the plaintiff’s mileage, for the publication notice, or for the $50 paid Tor feed furnished prior to July 3.
The first proposition argued by the plaintiff is that the judgment in favor of Marshall was at least prima, facie evidence that the plaintiff had sustained damages in the amount named in the judgment. That proposition is correct. (City of Topeka v. Ritchie, 102 Kan. 384, 170 Pac. 1003; Train v. Gold, 22 Mass. 379; Lee v. Wisner, 38 Mich. 82; Stewart v. Thomas, Adm’r of Ball, et al., 45 Mo. 42; French v. Parish, 14 N. H. 496; Bridgeport Insurance Co. v. Wilson et al., 34 N. Y. 275; Lincoln v. Blanchard, 17 Vt. 464; 14 R. C. L. 62; Note, 22 Am. St. Rep. 207).
The judgment would have been conclusive evidence if the plaintiff had notified the defendants of the action, or had requested them to defend therein. (14 R. C. L. 61; 22 Cyc. 106; Note, 22 Am. St. Rep. 205; 3 Ency. of Ev. 277).
The serious problem is the court’s refusal to enter judgment for any item of feed or service that arose after July 22. The plaintiff, as well as the bank, was compelled by the referee’s order to stop proceedings under the execution, and neither could proceed until after the referee directed the trustee to release the property. The plaintiff could then proceed only against the property that had been released. When he, through his attorney, asked for instructions as to how to proceed, the bank, through its attorney, refused to give any instruction and told the plaintiff to get out of the difficulty as best he could. The bank should have then given instructions. When it refused, it was bound by what the plaintiff afterward did, so long as he-acted in good faith, and it and its sureties must bear the consequences. If the bank did not want to be bound by the acts of the plaintiff, it should have told him what it wanted done.
The defendants argue that the plaintiff could not sell the property after the return day, and should have returned the execution on that day. They also argue that the judge at chambers had no power to extend the time for returning the execution. These arguments compel a determination of the power of the sheriff to sell, after the return day of the execution, the property levied on previous to that day.
Section 448 of the code of civil procedure provides that a sheriff may, for his own protection, take security from the execution debtor for the return, to the sheriff, of personal property that remains in his hands unsold for want of bidders, for want of time to advertise and sell, or for any other reasonable cause. Section 450 of the code provides that when a writ shall issue directing the sale of property previously taken in execution, the clerk shall add a command directing the officers to levy upon lands and tenements, under certain conditions. Section 457 provides for the issue of other execution? when real prop erty has been levied on and not sold. Under these statutes this court has said: .
. “A sheriff cannot legally sell real estate on execution after the return-day of the execution, and more than sixty days after its date and after it was issued.” (Shultz v. Smith, 17 Kan. 306, syl. ¶ 1.)
This rule has been recognized in Ritchie v. Higginbotham, 26 Kan. 645; Rain v. Young, 61 Kan. 428, 59 Pac. 1068; Bank v. Bank, 61 Kan. 620, 60 Pac. 324; Norton v. Reardon, 67 Kan. 302, 72 Pac. 861. These decisions also recognize a writ directing the Sale of property previously levied on, and that writ and its effect are discussed at length in Ritchie 'v. Higginbotham. The court there said:
“The object of this writ, so far as it regards personal property, is to force the sheriff to sell when he has returned a levy unsold for want of buyers, and to bring him into contempt for not selling it.” (p. 648.)
If the sheriff can be forced to sell under such writ, he certainly has the power to sell without it. In 10 R. C. L. 1295, this language is found:
“As to the right to sell after the return day, there is some conflict. On the one hand it is held that such a sale is void, and that the sheriff and' the attorney who directed the sale are liable as trespassers. - On the other hand, many courts have recognized the authority of the sheriff to sell the property after the return day, particularly when the levy is made before the return day. Other courts allow a sale of personalty but not of realty after the return day. This distinction is based' on the theory that a levy on land, unlike a levy on personalty, vests no right or title in the sheriff, so that he acts under a naked power.”
The weight of authority seems to be that the sheriff has power to sell personal property after the return day of his writ, where that property has been levied on before that return day. An exhaustive note on the subject is found in 76 Am. Dec. 83-89. (See, also, Note, 28 Am. St. Rep. 120; 1 Freeman on Executions, 3d ed.,. § 106; 16 Standard Proe., 179; 17 Cyc. 1242; Dennis & Strickland v. Chapman, Gov’r, &c., 19 Ala. 29; Cox v. Currier, Sheriff, et al., 62 Iowa, 551; Savings Institution of Harrodsburg v. Chinn’s administrator, 70 Ky. 539; Sheldon v. The New Orleans Canal and Banking Company, 11 Rob. [La.] 181; Labiche, for the use, &c., v. Lewis and others, 12 Rob. [La.] 8; Barnard v. Stevens, 2 Aik. [Vt.] 429.) Under these and other authorities that might be cited, it must be held that .the sheriff had the power, after the return day of the execution, to sell the property levied on.
There remain the questions of attorney’s fees in resisting the action of Marshall against the plaintiff, of attorney’s fees in looking after the rights of the plaintiff to the property that was involved in the bankruptcy proceeding, of the mileage of the plaintiff, of the fee for publishing the last sale notice, and of the $50 paid for feed prior to July 3.
On the question of attorney’s fees, in 14 R. C. L. 59, it is said:
“When actions are brought to recover indemnity, either where the right to indemnity is implied by law or arises under a contract, reasonable counsel fees which have been incurred in resisting the claim indemnified against may be recovered as a part of the damages and expenses.”
Similar statements are made in 22 Cyc. 89, and 35 Cyc. 1771. Each of these statements is supported by numerous authorities. These statements are unqualified, and, so far as the language f'iven in each of them is concerned; the liability of the indemni- or does not depend upon notice having been given to him by the indemnitee; but in a number of the cases cited the indemnitor had notice, though in a number of the cases there is nothing to indicate that the indemnitor had any notice. It, therefore, may be argued, that because the defendants were not notified by the plaintiff concerning the action commenced by Marshall, the defendants are not liable for attorney’s fee. The argument is not good. The plaintiff had the right to defend in the action against him. That right could not be taken from him by the defendants. They could join or assist in the defense, but they could not exclude the sheriff from participating therein. In the following cases the indemnitors participated in the action with the indemnitees, yet the indemnitors were held liable for attorney’s fees: Stewart v. Lapsley, 7 La. Ann. 641; Davis v. Smith, 79 Me. 351; C. & O. C. Co. v. Co. Comm’rs of Allegany Co., 57 Md. 201; Clarice & another v. Moies, 11 Gray, 133.
While the solution of the problem presented is not without difficulty, yet the weight of authority, the better reasoning, and the conclusion of the court is that an indemnitee can recover his reasonable and necessary attorney’s fees. The conclusion reached is supported to .some extent by Bank v. Williams, 62 Kan. 431, 63 Pac. 744; Bourke v. Spaight, 80 Kan. 387, 102 Pac. 253; City of Topeka v. Brooks, 99 Kan. 643, 164 Pac. 285.
It may have been necessary for the plaintiff to employ an attorney in the bankruptcy proceeding. If it was necessary, he can recover the reasonable attorney’s fee paid or promised, but if it was not necessary he cannot recover.
The fee for the public notice should be recovered by the plaintiff, as well as the mileage for the distances necessarily traveled by him in performing his duty under the execution.
The $50 paid for feed furnished prior to July 3, 1911, should be recovered, if it is found that the amount was so paid.
On their cross appeal the defendants contend that no judgment whatever should have been rendered against them. What has been said concerning the question presented by the. plaintiff disposes of this contention of the defendants.
The judgment is reversed, and a new trial is granted. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an action brought by the state, on the relation of S. M. Brewster, as attorney-general, to compel Etta M. Covell, the city clerk of Topeka, to strike from the registration books of the city the names of citizens of Germany and Austria-Hungary who have been registered in Topeka as qualified electors, and who it is alleged will Vote if their names are not stricken from the rolls of eligible voters.
The defendant admits that a number of persons who owe allegiance to the belligerent nations n'amed, .and who had declared their intentions to become citizens of the United States, had been registered as qualified voters, and she also stated that, although not satisfied as to the right of these parties to vote, the fact that they had declared their intentions to become naturalized citizens of the United States and had resided in the state six months and in the ward thirty days, led her to register them as electors, but that she desired to do her duty under the law, and would willingly follow any decision the court might make.
The question presented for determination is: May citizens of nations at war with the United States, who have declared their intention to become naturalized citizens of this country, vote at the general election when state officers, United States senator, and members of the national house of representatives are to be chosen ? The claim of this class of residents to register and vote is based on section 1 of article 5 of our state constitution, defining the qualifications of electors, which reads:
“Every [white] [male] person of twenty-one years and upwards belonging to either of the following classes — who shall have resided in Kansas six months next preceding any election, and in the township- or ward in which he offers to vote at least thirty days next preceding such election — shall be deemed a qualified elector:
“1st. Citizens of the United States.
“2d. Persons of foreign birth who shall have declared their intention-to become citizens conformably to the laws of the United States on the subject of naturalization.” (Gen. Stat. 1915, § 195.)
This provision, it will be observed, recognizes the supreme authority of the United States in the matter of naturalization. The transforming of an alien into a citizen of the United ■States can only be accomplished, in accordance with the naturalization law-enacted by the national congress. To secure uniformity in the law admitting aliens to citizenship and to avoid the conflict that might arise if the states had authority to prescribe the conditions of admission, it was provided in the federal constitution that congress should have the power-to establish a uniform rule of naturalization. (U. S. Constitution, Art. 1, § 8.) The power so vested is exclusive in congress and cannot be exercised by any of the states, and no- privilege that a state may confer by its constitution or statutes can convert a foreigner into an American citizen. (Chirac v. Chirac, 2 Wheat. [U. S.] 259; Lanz v. Randall, 4 Dill. [U. S.] 425). A constitutional provision of a state which invades the federal domain would be without effect. Naturalization is a national right and, while a state may confer certain rights and privileges upon an alien resident in the state, it can confer none which contravenes the national authority. When the people of Kansas adopted our constitution, and ordained that aliens who had taken the first steps toward becoming citizens should be clothed with the rights of an elector, they were manifestly not conferring this right on enemies of the country — persons not eligible to naturalization. It was conferred upon citizens of the United States and aliens who have declared their intention to become citizens in conformity with the laws of the United States. A declaration of intention does not give an alien the status of a citizen. A foreigner who has done no more than to declare his intention to become a citizen, still owes allegiance to his foreign sovereignty, and still remains an alien. It has been decided that—
“A foreign-born resident of the United States, who has merely declared his intention to become a citizen, but has never complied with any other provisions of the naturalization laws, is none the less an alien, because of the facts that the constitution and the laws of the state wherein he resides have conferred its elective franchise and other privileges of citizenship on foreign subjects who have declared their intention to be naturalized, and that he has actually voted for members of Congress and state and county officers.” (Webster’s Law of Naturalization, 60.)
(See, also, City of Minneapolis v. Reum, 56 Fed. 576; In re Moses, 83.Fed. 995.)
It is said that the constitutional provision in express terms and without qualification confers the elective franchise on aliens. True, but there are aliens and aliens; those who have friendly relations with our people and government, and those who are subjects or citizens of a hostile nation, and the latter class must be regarded as having assumed the hostile attitude of the belligerent nations to which they owe allegiance. (In re Naturalization of Subjects of Germany, 242 Fed. 971.) Alien friends may become citizens of-our country, but alien enemies cannot, and evidently the people who framed and adopted our constitution were speaking of that class of aliens who might complete naturalization and become citizens of this country, and not of those who could not under any circumstances be admitted to citizenship. Under the federal law an alien enemy cannot be admitted to citizenship. (U. S. Revised.Stat. § 2171.) He has no political rights (1 Blackstone’s Commentaries, 372), and both our courts and territory are closed against him. One owing allegiance to an adverse belligerent and who is actually hostile is subject to internment and to deportation. It is clear, therefore, that our constitutional provision purporting to confer political rights on aliens does not apply to a class of aliens upon whom political rights cannot be conferred. It is too much to infer that the makers of our constitution intended to adopt a rule that conflicted with the federal constitution and law, or to enter into political relations with enemies of our country who are endeavoring to destroy our institutions. It certainly was not intended that people at war with us should have authority to select a congress which is empowered to declare war and provide for carrying it on, and álso to help elect the president and other officers who direct the war, officers to whom the conduct of our national affairs and the integrity of the country are intrusted. The term alien as ordinarily used is applied to that class who have recognized rights in this country, and with whom friendly relations may be established. Blackstone,- in his Commentaries, book 1, page 372, in speaking of the rights conferred upon aliens said:
“When I mention these rights of an alien, I must be understood of alien friends only, or such whose .countries are in peace with ours, for alien enemies have no rights, no privileges, unless by the king’s special favor, during the time of war.”
We think the term was so used in our constitution, and therefore the citizens of Germany and Austria-Hungary, although they have declared their intentions to become citizens of this country, are not entitled to vote at the coming election. It follows that judgment must be rendered as prayed for in plaintiff’s petition.' | [
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|
The opinion of the court was delivered by
Johnston, C. J.:
The defendant was convicted of. having burned a barn and its contents with the intent to defraud an insurance company. The information contained two counts, one charging the defendant with burning a bam, and the other with burning the building and the property in it for the purpose of defrauding the insurer. The burning with which the defendant is charged occurred in August, 1916. Prior to his arrest and about March 15, 1917, a statutory investigation was held by the state fire marshal and the county attorney in the latter’s office, where the defendant was questioned as to his knowledge concerning the origin of the fire, the questions and answers being reduced to writing. At the trial the defendant took'the stand as a witness in his own behalf, and on cross-examination he was questioned as to the answers he had given at the inquisition, Objection was made to this testimony, and its admission is assigned as. error. It is contended that the admission of the evidence practically made him a witness against himself, in violation of section 10 of the bill of rights. It is said that the statute under which the inquisition was held is invalid, because it authorizes the compulsion of testimony without offering immunity from prosecution. Attention is called first to the provisions of section 8 of chapter 312 of the Laws of 1913, which provided for the subpoenaing of witnesses to testify to any facts they might know as to the origin of the fire, and which provided that the failure to appear and testify constituted a misdemeanor punishable by fine and imprisonment. It was also provided that no person should be present or should hear the testimony given except the fire marshal, or his chief deputy, the county attorney, and the justice of the peace, if the testimony was taken before the latter, and that the testimony so taken should not be disclosed to any one other than the officers named. (Gen. Stat. 1915, § 10851.) The statute in force when the inquisition was held, and which repealed the act of 1913, is chapter 198 of the Laws of 1917. It provides for the inquiry, the subpoenaing of witnesses, makes their refusal to be sworn or testify a misdemeanor, and gives the justice of the peace power to punish witnesses for contempt, substantially as did the earlier statute. Section 8 of the later act does not provide for the exclusion of all persons except the officers, nor that the evidence taken shall not be disclosed to others than the officers; but in section 11 of the act it is provided that the officers may exclude all persons during the inquiry, and it is made unlawful to disclose the testimony taken, without the consent of the officers. The statute in force When the inquisition was held is the controlling one, but the terms of neither act afford any support for defendant’s contention. The testimony given by the defendant at the inquisition, and about which inquiry was made on cross-examination, could hardly be regarded as material, even if he had claimed his privilege and it had been refused. When he took the stand in his own behalf the testimony took a wide scope and covered in a general way his testimony given at the inquisition and which was brought out on the cross-examination in this prosecution. If it be assumed, however, that the challenged testimony was material, it cannot be regarded as involuntary and violative'of section 10 of the bill of rights. While the statute provides for the issuance of subpoenas and prescribes penalties for the refusal of witnesses to attend and give testimony, none of the requirements of the act prevented him from claiming the privilege of silence at the inquisition on the ground that his answers would criminate himself. He was not under arrest, but had the status of a witness, and was free to claim this constitutional privilege as a witness would in an ordinary civil or criminal action. In civil cases a witness refusing to obey a subpoena or to be sworn and answer as a witness may be punished as for contempt, but this does not deprive him of the constitutional privilege to refuse to give testimony which would criminate himself, nor has it been suggested that the provision is unconstitutional because it does not make an express exception of the constitutional guaranty that a witness shall not be compelled to testify against himself. He is deemed to know the law and his rights in the premises, and hence it is not material that he did not have counsel present to advise him that he was not required to testify against himself, and his failure to claim his privilege was a waiver of it. He was no more under compulsion to give testimony against himself in the inquisition than is a witness at a coroner’s inquest, and in The State v. Taylor, 36 Kan. 329, 13 Pac. 550, it was held that testimony voluntarily given at such an inquest may be subsequently received in behalf of the state in a subsequent prosecution against such person, although he did not offer himself as a witness. Here the defendant became a witness at the trial, and his voluntary offer of himself in that capacity gave the state the right to cross-examine him on every fact about which he gave testimony in chief, where there was, as here, a proper relevancy between his statements at the inquisition and his testimony at the prosecution. To make the testimony admissible it must, of course, have been voluntarily given, and although some language used in the Taylor case indicated that testimony given in obedience to a subpoena might not be voluntary, the questioh was subsequently examined, and it was held that the Taylor case “is not an authority that testimony given under a subpoena and without compulsion and duress is inadmissible.” (The State v. Finch, 71 Kan. 793, 798, 81 Pac. 494.) A witness subpoenaed to give testimony in a proceeding, who takes the stand and gives testimony without claiming his privilege, waives the right to object to the use of the statements and admissions so made, in a subsequent prosecution, and they are admissible so far as they are relevent to the case, and especially is this so if in the later proceeding he takes the witness stand in his own vbehalf. (The State v. Simmons, 78 Kan. 852, 98 Pac. 277. See, also, In re Burrows, Petitioner, 33 Kan. 675, 7 Pac. 148; The State v. Sorter, 52 Kan. 531, 34 Pac. 1036; The State v. Lewis, 56 Kan. 374, 43 Pac. 265; The State v. Jack, 69 Kan. 387, 76 Pac. 911; The State v. Inman, 70 Kan. 894, 79 Pac: 162; The State v. Campbell, 73 Kan. 688, 85 Pac. 784; People v. Molineux, 168 N. Y. 264; 3 Wigmore on Evidence, § 2276; Note, 70 L. R. A. 33.)
Another claim of error is the admission of evidence tending to show that the defendant had set fire to a stack of alfalfa upon which he had obtained insurance. This fire occurred about a month prior to the one for which the defendant was prosecuted. The purpose of the testimony was not to prove another offense, but to show the intent of the defendant in the commission of the offense charged and as an ingredient of that offense. There was testimony tending to show that defendant had obtained insurance on buildings, horses, mules, household goods, implements, hay, flax, grain and fodder, and the alfalfa hay was included in the policy with some of the property burned in the fire for which defendant was prosecuted. Defendant was charged and convicted of burning the barn and the property in it to defraud the insurer. Some testimony wa,s offered tending to show that defendant claimed the loss on the alfalfa in excess of its value, and that other property insured was overvalued. The intent to defraud the insurer was .an essential element of the crime charged, and any fact or circumstance tending to show the ingredient of intent is admissible, although it may also tend to prove the commission by the defendant of an offense other than the one alléged in the information. (The State v. Burns, 35 Kan. 387, 11 Pac. 161; The State v. Franklin, 69 Kan. 798, 77 Pac. 588; The State v. Briggs, 74 Kan. 377, 86 Pac. 447; The State v. Hetrick, 84 Kan. 157, 113 Pac. 383; The State v. Ball, 93 Kan. 606, 144 Pac. 1012; 12 Cyc. 408; Note, 62 L. R. A. 193.)
Another assignment, of error is based on the conduct of the jury in making an inspection of the premises under the direction of the court. The testimony in the case related to the premises upon which the burned bam had been located, and some of it to a bam of Mrs. Margaret Harris in Great Bend, where some of the insured property had been placed before the fire, and reference was also made by some of the witnesses to the Johnson place about a half mile from the location of the burned barn. The court directed the jury to inspect the premises upon which the barn had stood and cautioned them as to their conduct in making the inspection. At the time, counsel for the defendant stated to the court: “We would like to have them go through the house.” Counsel for the state then remarked : “We would like to have them look over all of the premises.” The court responded: “They may do so.” When the jury went out they inspected, not only the place where the bam had stood, but also viewed the inside of the barn in Great Bend, and besides, they had a view of the Johnson premises. There might be a question whether the direction of the court warranted an inspection of any premises other than those on which the barn had been, located. The general language used is open to the interpretation that they were to view all premises to which the testimony related. The proximity of the Johnson place to the Harris place, where the bam had been burned, was such that the jury could readily have viewed the Johnson place while at the Harris place; and, because of the testimony, there would have been no error if the court had expressly directed the jury to view the Johnson place. Besides, no attempt was made to show that anything seen or done there could have affected their verdict or resulted to the prejudice of the defendant. The inspection made in the bam in Great Bend could have had no other purpose than to verify some testimony given by two witnesses to the effect that three sets of harness had been taken from the bam on the farm before it was burned and placed in a manger of the Great Bend bam and covered with a carpet. Other testimony was to the effect that the harness was afterwards removed and put in a barn belonging to a brother of the defendant. The testimony respecting the harness was contradicted by the defendant, and it was claimed there was no room in the manger for the harness. Probably the jury desired to obtain a better understanding of the conflicting testimony on this point, and, believing it to be their duty to -view any premises about which testimony had been given, they inspected the manger in this bam. However, if the inspection' was not within the purpose of the court’s direction, and if treated as made without permission, it would not vitiate the verdict unless it should appear that the inspection operated- to the prejudice of the defendant. An irregularity or error in the proceedings of the trial which does not affect the substantial rights of the defendant or operate to his prejudice affords no grounds for the reversal of the judgment. (Crim. Code, §293.)
There is further objection that the court erred in refusing the motion of defendant to require the state to elect upon which count of the information it would rely for-a conviction.' The charges in the two counts of the information were based on thé same transaction — the same act of arson. To meet the exigency of the proof it was competent for the state to set forth the offense in different^ways and in different counts. The jury were instructed that only one conviction could be had under the information, and defendant was convicted only of the offense charged in the second count. The defendant has no reason to complain of this ruling.
The judgmrnt is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
J. L. Schroeder was prosecuted for assault with intent to kill, and from a judgment which fixed the punishment at six months imprisonment he appeals.
He assigns a number of errors upon rulings excluding testimony, but as the proposed testimony was not presented to the court by affidavit in the motion fo.r new trial, as the code requires, the errors are not available. (Crim. Code, § 210; Civ. Code, § 307; Scott v. King, 96 Kan. 561, 152 Pac. 653; The State v. Wellman, 102 Kan. 503, 170 Pac. 1052.)
Complaint is made of a remark of the court to the effect that counsel in his opening statement had referred to certain matters not connected with, and which could not be brought into, the case. The statement of the court, whatever it was, is not preserved in the record, and the objection is therefore not open for our consideration.
An instruction to which exception is taken relates to the doctrine of self-defense, and was to the effect that if the defendant did not provoke, invite or begin the affray with the Roeders, with whom he had trouble, and had acted on a well-grounded fear that he was in imminent danger of being killed by them or of receiving great bodily harm from them, the jury might consider defendant’s plea for self-defense, and if they found that he acted in self-defense they might acquit him. The court further told the jury in the same instruction that:
“Mere words or threat's do not justify an assault or an attack; and if you find that prior to the shooting charged in the information, Ed Roeder or Charlie Roeder or John Roeder had made threats that they would kill or injure the defendant, and if you further find that after learning of such threats the defendant procured a rifle and left Wulf’s store and went out into the street in front of the store and commenced the affray or invited it and that the affray occurred as a result of such invitation, then you aré instructed that the defendant cannot excuse or defend himself on the ground that the Roeders had made such threats.
One who provokes, invites or begins an affray cannot set up the plea of self-defense.”
The instruction is a fair statement of the law applicable to the case. It is said that defendant had the right to talk over or compose previous difficulties that had arisen between him and the Roeders, and as an interview might bring on an attack from them, he had the right to arm himself without forfeiting the right of self-defense, and Parker v. State, (Tex. Crim. Rep.) 196 S. W. 537, is cited. It appears that the defendant advanced upon the Roeders as a belligerent, and not as a peacemaker. His attitude was hostile from the time he left the store until his attack upon the Roeders. There had been a clash between him and one of the Roeders a few days before, and some testimony was offered of prior threats made by the Roeders against the, defendant, but fear of threatened injury at some future time did not justify the bringing on of the conflict and the shooting. (The State v. Rose, 30 Kan. 501, 1 Pac. 817.) It appears that on this occasion the defendant saw the Roeders across the street from his store at a garage, and with knowledge of the antagonism and threats, instead of seeking to avoid trouble, he deliberately procured a rifle and crossed the street, began an attack on 'the Roeders, shooting one who was running from him and clubbing another. The testimony offered by the defendant shows that he was not seeking to avoid .danger or to do everything in his power to avert the necessity of shooting, as was his duty under the law. The rule of retreat or of standing his ground against an assailant is not in the case, because, while there may have been threats and danger of an attack by the Roeders at some time in the future, they did not attack him at this time, and if there was a danger it was voluntarily brought upon himself by his own misconduct. Instead of shunning a combat, he was in fact the aggressor. Self-defense is a defensive act, and not an offensive one, and one who brings on a conflict is not acting' defensively, but is acting unlawfully, and he cannot escape the consequences of his wrong upon the plea of self-defense or apparent danger. The court rightly held that the plea of self-defense is not open to one who is the aggressor and who unlawfully provokes a conflict in which he shoots another. (The State v. Rogers, 18 Kan. 78; 13 R. C. L. §§ 128-136; Note, 45 L. R. A. 687.)
Whether the defendant began the affray, or whether he did what he could to avoid threatened injury, was left to the jury by the instructions; the court told them, in effect, that the plea of self-defense was available if he did not provoke, invite, or begin the affray, or if after doing so he in good faith declined to further struggle, and so informed the other parties to the conflict, and thereafter acted and shot on a well-grounded fear that he was in immediate danger of - death or of great bodily harm from the Roeders.
There are criticisms of other instructions, but we find nothing substantial in them.
Objection is made that the verdict did not specify the degrees of the offense committed. The information appears to have been drawn under section 38 of the crimes act (Gen. Stat. 1915, § 3399), and the conviction was under section 42 of that act (Gen. Stat. 1915, § 3403). The offense charged under section 38 includes the offense defined in section 42, and there are no degrees of the offense to be specified. (The State v. Ryno, 68 Kan. 348, 74 Pac. 1114; The State v. Ireland, 72 Kan. 265, 83 Pac. 1036; The State v. Johnson, 99 Kan. 850, 163 Pac. 462.)
No prejudicial errors having been committed, the judgment is affirmed. | [
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The opinion of the court w.as delivered by
Johnston, C. J.:
The plaintiffs, Ernest Cornelssen and Bertha Cornelssen, his wife, who owned a section of land in Ness county, exchanged it for several tracts in Jackson county owned by the defendant, - F. H. Harman. In the exchange it was agreed that the plaintiff’s land should be priced at $32.50 per acre, and that of the defendant at $135.00 per acre. There was a mortgage on defendant’s land of $6,000, which the plaintiffs agreed to assume, and to equalize the considerations of the exchange defendant was to give plaintiffs a mortgage of $3,000 on the Ness county land. A written contract of exchange embracing the above terms was made, in which the land of the defendant, which consisted of. several irregular tracts, was described, and there was a recital that the tracts altogether made “about 176 acres, to be determined by survey of the tracts sold to John Ketterman.” Deeds were subsequently executed, and' in the one executed by the defendant it was recited that the tracts described' amounted to “one hundred seventy six and two-thirds (176 %) acres, more or less.” More than three years after the exchange was effected, the plaintiffs brought this action, alleging that the defendant had falsely and fraudulently represented to them that there were 176 acres in the tracts of land described in the contract and deed, when in fact there were only 162 acres; that they relied on the representations so made, and were thereby induced to accept the deed and pay $1,890 more than defendant was entitled to receive, and for this amount judgment was asked. At the first trial of the case, the jury returned a verdict for the plaintiffs which, upon .motion of the defendant the court set aside, granting a new trial. With the consent of the court, the plaintiffs then filed an amended petition containing substantially the averments of the original petition, and, among other things, added that the defendant represented to plaintiffs that the number of acres included in the land described in the deed executed by defendant, and intended to be described in the contract, outside of and exclusive of all lands> covered by any and .all railroad rights of way over and along said described land, was one hundred and seventy-six (176) acres, and that the defendant’s representation in this respect was false and known by him to be false. It is then alleged that plaintiffs relied on the representations relating to the number of acres, and believing them to be true, were induced to sign the contract and execute the deed heretofore mentioned, and to pay the defendant $1,890 more than was actually due him. The defendant answered and, among other defenses, alleged that any cause of action the plaintiffs may have had was barred by the statute of limitations, as more than three years had elapsed since the cause of action accrued before the filing of the original petition, and more than four years before the filing of the amended petition. At the commencement of the second trial the court sustained an'objection to the introduction of any .evidence offered by plaintiffs, on the ground that the amended petition did not state a cause of action, and upon its face it ■showed that the statute of limitations had run against the claim of the plaintiffs. Application was then made by plaintiffs to 'amend the amended petition, and this was overruled. In the plaintiffs’ appeal, errors are assigned on rulings made at the first trial had under the original petition, in which the court refused to permit the plaintiffs to amend their petition to conform to certain proof. It appears, however, that the plaintiffs did not stand on and appeal from this ruling, but chose to file an amended petition, under which the subsequent proceedings were had. That ruling is not available as error. It has been decided, in Garanflo v. Cooley, 33 Kan. 137, 5 Pac. 766, that—
- “Where plaintiff in an action asks and obtains leave to file an amended petition, it becomes and must be treated as the original pleading, and he thereby waives any irregularity or error there may have been in the proceedings prior to the filing of the same.” (syl. ¶ 1.)
(See, also, Reihl v. Likowski, 33 Kan. 515, 6 Pac. 886.)
The cause of action alleged by the plaintiff in the amended' petition was manifestly barred by the statute of limitations. It is founded on the misrepresentation and active fraud of the defendant. According to the averments of the pleading, the specific land, and all of the land which the defendant owned, was conveyed to the plaintiffs, but their claim is that the tract did not embrace as many acres as the defendant represented it to contain. They allege in their amended petition that there was an error in the description of. the land in the written contract, but they further allege that the real estate which, defendant agreed to convey was correctly described in the deed executed by the defendant. Two railroads had been built across the land, and the abstract discloses that a dispute arose between the parties as to whether the rights of way of these railroads should be considered as part of the land conveyed, and in the first trial the court instructed the jury that where an easement only was obtained for a right of way, the title remained in the owner of the fee, and that such owner might use the right of way for any purpose which would not interfere with the use of the land for railroad purposes. It appears, too, that a question arose as to whether the land was situate wholly within certain hedges, fences, and other lines that were pointed out as boundaries by the defendant. However, the whole tract owned by the defendant was conveyed. It is conceded that it was correctly described in the deed of conveyance. Plaintiffs’ action is not brought on the written contract or deed. There is no claim of mutual mistake as there was in some of the cases cited by the plaintiffs, but they allege that to induce the plaintiffs to purchase the tract owned by the defendant, he fraudulently represented that it contained a greater acreage than there was in the tract, that it contained 176 acres exclusive of the rights of way of railroads, and that, relying on these fraudulent representations, plaintiffs paid a greater sum than was actually due. It is clear, therefore, that the action is based on fraud, and one which must be brought within two years after the cause of action has accrued. Upon its face the petition shows that the fraud on which the cause is founded was consummated more than three years before the action was brought, and that being so, it devolved on the plaintiffs to al lege that they discovered the fraud less than two years before the commencement of the action. (Young v. Whittenhall, 15 Kan. 579; Doyle v. Doyle, 33 Kan. 721, 7 Pac. 615.) This requirement of the law was not met by the plaintiffs. They did allege that prior to the time when they acquired knowledge of the fact that the land did not contain 176 acres exclusive of the rights of way they had paid the consideration, and that “before being informed as to the falsity of said representations as aforesaid, made by the defendants concerning the number of acres in said tracts of land, outside and exclusive of railroad rights of way, to be by defendants conveyed to plaintiffs, did accept from said defendants on'the 14th day of November, A. D. 1910, their certain warranty deed,” etc.
Manifestly this falls short of an averment that the fraud was not discovered by the plaintiffs within two years before the bringing of the action, and therefore the amended petition did not state a cause of action. Even if it should be held that the action was one upon an implied contract to recover an overpayment resulting from the misrepresentation of the defendant, it would still have to be held that the action was barred, since it was not brought within the three-year limitation.
Complaint is made of the ruling refusing to allow the plaintiffs to amend their amended petition by alleging that they did not discover the fraud or learn that there were less than 176 acres in the tract until April, 1913. Whether an amendment should have been allowed at that time was a matter within the sound discretion of the trial court. Already there had been a protracted litigation. One trial had been had on the original petition, and the parties had gone into the second trial upon an amended petition. The omission was an important one, and while courts should always be liberal in the allowance of amendments, we cannot, under the circumstances, hold that the court abused its discretion in denying the application to amend.
Judgment affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from a judgment of the district court approving a survey made by the county surveyor of Barber county upon a request to establish the proper line between the east and west halves of the northeast quarter of section 28, township 83, range 13 west. The east half is owned by O. F. Rowley who procured the survey to be made, and the west half was owned by Ellen E. McKee who appealed from the survey to the district court and was the plaintiff in this action.
The principal dispute between the parties concerns the original location of the northwest corner of section 28. This corner is called the Ball corner and for several years the only stone there . was one known as the Ball stone. It is claimed by plaintiffs that this stone marks the original government corner. McCleary, the county surveyor, did not so treat it, and the survey he, made resulted in establishing the corner in question at a point 1.55 chains west and 28 links south of the Ball stone.
A mile and a half north of the disputed corner is the quarter-section corner between sections 16 and 17, known as the walnut corner, and the parties agree that this is the true location of a government corner. A mile south of the disputed corner is a stone at the southwest corner of, section 28, which corner had been found and reestablished as the original government corner by a former county surveyor named Aber. To explain in a general way the method of McCIeary’s survey, it may be said that he ran a line between these two points, and he found the position of the temporary corner, in a north-and-south direction, upon this line by means of proportional measurements, To fix the position of this comer in an east-and-west direction, he surveyed a line from a stone at the northwest corner of section 26 to a stone on the northwest comer of section 30 on the range line, both of which points were familiar to- him and had been used by him in other surveys as having been established by Aber as government corners. On measurement of this four-mile line his survey showed a surplus of 30 links over the measurement mentioned in the government field notes, or 714 links to the section. On this basis of apportionment he then established the location of the northwest corner of section 28, west 15 links from the point of intersection of this line with the north- and-south line previously surveyed. The corners which he fixed were tested by running lines and making measurements from other known corners in the vicinity.
The plaintiffs insist that the Ball rock is a monument of the original survey, and that this fact is attested by government marks upon it, by its being in line with other comers, by the fact that its location is about the same distance from a certain creek as that mentioned in the government field notes, and by general recognition for many years. If the Ball rock is a government monument, it should have been taken as a guide in establishing the line between the lands of the contending parties ; but, while some of the evidence tended to support the claim of the plaintiffs that the Ball rock is a government stone, there was other testimony to the contrary. Upon the stone there were some government marks, as plaintiffs contend. According to the field notes, it was about the same distance from the creek that the government stone was said to be from that creek, and it had received recognition as a corner stone, and had in one instance been used as a starting point in surveying another tract of land. While something corresponding to government marks were found on this stone, the marks themselves tended to discredit the claim that it was a government monument. The marks did not fit the location, and indicated that if it was a government stone at all it belonged at a point miles away from its present location, and nothing was offered to show whether it had been removed or how it came to be misplaced. The field notes show that a sandstone was placed at this comer, while the Ball rock is a limestone. The stone set by the government was noted to be 12 x 12 x 5, while the Ball rock is 15 x 81/2 x 3, and, while the discrepancies in quality and size are not controlling, they tend strongly to support the finding of the trial court that it was not a government corner. (The State, ex rel., v. Manny, 99 Kan. 140, 160 Pac. 1014.) The correspondence of the distance of the Ball rock from the creek with that given in the government field notes between the government corner and the creek supports plaintiffs’ claim, but as the creek runs through a sandy bottom its course is uncertain and shifting, and a witness stated that such a stream could not be depended upon as a witness to a corner. Whether the creek had shifted since the original survey, and its value as a witness to the original comer, were questions of fact for the trial court. The fact relied on by plaintiffs, that no other stone was found at this corner, is also one for the court to consider in determining •the location of the original monument; but, since many of the government stones, are missing, it is not a controlling fact. As, is often the case in the settlement of disputed surveys of boundaries, the evidence was very conflicting. The plaintiff, sometime, before the trial, procured a surveyor named Gilmore to run the lines, and his result differed from that of the county surveyor and fixed the disputed corner nearer the Ball stone. It was made upon different variations from those used by the county surveyor, but there is much uncertainty as to the variations of the magnetic needle and no fixed law has yet been found governing variations. What allowance should have been made for variation was a question of fact to be determined by the trial court from the evidence. (Wilson et al. v. Inloes et al., 6 Gill [Md.], 121.)
While there is much complaint of the methods of the county surveyor in. making this survey, and considerable testimony tending to support the plaintiffs’ theory, there is sufficient evidence, we think, to uphold the finding of the trial court. The county surveyor took considerable pains to test and verify the locations made by him, from government and known comers, and appears to have followed the statutory rules of apportionment, and we' are unable to say that the survey and the judgment approving it should be set aside. We are not aided much by the authorities cited by counsel, since the case depends upon the preponderance of the evidence, and in instances of this kind each survey case is a rule for itself. As was saiel in The State, ex rel., v. Manny, supra, “the evidence presented a fair question of fact for the trial court, and its decision must be regarded as final.” (p. 142.)
The plaintiffs complain of the overruling of the motion for a new trial. Upon it additional testimony was presented as to the locations in question, and the affidavit of a surveyor was secured which tended to support the testimony of the surveyor, Gilmore, who testified in plaintiffs’ behalf. There was also testimony of a stone found near the dividing line between sections 27 and 22 upon which were no marks, and also testimony of another stone farther away. This testimony is largely cumulative in character, and, if introduced, would not, in our opinion, have changed the result. New evidence, to warrant the granting of a new trial, must, among other things, be such as would reasonably have compelled a different dicision. (Shores v. Surety Co., 84 Kan. 592, 114 Pac. 1062; Collins v. Bellford, 89 Kan. 92, 130 Pac. 662.) Some testimony was also offered relating to the rule governing the variation of the magnetic needle, but this was expert in character and . did not warrant the granting of a new trial. (Lillard v. Railway Co., 79 Kan. 25, 98 Pac. 213.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Alleging that the defendant had converted to his own use plaintiff’s undivided interest in certain oil and gas leases, plaintiff brought this action to recover the value of his interest at the time of conversion. Defendant appeals from the judgment in plaintiff’s favor.
There was considerable conflict in the evidence, but the following general statement may be made of the facts tending to uphold plaintiff’s claim and recovery. The plaintiff was in touch with certain persons in Wichita who had become interested in the development of oil and gas land. Upon the suggestion of the defendant, the plaintiff, a party named Miller, and the defendant entered into a joint enterprise the object of which was to obtain leases on lands in Lyon county for the purpose of prospecting and developing the same for oil and gas. It was agreed that when leases upon at least 4,000 acres had been obtained the plaintiff was to procure the parties in Wichita to form a company for the purpose of drilling, and plaintiff was to perform all necessary legal services in connection with forming such a company, and he was also to obtain the services of a geologist. It was agreed that plaintiff, Thomson, Miller, and the geologist should each be entitled to a one-fourth interest in the leases in return for their services, or, in case no geologist could be obtained then the parties should be entitled to a one-third interest each. Plaintiff made several attempts to obtain a geologist, but without success, and he also endeavored to help secure some of the leases. .Eventually, leases upon 7,800 acres were obtained, but when plaintiff suggested that it was time to interest the Wichita people in drilling oper ations Thomson told plaintiff not to procure the Wichita parties for that purpose as he had others in view, and that plaintiff had no interest in the leases; and he refused to give plaintiff any information about them or concerning the amount of money expended to procure them, although plaintiff offered to pay his share of such expenses. On other occasions, although plaintiff renewed his offer to procure the Wichita people to commence drilling, defendant refused to recognize plaintiff’s interest in the leases or in the contract between them. This-action was then brought, and the jury found the value of plaintiff’s interest to be $850, and judgment for that amount was awarded.
The defendant complains of rulings on the petition, evidence, and instructions which permitted the plaintiff to proceed in this action for conversion without first having an accounting between partners. If the suit involved the adjustment of complicated accounts in which an ordinary legal remedy was inadequate an accounting might have been warranted, but there is no necessity of resorting to an accounting where full inquiry may be made and justice secured through the ordinary legal remedies. Here there was but a single adventure ; there was no complexity of accounts; no difficulty for a jury to understand and determine the questions involved; the relationship had been terminated; and hence there was no occasion for employing the methods of investigation peculiar to courts of equity. It has been determined that where a single partnership transaction is involved, an accounting between the parties is not necessary. (Pettingill v. Jones, 28 Kan. 749.) In another case it was ruled that when the dealings between partners embraced but a few items or transactions and were not such as to make an adjustment of their dealings difficult, the ordinary legal remedies were adequate, and resort to equity was unnecessary. (Clarke v. Mills, 36 Kan. 393, 13 Pac. 569.) Here there was a repudiation of the partnership relation' and denial that the plaintiff had any interest in the adventure and a wrongful appropriation of the firm assets, and for such a wrong an appropriate action at law is maintainable. (30 Cyc. 468.)
There is complaint of the admission of testimony relating to negotiations between the plaintiff and a geologist, and of the •exclusion of testimony offered by defendant to the effect that when the leases were obtained he and Miller represented to the lessors that if oil and gas wells were not drilled within a year the leases would be returned to the lessors and that they would not be transferred or used for speculative or commercial purposes. Since the contract provided for the obtaining of the cooperation of a geologist by the plaintiff, testimony as to his efforts in that direction was admissible; and besides, it does not appear that any objection was made to the admission of the testimony. The purpose of the excluded testimony, it is said, was to show the value of the leases, and it is contended that as to the representations in question plaintiff was bound by the acts of his partners. There can be no question about the responsibility of one member of a partnership for the acts of his copartners, but the leases herein were in writing, and they contained none of the representations claimed to have been made by the defendant. The instruments themselves refuted the claims of the defendant and showed that the alleged oral stipulations contradicted the terms of the written lease and hence were without force. If the leases had been offered for sale their value would not have been affected by any oral representations or secret agreements that defendant may have made. The failure to drill a well within a year, if it had any effect on the value of the leases, cannot avail the defendant, since he prevented the drilling of the wells or the development of the land as plaintiff proposed and the agreement provided. No error was committed in rejecting the testimony.
Objection is further made to a ruling excluding an offer to show the expense incurred by the defendant in securing the leases in question. It does not appear how much of this expense was incurred before the repudiation of the plaintiff as a partner and the denial of his interest in the venture. Some testimony was produced to the effect that plaintiff offered to help procure parties to drill for oil, and -that his offers were rejected. According to the contract the plaintiff was to do the legal work of the enterprise, endeavor to obtain a geologist, and find parties to drill wells, while defendant and Miller were to secure the leases. There is some testimony that the plaintiff performed his part so far as he could or was permitted by the defendant to perform it. As the offer was made, it cannot be said that there was material error in its refusal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Michael James Post seeks review of the Court of Appeals decision in State v. Post, 32 Kan. App. 2d 1222, 96 P.3d 662 (2004), affirming the district court’s sentencing order that denied him visitation with his girlfriend, the mother of Post’s sexual abuse victim, during his incarceration. Post asserts that the sentencing statute, K.S.A. 2004 Supp. 21-4603d(a), does not authorize a district court to include a no-contact order as a condition of incarceration.
Post committed fellatio on C.M.’s 10-year-old son, T.M. T.M.’s 9-year-old brother, C.R., observed Post and told his older sister what Post had done. Post was charged with aggravated criminal sodomy and released on bond with the condition that he have no contact with the victim or any witness.
While Post was out on bond, C.R. reported that Post was living with him, his mother, C.M., and his brother, T.M., in violation of his bond conditions. As a result, the district court temporarily revoked Post’s bond.
Post ultimately entered into a plea agreement with the State. Post pled guilty to one count of aggravated indecent liberties with a child and entered an Alford plea to one count of attempted aggravated solicitation of a child and felony obstruction of official duty. Post requested to be placed on bond until his sentencing hearing. His request was denied. Post then filed a motion requesting visitation with C.M. while he was in the county jail awaiting sentencing. The district court granted Post’s motion.
On November 14, 2001, the district court sentenced Post to a controlling sentence of 73 months’ imprisonment, ordering the standard sentence for each of the three counts to run consecutively. In addition, the court entered a no-contact order, stating:
“You’ll have no contact whatsoever — and I’m reinforcing this order in the light of what I had previously ordered in this case, no contact whatsoever with [C.M., T.M., and C.R.]. I’m severing the codependency problem. You may have contact with them at some other time in life, but right now they’re not going to visit you. Period.
“No contact with any children under the age of 18 years of age.”
Post did not appeal his sentence. However, on February 7,2003, Post filed a motion requesting that C.M. be allowed to visit him in prison. At a hearing on Post’s motion, the State objected and informed the district court that C.M. had been taking her children, T.M. and C.R., to visit Post in prison. Concerned that C.M. would deliver messages from Post to T.M. and C.R., the district court denied Post’s motion.
Post appealed. Post argued that his sentence was illegal because the district court had no statutory authority to impose the no-contact order as a condition to his sentence of imprisonment. The Court of Appeals affirmed the district court’s denial of his motion for visitation in Post, 32 Kan. App. 2d at 1227-29. We granted Post’s petition for review.
An illegal sentence is a sentence imposed by a court without jurisdiction, a sentence that does not conform to the statutory provisions either in the character or the term of the punishment authorized, or a sentence that is ambiguous with respect to the time and manner in which it is to be served. State v. Harper, 275 Kan. 888, 890, 69 P.3d 1105 (2003). Because Post argues that his sentence does not conform to the statutory provision, we must interpret K.S.A. 2004 Supp. 21-4603d(a). Interpreting a statute is a question of law, and we apply an unlimited standard of review. Puckett v. Bruce, 276 Kan. 59, 61, 73 P.3d 736 (2003).
K.S.A. 2004 Supp. 21-4603d(a) establishes the authorized dispositions for any person who has been found guilty of a crime committed on or after July 1, 1993. The pertinent sections authorize the district court to adjudge any of the following dispositions:
“(1) Commit the defendant to the custody of the secretary of corrections if the current crime of conviction is a felony and the sentence presumes imprisonment, or the sentence imposed is a dispositional departure to imprisonment; or, if confinement is for a misdemeanor, to jail for the term provided by law;
....
“(3) release the defendant on probation if the current crime of conviction and criminal history fall within a presumptive nonprison category or through a departure for substantial and compelling reasons subject to such conditions as the court may deem appropriate . . . ;
“(4) assign the defendant to a community correctional services program as provided in K.S.A. 75-5291, and amendments thereto, or through a departure for substantial and compelling reasons subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution;
....
“(11) impose any appropriate combination of (1), (2), (3), (4), (5), (6), (7), (8), (9) and (10).” (Emphasis added.)
A fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in it. Puckett, 276 Kan. at 61.
We are required to construe criminal statutes strictly in favor of a defendant. If there is any reasonable doubt about the meaning of the statute, we must decide it in favor of the person subjected to the criminal statute. However, we must subordinate the rule of strict construction to the rule requiring judicial interpretation to be reasonable and sensible to effect the legislative intent. State v. Huff, 277 Kan. 195, 203, 83 P.3d 206 (2004).
Here, the Court of Appeals interpreted 21-4603d(a)(11) to authorize a combination of the prior ten subsections without hunting the combinations .o entire subsections. Post, 32 Kan. App. 2d at 1227. In reaching this decision, the Court of Appeals relied on K.S.A. 21-4601, which requires courts to liberally construe the sentencing guidelines so that persons convicted of a crime are dealt with in accordance with their “ ‘individual characteristics, circumstances, needs, and potentialities.’ ” 32 Kan. App. 2d at 1226. Highlighting the special circumstances that motivated the district court’s no-contact condition, the Court of Appeals limited its holding to the facts in this case. 32 Kan. App. 2d at 1227.
Rather than follow its own precedent on this issue as stated in State v. Chilcote, 7 Kan. App. 2d 685, 647 P.2d 1349, rev. denied 231 Kan. 801 (1982), the Court of Appeals distinguished the case on the ground that K.S.A. 21-4603 (Ensley 1981), the statute at issue in Chilcote, only applied to crimes that were committed prior to July 1, 1993. See Post, 32 Kan. App. 2d at 1229. We disagree with the Court of Appeals and find Chilcote to be on point.
In Chilcote, the defendant raised a direct appeal, claiming that his sentence was invalid because the district court did not have authority to sentence him to both imprisonment and restitution. The Chilcote court interpreted K.S.A. 21-4603(2) (Ensley 1981), the predecessor to K.S.A. 2004 Supp. 21-4603d(a). K.S.A. 21-4603(2) (Ensley 1981) established a list of authorized dispositions for any person found guilty of a crime and therein specifically allowed the court to “impose any appropriate combination” of the listed subsections. K.S.A. 21-4603(2)(e) (Ensley 1981). The district court sentenced Chilcote to a combination of K.S.A. 21-4603(2)(a) and (c) (Ensley 1981), which authorized the court to:
“(a) [c]ommit the defendant to the custody of the secretary of corrections . . . ;
....
“(c) release the defendant on probation subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution.”
The Chilcote court interpreted the phrase, “any appropriate combination” to include only combinations of entire subsections because the language did not include the phrase “or any parts thereof.” 7 Kan. App. 2d at 689-90. Noting that Chilcote’s sentence combined subsections that required the imposition of both incarceration and probation, which are mutually exclusive, the Chilcote court concluded that “the word ‘appropriate’ implies that the combination of penalties under the statute should be harmonious.” 7 Kan. App. 2d at 690. Accordingly, the Chilcote court vacated the sentence’s order for restitution. 7 Kan. App. 2d at 691.
We approved Chilcote in State v. McNaught,238 Kan. 567, 713 P.2d 457 (1986), where we considered whether the district court could sentence the defendant to jail and impose other conditions, including restitution, alcohol treatment, and revocation of defendant’s drivers license, until the restitution was paid and the alcohol treatment program completed. Relying on the Chilcote analysis, we found that the district court erroneously had sentenced the defendant by ordering imprisonment and imposing other conditions, and we vacated the conditions imposed on McNaught’s jail sentence. 238 Kan. at 589.
When K.S.A. 21-4603d(a) was first enacted in 1992, the legislature limited the sentencing combinations, stating that the court could “impose any appropriate combination of (1) [imprisonment] and (2) [fine] or (2), (3), (4), (5), (6), and (7).” L. 1992, ch. 239, sec. 238(a)(8). This language clearly established the legislature’s intent that the court could only combine a sentence of imprisonment with a fine. However, in addition to including restitution as a separate sentencing option, the 1994 amendments to K.S.A. 21-4603d(a) authorized the court to “impose any appropriate combination of (1) [imprisonment], (2), (3), (4), (5), (6), (7), (8), and (9).” See L. 1994, ch. 348, sec. 10(a)(10). By using the phrase “impose any appropriate combination” and listing all of the possible sub sections, the legislature has realigned the current statutory language with that originally found in K.S.A. 21-4603(2)(e) (Ensley 1981). See K.S.A. 2004 Supp. 21-4603d(a)(11).
Contraiy to the Court of Appeals decision, Chilcote is not distinguishable because it interpreted the predecessor to the statute at issue in this case. As noted in the Court of Appeals’ decision, the legislature was aware of Chilcote when it amended 21-4603d(a) in 1994 to include restitution as a separate option for sentencing a defendant to prison. See L. 1994, ch. 348, sec. 10(a)(9). The 1994 amendments to K.S.A. 21-4603d(a) indicate the legislature’s acceptance of the McNaught and Chilcote court’s analyses.
Furthermore, if the legislature had disagreed with the McNaught and Chilcote interpretation, it could have rewritten 21-4603d(a) authorizing the court to “impose any appropriate combination of the prior subsections or any part thereof.” The legislature, however, chose to enact the same language in the current statute, thereby expressing its intent that McNaught and Chilcote remain controlling law.
The language of the statute is plain and unambiguous. This court must give effect to the intention of the legislature as clearly expressed. Puckett, 276 Kan. at 61. The court may only impose conditions when the defendant is sentenced to probation or community corrections. K.S.A. 2004 Supp. 21-4603d(a)(3) and (4). The district court does not have statutory authority to combine K.S.A. 2004 Supp. 21-4603d(a)(1) with portions of K.S.A. 2004 Supp. 21-4603d(a)(3) or (4). See McNaught, 238 Kan. at 589; Chilcote, 7 Kan. App. 2d at 691. Consequently, the no-contact order imposed on Post does not conform to the statutoiy provision and is an illegal sentence.
To remedy the illegal sentence, Post requested that we vacate the condition placed on his incarceration and remand the matter to the district court for resentencing. We decline to follow Post’s resentencing suggestion. The illegal no-contact condition of Post’s sentence is vacated; the remaining portions of Post’s sentence are valid and remain in force.
Judgment of the Court of Appeals is reversed; judgment of the district court is reversed.
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The opinion of the court was delivered by
Larson, J.:
This case involves a first-impression issue of who is entitled to crops growing upon real property sold in a foreclosure sale. John Matthews and various of his creditors with perfected security interests in crops growing upon his land appeal the decision of the trial court holding title to the unharvested crops passed to the purchaser at the foreclosure sale, Moritz Implement Company, Inc. (Moritz). They also appeal the order of the trial court awarding Moritz attorney fees under the terms of a promissory note, as allowed by K.S.A. 58-2312.
Factual statement
The facts are undisputed. On July 6,1995, Moritz filed a petition to foreclose its mortgages on real property owned by Matthews. The mortgages, which secured promissory notes totalling $43,860.87, were dated February 28, 1991, and August 26, 1994. The latter note contained the following language: “Upon default, Borrowers agree to pay all costs and expenses, including attorney fees and expenses, which may be incurred in the collection of this note or any part thereof.” Moritz’ petition requested attorney fees and costs, without specifying an amount.
Prior to the commencement of the foreclosure action, Farmway Credit Union (Farmway) and David R. Klaassen (Klaassen), the successor in interest to Hampton, Royce, Engleman & Nelson, L.C. (Hampton), obtained and perfected security interests in crops Matthews might grow on his property. In its foreclosure petition, Moritz did not state it was asserting a lien against crops growing on Matthews’ real estate or that it considered any such crops subject to its mortgage interests. Neither did Moritz claim any interest in any growing crops under any provision in its mortgage purporting it covered “rents and profits.”
The court entered judgment on the notes as prayed for in Moritz’ foreclosure petition and entered an order of sale. Matthews filed an appeal, which was later dismissed by the Court of Appeals.
In the interim, on February 1,1996, Matthews filed a voluntary petition for relief under Chapter 12 of the bankruptcy code. The bankruptcy court granted Matthews’ motion to obtain a revolving line of credit from Farmway to be secured by a priority lien in growing crops on Matthews’ property. Moritz never objected to the motion. During August and September 1996, Matthews borrowed money from . Farmway and planted 105 acres of wheat on the property which was subject to Moritz’ foreclosure petition.
Matthews’ bankruptcy case was dismissed on October 29, 1996. Shortly thereafter, the district court again entered an order of sale, in which the proceeds of the sale were to be paid and applied as follows:
“1. To the payment of the costs of this action and of said sale;
“2. To the payment of all real estate taxes and assessments that may be due upon said real estate;
“3. The payment of the first mortgage indebtedness due to The Jamestown State Bank;
“4. To the payment of the judgment due Plaintiff Moritz Implement Company, Inc.;
“5. To the payment of the mortgage indebtedness held by Hampton, Royce, Engleman& Nelson, L.C.;
“6. To the payment of the mortgage indebtedness held by Emmett Gaylord Rothchild and Iva Marie Rothchild;
“7. The surplus, if any, to be paid into the hand of the Clerk of this court to await further order of this Court.”
The sale was subject to a 3-month redemption period and was set for December 16, 1996.
Prior to the sale, Matthews gave all parties notice of Farmway’s and Klaasseris security interests in the wheat growing on the property. The purchase price at the foreclosure sale ($109,922.35) left an amount in excess of the total amount necessary to pay items 1 through 4 in the order for sale, and Klaassen was next in line to receive proceeds from the sale. Moritz moved to confirm the sale and for assessment of attorney fees and allocation of proceeds.
Matthews filed a response objecting to Moritz’ motion for confirmation of the sale. Matthews requested the court, if it confirmed the sale, to hold that the crops growing upon the foreclosed property were personal property subject to duly perfected security interests and not part of the land sold at the foreclosure sale.
The court confirmed the sale, awarded Moritz attorney fees from the remaining sale proceeds, and held that the growing wheat crop passed to the purchaser at the sale as part of the real estate, free of all security interests. In deciding that the security interests of Farmway and Klaassen did not attach to the crops on foreclosed real property, the court relied upon pre-Uniform Commercial Code (UCC) Kansas case law and determined that an Illinois case, Anna National Bank v. Prater, 154 Ill. App. 3d 6, 506 N.E.2d 769 (1987), supported its position that the UCC did not apply.
Farmway, Klaassen, and Matthews appeal. The case is before us pursuant to K.S.A. 20-3018(c).
Entitlement to crops
Moritz claims title to the crops planted on Matthews’ property under a line of old cases whereby the purchaser at a foreclosure sale was entitled to growing, unsevered crops after the redemption period had expired. Moritz first cites Beckman v. Sikes, 35 Kan. 120, 10 Pac. 592 (1886), and states that this principle was upheld in Goodwin v. Smith, 49 Kan. 351, 31 Pac. 153 (1892), and Brendle v. Hudson, 146 Kan. 924, 73 P.2d 1013 (1937).
Despite the rule promulgated in these earlier cases, the question before us is whether the adoption of the UCC in Kansas, effective January 1, 1966, changed the law regarding interests in growing crops. This involves questions of law and statutory construction, over which we have unlimited review. KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997).
K.S.A. 84-1-102 sets forth the purposes of the UCC and provides in part:
“(1) This act shall be liberally construed and applied to promote its underlying purposes and policies.
“(2) Underlying purposes and policies of this act are:
(a) to simplify, clarify and modernize the law governing commercial transactions:”
Article 9 of the UCC governs secured transactions. K.S.A. 84-9-102 defines the policy and subject matter of Article 9 and states:
“(1) Except as otherwise provided in section 84-9-104 on excluded transactions, this article applies
(a) to any transaction (regardless of its form) which is intended to create a security interest in personal property or fixtures including goods, documents, instruments, general intangibles, chattel paper or accounts.”
K.S.A. 84-9-104 states that Article 9 does not apply to the following relevant transactions:
“(j) except to the extent that provision is made for fixtures in section 84-9-313, to the creation or transfer of an interest in or hen on real estate, including a lease or rents thereunder.”
Pursuant to the above statutes, Article 9 clearly applies to any transaction which is intended to create a security interest in “goods,” which is defined in K.S.A. 84-9-105(h):
“ ‘Goods’ includes all things which are movable at the time the security interest attaches or which are fixtures (K.S.A. 84-9-313, and amendments thereto) . . . ‘Goods’ also include standing timber which is to be cut and removed under a conveyance or contract for sale, the unborn young of animals and growing crops.” (Emphasis added.)
Article 9 sets forth rules for creating and perfecting security interests in goods and other types of property and designates the relative priorities of those claiming interests in such property, including subsequent purchasers. K.S.A. 84-9-201 generally provides that a security agreement is effective as against the parties, purchasers of the collateral, and creditors. K.S.A. 84-9-301 and K.S.A. 84-9-312 designate the priorities involving perfected and unperfected security interests and indicate that all unperfected interests are subordinate to properly perfected security interests. K.S.A. 84-9-307 lists the limited circumstances in which buyers of goods may take free of a security interest.
With this general background of the UCC in mind, we analyze these statutory provisions under the facts herein. It is undisputed that Moritz has never claimed to have a perfected security interest in the growing crops. Any claim it has to the crops derives from its status as the purchaser of the real estate upon which the unsevered crops were growing at the time of the foreclosure sale.
The trial court rejected the arguments of Farmway and Klaassen that the crops growing on the land were personalty under the UCC so that their security interests remained attached when the land was sold in the foreclosure sale. The trial court relied upon Anna National Bank v. Prater, 154 Ill. App. 3d 6, to support its position that the UCC was not designed to give a current crop year lender priority over a mortgagee in foreclosure or the purchaser at the foreclosure sale. The trial court cited Capitol Fed’l Savings & Loan Ass’n v. Hoger, 19 Kan. App. 2d 1052, 880 P.2d 281, rev. denied 256 Kan.- 994 (1994) (which is clearly a fixture case and not applicable), to state the Prater rule was consistent with Kansas law. Hoge-r dealt with the remedies possessed by a secured creditor with a security interest in fixtures. Its result is more subject to analysis favorable to the position of Matthews, Farmway, and Klaassen, but it is best characterized as not being persuasive authority in this
It is clear, however, that the rule adopted by the trial court and advocated by Moritz is contrary to the UCC and unsupported by the authorities throughout the United States. The holding of Prater has been criticized and was quickly legislatively overruled in Illinois. See Meyer, A Potpourri of Agricultural UCC Issues: Attachment, Real Estate-Growing Crops and Federalization, 12 Hamline L. Rev. 741, 763 (1989).
Baridey Clark, in The Law of Secured Transactions Under the Uniform Commercial Code, ¶ 8.05[1] (1993), remarks: “It is also clear that growing crops are treated as ‘goods’ under the UCC, and thus are subject to the rules of Article 9. . . . Unlike fixtures, where the UCC defers to state law for a definition, Article 9'sets its own standards for security interests in growing crops.” Clark goes on to explain:
“Although interests in real estate are excluded from Article 9 by § 9-104(j), ‘crops’ are brought back within the scope of Article 9 by definition. Therefore, the real estate mortgagee should be considered unperfected as to the crops. In other words, Article 9 is the exclusive statutory scheme to cover security interests in growing crops, and the mortgagee should not be able to claim a security interest under real estate law. ... if the real estate mortgagee wants to include crops, it does not seem too much to ask that it file a UCC financing statement and be subject to the priority rales of Article 9. Otherwise, there is a conflict between two different filing systems, with complete uncertainty regarding priority.”
that' prior to the adoption of the UCC, a purchaser of real property on which crops were growing took title to -those crops, as they were considered part of the real estate. Meyer then discusses whether such rules still applied in light of the UCC, and pointed out that the Eighth Circuit considered this issue in the context of a contract for deed case in which the seller repossessed the land in United States v. Newcomb, 682 F.2d 758 (8th Cir. 1982). Newcomb held that Article 9 applied and that growing crops were personalty, not realty, such that the seller’s failure to comply with Article 9 resulted in his loss of any claimed interest in the crops to the secured party. See 12 Hamline L. Rev. at 751-52.
After discussing how Newcomb’s analysis of growing crops as personalty was correctly applied, the article notes:
“[I]t seems clear that the drafters of the [UCC] and the legislatures that have adopted it intended growing crops to be considered personal property.
“Because security interests created in growing crops are governed by Article 9, the attachment, perfection, and priority rules apply to any party claiming an interest in crops, whether severed or not. As a result, any party claiming the unsevered crops as part of the real estate will have no possibility of defeating a properly perfected secured party unless the crops are specifically referred to in the real estate mortgage or installment contract and a proper Article 9 financing statement is properly filed. . . .
“A question concerning the applicability of Article 9 arises when a real estate mortgagee claims the crops upon default by the mortgagor. Inasmuch as this is very similar to a land contract, the analysis applied in Newcomb is applicable.
“Unlike the fixture financier who can perfect by complying with the real estate law, the real estate mortgagee . . .must comply with Article 9 to claim a security interest in growing crops, crops to be grown, or harvested crops.” 12 Hamline L. Rev. at 752-53.
Professor Meyer adds:
“When any conflicts as to priority claims in crops surface, Article 9 should control whether the crops represent rent, collateral for a loan, or are claimed under a real estate mortgage. The drafters of the UCC and legislatures in enacting Article 9 created a scheme with simple, understandable rules producing predictable results when issues concerning security interests in personal property arise. Thus, any conflict dealing with personal property should be governed by Article 9. Because all forms of crops, such as crops to be planted, growing crops, harvested crops, and stored crops, are personal property, Article 9 should control when the farmer defaults on any loan.” 12 Hamline L. Rev. at 762.
Another law review article, Coogan & Mays, Crop Financing and Article 9: A Dialogue With Particular Emphasis on the Problems of Florida Citrus Crop Financing, 22 U. Miami L. Rev. 13, 30-32 (1967), contains a discussion of the security interest in crops. One of the authors, Coogan, states:
“I am presently of the opinion that the rights of those claiming a security interest in crops in any state are to be found primarily in article 9 in the form adopted by that state’s legislature. The state’s pre-Code law has a limited effect.
“Crops are one of five categories of property which have some characteristics of realty and some characteristics of personalty. Article 9, and the Code generally, does not treat each of these categories in the same way. I am presently of the opinion that, so far as sales of and security interests in, crops are concerned the UCC controls.
“. . . Both Article 2 on sales and article 9 on secured transactions define‘goods’ to include growing crops. Sales of goods are governed by article 2 and security interest in goods are governed by article 9. By these definitions the Code adopts the view towards which courts and legislatures have been moving for some time — sales of and security interests in growing crops are governed by personal property law. . . . For security purposes, crops are now goods, and for security purposes are governed only by the Code. Either the real estate mortgagee perfected his interest in crops under the UCC, or he has no more interest in crops than he has in other personal property. . . .
“. . . It is my present position that unlike the UCC’s treatment of fixtures, where some part of pre-Code law is adopted, the UCC largely sets its own standards for crop security interests.”
Another commentary, Note, Agricultural Financing Under the UCC, 12 Ariz. L. Rev. 391, 401 (1970), provides: “Likewise, under the Code a real estate mortgage encumbrancing only the land will not create a security interest in the crops growing or to be grown thereon because a mortgage on the land does not create a security interest in the personalty.”
2 Gilmore, Security Interests in Personal Property § 32.4, p. 865 notes: “[I]t is clear that the crop interest covered by Article 9 is a personal property security interest; as to the crops, the real estate lessor, mortgagee or whatnot would have to file under Article 9.” Henson, Secured Transactions Under the Uniform Commercial Code § 5-5, p. 84 (1973) states: “It would seem to be clear that a real estate mortgagee who intends to claim an interest in crops which has priority over subsequently granted security interests in the crops as personalty will have to comply with the Article 9 requirements as to filing.”
4 White & Summers, Uniform Commercial Code, § 30-7, pp. 44-45 (4th ed. 1995) reads:
“Crops are also close to realty, but according to sections 2-107 and 9-105(h), crops are goods. To create a security interest in crops the parties must comply with Article 9 rules on creation and perfection. Under a proper interpretation of Article 9, a real estate mortgagee cannot subject crops to his mortgage merely by complying with real estate mortgage law. Crops differ from fixtures in this respect.”
In addition to Newcomb, 682 F.2d 758, discussed above, Matthews and his secured creditors, as well as the amicus curiae, the Kansas Bankers Association, cite numerous bankruptcy cases to support their position that growing crops are personalty to which a security interest remains attached. While not directly on point, several provide helpful analysis of the legal issue we face.
In In re Hill, 83 Bankr. 522, 527-28 (Bankr. E.D. Tenn. 1988), the bankruptcy court was called upon to determine who was entitled to nursery plants growing on mortgaged land. The court first noted that because Article 9 recognizes that competing claims to fixtures can arise under both it and real property law, Article 9 provides rules on determining the priority of claims when there is a conflict with other law. The court then pointed out that Article 9 does not contain any provision dealing with such a conflict pertaining to crops, suggesting that Article 9 does not permit a mortgage on land to create any type of hen unless UCC requirements are followed.
The Hill court went on to state that although real property law could make a mortgage apply between the parties to the mortgage, this does not mean such law must determine priority between the mortgagee and third-party creditors. The court set forth a hypothetical very similar to the facts of the case before us, noting the complicated legal issues that could be involved. The court then held:
“In light of the problems that might arise, the court believes that Article 9 of the UCC should determine priority. Since the adoption of Article 9, a creditor who takes a security interest in crops should be able to determine and control the priority of the security interest against other contractual hens and against judgment hens by checking the UCC filings and by filing a financing statement. The creditor should not have to check the real estate records. Article 9 attempted to modernize and simplify the law of secured transactions in personal property. This purpose should not be undercut by adopting a set of conflicting priority rules for a crop hen that is created by a contract, a mortgage on land, as a matter of law rather than by express agreement in the contract. The present system of crop financing and farm lending with crops as collateral would be unduly upset if the court allowed recorded mortgages on farm land to have a supervening non-Article 9 priority over perfected security interests in crops.” 83 Bankr. at 529.
In In re Hoover, 31 Bankr. 432 (Bankr. S.D. Ohio 1983), the court determined that because a wheat crop was personalty, not realty, the crop did not revert to a lessor after the debtor’s lease expired so as to subvert the interest of perfected secured creditors of the debtor. Citing Newcomb, 682 F.2d 758, the court noted:
“Although there is surprisingly little authority on the issue of the rights of a secured party with a security interest in a crop to that crop when the ground upon which the crop is growing reverts to one other than the debtor, it appears that such a creditor retains his security interest in the crop.” 31 Bankr. at 436.
Although Article 9 may not control every possible interest in crops, there is no justification for holding that a real estate grantee, such as a purchaser at a foreclosure sale, should be able to avoid a properly perfected security interest in crops, particularly where the grantee has received actual notice of the security interest. This statement is supported by the provision in K.S.A. 84-2-107(3) whereby a contract for the sale of crops may be executed and recorded in order to provide notice to third parties of the buyer’s rights under the contract. We do not, however, decide this case, on a notice analysis because of the clear application of UCC Article 9 provisions.
In light of the above commentary and analysis, we hold the perfected security interests of Farmway and Klaassen remained attached to the crops despite the transfer of the property in the foreclosure sale. This holding supports the intent and purposes of the UCC in that creditors may rely upon clear rules for protecting their security interests, rather than worrying about the uncertain applicability of archaic pre-UCC real estate law. If we were to adopt Moritz’ position, die ability to secure crop financing would be seriously impaired as creditors would be forced to gamble upon the timing of foreclosure proceedings and even the weather in a race to sever crops before a redemption period expires after an order for sale. Such a rule is not consistent with the stated purposes of the UCC or with any existing case law in the country. In addition, our holding will continue to protect and make available to agricultural interests a vital and necessary method of growing crop financing.
The remaining issues raised by the parties and amicus curiae pertaining to waiver and estoppel, collateral estoppel, and the validity of bankruptcy priorities need not be addressed in light of our foregoing conclusion.
Moritz also attempts to assert that the validity of Klaassen’s and Farmway’s security interests in the crops has never been established. This argument, however, ignores that Moritz never claimed an interest in the crops in its foreclosure petition such that the validity of the security interests would be placed in issue. This is not an issue we are required to answer.
Attorney fees
Matthews, Farmway, and Klaassen argue that because an award of attorney fees was not specifically mentioned in the judgment on Moritz’ foreclosure petition and no amount was specified, the court could not award attorney fees in the confirmation of sale. Claiming that the order for attorney fees equates to an order for execution of a judgment which was not final, in violation of K.S.A. 60-262(a), they assert that only the amount specifically set forth in the judgment could be awarded pursuant to the order of sale. No precedent is cited for this proposition. Matthews and his creditors further contend that the doctrine of merger caused all of Moritz’ rights and remedies to merge into Moritz’ judgment on its foreclosure petition, such that its claim to attorney fees was extinguished.
Moritz cites Snodgrass v. State Farm Mut. Auto Ins. Co., 246 Kan. 371, 789 P.2d 211 (1990), pertaining to appellate jurisdiction, to argue that a judgment is valid even though it reserves determination of attorney fees for a later date. Snodgrass held that a judgment may be considered final for purposes of an appeal despite the fact that a question regarding attorney fees remains to be decided.
A similar rationale should be applied in the present case. Although the judgment granting the right to foreclose on Matthews’ property did not specifically set forth an amount due for attorney fees, this does not prevent the parties from adjudicating the amount to be awarded for attorney fees at the time when the fees can be properly and finally assessed. It might have been better procedure to so state in the journal entry of judgment, but we do not hold the failure to do so, as occurred in this case, precludes the allowance of attorney fees.
Furthermore, it is difficult to see how the doctrine of merger applies so as to extinguish Moritz’ claim to attorney fees, as tibe foreclosure order did grant Moritz judgment on the notes as prayed for in its petition. This would appear to incorporate Moritz’ claim for attorney fees in the judgment, not extinguish it.
Although Kansas has not historically allowed attorney fees in instances such as here exist, the 1994 legislature specifically amended K.S.A. 58-2312 (Ensley) to allow any note to provide for attorney fees when it stated:
“Except as otherwise provided by law, any note, mortgage or other credit agreement may provide for the payment of reasonable costs of collection, including, but not limited to, court costs, attorney fees and collection agency fees, except that such costs of collection: (1) May not include costs that were incurred by a salaried employee of the creditor or its assignee; and (2) may not include the recovery of both attorney fees and collection agency fees.” L. 1994, ch. 276, § 3.
This provision became effective July 1, 1994, which was prior to Matthews’ execution of the note providing for attorney fees on August 26, 1994.
The trial court properly allowed attorney fees to Moritz.
The judgment of the trial court as to the ownership of the growing crops at the time of the foreclosure sale is reversed. The wheat crop is held to be personal property subject to duly perfected security interests and not part of the land sold at the foreclosure sale.
The judgment of the trial court awarding attorney fees to Moritz is affirmed.
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|
The opinion of the court was delivered by
Davis, J.:
Becky Smith filed an action under the civil Protection from Stalking Act (Act), K.S.A. 2003 Supp. 60-31a01 et seq., seeking a protective order against her former husband, Phil Martens. The district court ruled that the Act was constitutional, issued a 1-year protection from stalking order (PSO), and awarded Smith $5,000 in attorney fees. Martens appeals, raising numerous issues.
The PSO issued by the district court expired on November 24, 2004, rendering all issues raised in this appeal moot. Before the case was argued by the parties on December 1, 2004, this court, by order dated October 26, 2004, advised the parties to respond as to whether Martens’ claims regarding the protective order should be dismissed as moot. Martens’ attorney acknowledged that all matters were moot but emphasized that a controversy remained regarding the attorney fees granted to Smith by the district court, and he further emphasized that the issue of the constitutionality of the Act was a matter of statewide interest and importance and was a question likely to occur in the future. Martens has urged this court to address the issues raised by his appeal.
“The general rule is that an appellate court does not decide moot questions or render advisory opinions. The mootness doctrine is one of court policy which recognizes that it is the function of a judicial tribunal to determine real controversies relative to tire legal rights of persons and properties which are actually involved in the particular case properly brought before it and to adjudicate those rights in such manner that the determination will be operative, final, and conclusive.”
“An appellate court may sometimes elect to entertain issues which, although moot, are subjects of real controversy and include issues of statewide interest and importance. Where a particular issue, although moot, is one capable of repetition and one of public importance, an appellate court may consider the appeal and render an opinion.” Board of Johnson County Comm’rs v. Duffy, 259 Kan. 500, Syl. ¶¶ 1 and 2, 912 P.2d 716 (1996).
The constitutionality of the Act, on its face, is a matter of public importance capable of repetition. We therefore elect to entertain this issue. The remaining issues consisting of the constitutionality of the Act as applied, evidentiary issues, and an issue involving the trial court’s issuance of an injunction are moot. Any judgment issued by this court on all but the attorney fees question would not be enforceable because of the lapse of time, and the failure to address such issues would not affect rights vital to the parties. Our review of the record furthers satisfies this court that the question of attorney fees was properly handled by the trial court. Thus, all issues except the constitutionality of K.S.A. 2003 Supp. 60-31a01 et seq., are answered. Since we have elected not to address the other issues and the question of attorney fees is so intimately connected with those issues, we dismiss the question of attorney fees noting that this issue was thoroughly considered by the district court.
1. Constitutionality of K.S.A. 2003 Supp. 60-31a01 et seq.
Martens contends that K.S.A. 2003 Supp. 60-31a01 et seq., is both unconstitutionally vague on its face and overbroad. He also contends that the Act, specifically K.S.A. 2003 Supp. 60-31a02, is vague as applied to him, but that issue has been dismissed by this court as moot.
“Whether a statute is unconstitutionally vague or overbroad is a question of law over which this court has unlimited review. The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond reasonable doubt.” State v. Whitesell, 270 Kan. 259, Syl. ¶ 1, 13 P.3d 887 (2000).
A. Vagueness
“A criminal statute is unconstitutionally vague and indefinite unless its language conveys a sufficiently definite warning of the conduct proscribed when measured by common understanding and practice. The determination of whether a criminal statute is unconstitutionally vague involves a second inquiiy of whether the law adequately guards against arbitraiy and discriminatory enforcement. When making either inquiry, the court should bear in mind that the standards of certainty in a statute punishing criminal offenses are higher than in those depending primarily upon civil sanctions for enforcement.” State v. Bryan, 259 Kan. 143, Syl. ¶ 2, 910 P.2d 212 (1996).
Martens argues that objectionable language identified by this court in the criminal stalking statute, K.S.A. 2003 Supp. 21-3438, is still contained in the Act, K.S.A. 2003 Supp. 60-31a01 et seq., rendering the civil scheme unconstitutionally vague on its face. Resolution of this argument is accomplished by first examining the history of the criminal stalking statute and its relevant case law in conjunction with the civil stalking Act and its corresponding legislative history at issue in this case.
Criminal Stalking Statute and Case Law
The criminal stalking statute, K.S.A. 2003 Supp. 21-3438, was enacted in 1992 and has been amended five times. See L. 1992, ch. 298, sec. 95; L. 1993, ch. 291, sec. 253; L. 1994, ch. 348, sec. 13; L. 1995, ch. 251, sec. 10; L. 2000, ch. 181, sec. 5; L. 2002, ch. 141, sec. 10. Relevant to this case, K.S.A. 1994 Supp. 21-3438 provided:
“(a) Stalking is an intentional and malicious following or course of conduct directed at a specific person when such following or course of conduct seriously alarms, annoys or harasses the person, and which serves no legitimate purpose.
....
“(d) For the purposes of this section, ‘course of conduct’ means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose and which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person. Constitutionally protected activity is not included within the meaning of ‘course of conduct.’ ” (Emphasis added.)
In Bryan, this court found a portion of the K.S.A. 1994 Supp. 21-3438 criminal stalking statute unconstitutionally vague because it used the terms “alarms,” “annoys,” and “harasses” without defining them or without including an objective standard with regard to a stalking offense based on & following. The Bryan court focused on the “following” element because the 1994 statute defined the “course of conduct” element in relation to an objective standard “which would cause a reasonable person to suffer substantial emotional distress.” 259 Kan. at 149-50. After comparing the 1994 statute to the 1992 version of the statute which incorporated an objective standard, the court explained the reasoning behind its decision:
“In the absence of an objective standard, the terms ‘annoys,’ ‘alarms’ and ‘harasses’ subject the defendant to the particular sensibilities of the individual victim. Different persons have different sensibilities, and conduct which annoys or alarms one person may not annoy or alarm another. The victim may be of such a state of mind that conduct which would never annoy, alarm, or harass a reasonable person would seriously annoy, alarm, or harass this victim. In such a case, the defendant would be guilty of stalking, a felony offense, under the 1994 statute, even though a reasonable person in the same situation would not be alarmed, annoyed, or harassed by the defendant’s conduct.
“Contrast this statutory language with language requiring that the following must be such that it would cause ‘a reasonable person to suffer substantial emotional distress’ or place such person in reasonable fear for such person’s safety. At the very least, under this language the finder of fact would not be left with the subjective state of mind of the victim as the determining factor but instead would have an objective reasonable person standard by which to determine whether the defendant committed the crime. Similarly, just as the finder of fact would be provided with an objective standard, so too would anyone subject this law be provided with an objective standard to determine what conduct would constitute the crime of stalking.” 259 Kan. at 154-55.
In State v. Rucker, 267 Kan. 816, 987 P.2d 1080 (1999), the defendant argued that the 1995 version of the criminal stalking statute was unconstitutionally vague because it was unclear from the statute what constituted “alarming, annoying, or harassing” conduct. K.S.A. 21-3438 provided:
“(a) Stalking is an intentional, malicious and repeated following or harassment of another person and making a credible threat with the intent to place such person in reasonable fear for such person’s safety.
....
“(d) For the purpose of this section: (1) ‘Course of conduct’ means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose and which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emo tional distress to the person. Constitutionally protected activity is not included within the meaning of ‘course of conduct.’
(2) ‘Harassment’ means a knowing and intentional course of conduct directed at a specific person that seriously alarms, annoys, torments or terrorizes the person, and that serves no legitimate purpose.”
In conducting its analysis, this court quoted the Bryan court’s favorable observations of the 1992 version of the statute:
“ ‘The 1992 version of the Kansas stalking law incorporated an objective standard. As originally enacted, the statute prohibited die “willful, malicious and repeated following and harassment of another person.” L. 1992, ch. 298, § 95. The term “harassment” was defined as a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which would cause a reasonable person to suffer substantial emotional distress and actually causes that type of distress in the victim. See L. 1992, ch. 298, § 95. Although the terms “alarms,” “annoys,” and “harasses” were used [in the 1992 version], they were defined by an objective standard in that tire conduct must be such as would cause a reasonable person to suffer emotional distress and actually cause such distress.’ ” Rucker, 267 Kan. at 832 (quoting Bryan, 259 Kan. at 150).
The Rucker court concluded that the 1995 version of 21-3438 resolved the vagueness problems found in Bryan by incorporating an objective standard and by defining the terms “course of conduct,” “harassment,” and “credible threat.” 267 Kan. at 832. In Whitesell, this court upheld tire Rucker finding that 21-3438 was not unconstitutionally vague in the absence of any new substantive argument. Whitesell, 270 Kan. at 270.
Civil Stalking Statute and Act
In 2002, the civil Act was first proposed in Senate Bill 474, and it defined stalking as “intentional harassment of another person.” The original bill was supported by the Attorney General’s Office, the Kansas Coalition Against Sexual and Domestic Violence, the Battered Women’s Task Force, the Kansas Women Attorneys Association (WAA), and others. The WAA opined by letter that “the definition of ‘stalking’ is drafted in such a way as to avoid the constitutional problems of vagueness that plagued the 1994 criminal stalking statute by creating an objective standard by which stalking is measured. See State v. Bryan, 259 Kan. 143 (1996).” See Minutes, Sen. Judiciary Comm., February 8, 2002, attach. 7 (Feb ruary 6,2002, letter from WAA President Mary Feighny to Senator David Adkins).
At the February 8, 2002, Senate Judiciary Committee hearing, Ronald Nelson testified on behalf of the Kansas Bar Association (KBA) in opposition to the first draft of the Act:
“Section 2 provides that ‘stalking means intentional harassment of another person.’ There is no requirement that any threat be explicit or implicit. There is no provision that there be any concern or fear of harm by the supposed victim. Read in its most literal terms, the proposed statute simply reads that a petition can be filed to stop one person from intentionally annoying another person. This type of statute cheapens the very real fear and threat of legitimate abuse victims. This constitutes the worst land of legislative drafting. Instead of identification of a problem and preparation of a narrowly crafted statute meant to address those concerns, while protecting constitutional rights of the citizenry. It is often said that you can’t legislate good manners. However, that is what this bill, in its current form, attempts. Instead of legislating good manners though, this bill seeks to criminalize and punish bad manners.
“Not only does the bill punish de minimus conduct, but also there is no requirement of any continuing or future threat of harm. No ‘harm’ need to be alleged or shown.” Minutes, Sen. Judiciary Comm., February 8, 2002, attach. 4.
The KBA submitted amendments to the bill, which included adding an objective standard to the stalking definition “that places the other person in reasonable fear for that person’s own personal safety” and also to the definition of harassment under subsection (b) as “a course of conduct which is directed at a specific person that (I) causes that other person to have a reasonable fear for personal safety, or (ii) serves no legitimate purpose, and is intended eidier to seriously alarm, threaten, or torment another person.” Minutes, Sen. Judiciaiy Comm., February 25, 2002, attach. 2.
Although this language was initially approved by the Senate, a joint House and Senate conference committee considering the amendments to S.B. 474 subsequently removed the amended language from the definition of harassment in subsection (b) in favor of die original language “directed at a specific person that seriously alarms, annoys, torments or terrorizes the person, and that serves no legitimate purpose.” Sen. J. 2002, p. 2110.
The specific civil stalking statute at issue in this case, K.S A. 2003 Supp. 60-31a02, provides:
“(a) ‘Stalking’ means an intentional harassment of another person that places the other person in reasonable fear for that person’s safely.
“(b) ‘Harassment’ means a knowing and intentional course of conduct directed at a specific person that seriously alarms, annoys, torments or terrorizes the person, and that serves no legitimate purpose.
“(c) ‘Course of conduct’ means conduct consisting of two or more separate acts over a period of time, however short, evidencing a continuity of purpose which would cause a reasonable person to suffer substantial emotional distress. Constitutionally protected activity is not included within the meaning of ‘course of conduct.’ ”
Discussion
Martens argues the civil stalking statute is identical to the 1994 criminal stalking statute held unconstitutional in Bryan and must be similarly stricken. He contends that the objective standard “which would cause a reasonable person to suffer substantial emotional distress emotional distress” is not connected to the phrase “alarms, annoys, torments, or terrorizes” in subsection (b) but, rather, it modifies only the specific term “course of conduct” defined in subsection (c). See K.S.A. 2003 Supp. 60-31a02.
Smith responds that the civil stalking statute is similar to the current version of the criminal stalking statute, which was upheld as constitutional in the face of a vagueness challenge in Rucker. She contends that Martens reads the statute too narrowly and fails to read the definition of harassment in subsection (b) in conjunction with the provision in subsection (a) that stalking is the intentional harassment of another person that places the other person in reasonable fear for that person’s safety.
Martens’ argument is unpersuasive because he fails to read the statute as a whole, nor does he recognize the distinction the Bryan court made between the terms “course of conduct” and “following” in defining when the conduct becomes alarming, annoying, or harassing. In Bryan, the fact that “course of conduct” was defined with an objective standard differentiated it from a “following” which was not defined with an objective standard. See 259 Kan. at 149-50, 154-55. When the civil statute in this case is viewed as a whole, there are two objective standards used to modify the phrase “alarms, annoys, torments or terrorizes.”
The civil stalking statute differs from the 1994 criminal statute in that it defines “stalking” as intentional harassment, it defines “harassment” as a “course of conduct,” and then it defines “course of conduct” with an objective standard. If the definitions found in subsections (b) and (c) are inserted into subsection (a) of K.S.A. 2003 Supp. 60-31a02, the statute would read as follows:
“ ‘Stalking’ means an intentional harassment [a knowing and intentional course of conduct — consisting of two or more separate acts over a period of time, however short, evidencing a continuity of purpose which would cause a reasonable person to suffer substantial emotional distress — directed at a specific person that seriously alarms, annoys, torments or terrorizes the person, and that serves no legitimate purpose] of another person that places the other person in reasonable fear for that person’s safety.”
When the statute is read as a whole incorporating the individual definitions, the course of conduct that seriously alarms, annoys, torments, or terrorizes the other person must be such that it causes a reasonable person to suffer substantial emotional distress. This is similar to that portion of the 1994 criminal statute which was found constitutional in Bryan because it incorporated an objective standard. See 259 Kan. at 149.
Moreover, subsection (a) provides another objective standard of “reasonable fear for that person’s safety” which modifies harassment, which is defined in part by the terms “alarms,” “annoys,” “torments,” or “terrorizes.” In other words, the determination that a person is seriously alarmed, annoyed, tormented, or terrorized is not based solely upon the subjective conclusion of the victim and whether a reasonable person would suffer substantial emotional distress, but also upon the additional objective standard of whether a reasonable person would fear for his or her safety based upon the intentional conduct. Both of these objective standards were cited by this court with approval in Bryan in defining the terms annoys, alarms, or harasses. See Bryan, 259 Kan. at 154-55. As these objective standards of conduct relate to the terms annoys, alarms, torments, or terrorizes, K.S.A. 2003 Supp. 60-31a02 is not unconstitutionally vague on its face.
Martens also argues that emails and nonviolent, nonthreatening, and nonprofane telephone messages are not the types of contacts which can be objectively deemed alarming, annoying, tormenting, or terrorizing. He suggests that forwarding an unwanted or tasteless email joke or picture to a friend could be subject to the Act. This argument fails to take into account the objective standard within the Act. In order for any course of conduct to be a violation under the Act, it would have to seriously alarm, annoy, torment, or terrorize the person in a manner that would cause a reasonable person to suffer emotional distress and fear for his or her safety. Martens’ above description of emails or telephone calls would not meet this objective standard. We conclude that K.S.A. 2003 Supp. 60-31a02 conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. See City of Wichita v. Hackett, 275 Kan. 848, 853, 69 P.3d 621 (2003).
Martens further argues that the term “legitimate purpose” is not defined. In Rucker, this court found that the term legitimate purpose, when read in conjunction with the rest of the 1995 criminal stalking statute, did not require a person of common intelligence to guess as to its meaning. It noted that the terms were defined in relation to an objective standard, the statute contained a credible threat element, and it excluded constitutionally protected conduct. The court explained that “[w]hen we focus on the view of reasonable persons as to when lawful authority exists to follow others, the presence or absence of a legitimate purpose for an act or action can readily be determined.” Rucker, 267 Kan. at 837. See also State v. Whitesett, 270 Kan. 259, 269-70, 13 P.3d 887 (2000) (upholding Rucker in finding the term “legitimate purpose” was not unconstitutionally vague).
In this case, the language of K.S.A. 2003 Supp. 60-31a02 is very similar to the 1995 criminal statute upheld by this court on two occasions. See Whitesett, 270 Kan. at 269-70; Rucker, 267 Kan. at 836-37. The term legitimate purpose is part of the definition of harassment and like the terms alarm, annoy, torment, and terrorize is subject to an objective standard. Moreover, constitutionally protected conduct is expressly excluded. Martens’ examples of asking for a second date or offering business advice again ignore the objective reasonable person standard and the context in which these communications were being offered. If the court focuses on the view of a reasonable person as to whether lawful authority exists for a defendant to engage in a specific course of conduct, the presence or absence of a legitimate purpose for the conduct can be readily determined. As such, we conclude that the term legitimate purpose does not render the statute or Act unconstitutionally vague.
K.S.A. 2003 Supp. 60-31a02 is not unconstitutionally vague on its face because two objective standards are used to modify the terms alarms, annoys, torments, or terrorizes; the statute, when read as a whole, clearly conveys a sufficiently definite warning as to the proscribed conduct when measured by common understanding and practice; and the term “legitimate purpose” is part of the definition of harassment, subject to an objective standard, expressly excluding constitutionally protected conduct.
B. Overbreadth
Martens argues that K.S.A. 2003 Supp. 60-31a02 is unconstitutionally overbroad because it reaches into the realm of constitutionally protected activity under the First Amendment to the United States Constitution.
“While a vague statute leaves persons of common intelligence to guess at its meaning, an overbroad statute makes conduct punishable which under some circumstances is constitutionally protected. Almost every law is potentially applicable to constitutionally protected acts. A successful overbreadth challenge can thus be made only when (1) the protected activity is a significant part of the law’s target, and (2) there exists no satisfactory method of severing that law’s constitutional from its unconstitutional applications.” Whitesell, 270 Kan. 259, Syl. ¶ 6.
The overbreadth doctrine should be employed sparingly and only as a last resort. A balance must be struck between our constitutional right to free speech and our personal right to be left alone when considering stalking laws. 270 Kan. at 271. “Despite our First Amendment rights, we are not free to harm others under the guise of free speech. As speech strays further from the values of persuasion, dialogue, and free exchange of ideas, and moves toward willful threats to perform illegal acts, the State has greater latitude to regulate expression.” 270 Kan. 259, Syl. ¶ 7.
No one can use constitutional rights to invade the rights of others. Expressive activity may be prohibited if it involves substantial disorder or invasions of the rights of others. The United States Supreme Court has held that violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact are entitled to no constitutional protection. 270 Kan. at 272 (quoting Champagne v. Gintick, 871 F. Supp. 1527, 1534 [D. Conn. 1994]).
In Whitesell, this court found that the criminal stalking statute was not unconstitutionally overbroad on its face because the type of speech and conduct it prohibits is not the kind protected by the First Amendment to the United States Constitution. In reaching this decision, the court noted the post-Bryan legislative amendment which provided that “ ‘[constitutionally protected activity is not included with the meaning of ‘course of conduct,' ” and that the statute served a legitimate governmental purpose “ ‘by providing law enforcement officials with a means of intervention in potentially dangerous situations before actual violence occurs, and it enables citizens to protect themselves from recurring intimidation, fear-provoking conduct and physical violence.’ ” 270 Kan. at 272 (quoting State v. Ruesch, 214 Wis. 2d 548, 559, 571 N.W.2d 898 [1997]).
The court cited numerous cases which had held that similar stalking statutes were not unconstitutionally overbroad, and it concurred with the following reasoning and conclusion of the Virginia Court of Appeals in Parker v. Com., 24 Va. App. 681, 691, 485 S.E.2d 150 (1997):
“ The statute’s purpose is legitimate: to protect innocent citizens from intentional or knowingly threatening conduct that subjects them to a reasonable fear of physical harm. Furthermore, the statute is tailored so that it does not substantially infringe upon speech protected by the First Amendment. It regulates the manner in which individuals interrelate with one another and prohibits individuals from communicating with others in a way that is intended or known to cause fear of physical harm. . . . [T]he statute permits all communications between individuals that are conducted in a time, place and manner that do not intentionally or knowingly cause the receiver of die message reasonably to fear for his or her physical safety. The statute’s legitimate sweep does not portend any substantial burden on constitutionally protected conduct, and we find no realistic danger that the statute will compromise the First Amendment rights of parties not before the Court.’ ” 270 Kan. at 272-73.
Martens distinguishes this case from Whitesell by arguing that this case involves nonthreatening words merely seeking association as opposed to the threats at issue in Whitesell. Martens contends the civil stalking statute is not sufficiently tailored to keep protected speech from governmental prohibition because it leaves the characterization of the terms alarms, annoys, torments or terrorizes to the subjective discretion of the recipient. He argues that the Kansas statute is different from other state statutes which have survived the overbreadth challenges because they were narrowly tailored to keep prohibited speech to a minimum. See People v. Baer, 973 P.2d 1225 (Colo. 1999); State v. Rangel, 328 Or. 294, 977 P.2d 379 (1999); Lewis v. State, 88 S.W.3d 383, 392 (Tex. App. 2002), cert. denied 540 U.S. 815 (2003); Clements v. State, 19 S.W.3d 442 (Tex. App. 2000).
Smith responds that this court has already approved the language contained in the civil statute by rejecting an overbreadth challenge to the criminal stalking statute in Whitesell, that the statute specifically excludes constitutionally protected activity from the meaning of “course of conduct,” and that the scrutiny given to this civil statute should not be as great as that given to the criminal stalking statute.
While Smith’s response is not entirely correct, since the criminal stalking statute included the term “credible threat” and a violation of the civil stalking statute might result in a criminal conviction pursuant to K.S.A. 2003 Supp. 60-31a06(a)(2), Martens’ argument still fails. Although the civil stalking statute does not specifically include a credible threat element, when read as a whole, the expression sought to be protected under the First Amendment must cause a reasonable person to suffer substantial emotional distress and place the person in reasonable fear for that person’s safety. As discussed above, the terms alarms, annoys, torments, or terrorizes are subject to two objective standards. These objective standards demonstrate that a substantial portion of the language sought to be protected is not protected by the First Amendment.
While some of the expressions may not include overt threats, these contacts must be considered in the context of the other threatening communications and evidence that Martens was watching Smith and her son in order to determine whether they would cause a reasonable person to fear for his or her safety. See Castro v. Heinzman, 194 Or. App. 7, 14, 92 P.3d 758 (2004). The inclusion of objective standards, in conjunction with the express statement in K.S.A. 2003 Supp. 60-31a02 to exclude constitutionally protected activity and its legitimate puipose of allowing persons “to protect themselves from recurring intimidation, fear-provoking conduct, and physical violence,” demonstrates that the statute is sufficiently tailored so that it does not substantially infringe upon speech protected by the First Amendment. See Whitesell, 270 Kan. at 272. K.S.A. 2003 Supp. 60-31a02 is not unconstitutionally overbroad.
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|
The opinion of the court was delivered by
Abbott, J.:
The plaintiffs, Arthur J. and Janet George, sought to obtain financing for the purchase of a house from a quasi relative-friend. However, due to the alleged misrepresentation of those parties who secured the financing, the plaintiffs unintentionally borrowed more money than they intended to borrow and at a higher interest rate. Thus, the plaintiffs brought suit in Wyandotte County District Court against several parties involved in securing the loan, including Creative Capital Investment Bankers (Creative), Capital South Mortgage Investments, Inc. (Capital), and Elio Castañuela. Creative did not appear at trial, and the plaintiffs received a default judgment against it. At trial, the plaintiffs alleged that Capital and Castañuela, the appellants herein, engaged in a joint venture with Creative to defraud the plaintiffs and commit usury against them. The jury agreed with the plaintiffs and entered a verdict against, the appellants , for fraud and usury. The plaintiffs were awarded actual damages for usury, punitive damages against Capital in the amount of $50,000, punitive damages against Castañuela in the amount of $50,000, an equitable reformation of the note from a $60,000 loan to a $32,000 loan, and attorney fees. The appellants appealed the jury’s verdict and the damage award to the Court of Appeals. The plaintiffs cross-appealed, alleging that the actual damages or usury penalties awarded against the appellants were inadequate. The case was transferred to this court pursuant to K.S.A. 20-3018(c).
The plaintiffs purchased a home in Kansas City, Kansas, from Opal Morgan, Arthur George’s step-grandmother. The home had an appraised value of approximately $60,000. However, Morgan planned to sell the house to the plaintiffs for $40,000. The only condition was that she needed all of the money up front.
The plaintiffs were not able to obtain conventional financing, so they approached Creative in an effort to obtain a loan. Creative indicated that it would be able to assist the plaintiffs in obtaining financing. At that time, Morgan signed a written, notarized agreement dated August 26, 1993, which stated: “I, Opal N. Morgan, agree to sell my house as it is for $40,000.” This agreement was prepared and signed due to the plaintiffs’ meeting with a representative from Creative who told the plaintiffs that he would need a document stating that Morgan was selling her house for $40,000. The plaintiffs then executed a note between themselves and Morgan for $40,000, which was secured by Morgan’s house. The note did not include an interest rate or other terms because the parties did not know who would loan the money and were unsure of the terms of the note. Instead, the note stated that all $40,000 was due and payable upon the plaintiffs’ financing being completed by September 30, 1993.
Later, this note was altered by the plaintiffs, who changed the principal amount owing to Morgan from $40,000 to $60,000, and initialed these changes. The plaintiffs testified that this change was made because Creative told them that a lender would only lend them a certain percentage of the cost of the house. Thus, the plaintiffs understood that to get a $40,000 loan, it had to appear that they would be paying $60,000 for the house. Since the house was valued at $60,000, Creative suggested changing the principal amount of the note to $60,000. The plaintiffs agreed to such change, but testified that they had made it clear that they did not want to actually borrow more than $40,000. According to the plaintiffs, Creative assured them that the change would be a change on paper only. In the end, Creative requested the alteration of the note and the plaintiffs initialed this alteration. In the margin of the amended note is a handwritten message stating, “Attention: Margie; From: Stacy Bennett.” Bennett is a representative of Creative, and Margie is employed by Capital.
Subsequently, the plaintiffs added a one-page typed amendment to the original note, which included a $60,000 principal, as well as an interest rate and terms. In the amendment, the plaintiffs agreed to pay Morgan $60,000 and to pay this amount in a monthly installment of $440.26 per month over a 10-year period. At the end of the 10-year period, the remaining balance would become due. The annual interest rate on the unpaid principal balance was 8%. Finally, the plaintiffs executed an entirely new note showing a principal balance of $60,000 and an interest rate of 8%. Under this note, the plaintiffs were to pay $440 per month until both the principal and interest were paid off in full. All of these notes showed that the plaintiffs owed the principal directly to Morgan without the involvement of any third-party financing.
After this note was entered into, Capital sent a fax to Guarantee Title, the title company, asking Guarantee Title to prepare a title insurance policy for Capital, showing that it would issue a loan for $60,000. The policy was issued on October 25,1993, listing Capital as the proposed insured, and the amount of the insurance as $60,000.
Also, after the plaintiffs entered into the note with Morgan, Morgan signed a promissory note endorsement. The endorsement was payable to Capital, and was to be a permanent rider on the promissory note executed by the plaintiffs for $60,000. This endorse ment amounted to an assignment of the final $60,000 note, between Morgan and the plaintiffs, to defendant Capital from Morgan. Prior to making this assignment, Morgan provided Capital with a mortgage estoppel certificate, advising Capital that she (Morgan) had the authority to transfer the mortgage. With this authority, Morgan also assigned the mortgage of her house to Capital, at the same time that she assigned the note from the plaintiffs. Capital, in turn, assigned this note and mortgage to Castañuela.
The plaintiffs had no knowledge that Creative had also obtained Morgan’s signature on a document entitled “Standard Option To Purchase Agreement,” without explaining to Morgan anything about the document. The document refers to a note in the amount of $60,000, with a remaining unpaid balance of $60,000. Also in the document, Creative offers to purchase the note for the sum of $35,000. However, Morgan never received $35,000 from Bennett. Instead, on or about October 4,1993, Creative informed the plaintiffs that they needed to give Morgan a down payment check for $5,000. Thus, on October 4, 1993, Mr. George wrote Morgan a check for $5,000 and faxed a copy of the check to Creative.
On November 22, 1993, Capital sent the assignments, together with the final $60,000 note and a letter of closing instructions, to Terry Gamer, a closing agent with Guarantee Title. This letter stated that Guarantee Title would receive a wire transfer in the amount of $60,000 from Collins Marketing for the funding of the transaction, that Morgan was to receive $32,000 out of the $60,000 fund from Collins Marketing, and that the remainder of the funds were to be paid to Capital (after deducting Guarantee Title’s escrow and recording fee). The letter also indicated that the assignment of the $60,000 note from Capital to Castañuela had already been executed. In this letter, Capital asked that the documents transferring the note and mortgage from Capital to Castañuela not be shown to the plaintiffs. The closing agent, Gamer, followed the instructions as they were set out in the letter. At the time the deed and the note were finally executed and filed with the Wyandotte County Records, the assignments were also filed by the closing agent.
Gamer does not recall Castanuela’s name coming up prior to the receipt of this letter on November 22, and she did not have any contact with him. Prior to the letter, Gamer had always been under the impression that Morgan was to receive $40,000. Gamer was never given any explanation as to why the remainder of the $60,000 funds were paid to Capital.
Gamer, who had 5 years of experience as an escrow closer for Guarantee Title, testified that she involved her boss with this transaction because she was not comfortable with some parts of the transaction and she wanted his opinion. She testified:
“A. I’ve never known a lender to receive these kind of funds after a closing. I have no idea. This is a completely different deal than I’m used to seeing.”
Prior to closing, the plaintiffs had already paid Morgan $5,000 as a down payment, as instructed by Capital. Therefore, at the closing, the plaintiffs expected Morgan to get $35,000, for a total of $40,000. However, Creative informed the plaintiffs that Morgan would only receive $32,000 at the closing. Consequently, the plaintiffs gave Morgan another note for an additional $3,000. This note was signed at the December 14, 1993, closing.
Janet George testified concerning the December 14,1993, closing as follows:
“Q. [By Mr. Fields] Did you realize when you were signing the papers there on the 14th of December that you were obligating yourself to pay back $60,000 over a 30-year period?
“A. No, I did not.
“Q. What did you think you were obligating yourself to pay back?
“A. Forty Thousand.
“Q. And why did you have that belief?
“A. Because Stacy with Creative Capital Investment informed us that that’s all we had to pay.”
The plaintiffs thought the $60,000 they had heard about was the appraised value of the home. They never thought they were agreeing to pay back $60,000. According to their testimony, the plaintiffs told Creative that it was okay to use the figure $60,000 on the loan papers, as long as they did not have to pay any extra money over $40,000. The plaintiffs did not receive any papers at the December 14, 1993, closing. They were not informed that Capital received $27,832 (most of which went to Castañuela) out of the $60,000 funds from Collins Marketing, or that the $60,000 note had been assigned to Castañuela.
At the time closing occurred, the maximum allowable interest rate was 8.79%, as established through the trial court’s judicial notice of the Kansas usury laws. At trial, an employee of Brotherhood Bank & Trust, Pamela Sweeney, calculated that assuming a loan of $32,000, at an interest rate of 8.79%, payable in monthly installments over 30 years, the monthly payment requirement would be $252.33. The total interest over the life of such a loan would be $56,564.93. She also calculated that a loan of $60,000, at an 8% interest rate, payable in installments over 30 years, would require a monthly payment of $440.26, and total interest of $94,531.26.
Arthur George testified that at no time prior to closing did he have any dealings or speak with anyone at Capital; all of his dealings were with Creative. However, just prior to the December closing date, Janet George did have a few brief telephone conversations with someone at Capital inquiring about the closing date. Janet George knew about Capital because she had asked Creative what company was financing them, and Creative had told her that Capital was financing them. Creative also told Janet George that Capital was a lender out of Texas.
A former employee of Creative, Patricia Bolin, testified that she began working at Creative in October 1993. Bolin was aware of telephone contacts between Stacy Bennett, a representative of Creative, and Capital. According to Bolin, Bennett both made, as well as received, phone calls from Capital. Bolin testified that these calls specifically related to the plaintiffs because Creative did not yet have a lender for them.
Eventually, the plaintiffs discovered that they had taken out a $60,000 loan and owed $60,000, rather than $40,000, as they had believed. On July 7, 1994, the plaintiffs filed a petition against Creative, Capital, and Castañuela. The plaintiffs alleged that all three had engaged in a joint enterprise to commit fraud and usury on the plaintiffs.
Creative never filed an answer, and default judgment was taken by the plaintiffs against Creative. The jury rendered a verdict against Capital and Castañuela, finding that Creative, Capital, and Castañuela had engaged in a joint venture and together had committed fraud and usury on the plaintiffs.
After the jury returned this verdict in favor of the plaintiffs, the trial court held a separate post-trial hearing on damages. The trial court required Capital to credit the plaintiffs with the excess interest that the plaintiffs had paid prior to the action in calculating their future payment of the loan. The trial court also awarded the plaintiffs $14,140.51 in attorney fees, which was almost the entirety of the plaintiffs’ attorney fees. Finally, the trial court awarded the plaintiffs $250,000 in punitive damages against Creative, $50,000 in punitive damages against Capital, and $50,000 in punitive damages against Castañuela.
Capital filed a motion for judgment notwithstanding the verdict or in the alternative a motion for new trial, which the trial court denied. Capital and Castañuela timely appealed from the trial court’s judgment.
I. PUNITIVE DAMAGES
The plaintiffs filed a verified petition on July 7,1994. Concurrent with the filing of the suit, the plaintiffs filed a motion to allow an amended pleading to include punitive damages. The verified petition and the motion were served on the defendants. However, no affidavits alleging any substantial facts to support punitive damages were attached to the motion, nor were any such supportive facts mentioned or included in the motion.
A status conference was conducted. At this conference, it was agreed to and ordered by the court that all discovery would close May 1, 1995, “at which time the parties will submit an Agreed Pretrial Order.” At this status conference, the plaintiffs did not request a hearing on their motion to file an amended petition and request punitive damages. Counsel for Capital prepared the pretrial order. None of the parties had their pretrial questionnaires on file by May 1, 1995. The plaintiffs’ pretrial questionnaire was prepared May 16, 1995, and filed May 18, 1995. Paragraph 4 of the plaintiffs’ pretrial questionnaire mentioned a request to amend their petition and ask for punitive damages against Creative, Capital, and Castañuela. In paragraph 13, the plaintiffs mentioned that a motion to amend the petition and include punitive damages was pending. Counsel for Capital put the pending motion in the pretrial order, and all counsel approved the order. At the hearing on the parties’ pretrial motions immediately before trial, the trial court mentioned the provision in the pretrial order concerning the plaintiffs’ request for punitive damages and the motion which had been filed but never heard. The court stated:
“Technically what we’ve had here is the parties agreed to the pretrial order. That language is contained in the pretrial order, so, the plaintiff is protected in that regard from the timeliness argument as to whether or not punitive damages are allowed. That’s something way ahead of all of us at this particular point. I’d like to get going ... I don’t think [I’m] in error when I indicate that this is a little premature at this point.”
Capital had filed a written motion in limine, asking that punitive damages not be mentioned. Castañuela made a similar oral motion at the hearing for pretrial motions. In response to these motions, the trial court stated: “Nobody’s going to mention anything about or use that word punitive in any way at this juncture.” The plaintiffs’ counsel then informed the court and counsel that it had not been its intention to do so at that time. The defendants then objected to the plaintiffs’ motion to amend the petition and request punitive damages, claiming that no hearing on the motion had been held, no affidavits supporting the motion had been filed by the plaintiffs, no opportunity for opposing affidavits had been provided to the defendants, and no notice had been provided that a hearing on the motion was going to take place on the morning of trial. The trial court rejected the defendants’ objections and granted the plaintiffs’ motion to amend their petition and request punitive damages. An amended petition was filed on May 25,1995, the last day of trial. In so holding, the trial court stated:
“The argument about the requirement of the affidavits is — I agree with Mr. Fields that the original petition was verified, alleges serious intentional behavior on the part of the defendants which would apprise any reasonable person that this is not a negligence action per se, and that there would be a request for additional punitive damages.”
Upon conclusion of the trial, the court issued its instructions to the jury. The defendants objected to an instruction being given on the issue of punitive damages, claiming that the plaintiffs had not properly followed the statutory requirements regarding the amendment of their petition to request punitive damages. The defendants’ objections were overruled, and the trial court gave an instruction on punitive damages to the jury.
The jury entered a verdict in favor of the plaintiffs, finding all three defendants had engaged in fraud and usury through a joint venture. The plaintiffs filed a memorandum prior to trial in support of their application for punitive damages on May 6, 1996. Capital responded, objecting again to the award of punitive damages on the grounds that the plaintiffs had not satisfied the statutory requirements for amending a petition and requesting punitive damages. Castañuela also objected to the award of punitive damages. on the same grounds. The trial court issued a memorandum decision, rejecting the defendants objections and awarding punitive damages to the plaintiffs in the amount of $250,000 against Creative, $50,000 against Capital, and $50,000 against Castañuela. Capital and Castañuela challenge this award of punitive damages on appeal. The defendants claim that the plaintiffs did not properly comply with the statutory requirements in amending their petition to request punitive damages, specifically K.S.A. 60-3703. This statute provides:
“No tort claim or reference to a tort claim for punitive damages shall be included in a petition or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed. The court may allow the filing of an amended pleading claiming punitive damages on a motion by the party seeking the amended pleading and on the basis of the supporting and opposing affidavits presented that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim pursuant to K.S.A. 60-209, and amendments thereto. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed on or before the date of the final pretrial conference held in the matter.”
Here, the defendants were served with the motion to amend at the same time they were served with the petition. It is true that the motion was not accompanied by an affidavit, but the plaintiffs claim that their verified petition, asserting facts which supported the claim for punitive damages, served as a' legal equivalent of an affidavit. This verified petition was also served on the defendants. Both the motion to amend and the verified petition were served on the defendants well before the pretrial order was filed. The pretrial order included the plaintiffs’ request for punitive damages. The defendants knew of their request for punitive damages, knew the motion had yet to be ruled on, and knew it must be heard, at the hearing prior to trial. The defendants had the opportunity to file affidavits in opposition to the motion if they chose to do so.
In support of their argument that the verified petition, which included facts supporting a claim for punitive damages, was the legal equivalent of an affidavit supporting a claim for punitive damages, the plaintiffs cite to Conaway v. Smith, 853 F.2d 789 (10th Cir. 1988). In Conaway, the plaintiff brought a First Amendment action, and the trial court granted summary judgment to the defendants. The plaintiff appealed. In challenging the grant of a motion for summary judgment in federal court, the party opposing the motion must allege specific facts which indicate genuine issues requiring a trial for resolution. In attempting to allege such facts in his appeal, the plaintiff did not file an affidavit. Instead, he simply relied on the specific facts he had asserted in his verified complaint. The court found that this was proper. In so holding the court stated:
“Although a nonmoving party may not rely merely on the unsupported or conclusory allegations contained in his pleadings, a verified complaint may be treated as an affidavit for purposes of summary judgment if it satisfies the standards for affidavits set out in Rule 56(e). [Citations omitted.] Rule 56(e) requires that the affidavit be based on personal knowledge, contain facts which would be admissible at trial, and show that the affiant is competent to testify on the matters stated therein. Conaway’s verified complaint as to the factual allegations in support of his free speech claim meets these requirements.
“Conaway did not rely solely on the ‘mere’ pleadings to oppose the motion for summary judgment regarding his free speech claim. In addition to the factual allegations stated in his verified complaint, Conaway submitted certain documen taiy evidence to substantiate his claim. Conaway also identified other documents, photos and evidence to corroborate his rendition of the events which evidence was inexplicably missing from the files of the Building Inspection Division and was therefore unavailable to him. Under these circumstances, we will treat the verified complaint as an affidavit for the purpose of the motion for summary judgment. We note that there may be cases where the sole reliance on a verified complaint would be insufficient to meet a nonmoving party’s burden under Celotex Corp v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986), especially when the allegations contained in the pleading are merely conclusory. In this case, however, a full affidavit would serve no better purpose than the sworn, detailed, factual allegations contained in the verified complaint that were based on Conaway’s personal knowledge. We see no reason, under these particular circumstances, to demand that Conaway must re-label his verified complaint as an affidavit and submit essentially the same facts to die court.” 853 F.2d at 792-93.
See also Fusaro v. First Family Mtg. Corp., 257 Kan. 794, 803, 897 P.2d 123 (1995) (“A significant similarity between K.S.A. 60-3703 and the trial court’s approach to summary judgment or directed verdict is that under K.S.A. 60-3703 the trial court must view the evidence as disclosed from the affidavits in a fight most favorable to the party moving for amendment.”).
The case of Burrowwood Assocs., Inc. v. Safelite Glass Corp., 18 Kan. App. 2d 396, 853 P.2d 1175 (1993), more directly addresses when a motion to amend must be ruled upon. In Burrow-wood, the plaintiff filed a motion to amend its petition and request punitive damages prior to the pretrial conference. The motion was not ruled upon prior to the pretrial conference, but the motion was noted in the pretrial order. Thereafter, a district judge denied the motion, and the case was assigned to a different district judge for trial. After the evidence was presented at trial, the plaintiff renewed its motion to amend and the trial judge granted the motion, allowing the issue of punitive damages to be submitted to the jury. The jury awarded punitive damages to the plaintiff, and the defendant appealed. The Court of Appeals affirmed the trial court’s grant of the plaintiff’s renewed motion to amend the petition and request punitive damages. 18 Kan. App. 2d at 398. In so ruling, the Court of Appeals stated:
“K.S.A. 1992 Supp. 60-3703 and the ruling in Glynos v. Jagoda, 249 Kan. 473, 487, 819 P.2d 1202 (1991), require that the motion to amend to plead punitive damages be filed on or prior to the date of the pretrial conference. If this is not done, a plaintiff will not be allowed to make a claim for such damages. Neither the statute nor Glynos require, however, that a ruling on the motion must be made at the pretrial conference. Neither the statute nor Glynos state that, once an order denying the motion to amend has been entered, it cannot thereafter be modified to allow such a claim.
“It is axiomatic that a trial judge may reverse himself or herself during the course of an action if he or she believes an incorrect ruling has been made. Had Judge Buchanan, who heard the motion in the first place, presided over the trial, he could have, without question, reversed himself once he was satisfied of the probability that Burrowwood would prevail. Safelite would have us deny to Judge Anderson, the assigned trial judge, the same authority Judge Buchanan would have had. This we will not do.
"We hold that a motion to amend to allow a claim for punitive damages, when timely filed prior to the pretrial conference, may be considered and reconsidered as may be appropriate by the trial court at any and all times the issue is properly before the court, as was the case here.” 18 Kan. App. 2d at 397-98.
Finally, the plaintiffs assert that the defendants did have notice of the hearing on the motion and an opportunity to file affidavits opposing the motion. As the plaintiffs point out, the motion and the verified petition (which equalled an affidavit) were both filed and served on the defendants well before the motion was heard. The fact that the motion was pending was noted in the pretrial order, which the defendants signed and were bound by. See Burrowwood, 18 Kan. App. 2d at 397-98 (indicating that a trial court may consider the defendant’s evidence presented at trial in determining if motion to amend a petition to request punitive damages should be granted); Fusaro, 257 Kan. at 802 (indicating that a trial court may consider a defendant’s evidence presented at trial, in addition to the defendant’s affidavits opposing a motion to amend, in determining if motion should be granted). The defendants chose not to present any witnesses at trial. Thus, at the conclusion of the trial, when the court reconsidered the punitive damage issue, it reaffirmed its prior decision by providing the juiy with a punitive damage instruction.
In Fusaro, 257 Kan. at 804, this court stated that “under K.S.A. 60-3703, the decision whether to permit plaintiff to amend is dis cretionaiy in that the statute provides that the court may allow the filing of an amended petition claiming punitive damages. Thus, our standard of review is one of abuse of discretion.” However, the issue in that case was whether the plaintiff’s affidavit, attached to its motion to amend, actually indicated the existence of a “ ‘probability that plaintiff [would] prevail on the [punitive damages] claim’ ” and what standard of proof must be used to judge this probability by. 257 Kan. at 801. This clearly was a question of fact to be decided by the trial court and was properly evaluated on appeal under an abuse of discretion standard of review. However, the issue herein is whether the plaintiffs properly satisfied the procedural requirements set out in K.S.A. 60-3703 by filing the motion and are entitled to prove that they could prevail on a punitive damages claim. The arguments made by the parties herein involve questions regarding the interpretation of K.S.A. 60-3703, based on die legislature’s intent and statutory construction, such as: Can a verified petition be used in place of an affidavit under the statute; when must the motion be ruled upon under the statute; what type of notice for the motion’s hearing is the defendant entitled to receive under the statute? “Interpretation of a statute is a question of law, and our review is unlimited.” In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 1, 930 P.2d 1366 (1997). Thus, this issue should be evaluated under a de novo standard of review.
Each procedural element listed in K.S.A. 60-3703 is required for a plaintiff to properly file a motion to amend a petition and request punitive damages. These elements include: (1) the plaintiff seeking the amended pleading must file a motion to amend the petition; (2) the motion must be filed on or before the date of the final pretrial conference; (3) the plaintiff must establish that there is a probability the plaintiff will prevail on the punitive damage claim by clear and convincing evidence (Fusaro, 257 Kan. at 801), and (4) this proof should be based on supporting and opposing affidavits.
Herein, the plaintiffs filed a motion to amend their petition and properly served this motion on the defendants. The motion was filed before the date of the final pretrial conference. See Sullwold v. Barcus, 17 Kan. App. 2d 410, 417, 838 P.2d 908, rev. denied 251 Kan. 942 (1992). While language in certain cases is confusing as to what must occur before the pretrial conference — motion filed, affidavits filed, or ruling determined — it is clear from the language of the statute that only the motion must be filed prior to the pretrial conference. Sullwold, 17 Kan. App. 2d at 414-15; see Glynos, 249 Kan. 473, 487, 819 P.2d 1202 (1991). This was done in this case. The ruling does not need to occur prior to the prehearing conference. Burrowwood, 18 Kan. App. 2d at 397. It is preferable that the affidavits be filed simultaneously with the motion and served on the defendants prior to the pretrial conference, but certain exceptions can be made for the affidavit filing and service date if special circumstances apply. Logan v. Logan, 23 Kan. App. 2d 920, 933-34, 937 P.2d 967 (1997), rev. denied 7-11-97. Thus, the hearing and ruling date on this motion were proper, even though they occurred after the pretrial conference, because the motion itself was filed prior to the conference.
The defendants knew that the motion was pending from the time the case was filed. The pretrial order specifically stated that the motion was pending, and the defendants approved the order, thereby making the order binding on them. Thus, the defendants knew the order had to be addressed sometime between the pretrial order signing date and the trial, or at least during the trial. Similarly, the plaintiffs did not know when the trial court planned to take up the motion. This factual determination is not challenged by the defendants and will not be addressed herein.
However, this determination to grant the plaintiffs’ motion was not based on supportive or opposing affidavits. Instead, the trial court found that the plaintiffs’ verified petition contained sufficient information to constitute an affidavit. The trial court based its determination to grant the plaintiffs’ motion to amend and request punitive damages on the plaintiffs’ verified petition. The plaintiffs claim this was proper under Conaway v. Smith, 853 F.2d 789. The Conaway case does support this position and it is based on a valid rationale. Several Kansas statutes allow either a verified petition or an affidavit to support certain factual allegations; however, the statutes refer to the documents separately as a petition or an affida vit — suggesting that the two documents are not interchangeable under die Kansas statutes.
This issue involves the interpretation of a Kansas statute. This statute only uses the term “affidavit,” not verified petition. “In interpreting a statute, we must give effect to its plain and unambiguous language, without determining what, in our view, the law should be.” State v. Reed, 23 Kan. App. 2d 661, 663, 934 P.2d 157, rev. denied 262 Kan. 968 (1997). “ ‘[I]n construing statutes, “[statutory words are presumed to have been and should be treated as consciously chosen and,, with understanding of the ordinary and common meaning, intentionally used with the legislature having meant what it said.’ [Citation omitted.]” State v. Crank, 262 Kan. 449, 451, 939 P.2d 890 (1997), “When a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute.” State v. Alires, 21 Kan. App. 2d 139, Syl. ¶ 2, 895 P.2d 1267 (1995). “When construing a statute, a court should give words in common usage their natural and ordinary meaning.” Galindo v. City of Coffeyville, 256 Kan. 455, Syl. ¶ 5, 885 P.2d 1246 (1994).
We do not believe a bright line rule should be adopted in this case concerning the verified petition because we are not satisfied the trial court gave the answering defendants a fair opportunity concerning punitive damages. The trial court did not make a final ruling until all of the evidence was in and the answering defendants had elected not to offer any evidence. Under the circumstances, we hold the answering defendants are entitled to a new trial on the issue of punitive damages only. We remand the case to set aside the punitive damage award to the answering defendants and to grant a new trial on the punitive damage issue. The punitive damage award against Creative stands.
II. TESTIMONY
In this case, the plaintiffs challenged the total amount of the loan in question and the interest rate of the loan as improper. The plaintiffs obtained an ex parte order appointing Brotherhood Bank as an escrow agent so that Brotherhood Bank could receive all the mortgage payments on the home during the pendency of the litigation.
By interrogatories, Capital requested that the plaintiffs identify any expert witnesses, including the subject matter to which they would testify and the substance of their opinions on that matter. On April 11,1995, the plaintiffs answered Capital’s interrogatories by stating that no expert witness had been retained at that time. The plaintiffs first contacted Pamela Sweeney about testifying in their usury case in regard to legal interest rates. Subsequently, on May 5, 1995, after the close of discovery, the plaintiffs filed an amended interrogatory answer. In answering the interrogatory on expert testimony, the plaintiffs stated: “At this time no expert witnesses have been retained. However, an expert witness may be called for the limited purpose of testifying concerning the permissible interest rates charged under K.S.A. 16-207.”
A pretrial questionnaire was filed by the plaintiffs on May 18, 1995. In this questionnaire, the plaintiffs listed Sweeney as a possible witness, but they did not indicate that Sweeney would be called as an expert witness. The final pretrial conference order was not signed until May 22,1995, the morning that trial began. In this order, the plaintiffs did not specifically identify any expert witness in regard to the usury claim.
During trial, the plaintiffs called Sweeney, an agent of Brotherhood Bank in Kansas City, Kansas, to testify. Brotherhood Bank had been previously designated as escrow agent by the court and all payments on the note in question had been made to Brotherhood Bank during the pendency of the litigation.
The defendants objected to Sweeney’s testimony on the grounds of surprise and the fact that Sweeney had never been identified as an expert witness, either in the plaintiffs’ response to the defendants’ interrogatories or in the plaintiffs’ response to the pretrial questionnaire. The defendants’ objection was overruled and Sweeney proceeded to give testimony regarding the usury claim. However, Sweeney had forgotten to obtain the information regarding the proper interest rates, and, thus, the plaintiffs were forced to establish this information through judicial notice. When Sweeney could not answer the interest question, she was asked to testify concerning mathematical calculations using assumed interest rates and assumed mortgage amounts. The defendants did not make any contemporaneous objections claiming that Sweeney was testifying as an expert. However, on appeal, the defendants allege that Sweeney testified as an expert witness and that the trial court erred in allowing her testimony because the plaintiffs had failed to identify her as an expert witness in response to the defendants’ interrogatories or in the pretrial order.
As we view the record, Sweeney was not an expert witness, and she was not asked to express any belief or opinion regarding interest rates. Most book and stationery stores carry payment tables and almost any professional who deals with payments has such a table. Furthermore, the information is readily available through most computers. Sweeney simply testified to a simple mathematical computation, and her testimony comported exactly with mathematical tables. The appellants do not point out how they could have attacked her testimony. In addition, the trial judge could have taken judicial knowledge of the figures to which Sweeney testified. Therefore, any error was harmless.
III. JOINT VENTURE
Under Kansas law, a joint venture is defined as “an association of two or more persons or corporations to carry out a single business enterprise for profit; it may be found in the mutual acts and conduct of the parties. Among acts or conduct which is indicative of a joint venture, but no single one of which is controlling in the determination, are: (1) the joint ownership and control of property; (2) the sharing of expenses, profits and losses, and having and exercising some voice in determining the division of the net earnings; (3) a community of control over and active participation in the management and direction of the business enterprise; (4) the intention of the parties, express or implied; and (5) the fixing of salaries by joint agreement.” Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 76, 596 P.2d 816 (1979).
Capital asserts that there was no evidence presented at trial of joint ownership or joint control of property between Capital and Creative; no evidence of the sharing of expenses or losses; no ev idence of a community of control in the management of a business enterprise; no evidence of the intention of the parties; and no evidence of the fixing of salaries by joint agreement. According to Capital, the only evidence of a joint venture between it and Cre-' ative was a representation by Creative that the lender providing the financing to the plaintiffs was Capital from Texas. Further, Morgan assigned the plaintiffs’ note to Capital and Capital assigned this note to Castañuela. Finally, Capital sent a letter to the closing agent asking her not to reveal these assignments to the plaintiffs.
At trial, the closing agent testified that it is common practice for an assignment of a note to occur contemporaneously with the closing of the note and that such assignments are often done without the knowledge of the buyers. Besides Morgan’s note, Capital argues that there was no evidence to indicate that it and Creative ever did business with one another in any other case, nor was there any evidence of mutual acts by the parties. Thus, Capital asserts that it was not involved in a joint venture with Creative and that there was no evidence presented at trial to support the jury’s opposite conclusion.
Finally, in support of this position, Capital tries to distinguish the facts in this case from those in Modem Air Conditioning, 226 Kan. 70. In that case, this court upheld the trial court’s submission of a jury instruction on joint venture and the jury’s finding of joint venture becausé the parties at issue participated in negotiations together, sold assets to one another, entered into a contract with one another, and shared office space, secretarial help, and telephone lines together. This court approved the joint venture finding even though there was no evidence of an agreement between the parties expressly entering into a joint venture and no profits or losses were shared. 226 Kan. at 76-77.
Capital contends- that the facts herein are distinguishable from Modem Air Conditioning because it and Creative were distinct corporations existing in different states that did not share office space, secretarial help, or telephone lines. Further, Capital claims that it took no part in the negotiations of the sale of the home from Morgan to the plaintiffs. Thus, Capital claims that, unlike the appellant in Modem Air Conditioning, it was not involved in a joint venture with Creative. As such, Capital asserts that the evidence was insufficient at trial to support the jury’s finding that it participated in a joint venture with Creative. Hence, Capital claims that it is not Hable for the acts of fraud committed by Creative. Capital asks this court to reverse the verdict against it for fraud, based on its alleged involvement in a joint venture with Creative.
Castañuela also contends that there was no substantial competent evidence presented at trial to prove that he associated with Creative with the intent to carry out a single business venture for profit or that there was a community of interest among him, Creative, and Capital as to the purpose of an undertaking.
According to Castañuela, the only substantive evidence that he might have been involved in a joint venture was offered by the closing agent, Terry Gamer. Gamer testified that the original mortgage for $40,000 was recorded on September 23, 1993, and was rerecorded with handwritten changes raising the amount to $60,000 on October 14,1993. However, Janet George testified that this original change in the note and mortgage in October was requested by Creative and that she had never had any contact with Castañuela and was unaware of a connection between him and Creative. Further, Castañuela contends that his name did not appear in any relation to this transaction until November 22, 1993, more than a month after the mortgage amount had already been increased to $60,000. Castañuela contends that this was not evidence of a joint venture among himself, Creative, and Capital to commit fraud on the plaintiffs.
Besides Gamer’s téstimony, Castañuela points out that the only other witnesses who mentioned his name were the plaintiffs. Their testimony was limited to the description of the events which led to their knowledge that the note and mortgage had been assigned to Castañuela. Castañuela argues that neither plaintiff had any contact with him or had any knowledge regarding any relationship among him, Capital, and Creative.
Thus, Castañuela contends that all the evidence regarding him indicated that he was a passive investor who purchased what he thought was a $60,000 note and mortgage. According to Castañuela, the evidence presented at trial did not show that he agreed to associate with Creative to carry out an enterprise, nor did it show that he had any community of interest with Creative in regard to the note and mortgage at issue. In fact, Castañuela contends that no evidence presented at the trial suggests that he even knew of the existence of Creative or that the mortgage he purchased had been altered in any way. As such, Castañuela asserts that the evidence was insufficient to submit a joint venture instruction regarding him to the jury or to support the jury’s finding that he had in fact participated in a joint venture with Creative and Capital to commit fraud on the plaintiffs. Castañuela asks this court to strike down the jury’s joint venture finding.
In response, the plaintiffs argue that there is plenty of circumstantial evidence in this case to support a finding that both Capital and Castañuela engaged in a joint venture with Creative to defraud the plaintiffs out of $27,832 plus the interest on a $60,000 note when they were only entitled to interest on a $32,000 note. See Haminargren v. Montgomery Ward & Co., 172 Kan. 484, 492, 241 P.2d 1192 (1952) (holding that any cause of action may be proven by circumstantial evidence).
At the plaintiffs’ meeting with Creative’s representatives in mid-August 1993, the representatives said that they knew some lenders who would approve the plaintiffs, but they did not identify the lenders at that time. Before the first note and mortgage were signed on September 20, 1993, Creative mentioned Capital. Janet George asked who was financing them, and Creative described Capital as a lender out of Texas. Capital was the only lender or mortgage company whose name was mentioned. It was only after that information was conveyed to the plaintiffs that the plaintiffs were asked and agreed to increase the original note and mortgage from $40,000 to $60,000. This was on or about October 14, 1993. In the note which includes the handwritten revisions changing the amount from $40,000 to $60,000, a Creative representative had written “attention Margie.” Margie is with Capital and she is the author of the closing instructions, a memorandum, dated December 3, 1993, to Terry Gamer, which asks Gamer not to disclose to the plaintiffs the assignment of the note and mortgage from Mor gan to Capital and from Capital to Creative. The original unaltered note, also has “Margy” handwritten on it.
Further, Patricia Bolin testified that in October 1993, a representative of Creative was both making telephone calls to Capital, as well as receiving telephone calls from Capital. Approximately 10 days after the escalation of the note and mortgage, Capital sent a fax to Guaranty Title requesting a mortgage title insurance policy in their favor, insuring a balance of $60,000. Among other things, the fax stated that the assignments would be sent in approximately 1 week. From that point forward, Capital, not Creative, fine-tuned the transaction to its satisfaction, preparing all documents for plaintiffs, as well as securing Morgan’s signature, and issuing instructions to Guaranty Title. Finally, Capital initially obtained the extra money — $27,832. Most of this sum was returned to Castañuela. (This evidence was not presented to the trial court during the liability phase of the trial, but was presented after the jury trial at the punitive damage hearing.) Creative had no independent motive to increase the note on the evidence in this record. If this were a legitimate sale of an existent note and mortgage on the secondary market, Creative could have just as easily sold a $40,000 mortgage, secured by a $60,000 house, as it could have sold a $60,000 mortgage secured by that same house. Further, when Capital asserts that it was not even involved in the transaction until after the note had been changed, it is simply stating its side of a disputed question of fact which was resolved against it by the jury.
The plaintiffs contend that there is substantial competent evidence to support the jury’s finding that Castañuela participated in a joint venture with Creative and Capital to defraud the plaintiffs: There was an inordinate delay in closing this transaction. The delay was so long that Janet George and Morgan’s son made several independent inquiries. The preclosing execution of the assignment from Capital to Castañuela is evidence of Castanuela’s association with the venture before it was consummated. Mr. Nichols’ letter of November 22, 1993, states that the assignment of the hen document from Capital to Castañuela had already been executed. However, the assignment that was used is dated and notarized December 9, 1993. A reasonable inference is that the transaction could not close until Castañuela funded it. The plaintiffs argue that this inference was confirmed later at the punitive damage hearing when Castañuela admitted that he provided the funds for the loan to be secured by the mortgage. According to the plaintiffs, common knowledge and experience, as well as the nature of the transaction itself, raise the inferences that Castañuela was to share in the benefits and the profits of the venture. Again, the plaintiffs contend that this was confirmed at the punitive damage hearing, when it was established that Castañuela got $20,117 of the $27,832 overcharge. Finally, the plaintiffs point to the letter of instructions to the closing agent asking that the assignment from Capital to Castañuela not be seen by any of the parties. Based on this evidence, the plaintiffs assert that there was substantial competent evidence to support the jury’s finding that Castañuela participated in a joint venture to defraud the plaintiffs with Creative and Capital. The plaintiffs ask this court to uphold the jury’s finding and its verdict against Castañuela for fraud.
The existence of a joint venture may be inferred from the facts and circumstances presented at the trial which demonstrate that the parties, in fact, undertook a joint enterprise. 46 Am Jur. 2d, Joint Ventures § 11, p. 33, § 75. The requisite intent of parties required to create a joint venture may be express or implied. Modem Air Conditioning, 226 Kan. at 76.
As we view the record, the evidence could be interpreted as evidence of a joint venture among Creative, Capital, and Castañuela to defraud the plaintiffs. It is not this court’s place to reweigh the evidence and replace the juiy’s factual determination. Looking at the evidence in the fight most favorable to the plaintiffs, as the standard of review requires, there was substantial competent evidence to support the jury’s finding that both Capital and Castañuela participated in a joint venture with Creative to defraud the plaintiffs and are liable for the direct fraud which Creative perpetrated on the plaintiffs. This issue fails.
IV. JURY INSTRUCTION ON JOINT VENTURE
The trial court provided the jury with an instruction on joint venture, which stated in pertinent part:
“You are instructed that a joint venture arises out of, and must have its origin in, a contract, expressed or implied, in which the parties agree to enter into an undertaking for profits in the performance of which they have a common purpose the objects or purpose of which they have a community of interest. The intent to form such a relationship must exist; a joint venture cannot arise by operation of law. However, as to third persons, the legal, and not the actual, intent of the parties controls, and the parties may be estopped in favor of third persons from denying that they are joint venturers, even though they never intended to become such.”
However, the defendants claim that the instruction on joint venture was improper because it did not properly state the law in Kansas and, therefore, misled the jury as to what actually constitutes a joint venture. The defendants contend that the trial court’s instruction on joint venture was so vague and meaningless as to provide no guidance to the jury. Thus, the defendants claim that the jury found a joint venture existed based on an improper instruction.
According to the defendants, the proper definition of a joint venture under Kansas law can be found in Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. at 75-76. See also Flight Concepts Ltd. Partnership v. Boeing Co., 38 F.3d 1152 (10th Cir. 1994); Southwest Nat'l Bank of Wichita v. ATG Constr. Mgt., Inc., 241 Kan. 257, 260, 736 P.2d 894 (1987). These cases define joint venture and list specific acts or conduct which is indicative of a joint venture. However, the trial court’s joint venture jury instruction did not include the acts or conduct which were indicative of a joint venture, as the case law definitions do. The defendants claim that if the instruction had included a list of certain acts or conduct which indicate a joint venture, then the jury would have concluded that these acts did not exist herein and, thus, a joint venture did not exist herein. As such, the defendants assert that if the jury had been properly instructed as to the full definition of a joint venture, then the jury would not have concluded that Capital and Castañuela participated in a joint venture with Creative to defraud the plaintiffs.
The trial court took its instruction on joint venture from 15 Am. Jur. Pi. and Pr. Forms (rev.), Joint Venture § 7, and this is a correct statement of law. See 46 Am. Jur. 2d, Joint Ventures § 1, cited in Neighbors Construction Co., Inc. v. Seal-Wells Construction Co., Inc., 219 Kan. 382, 385, 548 P.2d 491 (1976). Error cannot be predicated on the refusal to give an instruction when its substance is adequately covered in other instructions. Here, the substance of the factors specified in Modem Air Conditioning were given and they did not need to be specifically listed in the joint venture instruction for the instruction to be proper. See Potts v. Lux, 161 Kan. 217, 222, 166 P.2d 694 (1946).
In Potts, this court enumerated various factors which may be considered in determining whether a partnership exists. However, when the PIK committee defined partnership in PIK Civ. 2d 7.07, it did not set forth all the various factors which this court had previously approved in Potts for the purpose of determining whether a partnership existed. See Turon State Bank v. Estate of Frampton, 253 Kan. 621, 625, 861 P.2d 117 (1993) (‘While we do not endorse or recommend the giving of an instruction on. the badges or indicia of fraud, we think the determination of whether one should be given should be left to the sound discretion of the trial court based upon the facts and circumstances of the particular case. We anticipate that ordinarily a trial court will not need to give such an instmction, but if the court is of the opinion, based upon the evidence and circumstances of the case, that such an instruction is necessary for the guidance of the jury in arriving at a proper verdict, the trial court should not be precluded from giving an instruction on the badges or indicia of fraud.”)- (Emphasis added.)
“If the jury instructions, read as a whole, fairly instruct the jury on the law governing the case, are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal.” In re Application of City of Great Bend for Appointment of Appraisers, 254 Kan. 699, 713, 869 P.2d 587 (1994). The trial court’s jury instruction on joint venture was substantially correct and fairly instructed the jury on joint venture law.
The trial court herein used its discretion, based upon the facts and circumstances of this particular case, and decided not to include the specific facts indicating a joint venture within its joint venture jury instruction. The trial court decided that based on the evidence and circumstances, such an instruction, including all the specific facts of a joint venture, was not necessary for the guidance of the jury in arriving at a proper verdict. The trial court’s decision was not so arbitrary, fanciful, or unreasonable that no reasonable person would agree with the court. Thus, the trial court did not abuse its discretion in so ruling. See Smith v. Printup, 262 Kan. 587, 592, 938 P.2d 1261 (1997). This issue fails.
V. ATTORNEY FEES
After the jury found in the plaintiffs’ favor on the fraud and usury counts, the plaintiffs requested attorney fees. The trial court awarded fees to the plaintiffs’ attorney in the amount of $14,140.51. On appeal, the defendants claim that the trial court erred in awarding ány attorney fees at all under K.S.A. 16-207(e). Further, the defendants claim that the trial court erred in setting the amount of attorney fees at $14,140.51 because this amount included fees for both the usury count and the fraud count, for which attorney fees are not allowed.
First, the defendants assert that the trial court erred in awarding any attorney fees at all under K.S.A. 16-207(e). In Kansas, a party cannot recover attorney fees unless they are specifically provided for by the legislature. State, ex rel., v. Sage Stores Co., 158 Kan. 146, 150, 145 P.2d 830 (1944) (holding that in the “absence of specific statutory authority the successful party in an action may not recover from his adversary his attorney’s fees and expenses of litigation”). Two Kansas cases control—Marshall v. Beeler, 104 Kan. 32, 178 Pac. 245 (1919), and Young v. Barker, 185 Kan. 246, 342 P.2d 150 (1959).
In Marshall, a debtor voluntarily paid a note which contained usurious interest. After paying the note in full, the debtor filed suit under the usury statute (the predecessor to K.S.A. 16-207[e]), seeking recovery of the usurious amount paid under the note. The court rejected the debtor’s argument, holding “[n]o cause of action is expressly given under the present statute to recover back from the original payee usurious interest; the borrower is given the right to set up the defense in an action on the instrument, in which case double the amount of the excess interest is to be deducted from the amount lawfully due.” 104 Kan. at 42.
In Young, plaintiffs/debtors filed suit against defendant/lender, seeking recovery of usurious interest paid. The debtors made all of their payments under the note. Defendant/lender argued that plaintiffs were not entitled to recover under G.S. 1949, 16-202 (1955 Supp.) (predecessor statute of K.S.A. 16-207[e]). Lender argued that the remedies under such statute could, only be asserted as a defense in a collection action.
The Young court, while reaffirming its holding in Marshall, created a common-law cause of action and permitted plaintiffs to recover only the amount of interest charged by a lender in excess of the statutory rate (i.e., the usurious interest paid). It also held that plaintiffs did not have a cause of action under G.S. 1949, 16-202 (1995 Supp.) because the remedies under the statute could only be used as a defense to a collection action. 185 Kan. at 257-58.
“Usury statutes are penal in nature and are to be strictly construed in favor of the lender.” Indian Springs State Bank v. Kelley’s Auto Supply, Inc., 9 Kan. App. 2d 211, 213-14, 675 P.2d 379 (1984) (citing Young v. Barker, 185 Kan. 246). “Usury laws in general were designed to protect needy borrowers from unscrupulous lenders. That view of the law should therefore be adopted which will accomplish that purpose. The statutes should not be converted from 'shields of protection into swords of offense.’ ” Indian Springs, 9 Kan. App. 2d at 216 (quoting 45 Am. Jur. 2d Interest and Usury § 8, p. 22). See also Schulte v. Franklin, 6 Kan. App. 2d 651, 654, 633 P.2d 1151 (1981) (holding that since, the usury claim was not brought as an affirmative suit for relief but was raised in defense against the plaintiffs’ action for possession, then the “historical impediment to a claim for statutory usury penalties is inapplicable”; thus, the defendant was entitled to státutory penalties, pursuant to K.S.A. 1980 Supp. 16-207[d] as a ¡remedy for the usurious interest charges).
Black’s Law Dictionary 419 (6fh ed. 1990) defines a “defense” as “[t]hat which is offered and alleged by the party proceeded against in an action or suit, as a reason in law or fact why the plaintiff should not recover or establish what he seeks. That which is put forward to diminish plaintiff’s cause of action or defeat recovery.” Here, the defendants did not proceed against the plaintiffs in an action or suit. Thus, the plaintiffs did not offer or allege the usury claim as a reason in law or fact why the defendant should not recover. The plaintiffs did not put forward the usury claim to diminish the defendants’ cause of action or to defeat recovery. Instead, the plaintiffs affirmatively brought this usury claim against the defendants so that they no longer had to continue to pay the improper interest.
K.S.A. 16-207 does not authorize an offensive usury action; it only authorizes the defensive use of a usury claim. Thus, the plaintiffs’ offensive usury claim was not authorized by or based upon the usury statute, K.S.A. 16-207, despite the parties’ belief throughout the trial. Neither this court nor the legislature has ever held that attorney fees are recoverable for a successful usury claim brought under the common law. “[AJbsent specific statutory authority the successful party in an action may not recover from his adversary his attorney’s fees and expenses of litigation.” State, ex rel. v. Sage Stores Co., 158 Kan. at 150. Thus, the plaintiffs are not entitled to recover attorney fees after successfully litigating an offensive, common-law usury claim. The trial court’s award of attorney fees to the plaintiffs after the jury found in their favor was in error. The award of attorney fees is reversed.
This result does not mean that a borrower must risk foreclosure, as the plaintiffs argue, in order to challenge usurious interest in a defensive manner. The borrower can always bring an offensive common-law usury action to challenge, usurious interest, just as the plaintiffs did herein. See Young, 185 Kan. at 246. Such borrower is simply not entitled to recover attorney fees should its claim be successful. Thus, this result does require a borrower to risk foreclosure in order to be entitled to attorney fees upon successfully bringing a usurious interest defense. This is unfortunate, but not completely unreasonable. Some litigants are not entitled to recover attorney fees at all. As such, if the legislature provides for attorney fees, it can make the receipt of such fees risky so as to avoid numerous usury actions. The legislature provided that the statutory usury claim, pursuant to 16-207, providing for attorney fees, shall only be used defensively, not offensively, and the legislature has not made allowances for attorney fees in common-law usury actions used offensively. This is the legislature’s prerogative, and it is not this court’s place to change these rules. If the legislature sees the unfairness in these rules, then it is free to change them.
VI. MOTION FOR A NEW TRIAL
After the jury handed down a verdict in the plaintiffs’ favor, Capital and Castañuela both timely filed a motion for judgment notwithstanding the verdict or in the alternative a motion for a new trial. Rule 4D of the Wyandotte County District Court’s local rules provides that post-trial motions not heard on regular motion days shall be specially set by the judge and notice given to all counsel. The defendants’ motions were not heard on a regular motion day, so the defendants attempted to obtain a hearing date specially set by the judge. Specifically, Castañuela claims to have orally contacted the court twice. However, the trial court never set a date to hear the motion. Instead, the trial judge informed the defendants that he expected to retire immediately and he would not set a date to hear the motion since he was leaving. The court indicated that a hearing would not be set or take place until the newly assigned trial judge took over the bench and scheduled the hearing.
However, on December 9, 1996, hours before he retired, the trial judge issued a memorandum decision on the defendants’ post-trial motion, denying the motion in its entirety. According to the defendants, the trial judge made such ruling without a hearing and without any notice of a hearing. The defendants allege that they were not given the opportunity to present oral argument in support of their motion at a hearing, in violation of Wyandotte County District Court Local Rule 4D. The defendants assert that they were prejudiced by this rule violation. Moreover, the defendants point out that the trial court’s memorandum decision explicitly referred to conversations with the plaintiffs’ counsel regarding these motions. According to the defendants, these conversations constituted ex parte communication in violation of the Kansas Code of Civil Procedure. Further, the defendants claim that it was improper and unfair for the plaintiffs to have had an opportunity to present oral argument on the motions when the defendants were not afforded this same opportunity. The defendants claim that the trial court abused its discretion by flagrantly violating these rules of procedure. The defendants ask this court to strike down the trial court’s memorandum decision on the motion and allow the defendants the opportunity to file a motion, have a hearing set, have notice of the hearing, and present oral argument at the hearing in support of their motions.
In response, the plaintiffs argue that neither ex parte communication nor a violation of the local rules occurred by the trial court’s ruling on the defendants’ motion. First, the plaintiffs assert that they did not participate in prohibited ex parte communication with the trial judge regarding the defendants’ post-trial motions. In support of this position, the plaintiffs cite to the trial court’s memorandum decision, which states in pertinent part:
“Plaintiffs’ counsel has informed the court that he feels all of the issues raised have been ruled on previously by this court in pretrial, trial, and post-trial hearings. He therefore indicates he will not be filing any written response.”
The plaintiffs claim that they do not recall if it was the judge’s secretary or the judge himself who made the inquiry about the plaintiffs’ intention to file a response to the defendants’ motion. The trial court’s memorandum does not make this clear. However, the plaintiffs assert that the record does not support, and it is not true, that the plaintiffs had an opportunity to present oral argument while the defendants were not afforded such an opportunity. As such, the plaintiffs claim that no improper ex parte communication occurred between themselves and the trial court concerning the trial court’s denial of the defendants’ post-trial motions.
Moreover, the plaintiffs claim that the trial court did not violate the local rules when it denied the defendants’ post-trial motions. The local rule at issue, 4(D), provides in pertinent part:
“D. Special Motions: Any motion requiring a special setting, including motions for a new trial and similar post-trial motions, and motions where oral evidence is to be offered, shall be specially set by the Judge of the division to which the case has been assigned, and notice of such setting shall be given by the attorney obtaining the setting.”
Further, Supreme Court Rule 133 (1997 Kan. Ct. R. Annot. 163) provides:
“If the motion also contains a request for oral argument, or if within five days of the service of the motion an adverse party serves and files a request for oral argument, no ruling shall be made on the motion without opportunity being given to counsel to present such arguments. ... In the absence of any request by either party for oral argument in accordance with this Rule, the judge may set the matter for hearing or rale upon the motion forthwith and communicate the riding to the parties.”
Based on Supreme Court Rule 133, the plaintiffs assert that local rule 4(D), stating that motions where oral argument is to be offered shall be specially set by the judge, is not self-executing. Under Supreme Court Rule 133, the plaintiffs claim, when a party files a motion that needs oral argument, such as a motion for a new trial, the party has the obligation to specifically request oral argument in writing in order to receive it. Here, however, the plaintiffs point out that the defendants did not include a request for oral argument in either of their post-trial motions. Without such written request for oral argument, the plaintiffs contend that under Supreme Court Rule 133, the trial court was entitled to rule on the motions without argument on the motions. Thus, the plaintiffs assert that the trial court did not commit error in ruling on the defendants’ motions without first hearing oral argument from either party. See Bowen v. City of Kansas City, 231 Kan. 450, 453, 646 P.2d 484 (1982).
As far as the record before us is concerned, the defendants never asked the trial court for a hearing. The defendants claim that they asked twice, but the judge refused because he was retiring. There is no record of the defendants’ request for oral argument. Certainly, a defendant is entitled to rely on the trial court’s word about when a hearing will be set, but such reliance will not hold up at the appellate level unless the request is in the record. As such, it appears from the record that the defendants never requested a hearing for oral argument either orally or in writing, as required by Supreme Court Rule 133. Without such request under Supreme Court Rule 133, local rule 4(D) never takes effect and the trial judge is not required to set a case for special hearing. As the preface to Wyandotte County Local Rules make clear, these two rules work in conjunction together. Local Rule 4(D) is not self-executing but requires a proper request for oral argument hearing, under Supreme Court Rule 133, in order to take effect. Since such a request was not made here, neither the retiring trial judge nor the newly appointed trial judge was ever required to set the motion for an oral argument hearing. As such, the trial court did not err in ruling on the motion without setting a hearing or providing the defendants with an opportunity for oral argument.
Further, it does not appear that the trial court provided the plaintiffs with an opportunity for improper, ex parte oral argument. In his memorandum decision, the trial court was simply explaining the plaintiffs’ response to the motion, which was none. It was not clear how the judge got this information. However, it was clear that any communication between the judge and the plaintiffs did not afford the plaintiffs an opportunity to present oral argument on the motion. Instead, it simply appears that the plaintiffs communicated to the judge that they had no response to the defendants’ motion. This was not prejudicial to the defendants in any way and does not require a reversal of the trial court’s ruling on the defendants’ motion. This issue fails.
VII. PENALTIES AWARDED TO THE PLAINTIFFS
K.S.A. 16-207(e) provides:
“Any person so contracting for a greater rate of interest than that authorized by this section shall forfeit all interest so contracted for in excess of the amount authorized under this section; and in addition thereto shall forfeit a sum of money, to be deducted from the amount due for principal and lawful interest, equal to the amount of interest contracted for in excess of the amount authorized by this section and such amounts may be set up as a defense or counterclaim in any action to enforce the collection of such obligation and the borrower shall also recover a reasonable attorney fee.”
In awarding damages, the trial court interpreted this section of the statute and stated:
“The Court interprets the plain language of the statute in question to mean that ‘shall forfeit all interest ... in excess’ requires defendants to pay back or be credited/or excess interest paid by the pbintijfs prior to this action.
“The Court interprets the rest of die statute which states that the Defendants shall ‘additionally’ forfeit a sum of money to be deducted from the ‘amount due for lawful principal and interest’ as merely rewriting the wrongful instrument to include in the future only that which is lawfully allowed. This is accomplished by the paragraph above with a new note showing a balance of $28,617.26 at 8.79% for 30 years at $252.66 per month.”
Based on this interpretation of the statute, the court did not deduct an additional sum of money from the principal and legal interest on the loan equal to the amount of illegal interest contracted for. Instead, the trial court reformed the note so that the plaintiffs only owed legal interest in the future and credited those future payments with the illegal excess interest amounts that the plaintiffs had already paid.
The plaintiffs claim that the trial court misinterpreted this statute and that they were entitled to an additional deduction from their loan, equal to the amount of the excess interest, as a penalty against the defendants. On their cross-appeal, the plaintiffs ask this court to award them this additional damage, pursuant to K.S.A. 16-207, against the defendants.
However, the plaintiffs did not bring a defensive statutory usury action pursuant to K.S.A. 16-207. Instead, they brought an offensive common-law usury action. Thus, under their common-law action, the plaintiffs are not entitled to the statutoiy damages listed in K.S.A. 16-207. Such penalty, if it even exists under the statute, is not provided for under the common-law usury claim. As such, the plaintiffs are not entitled to this damage award and the trial court properly denied it, although based on a different reason. This issue fails.
Affirmed in part and reversed in part. | [
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The opinion of the court was delivered by
Beier, J.:
Defendant Tyron James appeals his convictions on two counts of first-degree premeditated murder and his concurrent hard 50 life sentences.
This case arises out of tire murders of Henry Raimey, Jr., and Billy Holloway, Jr.
On the night of the murders, Raimey’s girlfriend, Kandra Poole, saw defendant James get into her white sports utility vehicle (SUV) with Raimey and Holloway. Defendant got into the back seat; Holloway got into the front passenger seat; and Raimey got into the driver’s seat and drove away from Poole’s home.
A few minutes later, Donnie Hayes saw an accident outside her home, and her husband heard gunshots. Hayes looked outside and saw a white SUV hit a pole. She watched as a young man flew out of the passenger side of the SUV and landed in the middle of the street. The man was wearing only one shoe.
Hayes called 911 and ran outside with her husband. By the time she reached the man with one shoe, he had moved out of the street. She could tell he was hurt badly; his leg appeared to be dangling. Hayes told him not to move, and he asked her not to call the police. She told him she already had. The man then requested help finding his gun and his shoe. Hayes, her husband, and other bystanders fled, and Hayes watched as die man hopped away from the accident scene.
The first police officer to arrive saw Holloway lying on the ground beside the SUV’s passenger side and Raimey lying inside the SUV near the driver’s seat. Shortly thereafter, the fire department arrived and announced that both men were dead. One of the firefighters informed the police officer that the victims had been shot.
Another investigator arrived on the scene and interviewed the Hayeses. They told the investigator which direction the man with one shoe had gone. The investigator then found the man hiding under a porch near the scene. The man was identified as defendant James.
A gun and a tennis shoe matching the one defendant was wearing when he was apprehended were found in the area the man with one shoe had been searching before he hopped away.
At defendant’s trial, a forensic pathologist testified Raimey had been shot twice in the head. The pathologist also testified Holloway had been shot twice, once at the base of his neck and once in the back of his head. The bullet that entered through the base of Holloway’s neck exited through his left eye. The pathologist referred to two photographs, State’s Exhibits 94 and 95, to describe these entrance and exit wounds. The pathologist also used Exhibit 94 to describe blood at the scene and used both photographs to illustrate his conclusion that the shooter was sitting behind die two victims. Defendant objected to admission of the two photographs, asserting they were gruesome and prejudicial. The district court overruled the objections.
Defendant testified at his trial and denied shooting either victim. He said he was sitting in the front passenger seat, and the shooter was a fourth man he did not know whom Raimey picked up after leaving Poole’s home. Defendant testified that he heard a sound and turned his head. He then heard a gunshot and felt a hot sensation. When he tried to push the gun away, it fired three more times. Defendant said he saw Raimey lean forward, heard several more gunshots, and could not remember anything else until he woke up with a cast on his leg.
After the jury returned its two guilty verdicts, the State sought two hard 50 life sentences. The district court found that defendant “knowingly or purposely killed . . . more than one person,” an aggravating factor that justified imposition of the sentences. K.S.A. 2001 Supp. 21-4636(b).
James raises only two issues on appeal: He argues that Exhibits 94 and 95 should have been excluded from evidence. He also argues the hard 50 life sentence statute, K.S.A. 2004 Supp. 21-4638, is unconstitutional in light of the United States Supreme Court decisions in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000); Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428 (2002); and Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004).
With regard to the first issue, defendant asserts Exhibits 94 and 95 served no purpose other than to prejudice the jury. In his view, because of the mobility of Holloway s head, Exhibit 94 established only that Holloway was looking away from the shooter, not the shooter’s position in the SUV. In addition, Exhibit 95, which showed Holloway from the front, should not have been admitted because it did not assist the forensic pathologist in identifying the position of the shooter.
The State argues the photographs were generally relevant for the purpose of establishing the extent and nature of Holloway’s wounds. It emphasizes that the pathologist referred to the two pictures while explaining the cause of death, which was helpful to the jury’s understanding of his medical testimony. The State also claims the pictures were probative on the manner of death and the violent nature of the crimes.
This court has held:
“Generally all relevant evidence is admissible. K.S.A. 60-407(f). Relevant evidence is defined as ‘evidence having any tendency in reason to prove any material fact.’ K.S.A. 60-401(b). . . .
“ ‘Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in a murder case. Photographs which are relevant and material in assisting the jury’s understanding of medical testimony are admissible. Specifically, photographs which aid a pathologist in explaining the cause of death are admissible. Photographs used to prove the manner of death and the violent nature of the crime are relevant and admissible.’ ” State v. Cavaness, 278 Kan. 469, 477, 101 P.3d 717 (2004) (quoting State v. Parker, 277 Kan. 838, Syl. ¶ 5, 89 P.3d 622 [2004]).
Once relevance is established, a district court has the discretion to exclude photographic evidence if the probative value of the photographs is substantially outweighed by the risk of unfair prejudice, or if the photographs are unduly repetitious and cumulative. See Cavaness, 278 Kan. at 478 (citing State v. Dreiling, 274 Kan. 518, 549, 54 P.3d 475 [2002], and Parker, 277 Kan. at 847). “Discretion is abused only when no reasonable person would take the view adopted by the trial court; the burden of proof is on the party alleging that such discretion has been abused. [Citation omitted.]” Cavaness, 278 Kan. at 478.
State’s Exhibits 94 and 95 showed “the extent, nature, and number of wounds inflicted,” and assisted “the jury’s understanding of medical testimony.” See Cavaness, 278 Kan. at 477. They helped the pathologist explain the cause of death and proved “ ‘the manner of death and the violent nature of the crime.’ ” Cavaness, 278 Kan. at 477. There was no error in the district court’s evaluation of the photographs’ relevance.
We also see no abuse of discretion in the district court’s weighing of the photographs’ probative value and potential for undue prejudice. The photographs were unpleasant but not gruesome. They were not repetitious or cumulative. Rather, they were the only two photographs showing the victim from particular angles.
With regard to defendant’s sentencing challenge, “The constitutionality of a statute is a question of law over which this court has unlimited review.” State v. Beard, 274 Kan. 181, Syl. ¶ 1, 49 P.3d 492 (2002).
Defendant asks that we overturn our decision in State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001), which held the hard 50 sentencing statute constitutional. We have already considered this question in light of Apprendi, 530 U.S. 466; Ring, 536 U.S. 584; and Blakely, 542 U.S. 296. See, e.g., State v. Hurt, 278, Kan. 676, 101 P.3d 1249 (2004); State v. Martis, 277 Kan. 267, 83 P.3d 1216 (2004). These decisions do not change our analysis of the constitutionality of the hard 50 sentencing statute.
Affirmed.
Gernon, J., not participating.
Larson, S.J., assigned. | [
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The opinion of the court was delivered by
Beier, J.:
This appeal concerns exhaustion of remedies under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 etseq.
Plaintiff-appellant Angela Jones brought this declaratory judgment action against the Kansas Department of Social and Rehabilitation Services (SRS), the State of Kansas, and Empire Insurance Company, d/b/a Empire Indemnity Company (Empire) without first attempting to exhaust her administrative remedies. The district court dismissed her claim against the State, and the Court of Appeals affirmed. We granted plaintiff s petition for review. SRS and Empire are not parties to this appeal.
Plaintiff was sexually assaulted by the son of her foster parents, Wes and Linda Kress, in August 1996. State law permits SRS to provide liability insurance for foster parents, see K.S.A. 75-5328a, and plaintiff alleges the Kresses had provided care for plaintiff in reliance upon SRS’s agreement to obtain such insurance.
The assault prompted plaintiff to sue the Kresses. During the pendency of that lawsuit, the Kresses and plaintiff learned for the first time that SRS had failed to name the Kresses as insureds on an Empire liability policy. Plaintiff took judgment against the Kresses in the amount of $100,000. The Kresses assigned to plaintiff any breach of oral contract action they would have for the failure to provide insurance coverage. The record on appeal contains no date for the filing of the lawsuit against the Kresses, no date for the entry of plaintiff s judgment against them, and no date for the Kresses’ assignment to plaintiff.
Plaintiff filed no administrative claim of any type. Rather, she pursued this independent declaratory judgment action, filing her amended petition on December 19, 2001. She alleged breach of contract against SRS in the first count of her petition and bad faith against Empire in the second count. On the breach of contract claim, plaintiff sought a declaration of the existence and validity of the contract to provide insurance to the Kresses; $100,000 in damages; and interest, costs, and fees. Only plaintiff s claim against the State is before us at this stage of the appeal.
The district court ruled on the State’s motion to dismiss that plaintiff had not exhausted her administrative remedies as required by the KJRA. It therefore dismissed the claim against the State for lack of jurisdiction.
The Court of Appeals determined that the KJRA applies to all state agencies unless specifically exempted by statute. Because SRS is not exempt, it agreed with the district court that plaintiff, as the Kresses’ assignee, had to exhaust her administrative remedies before seeking court review of her contract claim based on SRS’s failure to obtain insurance for the Kresses. Jones v. State, No. 91,389, unpublished opinion filed July 30, 2004.
Before this court, plaintiff argues that the KJRA could not be her exclusive remedy because the State cannot provide the retroactive insurance coverage she seeks. She also argues that no responsibility to exhaust administrative remedies ever arose, because SRS’s failure to obtain insurance for the Kresses was a mere oversight, not a deliberate administrative decision that amounted to a final agency action triggering KJRA provisions. She seeks reversal of the district court’s decision so that her declaratory judgment action may proceed on its merits. In the alternative, if this court decides that the KJRA is applicable, she seeks a remand instructing SRS to provide her with an official notice of denial of insurance coverage so that she may challenge that denial administratively and then, if necessary, in court.
When a motion to dismiss has been granted in the district court, we are required to assume the facts alleged by the plaintiff are true, along with any inferences that can reasonably be drawn from them. We must then decide whether tiróse facts and inferences state a claim on plaintiff s theory or any other possible theory. See McCormick v. Board of Shawnee County Comm'rs, 272 Kan. 627, 634, 35 P.3d 815 (2001). If so, the decision of the district court must be reversed.
Plaintiff cites Heiland v. Dunnick, 270 Kan. 663, 19 P.3d 103 (2001), to support her argument that the KJRA is not her exclusive remedy. We observed in Heiland that “[o]nly actionable claims which fall outside the authority of an agency to grant can support a separate action by an aggrieved party,” Heiland, 270 Kan. at 668 (quoting Douglass v. Kansas State University, 22 Kan. App. 2d 171, 174, 915 P.2d 782 [1996]), and that judicial review of certain agency actions can be permitted without exhaustion of administrative remedies. See 270 Kan. at 668-69; see also Lindenman v. Umscheid, 255 Kan. 610, 619-20, 875 P.2d 964 (1994) (tort claims for wrongful acts could not be addressed by agency); Wright v. Kansas Water Office, 255 Kan. 990, 992-93, 881 P.2d 567 (1994) (constitutional claim could not be addressed administratively).
These are correct statements of Kansas law, but they do nothing for plaintiff in this case. She is wrong when she characterizes the remedy she seeks as retroactive insurance coverage. The Kresses assigned or attempted to assign plaintiff a breach of contract claim, and the damages from that breach have been set at $100,000. Plaintiff does not seek insurance coverage. She seeks payment of the $100,000. The KJRA was her exclusive avenue into court for a breach of contract action against a state agency. See Schall v. Wichita State University, 269 Kan. 456, 482-83, 7 P.3d 1144 (2000) (KJRA applied to contract action brought by employee against agency employer); Reifschneider v. Kansas State Lottery, 266 Kan. 338, 340-41, 969 P.2d 875 (1998) (plaintiffs could not bring separate contract action against Kansas Lottery when sole remedy was through KJRA); Gaskill v. Fort Hays State Univ., 31 Kan. App. 2d 544, 546, 70 P.3d 693 (2003) (KJRA was professor s exclusive remedy for contract action against state university); Douglass, 22 Kan. App. 2d at 173 (KJRA applied to contract action brought by university professor).
This holding mirrors the pertinent statutory language. K.S.A. 77-606 states: “[T]his act establishes the exclusive means of judicial review of agency action.” (Emphasis added.) The definition of “agency action” in K.S.A. 77-602(b)(3) includes an agency’s “performance of, or failure to perform, any other duty, function or activity, discretionary or otherwise.” Assuming all of plaintiff s facts to be true, as we must, SRS failed to perform its contractual duty to provide insurance coverage to the Kresses. This qualified as an “agency action” under the statutory definition, which draws no distinction between accidental and deliberate agency behavior.
We also agree with the Court of Appeals that SRS is not exempt from coverage of the KJRA. K.S.A. 77-603(a) states: “This act applies to all agencies and all proceedings for judicial review and civil enforcement of agency actions not specifically exempted by statute from the provisions of this act.” K.S.A.77-603(c) sets forth specific exemptions, and SRS is not among them.
Having established that the KJRA applies to SRS’s failure to provide insurance coverage for the Kresses, we now discuss the procedure the KJRA required plaintiff to follow.
K.S.A. 77-612 permits a person in plaintiffs position to “file a petition for judicial review under this act only after exhausting all administrative remedies available within the agency whose action is being challenged and within any other agency authorized to exercise administrative review.” Thus plaintiff was required to exhaust any administrative remedies available to her before bringing her claim to court.
K.S.A. 77-613(d) sets forth what was available to the plaintiff in view of the “agency action” here:
“(d) A petition for judicial review of agency action other than a rule and regulation or final order shall be filed within 30 days after the agency action, but the time is extended:
“(1) During the pendency of the petitioner’s timely attempts to exhaust administrative remedies; and
“(2) during any period that the petitioner did not know and was under no duty to discover, or did not know and was under a duty to discover but could not reasonably have discovered, that the agency had taken the action or that the agency action had a sufficient effect to confer standing upon the petitioner to obtain judicial review under this act.” (Emphasis added.)
Plaintiff bears the burden of ensuring the record on appeal contains all information necessary to resolve this matter in her favor. See Smith v. Printup, 254 Kan. 315, 353-54, 866 P.2d 985 (1993). The record contains no date for exactly when SRS breached its express oral contract to provide insurance for the Kresses. We can assume, however, that it was supposed to have done so before the assault in August 1996. It is thus beyond obvious that 30 days have since passed many times over. That 30-day time limit could have been extended as long as neither the Kresses nor plaintiff “did not know” and were “under no duty to discover” or “did not know and [were] under a duty to discover but could not reasonably have discovered” that SRS had failed to obtain insurance. K.S.A. 77-613(d). Under the most generous view of the facts and the inferences to be drawn from them, that period of time finally ended when the Kresses and the plaintiff discovered during the lawsuit between them that there was no Empire coverage. Again, the record does not disclose exactly when or how that discovery occurred or exactly when the Kresses assigned their contract claim to plaintiff. Without a record that demonstrates the Kresses and plaintiff first became aware of the potential challenge to SRS and accomplished the assignment within 30 days before the filing of this declaratory judgment action, K.S.A. 77-613(d)(2) cannot save plaintiffs claim. Further, because neither the Kresses nor the plaintiff attempted to exhaust administrative remedies in any way at any time, K.S.A. 77-613(d)(1) is inapplicable either on its own or in addition to K.S.A. 77-613(d)(2) to save the claim.
Finally, we make two points.
First, we note that K.S.A. 77-613(d)(1) and (2) are explicitly distinct from the KJRA provision governing the timing and progress of a petition for judicial review filed to challenge an agency’s rule or regulation, see K.S.A. 77-613(a), and those governing the timing and progress of a petition to challenge an agency’s final order. See K.S.A. 77-613(b), (c); Heiland, 270 Kan. at 671-73 (holding Department of Administration’s rejection of plaintiff s demand for administrative remedy constituted final order rather than agency action; department’s failure to name agency official to receive service of petition for judicial review violated K.S.A. 77-613(e), prevented 30-day time limit under K.S.A. 77-613(b) from beginning to run; plaintiff s petition for judicial review therefore timely). In addition, K.S.A. 77-613(d)(1) and (2) do not require that an “agency action” also be a “final agency action,” as that phrase is defined in K.S.A. 77-607(b)(1). We have already determined that SRS’s failure to obtain insurance for the Kresses qualified as an “agency action” under K.S.A. 77-602(b)(3). We need not reach the further issue of whether it also qualified in these circumstances as a “final agency action” to be certain that K.S.A. 77-613(d) determined the procedure controlling the viability of plaintiff s claim. Plaintiff s repeated assertions that there was no “final” action or order in this case are therefore irrelevant.
Second, plaintiff also asserted in her petition for review and at oral argument before this court that K.S.A. 77-621(c) lists the only agency “items” that can be subject to judicial review. This assertion contradicts the plain language of that subsection of the KJRA, which merely sets forth the circumstances under which courts shall grant relief, i.e., the potentially applicable standards of review. For example, a court may grant relief if “the agency has acted beyond the jurisdiction conferred by any provision of law” or if it has “erroneously interpreted or applied the law.” K.S.A. 77-621(c)(2), (4). It also contradicts the plain language of K.S.A. 77-613, which provides for judicial review from a variety of agency decisions, including the promulgation of rules and regulations, the issuance of final orders, and other agency actions.
In view of the foregoing, plaintiff is entitled to neither the reversal nor the remand she seeks. She failed to exhaust all administrative remedies available to her for SRS’s alleged breach of contract before filing this declaratory judgment action, and no provision of KJRA preserves her right to do so at this time.
The district court is affirmed; the Court of Appeals is affirmed.
Gehnon, J., not participating.
Stephen R. Tatum, district judge, assigned. | [
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The opinion of the court was delivered by
Nuss, J.:
Mid-Continent Specialists, Inc. (Mid-Continent) sued Capital Homes, L.C. (Capital Homes) for conversion based on a $50,000 check to Capital Homes written on Mid-Continent’s cor porate bank account by Mid-Continent employee Lynn Smith for her personal debt. After a bench trial, the court held that K.S.A. 84-3-420(a) barred Mid-Continent from suing for conversion as a matter of law. Mid-Continent appealed, and the case was transferred to this court pursuant to K.S.A. 20-3018(c).
The issues on appeal, and this court’s accompanying holdings, are as follows:
1. Does K.S.A. 84-3-420(a) bar Mid-Continent’s cause of action for conversion of the check? Yes.
2. Does K.S.A. 84-3-420(a) bar Mid-Continent’s cause of action for conversion of the check when its representative merely acted outside the scope of her authority? Yes.
3. Does Mid-Continent have a separate, valid claim for conversion of the $50,000 in its bank account? No.
Accordingly, the judgment of the trial court is affirmed.
FACTS
Defendant Capital Homes, Inc. has been building custom residential homes since 1997. Effective August 16, 2001, Capital Homes, as Seller, and Harry J. and/or Joyce Lynn Smith, as Buyers, entered into a written Residential New Construction Sale Contract. This contract provided that Capital Homes would build a custom home for the Smiths in Valley Brooke Estates, Stilwell, Kansas, for the price of $688,000 (exchiding cost of lot). Mrs. Smith told David Broockerd, owner and member of Capital Homes, that she would purchase the 7-acre lot upon which this home would be built and would provide a warranty deed to Capital Homes.
After the August 16, 2001, contract was executed, Smith advised Broockerd that she had purchased the subject lot for $155,000 and that it still had an approximate $110,000 mortgage against it. After learning of this mortgage, Broockerd advised her that the August 16, 2001, contract for the construction of the “home only” could not be closed. He also advised that Capital Homes would have to purchase the lot and pay off the mortgage; that the parties would need to enter into a second sales contract; and that the Smiths would need to pay a nonrefundable earnest deposit of $50,000.
On November 14, 2001, Broockerd and Smith met, and she delivered a check in the amount of $50,000 as the nonrefundable earnest deposit. The check was a Mid-Continent Specialists, Inc. business check drawn on the Hillcrest Bank, payable to “Capital Homes” and signed “J. Lynn Smith.”
Broockerd knew that Mid-Continent, a business concentrating on residential construction and roofing, was not a party to the sales contract. In delivering this check, Smith told Broockerd that, although the check was drawn on Mid-Continent’s corporate account, the $50,000 proceeds were from an unpaid company draw that was due her for the year 2000. Smith had previously told Broockerd that she was a partner in Mid-Continent. Broockerd endorsed the check in the name of Capital Homes and deposited it in the corporate account at Valley View Bank on November 16, 2001.
Almost immediately after depositing the earnest check, Capital Homes commenced its construction work.
On about November 28, 2001, Capital Homes and the Smiths entered into a second Residential New Construction Sale Contract, which contained the written requirement for the $50,000 nonrefundable earnest deposit — previously paid on November 14 — and a new construction price of $844,761.18 (including now the lot purchased by Capital Homes). As the parties had previously agreed, Capital Homes paid off the Smiths’ existing lot mortgage. Capital Homes continued its construction process, and on December 10, 2001, secured a construction loan for $646,566.
In the last week of December 2001, Broockerd received a phone call from Tony Evans, Mid-Continent’s president, who advised Capital Homes not to do further construction work on the Smith house because there was something “funny” going on with the Mid-Continent books. Mid-Continent had first learned that Smith was embezzling company funds around mid-December 2001. Capital Homes quit construction work when it learned of the embezzlement and listed the lot for sale in early 2002 for $135,500. In mid-January 2002, Mid-Continent’s Greg Prieb called Broockerd and demanded the $50,000 check be returned to Mid-Continent.
On February 1, 2002, Capital Homes received a letter from Smith’s attorney, asking Capital Homes to return all the money that it had received from her. On March 28, 2002, Capital Homes also received a letter from Mid-Continent’s attorney demanding that it repay the money to Mid-Continent. As of the date of oral arguments, Capital Homes had not turned over any of the monies received from Smith, an amount totaling $55,000. Nor had Mid-Continent received repayment of the $50,000 from Capital Homes, its representative Broockerd, or Smith.
Smith was not employed directly by Mid-Continent, but as a bookkeeper by an accounting firm that did accounting services for Mid-Continent. She was not entitled to a $50,000 draw or bonus or return of any equity in the 2001 time frame. While she had check-writing authority up to $50,000 for Mid-Continent’s business purposes, she did not have authority to write checks for her personal debts. She later was determined to have embezzled $800,000 from Mid-Continent during 2000 and 2001.
Mid-Continent did not file any legal action against Smith for recovery of money because she was judgment proof. Mid-Continent was waiting for the attorney general to file criminal charges against her, so it could recover from the Kansas Crime Victims Compensation Fund. In the meantime, Mid-Continent brought the present suit against Capital Homes for conversion of the $50,000.
After a trial to the court on May 5, 2003, it issued its memorandum decision on May 28,2003. The court rejected Capital Homes’ defense as a holder in due course under K.S.A. 84-3-302 but, after accepting the argument that K.S.A. 84-3-420(a) barred Mid-Continent’s claim, granted judgment for Capital Homes.
Mid-Continent filed a motion to alter or amend the judgment, which the trial court denied in its memorandum decision of June 30, 2003.
ANALYSIS
Issue 1: Does KS.A. 84-3-420(a) bar Mid-Continent’s cause of action for conversion of the check?
Mid-Continent argues that the trial court erred in holding K.S.A. 84-3-420(a) bars the conversion cause of action. Capital Homes responds that the clear language of the statute, as well as the Official UCC and Kansas Comments, support the trial court’s holding. The interpretation of the Uniform Commercial Code is a question of law over which this court has unlimited review. King v. White, 265 Kan. 627, 632, 962 P.2d 475 (1998).
Mid-Continent further argues that the trial court erred in even considering K.S.A. 84-3-420(a) because this affirmative defense had been raised too late and was therefore waived. Capital Homes responds that 84-3-420(a) is not an affirmative defense and, even if so, Mid-Continent failed to object to the defense’s late assertion and cannot raise such an objection for the first time on appeal. As discussed below, their disagreement is more accurately characterized as whether Mid-Continent has standing to bring the conversion action. Whether a party has standing to sue is a question of law subject to unlimited review. 312 Education Ass’n v. U.S.D. No. 312, 273 Kan. 875, 882, 47 P.3d 383 (2002).
Although the issue of standing is typically a threshold consideration, it cannot be clearly analyzed without first reviewing K.S.A. 84-3-420(a) and some of its interpretive case law.
The statutory bar
K.S.A. 84-3-420(a) states:
“The law applicable to conversion of personal property applies to instruments. An instrument is also converted if it is taken by transfer, other than a negotiation, from a person not entitled to enforce the instrument or a bank malees or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment. An action for conversion of an instrument may not be brought by (1) the issuer or acceptor of the instrument or (2) a payee or endorsee who did not receive delivery of the instrument either directly or through delivery to an agent or a copayee.” (Emphasis added.)
The UCC Official Comment explains that “[tjhere is no reason why a drawer should have an action in conversion. The check represents an obligation of the drawer rather than property of the drawer.”
In a similar fashion, the 1996 Kansas Comment states: “Plaintiffs are generally restricted to the persons to whom the instrument is payable and who have received the instrument. The maker or drawer of the instrument is not a proper plaintiff, nor is the payee of an instrument which is not delivered. This is a codification of prior decisions.” (Emphasis added.) K.S.A. 84-3-420, Kansas Comment, 1996, subsection (a).
Here, Mid-Continent is the drawer, maker, or issuer. K.S.A. 84-3-103(3) (drawer is person who signs or is identified in a draft as a person ordering payment); K.S.A. 84-3-103(5) (maker is person who signs or is identified in a note as a person undertaking to pay); K.S.A. 84-3-105(c) (issuer means a maker or drawer of an instrument). Hillcrest Bank is the drawee or payor. K.S.A. 84-3-103(2) (drawee means a person ordered in a draft to make payment); K.S.A. 84-4-105(3) (payor bank is the bank that is the drawee in a draft). Capital Homes is the payee. See Black’s Law Dictionary 1129 (6th ed. 1990) (payee is the person in whose favor a bill of exchange, promissory note, or check is made or drawn; the person to whom or to whose order a bill, note, or check is made payable; the person to whom an instrument is payable upon issuance).
The language of the statute is clear; as an “issuer of the instrument,” Mid-Continent has no cause of action for its conversion. Grand Rapids Auto Sales, Inc. v. MBNA America Bank, 227 F. Supp. 2d 721 (W.D. Mich. 2002), is on point. There, plaintiffs managerial employee wrote checks on plaintiff s corporate account to defendant bank for 3 years in payment of her husband’s personal credit card debt with the bank. The bank accepted the checks and credited the proceeds to the husband’s credit card debt. The plaintiff brought suit for, among other things, conversion of the funds. The court granted the bank’s motion for summary judgment, and, citing § 3-420, held:
“The [conversion] claim also fails . . . because ‘the drawer of the check may not maintain action for conversion, because the check represents an obligation of the drawer rather than property of the drawer.’ Pamar Enters. Inc. v. First State Bank of E. Detroit, 228 Mich. App. 727, 735, 580 N.W.2d 11, 15-16 (1998) (citing M.C.L. § 440.3420[1]). GRAS, as the drawer of the checks, is precluded from maintaining a conversion claim.” 227 F. Supp. 2d at 730.
See also Continental Cas. Co. v. American Nat’l Bk., 329 Ill. App. 686, 697, 768 N.E.2d 352 (2002) (Section 3-420[a] is inapplicable because under this section the issuer of the instrument cannot bring an action for conversion of die instrument.); IBP, Inc. v. Mercantile Bank of Topeka, 6 F. Supp. 2d 1258 (D. Kan. 1998) (Drawer IBP acknowledged that it had no valid claim for statutory conversion under the UCC because of K.S.A. 84-3-420[a]: “The rationale for precluding a drawer from maintaining a statutory conversion action is that ‘[t]he check represents an obligation of the drawer rather than the property of the drawer.’ ”).
The trial court correctly held that K.S.A. 84-3-420(a) barred Mid-Continent’s conversion action.
Standing
We start our analysis by noting that according to the documents in the record on appeal, the first time that Capital Homes mentioned K.S.A. 84-3-420(a) in this litigation was during its closing argument to the court after the presentation of evidence on May 5, 2003. The transcript reveals:
“[Defense Counsel]: As to looking through Mr. Broockard’s eyes, he doesn’t have any reason to disbelieve that lady when she gives him the check and says it’s for her earnest deposit, particularly given her explanation. And of course, there are some sections in this code that I’ve looked at that bring into my mind the question of whether a conversion action can even be maintained by this plaintiff. I know there is a section that tallas about conversion being a proper action in certain instances and plaintiff cited that in their trial brief [K.S.A.] 84-3-420.
“But if you look at the Kansas comment to that section, what it says in part is that plaintiffs are generally restricted to the persons to whom the instrument is payable and who have received the instrument. And so if that’s true, then this plaintiff isn’t a proper party to maintain a conversion action under the Uniform Commercial Code as I read that. And again, I’m not purporting to be an expert.
“THE COURT: I do believe that this check was a negotiable instrument, and it’s going to be covered under the law of negotiable instruments. It’s a check.
“[Plaintiffs Counsel]: That was my feeling too.”
According to the documents in the record on appeal, the first time that Mid-Continent objected to the assertion of 84-3-420 was in its motion to alter or amend where it argued the statute constituted an affirmative defense as contemplated by K.S.A. 2004 Supp. 60-208(c) and should have been pled or raised well before closing argument. Accordingly, Mid-Continent argued Capital Homes had waived its right to rely on the defense. Capital Homes responded that Mid-Continent had not timely objected and essentially had “waived its right to argue waiver” because of the contemporaneous objection rule, citing Welch v. State, 270 Kan. 229, 233, 13 P.3d 882 (2000). It also renewed its position from closing arguments that Mid-Continent was not a proper party to bring a conversion claim.
We need not resolve the particular disputes identified by the parties, however, because we hold that the issue is more properly characterized as one of standing, which may be raised at any time.
We first note that standing is a jurisdictional issue in Kansas. Families Against Corporate Takeover v. Mitchell, 268 Kan. 803, 807, 1 P.3d 884 (2000) (citing Moorhouse v. City of Wichita, 259 Kan. 570, 574, 913 P.2d 172 [1996]). Additionally, an objection based on lack of subject matter jurisdiction may be raised at any time, whether it be for the first time on appeal or even upon the appellate Court’s own motion. Rivera v. Cimarron Dairy, 267 Kan. 865, 868, 988 P.2d 235 (1999). The existence of jurisdiction and standing are both questions of law over which this court’s scope of review is unlimited. Schmidtlien Electric, Inc. v. Greathouse, 278 Kan. 810, 830, 104 P.3d 378 (2005) (jurisdiction); 312 Education Ass'n v. U.S.D. No. 312, 273 Kan. 875, 882, 47 P.3d 383 (2002) (standing).
As a result, standing is not waivable. See Tex. Ass’n of Business v. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) (Standing is a component of subject matter jurisdiction and may be raised for the first time on appeal; it may not be waived by the parties.). Consequently, we agree with the court in Pace Const. v. Mo. Hwy. & Transp. Comn, 759 S.W.2d 272, 274 (Mo. App. 1988), which held:
“The question of standing ‘does not relate to the legal capacity to sue, a defense [see K.S.A. 2004 Supp. 60-209(a)] waived unless timely asserted . . . but to the interest of an adversary in the subject of the suit as an antecedent to the right to relief.’ [Citation omitted.] Furthermore, standing is said to be, ‘in a sense, jurisdictional in limine and so within the notice of a court, even on appeal, for dismissal.’ [Citation omitted.] There can be no question that this court does indeed have the power to entertain tire issue of standing. The lack of standing cannot be waived. [Citation omitted.] ‘Regardless of the merits of appellants’ claims, without standing, the court cannot entertain the action.’ [Citation omitted.]”
Similarly, the Minnesota Supreme Court held in State by McClure v. Sports & Health Club, 370 N.W.2d 844, 850 (Minn. 1985): “It is well settled that an issue not litigated below may not be asserted for the first time on appeal. [Citation omitted.] However, an objection to want of ‘standing’ goes to the existence of a cause of action, is jurisdictional, and may be raised at any time.” (Emphasis added.) See 59 Am. Jur. 2d, Parties § 363.
For the second part of our determination — that the parties’ dispute is actually a standing issue — we look to several cases. In Guardian Life Ins. Co. of America v. Weisman, 223 F.3d 229, 238 (3rd Cir. 2000), the Third Circuit Court of Appeals observed that according to both the Uniform Commercial Code (UCC) § 3-420 and the pre-1990 version under New Jersey law, “a drawer has no cause of action against a depository bank for conversion.” In Bank Polska Kasa Opieki v. Pamrapo Sao. Bank, 909 F. Supp. 948, 953 (D.N.J. 1995), the court granted summary judgment because, among other things, “recent amendments to New Jersey’s Uniform Commercial Code clarify that a drawer such as Bank Polska has no standing to sue under § 3-419.” The court looked to current § 3-420 as support because it replaces § 3-419 governing conversion claims. See Continental Cas. v. American Nat’l Bk., 329 Ill. App. 3d 686, 697, 768 N.E.2d 352 (2002) (under § 3-420 the issuer of tire instrument cannot bring an action for conversion of the instrument); Ohio Casualty Ins. Co. v. Bank One, 1996 WL 507292, at *11 (N.D. Ill. 1996) (unpublished opinion) (under § 3-420 of the revised UCC, an action for conversion of an instrument cannot be brought by the issuer of the instrument; accordingly, the township, as the drawer, lacks standing to bring a claim for conversion); cf. Wymore State Bank v. Johnson Intern. Co., 873 F.2d 1082, 1087 (8th Cir. 1989) (whether a drawer can sue a depository bank for conversion is a standing issue).
Although Kansas has no direct UCC cases on this issue, a recent decision from this court supports our standing analysis in the instant case. In Krider v. Board of Trustees of Coffeyville Community College, 277 Kan. 244, 83 P.3d 177 (2004), a community college instructor brought an action against the board of trustees contending the board’s violation of the Kansas Open Meetings Act (KOMA), K.S.A. 75-4317 et seq., voided a notice of nonrenewal of his teaching contract. The instructor sought reinstatement and back pay. This court held that under KOMA, as a private citizen he had the authority to seek injunctive and mandamus relief. However, under KOMA, only the attorney general, district attorneys, and county attorneys could seek voidance of governmental action based on violations of the Act. We held:
“When the Board violated the Open Meetings Act, its action was voidable for 10 days. [Citation omitted.] Krider could have persuaded the attorney general or the district or county attorney for Coffeyville to file an action to void the notice. He had no power to seek that remedy himself. He had standing to sue only for an injunction or writ of mandamus. He did not. Now it is too late.” (Emphasis added.) 277 Kan. at 249.
We hold that because K.S.A. 84-3-420(a) bars an issuer from bringing a conversion action, Mid-Continent had no standing to bring such an action against Capital Homes. Since standing is jurisdictional, Capital Homes’ raising the issue for the first time during closing arguments was not too late for it to serve as a basis for the trial court’s decision.
Issue 2: Does KS.A. 84-3-420(a) bar Mid-Continent’s cause of action for conversion of the check when its representative merely acted outside the scope of her authority?
Mid-Continent next argues that K.S.A. 84-3-420(a) applies only to forgery situations and certainly does not apply to prohibit a claim for conversion when the claim is premised on a signature that simply exceeds the scope of an agent’s authority. Mid-Continent contends that to hold otherwise would prevent the drawer from having an adequate remedy to recover the funds from the payor or the payee. In response, Capital Homes relies on the plain language of K.S.A. 84-3-420(a).
In the trial court’s memorandum decision of June 30, 2003, denying the motion to alter or amend the judgment, it reviewed the sole authority cited by Mid-Continent in support of these arguments:
“4. Plaintiff asserts that the court’s reliance on K.S.A. 84-3-420(a) is misplaced. The reasoning of plaintiff s brief on page three maíces sense in that the theory for barring a maker from bringing a conversion claim where a forgery was involved does not apply where, as here, no forgery occurred. If this were a forgery situation, plaintiff could recover from its bank for paying on a forged instrument. Here Ms. Smith exceeded her actual authority in taking the $50,000 for personal purposes. While there is logic in plaintiff s argument, the authorities do not appear to know for sure what was intended by K.S.A. 84-3-420(a). In J. White & Summers, Uniform Commercial Code (4th Ed. 1995) § 18-4, p. 216 the authors wonder:
‘But what about the case covered by section 4-307 in which a fiduciary with authority to sign (and by hypothesis not a forger) violates its fiduciary duty and the bank pays the fiduciary in circumstances covered by 3-307(b) (where the bank knows of the fiduciary status and of the breach of the fiduciary duty). Section 3-307 says merely that the bank is ‘on notice.’ The bank is therefore not a holder in due course, but surely the bank must have some liability to the check’s true owner. The most obvious liability is for conversion. As we indicate below, that conclusion causes problems when the injured party is the drawer of the check.
We wonder if there can be conversion when the check bears a signature that is not authorized, but is not forged. As we indicate below, a signature by an authorized signer for an unauthorized purpose apparently is not forgery under the Code, but could be part of an embezzlement.’
The discussion goes on to express uncertainty with where the loss should lie in this situation. Clearly the embezzler should have primary liability. The issue here is, as between plaintiff, which authorized Ms. Smith to write checks on its account . . . and therefore put her in the position to embezzle by writing unauthorized checks, and defendant, who took the check in good faith, but with knowledge that Ms. Smith was using plaintiff s funds for a personal purpose, who should bear the loss? The authors of White & Summers says they are uncertain. As this court found in its decision, section 3-307 would make defendant subject to the claims of plaintiff because it cannot be a holder in due course under the facts, but 3-307 does not clarify the legal consequences of denial of holder in due course status. Furthermore, section 3-420(a) says specifically that the drawer has no cause of action in conversion. White & Summers, like this court, expressed uncertainty as to the proper cause of action. Plaintiff presents a logical argument but no case law support directly on point.”
Mid-Continent essentially asserts this same argument and authority on appeal. Like the trial court, we reject it. As support, we observe that a number of courts have applied § 3-420(a) as a bar to conversion causes of action in nonforgery cases, including those where an agent has exceeded his or her authority.
For cases concerning an agent’s actions merely outside the scope of his or her authority, we first examine Grand Rapids Auto Sales, Inc., v. MBNA America Bank, 227 F. Supp. 2d 721. There, without authority, plaintiff s managerial employee wrote checks on its corporate account to defendant bank in payment of her husband’s debt with the bank. After the bank credited the proceeds to the debt, the plaintiff brought suit for, among other things, conversion. The court granted the bank’s motion for summary judgment on the basis of § 3-420, holding that plaintiff, as drawer of the checks, was precluded from maintaining a conversion claim. 227 F. Supp. 2d at 730.
In another case involving an agent’s lack of authority, Continental Cas. Co., Inc. v. American Nat’l Bk., 329 Ill. App. 3d 686, the plaintiff, GAI, opened a corporate checking account with the defendant bank, ANB. Only three persons were authorized to sign checks. GAI comptroller Cohn, who had no signing authority, instructed GAI to issue nine checks, all of which were duly signed by one of the authorized signatories and made payable to the order of ANB and drawn on GAI’s corporate checking account at ANB for the ostensible purpose of paying GAI’s payroll taxes. Instead, the comptroller, Cohn, deposited the nine unaltered, nonforged checks ranging in amounts from $44,000 to $50,000 each into an automatic teller machine (ATM), with deposit slips attached for deposit into his own personal account. Cohn absconded with all of the funds, and GAI sustained losses in excess of $370,000.
GAI sued the bank, including a claim for breach of contract. ANB alleged that the action was properly characterized as one for conversion under § 3-420 and therefore time-barred by the statute of limitations, which was shorter than the one for breach of contract. GAI responded that § 3-420(a) “is inapplicable because it does not provide it with a remedy for its losses, since under this section an action for conversion of a check may not be brought by the issuer of the check.” 329 Ill. App. 3d at 696. The court held for GAI on this issue, stating that, among other things, § 3-420(a) was “inapplicable because under this section the issuer of the instrument cannot bring an action for conversion of the instrument.” 329 Id. App. 3d at 697.
Similarly, in Ohio Cas. Ins. Co. v. Bank One, 1996 WL 507292, at *11, a township supervisor used township funds to open a “secret account,” i.e., without authority, then wrote checks on that account to the order of himself as supervisor, and endorsed the checks in the same manner. He then deposited the checks into the secret account, and transferred those funds into his personal account. The court held that, among other things, § 3-420 barred the conversion action because the township, and plaintiff as its assignee, lacked standing to bring the conversion claim.
For another nonforgeiy case, but not concerning an agent acting outside of his or her authority, we review Gr. Lakes Higher Educ. Corp. v. Austin Bank, 837 F. Supp. 892 (N.D. Ill. 1993). There, the plaintiff, as servicer, issued 224 checks drawn against the funds of First Wisconsin National Bank, payable to the order of various payees. The checks were issued to the payees as loan proceeds pursuant to a student loan application submitted by each. Shortly after the issuance of each check, it was presented for payment to Austin Bank without the endorsement of the named payee. Austin Bank accepted each check for payment from First Wisconsin in the face amount of each check even though the endorsement signature of the payee was not on any of the checks. Because of the checks’ lack of proper endorsement, First Wisconsin sued Austin Bank for, among other things, conversion. The court applied § 3-420 which barred the conversion action. 837 F. Supp. at 897-98.
Finally, the United States District Court for the District of Kansas applied 83-3-420 in a nonforgeiy situation in IBP, Inc. v. Mercantile Bank of Topeka, 6 F. Supp. 2d 1258 (D. Kan. 1998). There, plaintiff sued its customer for conversion for having cashed a $135,000 cattle check that had been properly issued and delivered to the customer 9 years earlier. Plaintiff acknowledged, and the court agreed, that plaintiff had no valid UCC claim because under K.S.A. 84-3-420, “ ‘[a]n action for conversion of an instrument may not be brought by . . . the issuer or acceptor of the instrument.’ ” 6 F. Supp. 2d at 1258.
We acknowledge that in none of these cited cases had the plaintiff, or the court on its own, raised the specific issue advanced by Mid-Continent in the instant case, i.e., that § 3-420 applied only to forgery situations and certainly did not apply when an agent had merely exceeded his or her authority. However, their holdings, particularly when coupled with the lack of any case law supporting Mid-Continent’s position, require us to reject its position.
Issue 3: Did Mid-Continent have a separate, valid claim for conversion of the $50,000 in its bank account?
Finally, Mid-Continent argues that even if the conversion action for the check is prohibited under the UCC, the action is allowed for conversion of the $50,000 drawn on the check out of Mid-Continent’s bank account. It offers no authority for this proposition. We have held that “[s]imply pressing a point without pertinent authority, or without showing why it is sound despite a lack of supporting authority or in the face of contrary authority, is akin to failing to brief an issue. ‘Where the appellant fails to brief an issue, that issue is waived or abandoned.’ [Citation omitted.]” McCain Foods USA, Inc. v. Central Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002).
Additionally, to the extent Mid-Continent’s short argument could be characterized as showing why its point is sound despite a lack of supporting authority, we again look to Grand Rapids Auto Sales, Inc. v. MBNA America Bank, 227 F. Supp. 2d 721. There, similar to Mid-Continent’s position, Grand Rapids Auto Sales argued that, though it was the drawer of the checks and the court had held the action for conversion of the checks was barred by § 3-420, it was not precluded from maintaining a conversion claim for the funds because its “claim is for conversion of the proceeds of the checks rather than the checks themselves.” 227 F. Supp. 2d at 729. The court granted the defendant bank’s motion for summary judgment, holding: “This argument must be rejected because the UCC does not draw a distinction between checks and the proceeds received from the checks. Amzee Corp. 2002 WL 1012998, at *10.” 227 F. Supp. 2d at 730.
Finally, although Capital Homes’ response brief argues that its holder in due course (HDC) status under K.S.A. 84-3-302 also provides a defense, we will not address the HDC issue for several reasons. First, Capital Homes did not file a cross-appeal of this adverse ruling by the trial court. It is therefore barred. See Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 299, 64 P.3d 357 (2003) (K.S.A. 2002 Supp. 60-2103[h] requires an appellee to file a cross-appeal in order to present adverse rulings for appellate review). Second, given our holdings regarding conversion, the issue regarding holder in due course is moot.
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Per Curiam:
This case requires us to review recent school finance legislation to determine whether it.complies with our January 3, 2005, opinion and brings the state’s school financing formula into compliance with Article 6, § 6 of the Kansas Constitution. We hold that it does not.
FACTS
In our January opinion, this court reversed the district court in part and affirmed in part, agreeing that the legislature had failed to make suitable provision for finance of the public school system and, thus, had failed to meet the burden imposed by Article 6, § 6 of the Kansas Constitution. Montoy v. State, 278 Kan. 769, 102 P.3d 1160 (2005) (Montoy II). Among other things, we held that the Kansas School District Finance and Quality Performance Act (SDFQPA), K.S.A. 72-6405 et seq., as funded, failed to provide suitable finance for students in middle-sized and large districts with a high proportion of minority and/or at-risk and special education students; some school districts were being forced to use local option budgets (LOB) to finance a constitutionally adequate education, i.e, suitable education; the SDFQPA was not based upon actual costs, but rather on former spending levels and political compromise; and the failure to perform any cost analysis distorted the low-enrollment, special education, vocational education, bilingual, and at-risk student weighting factors.
We further held that among the critical factors for the legislature to consider in achieving a suitable formula for financing education were “equity with which the funds are distributed and the actual costs of education, including appropriate levels of administrative costs.” We provided this guidance because “the present financing formula increases disparities in funding, not based on a cost analysis, but rather on political and other factors not relevant to education.” We also held that “increased funding will be required.” Montoy II, 278 Kan. at 775.
We stayed the issuance of the mandate to allow the legislature a reasonable time to correct the constitutional infirmity in the then existing financing formula. Rather than suspend the funding of education, we ordered that the present financing formula and funding would remain in effect until the court took further action, noting: “The legislature, by its action or lack thereof in the 2005 session, will dictate what form our final remedy, if necessary, will take.” We set a deadline of April 12, 2005. Montoy II, 278 Kan. at 776.
The legislature timely responded by enacting 2005 House Bill 2247 on March 30, 2005, which was modified by 2005 Senate Bill 43, passed during the veto session (collectively H.B. 2247). The Governor allowed the bill to become law without her signature, and the new legislation was delivered to this court.
On April 15, 2005, we issued an order which, among other things, directed the parties to file briefs addressing “whether the financing formula, as amended by H.B. 2247, meets the legislature’s constitutional burden to ‘make suitable provision for finance’ of the public schools.”
The parties were first directed to address 10 specific components of the financing formula. With respect to each of the components, as well as to the formula as a whole, the parties were asked to address our special concern as to whether the actual costs of providing a suitable education was considered and whether H.B. 2247 exacerbates and/or creates funding disparities among the districts.
Second, the parties were asked to address whether additional fact-finding would be necessary, and, if so, how that fact-finding should be pursued.
Third, the parties were asked to address what remedial action should be ordered and on what timetable in the event the court concludes, without additional fact-finding, that the financing formula, as amended by H.B. 2247, is still unconstitutional.
The parties were ordered to appear before this court on May 11, 2005, to show cause why the court should or should not find that H.B. 2247 complied with our January opinion. We recognized that the burden of proof had been on the plaintiffs to show that the SDFQPA, as it existed at the time of the filing of the action herein, was constitutionally infirm. We held that because the plaintiffs had prevailed, the burden of proof had “shifted to the defendants to show that the legislature’s action has resulted in suitable provision for the financing of education as required by Article 6, § 6.”
Pursuant to our April order, the defendants, State of Kansas (State) and the Board of Education members and Commissioner of Education (Board), filed separate briefs. The plaintiffs filed a response brief. Ten amici curiae briefs were filed. Oral arguments were heard by this court on May 11, 2005.
We must now decide if H.B. 2247 remedies the SDFQPA infirmities identified in our January opinion and thus makes suitable provision for financing of education as mandated by Article 6, § 6 of the Kansas Constitution. To do that, we first need to identify the changes H.B. 2247 malees in the SDFQPA.
H.B. 2247 modifies the school finance system in several ways. First, it alters the Base State Aid Per Pupil (BSAPP) and several of the weightings and other factors that affect the formula. It increases bilingual and at-risk weightings; it ekminates correlation weighting; it provides for phased-in increases in funding of special education excess costs at a statutorily prescribed level; and it provides for increases in general state aid based on the Consumer Price Index-Urban (CPI-U). It does not substantively change the low-enrollment weighting provision as it existed at the time of the January opinion.
Second, it provides certain districts the authority to raise additional revenue through local ad valorem taxes upon taxable tangible property within the district. Specifically, it provides a phased-in increase in the LOB cap. Before H.B. 2247 was enacted, a school district could enact a LOB that was as much as 25 percent of its state financial aid. K.S.A. 72-6433(a)(1)(A)-(D); K.S.A. 72-6444. H.B. 2247 makes incremental increases in this cap of 27 percent in the 2005-06 school year, 29 percent in 2006-07, and 30 percent in 2007-08. H.B. 2247 also authorizes districts with high housing costs to levy additional ad valorem taxes upon the taxable tangible property within the district. The rationale for this provision is to allow districts to pay enhanced teacher salaries. In addition, districts with extraordinary declining enrollment may apply to the Board of Tax Appeals (BOTA) for permission to levy an ad valorem tax on the taxable tangible property of the district in an amount authorized by BOTA.
Third, H.B. 2247 makes several nonformula changes. It provides for statutorily mandated areas of instruction; establishes an 11-member “2010 Commission” to provide legislative oversight of the school finance system; and provides for a study by the Legislative Division of Post Audit to “determine the costs of delivering the kindergarten and grades one through 12 curriculum, related services and other programs mandated by state statute in accredited schools.”
Fourth, H.B. 2247 limits all new local capital outlay mill levies to eight mills. SDFQPA originally capped the capital outlay level at four mills, but the cap was completely removed in 1999.
Fiftii, certain changes to H.B. 2247 made by S.B. 43 are slated to become effective July 1, 2005, while other provisions became law upon publication in the Kansas Register. See S.B. 43, secs. 27, 28.
The estimated grand total for H.B. 2247’s fiscal impact is approximately $142 million in additional state funding for the 2005-06 school year.
DISCUSSION AND ANALYSIS
Overall, the State claims that the constitutionality of the school financing formula as amended by H.B. 2247 is not properly before this court. In its view, this case can address only the former financing formula, which no longer exists. Regarding the important issue of consideration of actual costs, the State contends that the legislature did consider such costs to the extent possible. At oral arguments, the State repeatedly claimed that our focus should be limited to whether the legislature had authority to pass school finance legislation, suggesting any further intervention by this court would offend the separation of powers doctrine and the carefully calibrated system of checks and balances among our three branches of government.
In the alternative, the State generally argues that if the financing formula’s constitutionality remains at issue, H.B. 2247 should enjoy a presumption of constitutionality and the burden of proof should be upon the plaintiffs to demonstrate otherwise. Moreover, if the court should determine that further fact-finding is necessary on the constitutional issue, the case should be remanded for further proceedings, with the present legislation remaining in effect until the remand produces another district court ruling. Finally, as another alternative, the State argues that if this court holds the legislation unconstitutional, without remand, then our only authority is to strike it in toto. In that event, the State contends, the legislature would have to enact new legislation, because this court has no authority to impose an interim funding plan.
In contrast, the Board argues that the issue before us is whether the State complied with our January opinion. It generally disagrees that the legislation fully meets the legislature’s constitutional obligation. It also argues that H.B. 2247’s modifications to the financing formula were not based upon the actual costs of providing a suitable education. However, because the legislation commissions a cost study, the Board asserts this court should uphold the legislation as an adequate interim first step in a multi-yeár remedial response. It urges us to hold that the changes made by H.B. 2247 are sufficient pending the results of the cost study, i.e., an installment on the first remedy year toward what may very well be a much larger obligation based on the evidence in this case.
The Board strongly disagrees, however, with the legislation’s provisions allowing increased funding authority based solely on local ad valorem property taxes, because it believes these provisions exacerbate funding inequities based on district wealth. It asks that these provisions be stricken, with the remainder of H.B. 2247 taking effect to enable school districts to plan for the rapidly approaching school year with the benefit of increased state aid. The Board also specifically disagrees with the parameters of the legislature’s proposed cost study and expresses concerns that merely studying how much money has been spent over the years on a broken school financing system will be of little assistance. As a result, it argues that additional fact-finding will be necessary to determine the future costs of providing a suitable education.
The plaintiffs argue the increases in funding “fall grossly short of what is actually necessary to provide a constitutionally suitable education.” They agree with the Board that actual costs were not considered and allege that the legislation was the result of political compromise and what the majority of the legislature believed it could provide without raising taxes. They also agree with the Board that the three provisions dependent on local ad valorem property taxes compound the formula’s unjustified funding disparities.
The plaintiffs further argue that additional fact-finding is unnecessary. They ask us to (1) declare the legislation unconstitutional; (2) direct the Board to design a temporary school funding plan that incorporates recommendations from the 2001 Augenblick & Myers Study (A&M study), and direct the State to implement the plan, on a temporary basis, by July 1, 2005; (3) direct the State to enact constitutional legislation for funding public education; and (4) retain jurisdiction to ensure our orders are followed.
With this overview of the parties’ arguments in mind, we turn to consideration of more specific contentions.
In support of its argument that the financing formula, as amended by H.B. 2247, is no longer properly before us, the State relies on Knowles v. State Board of Education, 219 Kan. 271, 547 P.2d 699 (1976). It characterizes Knowles as “indistinguishable” from the situation before us. In fact, the State’s reliance on Knowles is misplaced because Knowles was before this court in an entirely different procedural posture.
In Knowles, the district court struck down the 1973 School District Equalization Act as unconstitutional. Because the legislature was in session when the judgment was entered, the district court withheld issuing a remedy in order to give the legislature time to correct “the inequities.” The legislature amended the 1973 School District Equalization Act effective July 1, 1975. The district court took judicial notice of the new bill, declined to hear new evidence, dissolved the injunction, and dismissed the case. The district court held that because the legislature enacted new legislation, the law as it existed on the date of the decision no longer was in effect. Thus any determination concerning the constitutionality of the old law was moot, and any issue of the constitutionality of the new legislation was an entirely new matter that must be litigated in a new action. Knowles, 219 Kan. at 274.
The Knowles plaintiffs appealed the order dissolving the injunction and dismissing the case. This court found the new legislation had not rendered the case moot and reversed and remanded the matter to the district court for additional fact-finding on the changes made to the formula. This court rejected the plaintiffs’ request that it rule on the constitutionality of the new legislation, stating that the facts and figures necessary to demonstrate plaintiffs’ claims as to the new legislation were not part of the record before the court. Knowles, 219 Kan. at 278.
In Knowles, this court did not review the 1973 Act in the first instance; nor did it reach an independent conclusion as to the constitutionality of that Act. In contrast, in the instant case, not only was the issue of the constitutionality of the SDFQPA before this court pursuant to our appellate jurisdiction, but also we evaluated the district court’s findings of fact to determine if they were supported by substantial competent evidence and determined the school financing formula was unconstitutional. In addition, the statutory amendments at issue in Knowles were made in response to the district court’s declaratory judgment issued while it still had jurisdiction over the case. Here, H.B. 2247 arose as a remedy in response to a specific order of this court while we retained jurisdiction. Due to these differences, the following statement in Knowles actually supports our continuing review at this juncture:
“The right of persons to challenge the constitutional effect of a law upon their persons or property should not be aborted every time the law is amended by the legislature. In some instances amendments occur almost annually with minimal impact upon the overall effect of the law. It is entirely possible that the 1976 legislature will again amend this Act.
....
“The nature of this controversy is such that the rights of the parties continue to be affected by the law. It is an ongoing controversy which can be adjudicated in the present action as well, if not better, than in a new action filed.” Knowles, 219 Kan. at 279-80.
In short, this court’s retained jurisdiction allows a review to determine if there has been compliance with our opinion.
The State’s next argument — that if the provisions of H.B. 2247 are properly before us, we must presume that the new statute is constitutional — has already been rejected. (Order, 4/15/05.) While this presumption normally applies to initial review of statutes, in this case we have already determined the financing formula does not comply with Article 6, § 6. H.B. 2247 was passed because this court ordered remedial action. The State now presents its remedy for our determination of whether it complies with our order.
The Ohio Supreme Court faced the same argument after the Ohio Legislature passed school finance legislation in response to the court’s ruling that the system was unconstitutional. It also rejected the argument, stating:
“The legislature has the power to draft legislation, and the court has the power to determine whether that legislation complies with the Constitution. However, while it is for the General Assembly to legislate a remedy, courts do possess the authority to enforce their orders, since the power to declare a particular law or enactment unconstitutional must include the power to require a revision of that enactment, to ensure that it is then constitutional. If it did not, then the power to find a particular Act unconstitutional would be a nullity. As a result there would be no enforceable remedy. A remedy that is never enforced is truly not a remedy.” (Emphasis added.) DeRolph v. State, 89 Ohio St. 3d 1, 12, 728 N.E.2d 993 (2000).
Typically a party asserting compliance with a court decision ordering remedial action bears the burden of establishing that compliance, and our April 15 order made the allocation of that burden clear in this case. See also DeRolph v. State, 83 Ohio St. 3d 1212, 1212, 699 N.E.2d 518 (1998) (state must meet burden by preponderance of evidence standard).
We also reject the State’s related argument that the doctrine of separation of powers limits our review to the issue of whether the legislature had the authority to pass such legislation. Any language in U.S.D. No. 229 v. State, 256 Kan. 232, 236-38, 885 P.2d 1170 (1994), to this effect is inapplicable here because of this case’s remedial posture. Even now, however, we do not quarrel with the legislature’s authority. We simply recognize that the final decision as to the constitutionality of legislation rests exclusively with the courts. Although the balance of power may be delicate, ever since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), it has been settled that the judiciary’s sworn duty includes judicial review of legislation for constitutional infirmity. We are not at liberty to abdicate our own constitutional duty.
Again, like arguments have been raised in other state courts. Other state courts consistently reaffirm their authority, indeed their duty, to engage in judicial review and, when necessary, com pel the legislative and executive branches to conform their actions to that which the constitution requires.
For example, in Lake View Sch. Dist. No. 25 v. Huckabee, 351 Ark. 31, 54-55, 91 S.W.3d 472 (2002), the court reviewed legislation passed after its 1994 determination that the Arkansas school financing system violated the education provisions of that state’s constitution. The Arkansas Supreme Court stated:
“This court’s refusal to review school funding under our state constitution would be a complete abrogation of our judicial responsibility and would work a severe disservice to the people of this state. We refuse to close our eyes or turn a deaf ear to claims of a dereliction of duty in the field of education. As Justice Hugo Black once sagely advised: ‘[T]he judiciary was made independent because it has . . . the primary responsibility and duty of giving force and effect to constitutional liberties and limitations upon the executive and legislative branches.’ Hugo L. Black, The Bill of Rights, 35 N.Y.U.L. Rev. 865, 870 (1960).
....
“The Supreme Court of Kentucky has emphasized the need for judicial review in school-funding matters. The language of that court summarizes our position on the matter, both eloquently and forcefully, and, we adopt it:
‘Before proceeding . . . to a definition of “efficient” we must address a point made by the appellants with respect to our authority to enter this fray and to “stick our judicial noses” into what is argued to be stricdy the General Assembly’s business.
‘. . . [In this case] we are asked — based solely on the evidence in the record before us — if the present system of common schools in Kentucky is “efficient” in the constitutional sense. It is our sworn duty to decide such questions when they are before us by applying the constitution. The duty of the judiciary in Kentucky was so determined when the citizens of Kentucky enacted the social compact called the constitution and in it provided for the existence of a third equal branch of government, the judiciary.
'... To avoid deciding the case because of ‘"legislative discretion,” “legislative function,” etc., would be a denigration of our own constitutional duty. To allow the General Assembly (or, in point of fact, the Executive) to decide whether its actions are constitutional is literally unthinkable.
‘The judiciary has the ultimate power, and the duty, to apply, interpret, define, and construe all words, phrases, sentences and sections of the Kentucky Constitution as necessitated by the controversies before it. It is solely the function of the judiciary to so do. This duty must be exercised even when such action services as a check on the activities of another branch of government or when the court’s view of the constitution is contrary to that of other branches, or even that of the public.’ ” (Emphasis added.)
Almost 60 years ago the Kansas Supreme Court addressed the separation of powers issue in the non-school finance case of Berentz v. Comm’rs of Coffeyville, 159 Kan. 58, 152 P.2d 53 (1944). There the appellants challenged a pension act on the grounds it violated Article 2, § 17 of the Kansas Constitution. Finding the challenge meritorious, this court noted:
“[Tjhis court has always approached consideration of questions challenging the constitutionality of statutes with a disposition to determine them in such manner as to sustain the validity of the enactment in question. It has repeatedly recognized, as we do now, the rule that it is the duty of the court to uphold a law whenever such action is possible. In so doing it has not, however, lost sight of the fact that constitutions are the work not of legislatures or of courts, but of the people, and when in its calm, and deliberate judgment, free from the influences frequently responsible for legislative enactments, it determines rights guaranteed by its provisions have been encroached upon it has, toith equal consistency, recognized its duty and obligation to declare those enactments in contravention of constitutional provisions.” (Emphasis added.) 159 Kan. at 62-63.
Our holding in Berentz is consistent with decisions in other states when a challenge has been made to the constitutionality of school finance systems and a separation of powers issue has arisen during the remedial phase. We agree with the conclusions drawn by one commentator reviewing those cases:
“[Jjudicial monitoring in the remedial phase can help check political process defects and ensure that meaningful relief effectuates the court’s decision.
“Thus, when these defects lead to a continued constitutional violation, judicial action is entirely consistent with separation of powers principles and the judicial role. Although state constitutions may commit educational matters to the legislative and executive branches, if these branches fail to fulfill such duties in a constitutional manner, ‘the Court too must accept its continuing constitutional responsibility . . . for overview ... of compliance with the constitutional imperative. ’ Moreover, unlike federal courts, state courts need not be constrained by federalism issues of comity or state sovereignty when exercising remedial power over a state legislature, for state courts operate within the system of a single sovereign.
“Nor should doubts about the court’s equitable power to spur legislative action or to reject deficient legislation impede judicious over-sight. An active judicial role in monitoring remedy formulation is well-rooted in the courts’ equitable powers. As long as such power is exercised only after legislative noncompliance, it is entirely appropriate.” (Emphasis added.) Note, “Unful filled Promise: School Finance Remedies and State Courts,” 104 Harv. L. Rev. 1072, 1087-88 (1991).
We now turn to this court’s specific concerns about whether the actual costs of providing a constitutionally adequate education were considered as to each of the formula components and the statutory formula as a whole, and whether any unjustified funding disparities have been exacerbated rather than ameliorated by H.B. 2247. In this determination we will be guided, in large part, by the A&M study, despite the State’s criticism of it and our knowledge that, at best, its conclusions are dated. We do so for several reasons.
First, the A&M study is competent evidence admitted at trial and is part of the record in this appeal. See Montoy II, 278 Kan. at 774 (within the extensive record on appeal “there is substantial competent evidence, including the Augenblick & Myers study, establishing that a suitable education, as that term is defined by the legislature, is not being provided”).
Second, the legislature itself commissioned the study to determine the actual costs to suitably and equitably fund public school systems; it also maintained the overall authority to shape the contours of the study and to correct any A&M actions that deviated from its directions during the process. (See K.S.A. 60-460[h].) As we stated in Montoy II:
“[T]he legislature directed that a professional evaluation be performed to determine the costs of a suitable education for Kansas school children. In authorizing the study, the legislature defined ‘suitable education.’ K.S.A. 2003 Supp. 46-1225(e). The Legislative Education Planning Committee (LEPC), to whom the task of overseeing the study was delegated, determined which performance measures would be utilized in determining if Kansas’ school children were receiving a suitable education. The evaluation, performed by Augenblick & Myers, utilized the criteria established by the LEPC, and, in part, examined whether the current financing formula and funding levels were adequate for schools to meet accreditation standards and performance criteria. The study concluded that both the formula and funding levels were inadequate to provide what the legislature had defined as a suitable education.” Montoy II, 278 Kan. at 773-74.
Third, the A&M study is the only analysis resembling a cost study before this court or the legislature.
Fourth, both the Board and the State Department of Education recommended that the A&M study recommendations be adopted at the time the study was completed and sent to the legislature.
With the A&M study as background, we next examine the provisions of H.B. 2247 in light of the two guiding considerations set forth in our January opinion: (1) actual costs of providing a constitutionally adequate education and (2) funding equity.
BASE STATE AID PER PUPIL
BSAPP is the foundation upon which school district funding is built, as state financial aid to schools is determined by multiplying BSAPP by each district’s “weighted enrollment.” See K.S.A. 72-6410(b). When the SDFQPA was first implemented in 1992, BSAPP was set at $3,600. It remained at that level until 1995, when it was increased by $26 to $3,626. Small increases were funded each year thereafter until the 2002-03 school year. During the years of increases, the amounts ranged from an additional $22 to $50 per student. From 2002 until 2005, the statute allowed for a BSAPP of $3,890; however, only $3,863 was funded. Over the span of time from when the SDFQPA was implemented in 1992 until 2005, the legislature increased the BSAPP only a total of $263. As the plaintiffs point out, if the BSAPP had been increased to keep up with inflation, in 2001 alone the increase would have been $557. The A&M study recommended increasing the base to $4,650 in 2001, resulting in $623.3 million in additional funding (in 2001 dollars).
H.B. 2247 increases the BSAPP from $3,890 to $4,222. Only $115 of the $359 increase is “new” money; the balance was achieved by eliminating the correlation weighting and shifting those dollars to BSAPP. The $115 increase translates to $63.3 million in additional funding flowing into the financing formula for the 2005-06 school year.
The State argues the legislature considered actual costs in deciding upon the increase.
The plaintiffs point out that the legislature had the A&M study recommendations, as well as the results of a 2005 survey conducted by Deputy Commissioner of Education Dale Dennis for the Senate Education Committee. The survey, which requested cost infor mation from selected school districts, showed the BSAPP should be $6,057. The plaintiffs argue that the legislature ignored the A&M and Dennis figures, instead looking at historical expenditures and arbitrarily choosing a BSAPP level based on political compromises and what it believed it could afford without raising taxes.
The Board contends that the increase in the BSAPP, coupled with increases in the at-risk and bilingual weightings, provide a substantial increase in funding for those middle-sized and large districts with a high proportion of such students. By implication, this is an argument that the BSAPP increase helps equalize the funding disparity suffered by those districts.
The plaintiffs, on the other hand, claim that increasing the BSAPP only exacerbates the inequities in the system because the formula was not adjusted to make distorted weights, such as the low-enrollment weight, correspond to actual costs. For example, for every $1 of base funding that middle-sized or large districts receive, some low-enrollment districts receive $2.14. The plaintiffs assert Dr. Bruce Baker’s testimony at trial and his earlier report described this effect.
At a minimum, the increased BSAPP provided for in H.B. 2247 substantially varies from any cost information in the record and from any recommendation of the Board or the State Department of Education.
AT-RISK
H.B. 2247 increases funding for at-risk students from .10 of the BSAPP to .145. This increased weighting, when applied to the higher BSAPP, results in an increase of $26 million targeted to at-risk students. The A&M study recommended a weight of .20 for districts with 200 or fewer students, .52 for districts with 1,000 students, .59 for districts with 10,000 students, and .60 for districts with 30,000 students, resulting in a range of $1,491 to $2,790 per student (in 2001 dollars).
Both the State and the Board contend the increased funding for at-risk students is significant. The Board argues that, pending performance of a new cost study, H.B. 2247 should be viewed as a good faith effort toward legislative compliance with our January 3, 2005, opinion. The plaintiffs, on the other hand, contend that the increased funding level remains significantly lower than that recommended by the State’s own expert witness in 1991, before the SDFQPA was enacted. That expert, Dr. Allan Odden, recommended a .25 minimum weight to provide an extra $1,000 for each eligible at-risk student.
Neither the State nor the Board contend that actual costs of educating at-risk students were considered.
BILINGUAL
H.B. 2247 increases the weighting for bilingual programs from .2 to .395 for the 2005-06 school year and thereafter. When applied to the higher BSAPP, the result is an $11 million increase in state aid. The Board computes the effects of these changes to be an additional $1,668 per bilingual student, a 115.7 percent increase. A&M recommended that the bilingual weighting increase be based on student enrollment and that it range from .15 to .97, providing $1,118 to $4,510 per bilingual student.
The plaintiffs point out that this weighting is limited to “contact hours,” usually a maximum of two hours per day for each student. This means the $1,668 amount must be reduced by %, to $556 per actual bilingual student.
The State contends that it considered the actual costs of providing a suitable education for bilingual students. That contention is based solely on the House Select Committee on School Financing’s reliance on historical data showing what school districts had already been spending under the financing formula we have held to be unconstitutional. The Board makes no argument as to the weighting’s relationship to actual costs; it simply repeats that it regards the change in the weighting as a good faith effort toward compliance.
Although the increase in this weighting is significant, it still differs substantially from the cost information in the record.
SPECIAL EDUCATION
H.B. 2247 provides for a multi-year phased-in increase in state reimbursement for special education excess costs from 85 percent in the 2005-06 school year to 88 percent in 2006-07 and 91 percent in 2007-08 and thereafter. According to the evidence at trial, the State had been funding only 85 percent of the excess costs of special education. For fiscal year 2005, however, only 81.7 percent of the average excess costs of special education were funded. Reimbursement at 85 percent thus results in a total funding increase of $17.7 million for the upcoming school year.
The plaintiffs contend that anything less than 100 percent reimbursement for a district’s special education costs is a failure to fund the actual costs of a suitable education. The State and the Board botih disagree, contending less than 100 percent reimbursement furthers the State’s policy of discouraging school districts from over-identifying students as eligible for special education money.
The defendants have failed to point to any evidence that any district has ever over-identified students; and, when asked at oral arguments, the State’s counsel responded that he was not aware of any district that had intentionally inflated its number of such students to maximize reimbursement. Furthermore, the A&M study recommended a range, based on student enrollment, of weights from .90 to 1.50, resulting in a nearly $102.9 million (in 2001 dollars) increase in funding — a stark contrast to the $17.7 million provided by H.B. 2247.
LOCAL OPTION BUDGET
H.B. 2247 provides a phased-in increase in the LOB cap from the current 25 percent to 27 percent in the 2005-06 school year, 29 percent in the 2006-07 school year, and 30 percent in the 2007-OS school year and thereafter.
The plaintiffs argue local districts have been forced to use the LOB to cover the inadequacies of state funding. They also argue the use of the LOB increases disparities and exacerbates inequities.
The Board takes issue with the legislature’s failure to provide for equalization for the new level of LOB authority above 25 percent for the 2005-06 school year only. The absence of equalization means the dollars for the optional increases must come entirely from each district’s property tax base, which can worsen wealth-based disparities.
The State argues that the LOB acts as a counterweight to low-enrollment weighting, at-risk weighting, and perhaps even bilingual weighting, because the middle-sized and large districts expected to benefit from the increased LOB “receive little, if any, of these weightings.”
This argument fails because increasing the LOB does not address inadequate funding of middle-sized and large districts that have high concentrations of bilingual, at-risk, minority, and special education students, high pupil-to-teacher ratios, and high dropout rates, but also have low median family incomes and low assessed property valuation. For example, the Emporia school district demonstrates that size of enrollment does not necessarily correlate with high property valuations or low numbers of students who are more costly to educate.
The original intent and purpose of the LOB was to allow individual districts to levy additional property taxes to fund enhancements to the constitutionally adequate education provided and financed under the legislative financing formula. The evidence before the trial court demonstrated that the inadequacy of the formula and its funding had forced some districts to use the LOB to fund the State’s obligation to provide a constitutionally adequate education rather than enhancements. See Montoy II, 278 Kan. at 774. H.B. 2247 does nothing to discourage this practice.
We also agree with the plaintiffs and the Board that, in fact, the legislation’s increase in the LOB cap exacerbates the wealth-based disparities between districts. Districts with high assessed property values can reach the maximum LOB revenues of the “district prescribed percentage of the amount of state financial aid determined for the district in the school year” (K.S.A. 72-6433[a][1], amended by S.B. 43, sec. 17) with far less tax effort tiran those districts with lower assessed property values and lower median family incomes. Thus, the wealthier districts will be able to generate more funds for elements of a constitutionally adequate education that the State has failed to fund.
COST-OF-LIVING WEIGHTING
H.B. 2247 authorizes a new local property tax levy for cost-of-living weighting. As originally enacted, the purpose of this weighting was to “finance teacher salary enhancements.” H.B. 2247, sec. 19. In S.B. 43, sec. 12, the legislature removed this limiting provision and no purpose for the additional funding is now stated in the law. This weighting is available in those districts where the average appraised value of a single-family residence exceeds 125 percent of the state average, as long as the district has already adopted the maximum LOB. This is estimated to amount to a total funding increase of $24.6 million for the 17 districts that would currently qualify.
This provision, the State asserts, is necessary to allow districts with high housing costs to recruit and retain high-quality teachers and is based on the actual costs of providing an education in those 17 districts that would qualify.
Counsel for the State could not substantiate, when asked at oral arguments, its rationale that those 17 districts pay higher salaries or would pay higher salaries to teachers or that higher education costs are linked to housing prices. Further, as the plaintiffs noted, the evidence at trial demonstrated that it is the districts with high-poverty, high at-risk student populations that need additional help in attracting and retaining good teachers.
Furthermore, we note that this weighting, like the increase in the LOB cap, demonstrates the State is not meeting its obligation to provide suitable financing. Also, as with the other property-tax based provisions of H.B. 2247 there is a potentially disequalizing effect. Moreover, since the original reason given for the enhancement, teacher salary increases, has been removed from the legislation, the funds generated can be used for any purpose.
LOW-ENROLLMENT WEIGHTING
Low-enrollment weighting provides a sliding scale of adjustments for districts with fewer than 1,750 students; as district enrollment decreases past that number, the size of the adjustment increases. In other words, smaller school districts receive more favorable treatment based on the premise that they require addi tional funding to balance economies of scale at work for larger districts.
H.B. 2247 did not substantively change the low-enrollment weighting; it remains a significant component of the financing formula. Extrapolating from State Department of Education data, the plaintiffs argue that total state spending on the low-enrollment weighting in 2003-04 was $226,189,852. In comparison, total state spending in 2003-04 on at-risk students was $47,123,964 and on bilingual students was $8,352,964. The plaintiffs also note that application of the various weighting factors results in a large disparity in per pupil aid, ranging in 2002-03 from $16,968 to $5,655, and this disparity is largely caused by the low-enrollment factor.
Because of the significant impact of low-enrollment weighting on the financing formula, in our January opinion and April order we sought cost justifications for it. In response to questions from the court at oral arguments, counsel for the State could not provide any cost-based reason for using the 1,750 enrollment figure or for the weight’s percentage. This absence of support is particularly troubling when we consider the disparity this low-enrollment weighting may produce. H.B. 2247 has the potential to worsen this inequity because it eliminates correlation weighting for districts with 1,750 enrollment or more. The funds allocated for correlation weighting were transferred to the BSAPP; this gives low-enrollment districts even more of the funds that previously were devoted to balancing the disparities in per pupil funding caused by the low-enrollment weighting.
EXTRAORDINARY DECLINING ENROLLMENT
In addition to the declining enrollment provision of K.S.A. 2004 Supp. 72-6407(e)(2), H.B. 2247, as amended by S.B. 43, created two provisions concerning extraordinary declining enrollment. First, H.B. 2247 authorizes a district with “extraordinary declining enrollment,” defined as declining enrollment over 3 years at a rate of 15 percent or 150 pupils per year, to apply to the Board of Tax Appeals (BOTA) for permission to levy an additional property tax if it has already adopted the maximum LOB. See H.B. 2247, sec. 29, repealed and replaced by S.B. 43, sec. 13. Currently only four districts potentially would qualify for this provision. We will refer to this provision as the EDE-BOTA provision.
Second, H.B. 2247 requires districts entitled to equalizing supplemental capital improvements state aid on their bonds to seek approval from the Joint Committee on State Building Construction (JCSBC) prior to issuing new bonds if the district has had an “extraordinary declining enrollment,” defined for purposes of this section as declining enrollment over 3 years at a rate of 5 percent or 50 pupils per year. If approval is denied, the district can still issue the bonds, but it does not receive any state aid on the bonds. See H.B. 2247, sec. 28, repealed and replaced by S.B. 43, sec. 14. We will refer to this provision as the EDE-JCSBC provision.
The State asserts that these provisions, which are intended to help districts absorb lost revenue from declining enrollments, ensure consideration of actual costs because districts seeking to access authority for this additional local tax levy must document need before BOTA or JCSBC.
The Board contends it is difficult to assess the financial impact of these provisions because the money available under them is potentially unlimited, subject to each district’s willingness-to tap into its property tax base, and, when the EDE-BOTA provision applies, BOTA’s approval. The Board urges us to sever these provisions pending appropriate cost analysis.
The plaintiffs contend these provisions are not based upon cost and exacerbate funding inequities in two ways. First, the plaintiffs point to the EDE-JCSBC provision which allows issuance of bonds to construct new facilities but if permission is denied the district would not receive any state aid on the bonds. Plaintiffs contend that because wealthy districts with extraordinary declining enrollment such as Shawnee Mission receive no equalizing supplemental capital improvements state aid on their bonds, the new provision penalizes only districts with low property valuation and declining enrollment.
Second, the plaintiffs contend that these provisions exacerbate funding inequities because tire extraordinary declining enrollment weight is added into the definition of a district’s “adjusted enrollment” and thus adds to the base upon which the LOB is computed. The effect of this is to provide 127 percent of any revenues lost from extraordinary declining enrollment. This effect is further compounded for those districts, like Shawnee Mission, that also benefit from the cost-of-living weight, which is also included in the “adjusted enrollment.”
These provisions have the potential to be extremely disequalizing because they are unlimited and have been designed to benefit a very small number of school districts.
CAPITAL OUTLAY
In support of this provision of H.B. 2247, the State relies upon an affidavit of Representative Mike O’Neal. The affidavit states the legislature was mindful that this court had noted the repeal of the capital outlay cap in its January opinion. The affidavit also states the decision to reimpose the cap at 8 mills was made after the legislature reviewed data from the Department of Education and heard from various districts. The Board does not offer any information as to whether actual costs were considered with respect to this provision.
The plaintiffs do not specifically address the extent to which actual costs were considered in imposing the new cap on capital outlay. The plaintiffs argue that, although H.B. 2247 reimposes a cap on the capital outlay authority, it still is disequalizing because it grandfathers those districts with a higher capital outlay resolution in place for up to 4 more years.
The State argues, without elaboration, that the 8 mill cap reflects the legislature’s attempt to improve wealth equalization. The Board encourages the court to view this change favorably, despite the local property tax basis of this factor.
Because the provision is based on local properly tax authority, the amount of revenue a district can raise is tied to property value and median family income; thus the failure to provide any equalization to tiróse districts unable to access this funding perpetuates the inequities produced by this component.
FINANCING FORMULA AS A WHOLE
With regard to the financing formula as a whole, the parties basically restate the same arguments they made regarding the formula’s components. The State claims that the increased funding provided by H.B. 2247 alleviates this court’s constitutional concerns. The Board disagrees, but it considers the increased funding a good faith initial effort toward compliance and an installment on the first remedy year toward what may veiy well be a much larger obligation based on the evidence in this case. The plaintiffs argue the increases in funding “fall grossly short of what is actually necessary to provide a constitutionally suitable education.” The State contends that overall it considered, to the extent possible, actual costs, including the A&M study. The plaintiffs respond that actual costs were not considered; rather the financing formula as amended by H.B. 2247 is merely a product of political compromise and the legislative majority’s unwillingness to consider raising taxes to increase funding of schools. The Board argues H.B. 2247 does not fund actual costs and has many inequities.
We agree with the Board that although H.B. 2247 does provide a significant funding increase, it falls short of providing constitutionally adequate funding for public education. It is clear that the legislature did not consider what it costs to provide a constitutionally adequate education, nor the inequities created and worsened by H.B. 2247. At oral arguments, counsel for the State could not identify any cost basis or study to support the amount of funding provided by H.B. 2247, its constellation of weightings and other provisions, or their relationships to one another.
Particularly, we share the plaintiffs’ and Board’s concern that H.B. 2247’s increased dependence on local property taxes, as decided by each school district, exacerbates disparities based on district wealth. We fully acknowledge that once the legislature has provided suitable funding for the state school system, there may be nothing in the constitution that prevents the legislature from allowing school districts to raise additional funds for enhancements to the constitutionally adequate education already provided. At least to the extent that funding remains constitutionally equalized, local assessments for this purpose may be permissible. Clearly, however, such assessments are not acceptable as a substitute for the state funding the legislature is obligated to provide under Article 6, § 6. That should pre-exist the local tax initiatives.
As of this time, the legislature has failed to provide suitable funding for a constitutionally adequate education. School districts have been forced to use the LOB to supplement the State’s funding as they struggle to suitably finance a constitutionally adequate education, a burden which the constitution places on the State, not on local districts. The result is wealth-based disparity because the districts with lower property valuations and median incomes are unable to generate sufficient revenue. Because property values vary widely, a district’s ability to raise money by the required mill levy also varies widely. The cost-of-living weighting and extraordinary declining enrollment provision also have tire potential to exacerbate inequity. A higher LOB cap, cost-of-living weighting, and the extraordinary declining enrollment provisions cannot be allowed to exacerbate inequities while we wait for the legislature to perform its constitutional duty.
We conclude that, on the record before us, a continuing lack of constitutionally adequate funding together with the inequity-producing local property tax measures mean the school financing formula, as altered by H.B. 2247, still falls short of the standard set by Article 6, § 6 of the Kansas Constitution.
COST STUDY
As we prepare to consider an appropriate remedy and the mechanisms necessary to assure that future school financing will meet the requirements of the constitution, we agree with all parties that a determination of the reasonable and actual costs of providing a constitutionally adequate education is critical. H.B. 2247 provides for a Legislative Post Audit “cost analysis study.”
Section 3 of the legislation reads in relevant part:
“(a) In order to assist the legislature in the gathering of information which is necessary for the legislature’s consideration when meeting its constitutional duties to: (1) Provide for intellectual, educational, vocational and scientific improvement in public schools established and maintained by the state; and (2) make suitable provision for die finance of educational interests of the state, die division of post audit shall conduct a professional cost study analysis to determine the costs of delivering the kindergarten and grades one through 12 curriculum, related services and other programs mandated by state statute in accredited schools. . . .
“(b) Any study conducted pursuant to subsection (a) shall include:
(1) A determination of the services or programs required by state statute to be provided by school districts. Such review shall include high school graduation requirements, admissions requirements established by the state board of regents pursuant to K.S.A. 76-716, and amendments thereto, state scholarship requirements established by the state board of regents and courses of instruction at various grade levels required by state statute.
(2) A study of the actual costs incurred in a sample of school districts to provide reasonable estimates of the costs of providing services and programs required by state statute to be provided by school districts for regular elementary and secondary education, including instruction, administration, support staff, supplies, equipment and building costs.
(3) A study of the actual costs incurred iri a sample of school districts to provide reasonable estimates of the costs of providing services and programs required by state statute to be provided by school districts for specialized education services including, but not limited to, special education and related services, bilingual education and at-risk programs.
(4) A study of the factors which may contribute to the variations in costs incurred by school districts of various sizes and in various regions of the state when providing services or programs required by state statute to be provided by school districts. Such study shall include the administrative costs of providing such services and programs.
(5) An analysis in a sample of districts as determined by the legislative post auditor showing such things as:
(A) The percent of the estimated cost of providing services and programs required by state statute that could have been funded by the various types of state aid the districts received in the most recently completed school year, as well as the percent funded by the district’s local option budget;
(B) the percent of district funding that is spent on instruction;
(C) the percent of district funding that is spent on central administration; and
(D) the percent of district funding that is spent on support services.
(6) A review of relevant studies that assess whether there is a correlation between amounts spent on education and student performance.
(7) A review to determine whether students who are counted as a basis for computing funding for specialized educational services are actually receiving those services.
(8) Any additional reviews or analyses the legislative post auditor considers relevant to the legislature’s decisions regarding the cost of funding services or programs required by state statute to be provided by school districts.
....
“(d) Following the completion of such cost analysis study, the legislative post auditor shall submit a detailed report thereon to the legislature on or before the first day of the 2006 legislative session. If additional time is needed to provide the most accurate information relating to any area of requested study, the legislative post auditor shall so report to the legislature, explaining the reasons for the need for additional time and providing a reasonable time frame for completion of that aspect of the study. In that event, the legislative post auditor shall submit a report on that portion of the study which has been completed before the start of the 2006 legislative session and the balance of such report shall be submitted within the time frame established by the legslative post auditor when requesting additional time.” H.B. 2247, sec. 3.
The plaintiffs and the Board contend that the H.B. 2247 study is designed merely to determine the amounts of historical expenditures under the system and that the legislature will then equate those expenditures to reasonable and actual costs of a future system we should find constitutional. This characterization is not entirely correct.
Although the language of the statute is not completely clear, it can be read to require post audit, among other things, to study historical costs in a sample of districts and then extrapolate from the collected data a reasonable estimate of the future cost of providing services and programs “required by state statute.” Estimating future reasonable and actual costs based on historical expenditures can be acceptable if post audit ensures that its examination of historical expenditures corrects for the recognized inadequacy of those expenditures and ensures that a reliable method of extrapolation is adopted. Post audit must incoiporate those components into its study, and its report to the legislature must demonstrate how the incorporation was accomplished.
It also appears that the study contemplated by H.B. 2247 is deficient because it will examine only what it costs for education “inputs” — the cost of dehvering kindergarten through grade 12 curriculum, related services, and other programs “mandated by state statute in accredited schools.” It does not appear to demand consideration of the costs of “outputs” — achievement of measurable standards of student proficiency. As the Board pointed out in its brief, nowhere in H.B. 2247 is there specific reference to K.S.A. 72-6439(a) or (c), which provided the criteria used by this court in our January 2005 opinion to evaluate whether the school financing formula provided a constitutionally adequate education. H.B. 2247 also does not mention educational standards adopted by the Board pursuant to its constitutional responsibilities under Article 6, § 2(a) or in fulfilling its statutory directives. Without consideration of outputs, any study conducted by post audit is doomed to be incomplete. Such outputs are necessary elements of a constitutionally adequate education and must be funded by the ultimate financing formula adopted by the legislature. See Montoy II, 278 Kan. at 773 (quoting K.S.A. 72-6439) (constitutionally suitable education is one in which “schools meet the accreditation requirements and [students are] achieving an ‘improvement in performance that reflects high academic standards and is measurable.’ ”); see also Kan. Const., Art. 6, § 1 (legislature shall provide for intellectual, educational, vocational, and scientific improvement). The post audit study must incorporate the consideration of outputs and Board statutory and regulatory standards, in addition to statutorily mandated elements of kindergarten through grade 12 education. Further, post audit’s report to the legislature must demonstrate how this consideration was accomplished.
The study parameters in H.B. 2247 do provide for analysis of the percentages of sample school district spending on instruction, central administration, and support services. They also specifically provide for exploration of several components of the current financing formula. We endorse these provisions with the exception that all administrative costs, not just costs of central administration, must be analyzed. All of this information should assist post audit and, eventually, the legislature and this court in evaluating the reasonableness or appropriateness of cost estimates. Suitable finance of a constitutionally adequate education does not necessarily include every item each school district or student wants; its focus must be on needs and the appropriate costs thereof.
REMEDY
In light of the legislature’s unsatisfactory response to our January opinion we are again faced with the need to order remedial action. See Montoy II, 278 Kan. at 775 (“The legislature, by its action or lack thereof in the 2005 session, will dictate what form our remedy, if necessary, will take.”). We are guided not only by our interpre tation of Article 6, § 6, but also by the present realities and common sense. Time is running out for the school districts to prepare their budgets, staff their classrooms and offices, and begin the 2005-06 school year. School districts need to know what funding will be available as soon as possible.
The legislature has known for some time that increased funding of the financing formula would be necessary. In July 2002, the Kansas Department of Education prepared a computation of the cost of implementing the recommendations in the A&M study. Calculated in 2001 dollars the total cost of the increase would have been $725,669,901 for each school year. Additionally, the Department adjusted that number because of changes in LOB funding and applied a 2 percent inflation factor for each of the school years of 2001-02, 2002-03, and 2003-04. The resulting number was an increase in costs of approximately $853 million. As noted, the A&M study was commissioned by the legislature, monitored by the legislature’s committees, paid for by the legislature with tax dollars, and received by the legislature. Although the State claims it considered the A&M study, it in fact chose to impugn its design and ignore its recommendations. It can no longer do so.
This case is extraordinary, but the imperative remains that we decide it on the record before us. The A&M study, and the testimony supporting it, appear in the record in this case. The State cites no cost study or evidence to rebut the A&M study, instead offering conclusoiy affidavits from legislative leaders. Thus the A&M study is the only analysis resembling a legitimate cost study before us. Accordingly, at this point in time, we accept it as a valid basis to determine the cost of a constitutionally adequate public education in kindergarten through the 12th grade. The alternative is to await yet another study, which itself may be found legislatively or judicially unacceptable, and the school children of Kansas would be forced to further await a suitable education. We note that the present litigation was filed in 1999.
The initial attractiveness of the Board’s suggestion that we accept H.B. 2247 as an interim step toward a full remedy pales in light of the compelling arguments of immediate need made by the plaintiffs and amici curiae. They remind us that we cannot continue to ask current Kansas students to “be patient.” The time for their education is now. As the North Carolina Supreme Court eloquently stated:
“The children ... are our state’s most valuable renewable resource. If inordinate numbers of them are wrongfully being denied their constitutional right to the opportunity for a sound basic education, our state courts cannot risk further and continued damage because the perfect civil action has proved elusive. We note that the instant case commenced ten years ago. If in the end it yields a clearly demonstrated constitutional violation, ten classes of students as of the time of this opinion will have already passed through our state’s school system without benefit of relief. We cannot similarly imperil even one more class unnecessarily.” Hoke Cty Bd. of Educ. v. State, 358 N.C. 605, 616, 599 S.E.2d 365 (2004).
As set forth earlier in this opinion, the Legislative Division of Post Audit has been commissioned to conduct a comprehensive and extensive cost study to be presented to the 2005-06 legislature. With such additional information available, the legislature should be provided with the cost information necessary to make policy choices establishing a suitable system of financing of Kansas public schools.
We conclude, however, that additional funding must be made available for the 2005-06 school year to assist in meeting the school districts’ immediate needs. We are mindful of the Board’s argument that there are limits on the amount the system can absorb efficiently and effectively at this point in the budget process. We further conclude, after careful consideration, that at least one-third of the $853 million amount reported to the Board in July of 2002 (A&M study’s cost adjusted for inflation) shall be funded for the 2005-06 school year.
Specifically, no later than July 1, 2005, for the 2005-06 school year, the legislature shall implement a minimum increase of $285 million above the funding level for the 2004-05 school year, which includes the $142 million presently contemplated in H.B. 2247. In deference to the cost study analysis mandated by the legislature in H.B. 2247, the implementation beyond the 2005-06 school year will be contingent upon the results of the study directed by H.B. 2247 and this opinion.
Further, if (1) the post audit study is not completed or timely submitted for the legislature to consider and act upon it during the 2006 session, (2) the post audit study is judicially or legislatively determined not to be a valid cost study, or (3) legislation is not enacted which is based upon actual and necessary costs of providing a suitable system of finance and which equitably distributes the funding, we will consider, among other remedies, ordering that, at a minimum, the remaining two-thirds ($568 million) in increased funding based upon the A&M study be implemented for the 2006-07 school year.
Clearly, the legislature’s obligation will not end there; the costs of education continue to change and constant monitoring and funding adjustments are necessary. H.B. 2247’s provisions regarding establishment of the 2010 Commission and mandating annual increases based upon the Consumer Price Index may satisfy these demands, but the legislature may seek other means to assure that Kansas school children, now and in the future, receive a constitutionally adequate education.
In addition, on the rationale previously expressed, the new funding authorized by H.B. 2247’s provisions regarding the increased LOB authority over 25 percent, the cost-of-living weighting, and both extraordinary declining enrollment provisions are stayed. The remainder of H.B. 2247, as amended by the legislature in compliance with this opinion, shall remain in effect for the 2005-06 school year.
We readily acknowledge that our present remedy is far from perfect; indeed, we acknowledge that it is merely a balancing of several factors. Among those factors are:
(1) The ever-present need for Kansas school children to receive a constitutionally adequate education. Montoy II, 278 Kan. at 773.
(2) The role of this court as defined in the Kansas Constitution. See Berentz v. Comm’rs of Coffeyville, 159 Kan. 58, 152 P.2d 53 (1944).
(3) The need for the legislature to bring its school finance legislation into constitutional compliance, with acknowledgment of the unique difficulties inherent in the legislative process.
(4) The press of time caused by the rapidly approaching school year.
Accordingly, we retain jurisdiction of this appeal. If necessary, further action will be taken by this court as is deemed advisable to ensure compliance with this opinion.
This total increase of $142 million includes a $7.35 million increase provided by 2005 H.B. 2059, which created a second enrollment count date for students who are dependents of active military personnel. The parties do not take issue with the provisions of H.B. 2059. Our discussion of the funding and provisions in H.B. 2247 collectively refers to H.B. 2247, S.B. 43, and H.B. 2059. | [
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|
The opinion of the court was delivered by
Johnston, C. J.:
This suit was brought by the Williamson, Halsell, Frazier Company to recover on three notes, one for $1166.66 and each of the other two for $1166.67, due respectively in one, two and three years after date, signed by Joseph J. Ackerman and his two children, John H. Ackerman and Mary H. Sproat, and to foreclose a mortgage on the home of Joseph J. Ackerman purporting to secure the payment of the notes.
The defense of Joseph J. Ackerman was that the notes and mortgage were signed under duress and therefore were unenforceable, and this defense prevailed. ' The defendants alleged and offered testimony to show that during the years 1903 and 1904 John H. Ackerman was an employee of the plaintiff corporation, and that Halsell, a representative of the com pany, came to Joseph J. Ackerman and informed him that John had embezzled about $4000 of the company’s money; that he, Halsell, had obtained and had in his pocket a warrant for John’s arrest for embezzlement, and that there was a deputy sheriff waiting in an adjoining room to serve the warrant, and unless the notes and mortgage were signed the warrant would be served and John would be convicted and sent to the penitentiary; that when the father and sister of John asked that they be permitted to consult with John about signing the papers Halsell objected, saying that he would deliver the warrant which he had in his pocket to the deputy sheriff and that the prosecution would go on, but if the notes and mortgage were signed there would be no prosecution. After negotiations which continued for about two hours, Halsell insisting that in case the notes and mortgage were not executed John would be arrested and locked up but if they were given no arrest would be made, and after Mrs. Sproat, who was frightened and crying, had begged her father to save John, he signed the notes and mortgage in suit. Two days afterward a flaw was found in the mortgage, and a representative of the company came to Wichita and demanded a corrected mortgage; and when Mr. Ackerman held back he was informed that a refusal meant a prosecution and the penitentiary for his son, and under these threats a corrected mortgage was executed. There was abundant testimony to show that the notes and mortgage were, secured from Ackerman by threats of the arrest and prosecution of his son, and that they would never have been executed if Ackerman had been left to act of his own free will.
The plaintiff complains that the trial court did not properly define the crime of embezzlement, and thus took from the consideration of the jury an element necessary to determine whether or not John was guilty of the offense. The suit was not one to determine the guilt or innocence of John, nor was the matter of his actual guilt an essential feature of the defense of duress. The point for decision was whether the threats of arrest and prosecution of John put the father^ in fear, and thus overcame his will and rendered him incompetent to contract. If there was no free will in the execution of the notes and mortgage there is no contract, nor any binding obligation. Under the modem theory duress is to be tested, not by the nature of the acts or threats, but rather by the state of mind of the victim induced by such acts and threats.
In Galusha and another v. Sherman and others, 105 Wis. 263, 81 N. W. 495, 47 L. R. A. 417, there was a full discussion of the subject, and of the development of the law from the ancient doctrine that duress should be tested by the means used to overcome the person threatened- to the later and better one of the condition of the mind induced by the threats. It was there said:
“The making of a contract requires the free exercise of the will-power of the contracting parties, and the free meeting and blending of their minds. In the absence of that, the essential of a contract is wanting; and if such absence be produced by the wrongful conduct of one party to the- transaction, or conduct for which' he is responsible, whereby the other party, for the time being, through fear, is bereft-of his free willpower, for the purpose of obtaining the contract, and it is thereby obtained, such contract may be avoided on the_ ground of duress. There is no legal standard of resistance which a party so circumstanced must exercise at his peril to protect himself. The question in each case is, Was the alleged injured person, by being put in fear by the other party to the transaction for the purpose of obtaining an advantage over him, deprived of the free exercise of his will-power, and was such advantage thereby obtained ? If the proposition be determined in the affirmative, no matter what the nature of the threatened injury.to such person, or his property, or the person or liberty of his wife or child, the advantage thereby obtained cannot be retained.” (Page 277.)
Following the same theory, neither the legality of the threatened arrest and prosecution nor the guilt or innocence of John was material to the determination of whether there was duress. The conduct of John, whatever it may have been, was no excuse or justification for intimidating and coercing the father to pay John’s debt or to give a mortgage on his home to secure the payment of such debt. If it be assumed that John misappropriated the money of the plaintiff, and was therefore indebted to it for a large sum of money, nevertheless plaintiff’s representatives had no right to use, or threaten the use of, the criminal law to make the father pay or secure the debt. Such a method is not an appropriate one for enforcing the payment of a debt by the debtor himself; much less to compel the securing of it by one who was in no sense liable for its payment. o In Heaton v. Bank, 59 Kan. 281, 52 Pac. 876, where it was held that a wife was not bound by a contract induced by the threats of parties that if she failed to enter into the contract they would cause the arrest and imprisonment of her husband, the court, in speaking of the misuse of the criminal law, said:
“Imprisonment may be lawful so far as the public or those representing the public are concerned, but is it ever lawful for a party to force the signing of a contract, the surrender of property, or the obtaining of some other private advantage, against the will of another, by using or threatening to use the machinery of the law intended for the protection of the public and the punishment of criminals?” (Page 294.)
In Thompson v. Niggley, 53 Kan. 664, 35 Pac. 290, 26 L. R. A. 803, the question whether a charge of duress could be maintained by showing threats to prosecute a person for an offense of which' he was in fact guilty was considered. There Niggley and his wife were induced to execute a note, and also a mortgage upon their home, by threats of the prosecution of Niggley for certain offenses which he conceded were committed but which were in m> way connected with the debt sought to be secured. The court repudiated the doctrine that duress could not be prédicated upon a threatened arrest and prosecution for an offense of which the party was in fact guilty, saying: “W'e^are not inclined to encourge a resort to such pressure as was used in this instance to compel the settlement of private demands.” (Page 667.) The decision, as formulated in the syllabus, reads:'
“Written securities, extorted by means of threats of prosecution for criminal offenses of- which the party threatened was .guilty in fact, but which were in no manner connected with the demand for which compensation was sought, may be avoided by the parties executing them, not only in the hands of the original payee, but of his assignees having notice of the circumstances under which such securities were taken.”
In a very early case the supreme court of New Hampshire, in considering what amounted to duress, said:
“Where there is an arrest for improper purposes, without just cause, or an arrest for a just cause, but without lawful authority, or an arrest for a just cause, and under lawful authority, for an improper purpose, and the person arrested pays money for his enlargment, he may be considered as having paid the money by duress of imprisonment, and may recover it back in an action for money had and received.” (Richardson v. Duncan, 3 N. H. 508, syllabus.)
The supreme court of Alabama in a recent case ruled that threats of unlawful imprisonment were not necessary to constitute duress, and that, if there was a liability for arrest and imprisonment and such liability was used to overcome the will and compel the making of a contract which would otherwise not have been made, it amounted to duress. In disposing of the case the court said:
“It was never contemplated in the law that either the actual or threatened use or misuse of criminal process, legal or illegal, should be resorted to for the purpose of compelling the payment of a mere debt, although it may be justly owing and due, or to coerce the making of contracts or agreements, from which advantage is to be derived by the party employing such threats. Ample civil remedies are afforded in the law to enforce the payment of debts and the performance of contracts, but the criminal law and the machinery for its enforcement have a wholly different purpose, and cannot be employed to interfere with that wise and just policy of the law, that all contracts and agreements shall be founded upon the exercise of the free will of the parties, which is the real essence of all contracts.” (Hartford Fire Insurance Co. v. Kirkpatrick, Dunn & Co., 111 Ala. 456, 466, 20 South. 651.)
(See, also, Morse v. Woodworth, 155 Mass. 233, 27 N. E. 1010, 29 N. E. 525; Adams v. Irving National Bank, 116 N. Y. 606, 23 N. E. 7, 6 L. R. A. 491, 15 Am. St. Rep. 447; Henry v. State Bank, 131 Iowa, 97, 107 N. W. 1034.)
The important consideration in cases like this one is not whether there was.ground for the arrest or imprisonment threatened, but rather whether the free will of the party making the contract was constrained by the threats of the other. It is clear, therefore, that an explicit and complete definition of the crime of embezzlement was not essential in charging the jury upon the issues pleaded in this case. If, for any reason, it had been necessary to advise the jury as to the elements of embezzlement, either with respect to duress or to the stifling of a prosecution, there would be little reason to complain of the instruction given. The complaint is that in one part of the charge the court said that the taking of. an employer’s money without returning it upon demand is a felony under the statute. It is contended that the court should have stated that it is the fraudulent misappropriation of the money which constitutes the crime of embezzlement. The .phrase was used by the court, not in defining embezzlement, but for the purpose of informing the jury that embezzlement was a felony. It appears that when the court undertook to define the crime of embezzlement it was fully and correctly done, the statutory language being employed. In no view can the statement criticized be deemed to have prejudiced the plaintiff.
In the same connection it is said that there is an ab sence of evidence showing an intention on the part of John to appropriate the plaintiff’s money, a contention that is hardly consistent with plaintiff’s own evidence, in which John is characterized as a defaulter and an embezzler. There is no lack of testimony to show threats of the arrest and prosecution of John, and that the notes and mortgage were procured through fear excited by the threats. Joseph J. Ackerman was subject to duress because of the threats directed against a member of his family as much as if they had been directed against himself. In National Bank v. Croco, 46 Kan. 620, 26 Pac. 939, as well as in Heaton v. Bank, 59 Kan. 281, 52 Pac. 876, it was held that a threatened prosecution of the husband may cause duress of the wife. Many cases may be found in the books where the threatened prosecution of a child amounted to duress of the parent. An illustration may be found in Williams and another v. Bayley, L. R. 1 H. L. (Eng.) 200, 35 L. J. Ch. 717, where bankers had acquired paper forged by a young man and had brought pressure upon the father to assume the payment of his son’s obligations. The- Lord Chancellor spoke of the pressure brought upon the father as of this nature:
“ ‘We have the means of prosecuting, and so transporting your son. Do you choose to come to his help, and take on yourself the amount of his debts, the amount of his forgeries? If you do, we will not prosecute; if you do not, we will.’ That is the plain interpretation of what passed. Is that, or is it not, legal? In my opinion, I am bound to go the length of saying that I do not think it is legal.” (L. J. Ch. 722.)
Lord Westbury, in concurring in the judgment, said:
“The question, therefore, is whether a father appealed to under such circumstances to take upon himself an amount of civil liability with the knowledge that unless he does so his son will be exposed to a criminal prosecution, with the certainty of a conviction, can be regarded as a free and voluntary agent? I have no hesitation in saying that no man is safe, or ought to be safe, who takes a security for the debt of a felon from the father of a felon under such circumstances.
“A contract to give security for the debt of another, which is a contract without consideration, is, above all things, a contract which should be based upon the- free and voluntary agency of the individual who enters into it.” (L. J. Ch.-725.)
(See, also, The City National Bank of Dayton, Ohio, v. Kusworm, 88 Wis. 188, and note thereto in 26 L. R. A. 48.)
Finding no error in the record, the judgment is affirmed. | [
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Per Curiam:
This is an original action of quo warranto, brought by the state on the relation of the attorney-general to oust the city of Pittsburg from the exercise of certain assumed and unwarranted corporate powers, namely, the imposition and collection of a license tax upon the business of selling and keeping for sale intoxicating liquors in a manner forbidden by law, and also authorizing and licensing bawdy-houses and houses of ill fame and the collection of money from the keepers and inmates of these places for the privilege of carrying on the illicit business. It was alleged that the city officers exercised these unwarranted powers and collected license taxes for these proscribed privileges as fines and forfeitures in simulated prosecutions, brought at stated times under certain invalid city ordinances.
The report of the commissioner, appointed to take the testimony, has been made and the case finally submitted on the evidence and a brief in behalf of the state. Although the charges in the petition are not directly admitted, the testimony sustaining them is abundant and convincing. The sufficiency of the evidence is not contested here, nor has any attempt been made to defend or excuse the unlawful actions of the city officers.
Judgment is rendered in favor of the state against the city as prayed for in the plaintiff’s petition. | [
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The opinion of the court was delivered by
Benson, J.:
William Greenwell and Minnie L. Greenwell commenced a suit to cancel certain notes and a mortgage given by them to John Moffett and Moffett Brothers & Andrews, alleging duress in the execution thereof and failure of consideration. The defendants in that suit pleaded default in the conditions of the mortgage and prayed for foreclosure. In the reply it was alleged that the mortgagees were in an unlawful combination, or trust, and that the consideration for the mortgage was based on the illegal transactions of such trust and the mortgage was void for that reason. Afterward a suit was brought by Moffett Brothers & Andrews against the Greenwells to foreclose another mortgage upon the same premises. The defendants in the last-named suit pleaded as a defense to this mortgage the same matters contained in their reply in the first-named suit, in connection with other charges of oppression and misconduct. The two suits were tried together. The court found for Moffett Brothers & Andrews in both suits, and rendered judgment for the amount of the notes so held by them and for foreclosure of the mortgages. To satisfy these judgments the mortgaged property was sold by the sheriff to John Moffett, one of the firm of Moffett Brothers & Andrews, who filed a motion to confirm the sale. Greenwell and wife filed a motion to set aside the sale, and Minnie L. Greenwell filed objections to the sale. These motions and objections were heard together. The motion to confirm was allowed, and this is the ruling complained of.
The motion to set aside the sale was upon the grounds that the judgment was irregular and void and that the land should have been sold in parcels. The objections were made upon the same grounds, and upon the further ground that the plaintiff firm was in a trust and combination, alleging in substance the same matters stated in the pleadings to cancel the first mortgage and in their defense to the suit upon the second mortgage. Oral evidence was introduced upon the hearing of these motions, from which it appeared that the mortgaged property consisted of a farm of about thirty acres, including several lots on the south side, platted in an addition to the town of Dexter. The evidence tended to prove that the land could be sold to better advantage as a single tract than in parcels, and the land was so sold for $7080, which was more than its market value. In the tier of lots, but not included in the mortgage, were two lots constituting the homestead of the Greenwells, and also some other lots. All the mortgaged property was contiguous, comprising one body of land, occupied and used as a single farm. The plaintiff in error on this hearing offered the same evidence of the illegal trust and combination that had been previously offered on the trial of the suits. This evidence was properly rejected. An issue tried and determined in the original action cannot be tried again on a motion to confirm the sheriff’s sale in the same action. The judgment and finding against the plaintiff in error on that proposition were final. The issue concerning the unlawful trust was res judicata. (Power v. Snow, 75 Kan. 182, 88 Pac. 1083.)
Mrs. Greenwell, upon the sale, demanded that the property should be offiered in parcels, which was refused. She urged as a special objection to the sale in bulk that her house occupied a foot or two of lot 5, adjoining her homestead, and she desired to have the lots sold separately in order that she might redeem any lot or parcel that she might fail to purchase. On the hearing of the motion no testimony was offered to show that the house was partly upon lot 5. The objections filed by her stated that such was the fact, and the objections were verified by her' attorney, but upon belief only. This was not proof. The affidavit did not purport to state a fact, only a belief. (Thompson v. Higginbotham, 18 Kan. 42.)
The plaintiff in error also complains because the court ordered a sheriff’s deed to be issued in six months, thus reducing the period of redemption. This the court had the right to do, if the property had been abandoned or was not occupied in good faith. (Gen. Stat. 1901, § 4928.) In the absence of any statement in the record to the contrary it must be presumed that proof of this fact was produced. (Glover v. Lawler, 45 Kan. 559, 26 Pac. 42.) Besides, no complaint was made of this ruling in the petition in error.
The motiofi to dismiss this proceeding for want of necessary parties was met by the voluntary appearance of the parties so omitted.
Finding no error in the proceedings, the judgment is affirmed. | [
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Per Curiam:
Matilda Trahern was injured while attempting, on a street in the city of Le Roy, to cross the track of the plaintiff in error in front of a passenger-train which was running through the city. She settled with the company and released it from further liability, but afterward commenced this suit in the district court of Miami county, where she recovered a judgment for $1937.27. The company brings the case here and asks that the judgment be reversed on account of the contributory negligence of the plaintiff, as shown by the special findings of fact found by the jury, and that, a judgment be directed in its favor for costs. The special findings, so far as they relate to the question of contributory negligence, read:
“(41) Ques. What time of day was it when plaintiff was injured? Ans. About four o’clock P. M.
“(42) Q. Was it daylight when said accident occurred? A. Yes.
“(43) Q. From which direction did plaintiff approach defendant’s track? A. From the west, and a little north.
“(44) Q. From the point where plaintiff was injured, for what distance north was defendant’s track straight? A. About 3000 feet.”
“(46) Q. From which direction was defendant’s train approaching? A. From north.
“(47) Q. How far south of Fourth street crossing did the accident occur ? A. About sixty feet.
“ (48) Q. Just before attempting to cross said track, and when plaintiff was in a position of safety, did she look along said track, and in the direction from which said train was coming? A. Yes.
“(49) Q.. Did she then discover said approaching train? A. Yes.”
“ (52) Q. At a distance of from five to ten feet west of said railroád track, how far north along said track could plaintiff see, if she had looked? A. About 3000 feet.
“(53) Q. When did plaintiff first discover the approach of said train? A. When she came out on walk.
“(54) Q. When plaintiff first discovered the approach of said train what did she do? A. Looked at the approaching train, and, thinking that she had ample time to cross the track without danger, started to cross.”
“ (60) Q.. Just before the plaintiff started over said track did she know that said train was approaching from the north? A. Yes.
“(61) Q. For what length of time next preceding the date of injury to the plaintiff had she resided near to said railroad track? A. About two or three years.”
“(64) Q. Do you find from the evidence that previous to the date of said accident plaintiff had knowledge that freight- and passenger-trains passed to and fro over said track daily, and many times each day? A. Yes.”
“(66) Q. Do you find from the evidence that plaintiff, at the time of said accident, and just before she attempted to cross said track, was in possession of all her faculties of sight and hearing, and that they were in their normal condition? A. Yes.
“(67) Q. What was the distance between the west rail of said track and the west line of said street in front of plaintiff’s house? A. About twenty-eight feet.”
“ (69) Q. At any point between the west line of said street and the west rail of said track, if the plaintiff had looked, could she have seen said approaching train from the north? A. Yes.”
“(72) Q. Just before plaintiff reached the west rail of said track, if she had listened, could she have heard said approaching train? A. Yes.”
“(74) Q. How many feet did plaintiff walk on said street after she left her own premises until she reached the west rail of said track? A. About thirty or forty feet.”
“(76) Q. Do you find from the evidence that plaintiff saw said approaching train, and, thinking that she had ample time to cross over the track before it reached her, made an effort to do so? A. Yes.
“(77) Q. Just before plaintiff reached the west rail of said track, and when in a place of safety, how far was said approaching train from the point where she crossed the track? A. At or north of Fourth street.”
“(86) Q. Do you find from the evidence that just before plaintiff was struck by the engine she turned her back to said approaching train ? A. Partly. Evidence shows she was going in a southeastern direction.”
“(90) Q. Plow far would plaintiff have been required to step, to have been out of danger ? A. Two or three feet.”
“(94) Q. When plaintiff stepped, from a place of safety, and onto said track, how far was said engine from her? A. About sixty feet.”
These findings are made almost wholly from the testimony of the plaintiff. They show that she was grossly negligent.- She was familiar with the operation of trains at that place; knew that- their speed was not uniform; she saw the train coming, realized that it was dangerously near, and hurried to get across safely. She. knowingly and unnecessarily took the chance and lost. The negligence on the part of the company was not the cause of her injury. The failure to sound bell or whistle did not deceive or mislead her. The object of these alarms is to notify people of an approaching train. She already possessed all the information which they could have given. It is claimed that the train moved at a speed greater than is allowed by the city ordinance, but it does not appear that the plaintiff knew of such regulation or that she relied upon the prescribed speed. On the contrary, it appears that she knew the speed of trains was not uniform; they some times moved slowly, and at times rapidly. She acted with a full, understanding of the situation. People who thus defy danger must accept the consequences.
The judgment is reversed,, with direction that judgment be entered for the plaintiff in error for costs. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In a complaint filed in the police court E. W. Tatlock was charged with carrying on the “occupation of a traveling investment agent without first paying in advance to the city treasurer of said city of Holton the license tax of $5 and obtaining from the city clerk a license,” etc., in violation of an ordinance of the city of Holton. There was a conviction in the police court and an appeal to the district court, where the defendant moved to quash the complaint and for a discharge on several grounds. The motion was allowed on the ground that the city ordinance upon which the prosecution was based was invalid, in that it prescribed a minimum fine of five dollars for each offense, although the statute conferring power on the mayor and council to pass the ordinance did not mention a minimum penalty.
The legislature, after empowering cities of the second class to enact ordinances for the levy and collection of license taxes on many occupations and kinds of business, and also for the regulation and conduct of the citizens in many respects, as well as for the restraint and prohibition of certain resorts and practices inconsistent with the peace and public welfare of the people, provided:
“For any purpose or purposes mentioned in the preceding sections, the council shall have power to enact and make all necessary ordinances, rules and regulations, . . . and all ordinances may be enforced by prescribing and inflicting upon inhabitants or other persons violating the same, such fine not exceeding one hundred dollars or such imprisonment not exceeding three months, or both such fine and imprisonment,' as may be just for any one offense.” (Gen. Stat. 1901, § 1008.)
In pursuance of the statutory authority the city of Holton, a city of the second class, passed an ordinance imposing a license tax on certain occupations and kinds of business, and, among other things, it provided:
“Any person violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof in the police court shall be fined in the sum of not less than five dollars nor more than one hundred dollars for each offense; or by imprisonment not exceeding thirty days, or by both such fine and imprisonment, for each offense, and shall forfeit his license thereby, if he holds any license.”
In support of the ruling of the court it is contended that the ordinance attempts to prescribe a punishment not authorized by the statute; that, the statute having named the penalty, no other can be imposed; that as the legislature did not fix a minimum limit the city council cannot fix one; and that the purpose of the legislature was that the amount of the fine should be left to the discretion of the courts, within the limita tions named in the statute. The trial court appears to have held that the limitations in the penalty clause of the statute were not intended to apply to the council in framing ordinances, but were rather limitations on the discretion of the court in imposing punishment — a discretion which the council could not take away. This is an erroneous view. The statute is a grant of power to the council. The city, which is a subordinate agent of the state, has been given the power and privilege of local legislation, including the authority of passing ordinances to impose license taxes and to enforce such ordinances by fines and imprisonment, within prescribed limits. In effect the legislature has said to cities of the second class: “You may enact ordinances for certain purposes and affix penalties for their violation, but in doing so you cannot impose a greater fine than one hundred dollars nor a longer imprisonment than three months. Within those limits you may prescribe such penalties as you may deem appropriate, according to the nature of the offense.” Under this authority the council, in its ordinances, was at liberty arbitrarily to fix the fines anywhere between one and one hundred dollars, or to provide for a minimum and maximum fine, if neither exceeded one hundred dollars.
Much discretion is left to the city council in prescribing punishment, and the reason for it is apparent when the scope of the statute is considered. The penalties named are to be applied to a great number of violations, of varying degrees of gravity, and the legislature wisely left the graduations of the penalties to the council. It was hardly contemplated by the legislature that the same penalty should be imposed on an artist who had neglected to pay a license tax as upon one conducting a gambling-house, nor that the same penalty should be measured out to a doctor who had omitted to pay a license tax as upon a person running a disorderly house. Manifestly the provision limiting the penalty was a restriction upon the council when it framed its ordinances, and not a restriction upon the court when it imposed a penalty for the violation of an ordinance. The court must look to the ordinance to find what the penalty for each offense is.
In Missouri the legislature authorized the passage of ordinances for enforcing certain police regulations by imposing a fine of not more than one hundred dollars. Under this statute the city of Tarkio passed an ordinance imposing a fine of not less than twenty-five dollars nor more than one hundred dollars for each violation, and the supreme court of that state held that the ordinance was within the limits of the statutory authority, and therefore valid. (The City of Tarkio v. Cook, 120 Mo. 1, 25 S. W. 202, 41 Am. St. Rep. 678.) A like question was before the supreme court of New Jersey, where the charter of the city gave the city council authority to prescribe a penalty for certain offenses, either by imprisonment not exceeding thirty days or by a fine not exceeding one hundred dollars. The city ordinance fixed the penalty arbitrarily at one hundred dollars, and it was held that there was no repugnancy between the ordinance and the statute and that it was competent for the council by ordinance to prescribe any penalty within the designated limit of the statute. (Haynes v. Cape May, 50 N. J. Law, 55, 13 Atl. 231.) In Town of Greenfield v. Mook, 12 Ill. App. 281, there was a charter provision that a fine should not exceed fifty dollars for a single offense, and the city passed an ordinance imposing a penalty of not less than twenty dollars nor more than one hundred dollars. The court held that the minimum of twenty dollars was directly within the grant of power, and was enforceable, but held that so much of the ordinance as authorized a fine in excess of that named in the charter was void. (See, also, Ex Parte Caldwell, 138 Mo. 233, 39 S. W. 761.) In the present case the minimum and maximum fines imposed by the council are directly within the statutory grant of power, and there is therefore no repugnancy between the statute and the ordinance in that respect.
The case of In re Van Tuyl, 71 Kan. 659, 81 Pac. 181, cited in behalf of the defendant, is not an authority against the validity of the ordinance. There the offense sought to be punished was a violation of a state as well as a municipal law — laws which were substantially identical, and the enforcement of both was provided for in the same act. In the statute, which was known as the Hurrel law, the legislature defined what acts constitute an nffense and fixed the punishment to be inflicted for each offense, and in that act provided that the offenses defined might be prosecuted and punished under the ordinance of the city, which should prescribe the same penalties as were imposed in state prosecutions, and thus, as was said, “undertook to place liquor prosecutions under both state and municipal regulations upon the same basis, not only with respect to punishments but also with regard to many other matters.” (Page 663.) Instead of following the specific directions of the statute, the city in its ordinance prescribed a penalty which differed substantially from that fixed by the legislature, and because, of that departure the ordinance was condemned. Since the state and the municipal courts were to enforce the same law and measure the punishment for its violation, the necessity for equality of penalty is very apparent; and as the ordinance in that case was not in harmony with either the spirit or the letter of 'the statute it was held to be void. The minimum fine prescribed by the ordinance in this instance is clearly within the grant of power to the council and the limits fixed by the statute.
It is unnecessary to consider any other question than that determined by the district court, and for the reasons stated its judgment is reversed and the cause remanded for further proceedings. | [
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Per Curiam:
J. B. Lane sued the Barber Asphalt Paving Company and the Metropolitan Street Car Company for damages to his person and property alleged to have been caused by a collision of a team and wagon he was driving in the night-time with an obstruction the two companies had negligently placed in a public street of Kansas City, Kan., and had negligently left therein without danger-signals and without any guard. There was evidence tending to prove'that the Metropolitan Street Car Company caused the obstruction to be placed in the street and was alone liable. Other evidence tended to show that the Barber Asphalt Paving Company was alone guilty of the negligence charged. At the close of the evidence Lane dismissed the action as to the Metropolitan company, and recovered a judgment for $400 against the plaintiff in error.
The principal errors complained of are the refusal of the court to sustain a demurrer to the plaintiff’s evidence and peremptorily instruct the jury for the defendant. We have examined the evidence and find it sufficient to justify the submission of the case to' the jury for decision.
Error is also assigned in the refusal to give an instruction requested and in the giving of another to which the plaintiff in error excepted. We are unable to discover any substantial error in either ruling. Nor does there seem to be any new or unusual legal question involved therein to justify extended discussion.
The judgment of the court is affirmed.
Porter, J., not sitting, having been of counsel. | [
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Per Curiam:
W. H. Courtney sued L. J. Harkins to recover the balance of rent due for a farm. The bill of particulars claimed that the rent amounted to $800 and gave defendant credit for payments amounting to $652.19, and asked'for judgment for the balance. Defendant answered and claimed cash payments amounting to $770, and set up a counter-claim of $57.19 for repairs and labor. He asked judgment on his counterclaim for $27.19. The jury returned a verdict for defendant. Plaintiff then moved for judgment notwithstanding- the verdict. This, as well as a motion for a* new trial, being denied, judgment was rendered in accordance with the verdict, and plaintiff brings error.
The contention is that because the jury refused to find any balance due the defendant they discredited the entire counter-claim, and plaintiff insists that this entitled him to judgment in full for his claim. The only authorities cited are cases where there were separate findings. In this case there were no findings and there was evidence to support the verdict, and, as the judgment has been approved by the trial court, it must be affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
When this case was presented to the district court each party insisted that the burden of proof was upon the other, and each claimed judgment upon the pleadings. The court decided that the plaintiff was entitled to judgment as prayed for, and awarded it accordingly. This presents the only question in the case.
We have concluded that the court was correct. The note was made payable to “the M. Ryan estate only.” It was indorsed by the administratrix of that estate in blank and delivered to the plaintiff, who actually produced it in court upon the trial. This is not denied. The only issues presented by the pleadings are made by the defendant’s denial under oath that the administratrix had authority to make the indorsement on the note and that the plaintiff was the owner of the note. But "while the indorsement, if unauthorized, would not convey the ownership of the note, it was sufficient to give the indorsee the power to collect. This court has repeatedly held that a person who has the naked legal title to a note may collect the same by suit, even though the money, when collected, belongs to another. (Manley v. Park, 68 Kan. 400, 75 Pac. 557, 66 L. R. A. 967; Graham v. Troth, 69 Kan. 861, 77 Pac. 92; Greene v. McAuley, 70 Kan. 601, 79 Pac. 133, 68 L. R. A. 308; Stanley v. Penny, 75 Kan. 179, 88 Pac. 875.)
In this case the bank, by reason of the want of authority in the administratrix to indorse the note, may not be the owner thereof, and the proceeds of the note, when collected, may belong to the estate, but this would not prevent the bank from maintaining this action. This rule was discussed in the dissenting opinion of Mr. Justice Greene in the case of Stewart v. Price, 64 Kan. 191, 201, 67 Pac. 553, 64 L. R. A. 581, and it has since been accepted as the law in this court. (Manley v. Park, 68 Kan. 400, 75 Pac. 557, 66 L. R. A. 967.) The rule was stated in the case of McCallum and Greeley v. Driggs, 35 Fla. 277, 17 South. 407, as follows:
“If a note be indorsed in blank, the courts never inquire into the right of the plaintiff, whether he sues in his own right or as trustee, nor into the right of possession, unless a plea be made of mala fides in the plaintiff’s possession.” (Syllabus.)
The argument of defendant has been made here upon the assumption that the judgment was entered for the plaintiff in the district court wholly because of the' state of the pleadings, and the language of the journal entry is to some extent open to such a construction, but taking its language as a whole we understand it to mean that the judgment was given both upon the pleadings and the presentation of the note in court. We think the production of the note, which appears on its face to have been regularly indorsed to the plaintiff, was sufficient to justify the judgment, and it is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
We shall first notice the contentions of the cross-petitioner in error, Edna A. Puckett, which are that the certificate was part of William Pilcher’s estate, and that under the fourth paragraph of his will, as explained and aided by the parol testimony of his intentions, the proceeds should be paid to her; that if for any reason the intent of the testator thus established cannot be given effect the fourth paragraph of the will should be considered null and void, and the three Dilley children would then be entitled to take under the second paragraph of the will; also, that if the court should hold the will inoperative as to the certificate, then Emma H. Pilcher had a vested right in it, which passed at her death to her heirs.
None of these contentions is sound. The certificate is no part of the estate of the member. (Olmstead v. Benefit Society, 37 Kan. 93, 14 Pac. 449.)' It is inconsistent with the theory upon which benefit societies are organized that the proceeds of a benefit certificate should be considered assets of the member’s estate. Otherwise, it would become liable for his debts and the costs of administration, something not within the contemplation and purpose for which such orders are established. The insured member himself has no interest in the fund; he possesses simply a power of appointment, which, if not exercised, becomes inoperative. (Rollins v. McHatton, 16 Colo. 203, 27 Pac. 254, 25 Am. St. Rep. 260; Hellenberg v. Dist. No. One of I. O. of B. B., 94 N. Y. 580; Bacon, Ben. Soc. & Life Ins. § 243; Fisher v. Donovan, 57 Neb. 361, 77 N. W. 778, 44 L. R. A. 383; Masonic Aid Ass’n v. Jones et al., Appellants, 154 Pa. St. 99, 26 Atl. 253; Keener v. Grand Lodge, A. O. U. W., 38 Mo. App. 543; Eastman v. Association, 62 N. H. 555; Coleman v. Knights of Honor, 18 Mo. App. 189.) Again, where the rules and bylaws of the order prescribe the way in which a bene ficiary may be changed and require that the procedure shall be followed in order to effect a valid change, the rules and by-laws control, and a testamentary direction is ineffectual. In Olmstead v. Benefit Society, swpra, it was expressly held not to be within the power of such member to change the beneficiary by will, but that in order to effect such change the procedure prescribed by the rules and by-laws of the order which are a part of the contract must be followed. In the opinion Mr. Justice Johnston, speaking for the court, said:
“We are to decide whether the beneficiary named in the certificate could be changed and the fund disposed of by the will, as was attempted to be done. . . . The assured had no interest in the benefit resulting from his membership. In no event was it payable to him, nor could it become a part of his estate; and having no interest in the fund, what was there for him to bequeath? We think the will was ineffectual to change the beneficiary or divert the fund from the persons named in the certificate.” (Pages 95, 97.)
In Daniels v. Pratt, 143 Mass. 216, 10 N. E. 166, where the by-laws of the society provided that no change of beneficiary should be valid except when made in accordance with the rules of the order, the last will of the member was held ineffectual as a change of designation. These views are supported by the weight of reason and authority. The decisions generally are to the effect that a member of a benefit society who is the holder of a certificate of this character has no interest in the certificate which can be disposed of by will.
In Kemper v. Modem Woodmen, 70 Kan. 119, 78 Pac. 452, which followed and approved the Olmstead case, supra, there was no question of a will, but it was squarely decided that in order to effect a valid change of beneficiaries the procedure prescribed by the order, which is part of the contract,, must be followed, and that the rules and by-laws of the order in respect to the procedure for changing the beneficiary are not directory. As was said by the court in Rollins v. McHatton, 16 Colo. 203, 27 Pac. 254, 25 Am. St. Rep. 260:
“It would be a dangerous precedent were we to hold that the designation of the change of beneficiary by entry upon the books of the company is not imperative. Disregard of the prescribed mode of substitution would tend to frustrate the wise and benevolent object to which these societies owe their existence.” (Page 207.)
Cases may arise where equity would aid in an attempted but uncompleted change of beneficiary — where the assured had done his part in making the substitution in accordance with the rules and by-laws of the order, but no such case is presented here.
Since the certificate never became a part of the estate df William Pilcher, and as he.did not possess the power to change the beneficiary by will but could only do this in the manner prescribed by the by-laws of the order, the various contentions of the cross-petitioner in error must fall. The will itself, however, does not in our opinion attempt either to dispose of the certificate or change the beneficiary. In the fourth clause it is expressly stated that the certificate is not included in the provisions of the will.
We may concede that the parol testimony disclosed a latent ambiguity in the will when it showed that the beneficiary whose name then appeared in the certificate mentioned in the fourth clause of the will had previously died. The same testimony, however, showed that the testator not only knew but had in his mind the fact that the beneficiary named was no longer living ; that he discussed and considered his right and intention thereafter to change the beneficiary. So that it is only reasonable to presume that he used the language with reference to his intention to make a change, and that by the words “beneficiary therein named”’ he meant, not the beneficiary whose name at that time appeared in the certificate, but the one he expected thereafter to name and whose name would appear in the certificate at the time of his death. We have, therefore, a case where a latent ambiguity is created by parol testimony and the same testimony removes the ambiguity and leaves the language of the instrument to control. (17 Gyc. 6776.) William Pilcher was for several years an officer of the local lodge and familiar with the by-laws and the procedure to be followed in order to make a change of beneficiary. The evidence in rebuttal established the fact that after the execution of the will he was uncertain as to his desires in the matter, and that he never made or attempted to make any change therein. The latent ambiguity in the fourth clause having been removed by the same testimony which created it, there is no ground- for the contention that this clause should be held null and void. The Dilley children therefore Cannot take by virtue of the second clause in the will, which gives them all of the testator’s property; real and personal. This clause must be construed in connection with the fourth, which in terms states that the certificate is not included in the provisions of the will.
The claim that Emma H. Pilcher ever obtained a vested right in this certificate which passed at her death to her heirs is also contrary to the weight of authority. The only interest in the certificate she had in her lifetime was in the nature of an expectancy, which ceased at her death. (See Rollins v. McHatton, 16 Colo. 203, 27 Pac. 254, 25 Am. St. Rep. 260; Riley v. Riley and others, 75 Wis. 464, 44 N. W. 112; Handwerker v. Diermeyer, 96 Tenn. 619, 36 S. W. 869; and authorities cited supra.)
There is still another reason why the judgment of the court cannot be permitted to¡ stand. The class of persons who may become beneficiaries is designated in express terms by the rules of the order. The designation excludes those who are not either the “wife, surviving child, heir, blood relative, or person dependent upon or member of the family of the member at the time of his death.” The judgment gave portions of the proceeds to two of the stepchildren who were not shown to have been persons dependent upon William Pilcher nor members of his family. A person not of the class for whose benefit the society is organized cannot become a beneficiary. (Britton v. Royal Arcanum, 46 N. J. Eq. 102, 18 Atl. 675, 19 Am. St. Rep. 376; Alexander et al. v. Parker, 144 Ill. 355, 33 N. E. 183, 19 L. R. A. 187; Old People’s Home Society v. Wilson, 176 111. 94, 52 N. E. 41; Fisher v. Donovan, 57 Neb. 361, 77 N. W. 778, 44 L. R. A. 383.)
The contention is urged by the Dilley children that the rules and by-laws of the order which are referred to herein were adopted after the execution and delivery of the certificate, and after the death of Emma H. Pilcher, and although in force at the time of the death of the member they are not a part of the contract. It is insisted that to hold these laws, adopted subsequently to the date of the certificate, as part of the contract is to make them retroactive. The certificate iself reads as follows:
“Subject to all the conditions on the back of this certificate, and named in its fundamental laws, and liable to forfeiture if said neighbor shall not comply with said conditions, laws and such by-laws and rules as are or may be adopted by the head camp or the local camp of which he is a member.”
We have no difficulty in determining that the contract was made subject to all by-laws and rules of the order that might be adopted after the execution of the certificate. The doctrine of retroactive laws has no application here. No vested rights, as we have shown, accrued to any one, assured or beneficiary. The bylaws were adopted as much for the benefit of William Pilcher as for that of the society. He participated in their adoption, and they expressed the objects and purposes of the order crystallized by years of experience. If the assured had designated a change in the beneficiary which complied with the by-laws in force at the time such change was made, and by-laws were afterward adopted which prescribed a different procedure, a question might arise involving the doctrine of the retroactive effect of the by-laws subsequently enacted. In the instant case no attempt was made to designate a different beneficiary, and we have therefore the not unusual case where the designated beneficiary dies before the assured and the latter fails to appoint or substitute a beneficiary. In such a case, where the rules and by-laws of the society which were a part of the contract expressly provide where the fund shall go at his death, the contract governs. In this case the laws of the order provide that under the facts, which are not disputed, the proceeds are payable only to the heirs of the assured.
The judgment is reversed and the cause remanded, with directions to enter judgment in favor of the heirs of William Pilcher. | [
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Per Curiam:
The action in the district court was upon a promissory note. The petition contained a recital that “a copy of said note is hereto attached, as a part hereof, marked ‘Exhibit A.’ ” By mistake the original note was attached instead of a copy. The defendant answered by a qualified denial of the execution of the note described. The plaintiff asked leave to amend, which was granted on payment of costs and upon proof of the mistake or inadvertence of the attorney in attaching the original. The only amendment consisted in striking out from the recital the words “a copy of” and inserting the words “said original.” Thereupon the defendant demurred to the amended petition, on the ground that it failed to state a “cause of action against this defendant, in that said amended petition shows on its face that the pretended cause of action is barred by the statute of limitations.” This demurrer was overruled, and, the defendant electing to stand upon it, judgment was awarded against him for the amount due on the note. He complains of the allowance of the amendment, and of the order overruling the demurrer.' Both were right. The court might well have allowed the amendment, which was merely formal, without the imposition of terms. When the action was commenced it was not barred, although if it had been commenced at the date of the amendment it would have been too late. The contention that the amendment Should be treated as a new action is without merit, and the judgment is affirmed. | [
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Per Curiam:
We are unable to distinguish this case from the cases of Ordway v. Cowles, 45 Kan. 447, 25 Pac. 862, and Robidoux v. Munson, 75 Kan. 207, 88 Pac. 1085, and are satisfied with the conclusions reached in those cases. The judgment of the trial court is therefore affirmed. | [
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Per Curiam:
This is a suit brought by John Smith and wife against the Dixie Development Company to cancel an oil-and-gas lease which stipulated that it should continue as long as oil or gas should be. produced in paying quantities by the lessee. The company, which was an assignee of the lease, sank several wells, from four of which considerable oil was at first obtained. After several months the flow of oil greatly diminished, and at the end of one and one-half years only one well was in operation, and pumping from that was finally suspended.
Then followed this suit, in which it was claimed that the lease ought to be canceled because there had been an abandonment and forfeiture, and upon conflicting evidence a cancelation was adjudged. From the testimony it then appeared that oil was not being produced in paying quantities and that nothing better could be expected from a continuance of operation under the lease. The wells were in bad condition and their product had been turned over by the -company to an operator, under an agreement that he should clean out and put the wells in good condition, but after several months it appeared that the output lacked $800 or more of paying the expense of repair and operation. The fact that the company had incurred a large indebtedness, however, is no ground for cancelation, but there was abundant testimony going to show that the operation of the wells was unprofitable. In fact the company had stated in an allegation of its answer, which was afterward stricken out, that oil could not be produced in paying quantities from the wells and that they could not be profitably operated. A good deal of testimony was also introduced, such as the neglect of the wells, the pulling out of tubing, and permitting the appliances to deteriorate and go to destruction, which indicated an intention to desert the wells and abandon the enterprise.
We have no hesitation in holding that there is sufficient testimony to sustain the judgment, and it is •therefore affirmed. | [
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Per Curiam,:
This case involves the constitutionality of chapter 368 of the Laws of 1907, entitled “An act providing for a special tax levy for the construction and equipment of a county high-school building for Scott county, Kansas.” The act is special, and under the authority of the case of Anderson v. Cloud County, ante, p. 721, is held'to-be repugnant to the provisions of section 17 of article 2 of the constitution (Laws 1905, ch. 543), and therefore void, for the reason that a general law could plainly be made applicable.
The judgment is reversed and the cause remanded for further proceedings. | [
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Per Curiam:
This is a suit by W. T. Hobbs to obtain a divorce from Sarah A. Hobbs and an equitable division of the property. She filed a cross-petition asking for a divorce on account of the default of the husband, and this the court granted. W. T. Hobbs was awarded $700 as his share of. the accumulated property, the title of which stood in the name of Mrs. Hobbs, and the award was made a lien upon the property. He makes no complaint that a divorce was granted to the wife, but it is insisted that he was not given a fair share of the property. It appears that the property was acquired and preserved largely through her labor and management. While the area of the property is considerable, its location is not desirable and the rentals derived from it are uncertain and not large. To pay the judgment of $700 awarded to him considerable of the property must be sold, and when the difficulty in finding tenants and the unprofitable character of the property are considered the disparity in the shares allotted may not be great. He has an insurance policy of $2000 which was • assigned to a relative to pay for his maintenance during his life, and he also has a pénsion from the government. In view of the fact that the divorce was granted because of his wrong, and also of the way in which the property was acquired, and considering further the superior opportunities of the trial court to measure the rights of the parties and fairly divide the property, we do not feel justified in disturbing the distribution that was made.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
S. A. Bullard, not being satisfied with the valuation which the local assessor placed on his lands, invoked the jurisdiction and judgment of the board of equalization, but the decision of that board was no more satisfactory than the other, and he then carried the question to the district court, asking that tribunal to revalue his property and to grant an injunction against the collection of the tax imposed by the regular taxing officers. If this attack prevails and it should be held that the assessment of property in Finney county was such as to invalidate the tax against Bullard’s lands it would necessarily follow that the tax on other lands of the county for that year is invalidated. Do the facts alleged and found justify such a ruling and result? The courts are not charged with the powers and dutiés of assessors, and have no right to review the decisions of those officers as to the value of property. The legislature has placed the responsibility upon the assessors in the first instance, and in case an owner of property is dissatisfied with their assessments he may appeal to the board of equalization to review values and correct mistakes of judgment. When the statute prescribes a method for revising or correcting unequal assessments that remedy alone must be followed. Since the statute gives no right of appeal from the board of equalization, its opinion and judgment as to valuation are plenary, and it is not within the power of the courts to interfere with a tax merely because the assessment is excessive or unequal.
In Symns v. Graves, 65 Kan. 628, 70 Pac. 591, where there was an attack upon the decision of the board of equalization, it was said:
“Matters of assessment and taxation are administrative in their character and not judicial, and an interference by judges who are not elected for that purpose with the discharge of their duties by those officers who are invested with the sole authority to make and estimate value is unwarranted by the law. The district court could not substitute its judgment for that of the board of equalization, and this court cannot impose its notion of value on either.” (Page 636.)
In the same decision the only grounds upon which there may be judicial interference were thus pointed out:
“But fraud, corruption, and conduct so oppressive, arbitrary or capricious as to amount.to fraud, will vitiate, any official act, and courts have power to relieve against all consequential injuries. In every case, however, the departure from duty must be shown by the party seeking redress to fall within the well-defined limits of the powers of a court of equity.” (Page 636.)
Does this case fall within the rules justifying an interference with the discretion an'd judgment of the board of equalization and an injunction against the collection of the taxes founded on the valuations of that board? It does not appear that there was such a departure from duty by the officers as will give Bullard a right to this extraordinary remedy. It is not found by the trial court — nor does there appear to have been any ground for finding — that the officers were actuated by fraud,- corruption, or conduct so oppressive, arbitrary or capricious as to amount to fraud. It is true that the officers failed to assess the property of the county on the basis of its cash value, which was a plain departure from the requirements of thé statute; but it does not appear that, under the system of valuation adopted, Bullard was required to pay more than his just proportion of the taxes, if all the property of the county had been fairly and regularly assessed. In ■reaching its judgment the trial court only considered the valuation placed upon three classes of lands within the county, and these were sand-hill lands, like those of Bullard’s, and improved and unimproved alfalfa lands. What values were placed on a great body of lands not embraced in these three classes does not appear, nor does it appear that, if all were considered, the valuation on Bullard’s property could be regarded as excessive or that an injustice had been done to him. The fact that there was not an absolute, equality of assessments, as between him and some other taxpayers, or that the assessors, in disregard of the statute, .assessed property at less than its value, does not of itself justify the interference of a court of equity. (Adams v. Beman, Treasurer, 10 Kan. 37.) The mere fact, too, that the taxing officers made a fractional instead of the full value of the property the basis of assessment does not authorize the granting of an injunction to restrain the collection of taxes. (Challiss v. Rigg, 49 Kan. 119, 30 Pac. 190.)
While the court has found that the valuation placed on Bullard’s property is excessive, there is no intimation that it was fraudulently done, nor that it was an intentional discrimination in order to compel Bullard to pay more than his share of the taxes of the county; nor, as before stated, does it appear that he has been required to pay more than his proportionate share of taxes. There was a difference of opinion between him and the assessors as to the value of his lands as compared with those of others. The tax law provides a board of equalization to settle such differences of opinion, and it is one to which every taxpayer may apply. In revising and equalizing assessments that board has necessarily a broad discretion, and its decision, however erroneous, is plenary, and final when fairly and honestly made. Judge Cooley, in speaking of the finality of its decision upon a question of excessive or unequal assessments, said:
“If fraud is charged, equity máy interfere, but equity has no jurisdiction under its general powers to correct a merely unequal or unjust assessment when there is a statutory board that may do so.” (Cooley, Taxation, 528.)
(See, also, Lincoln County v. Bryant, 7 Kan. App. 252, 254, 53 Pac. 775.)
The legislature has provided an adequate remedy at law for error and excess in valuations. Bullard availed himself of that remedy, and from the board of equalization obtained a review and revaluation of his property, which is binding upon him in the absence of special circumstances entitling him to an appeal to a court of equity. There is no imputation against the good faith of the board in making its decision. It did find some errors in the valuations of the assessors and undertook to revise and equalize them. There is no claim that the board did not honestly value Bullard’s property, nor any claim or finding that there was fraud, or the equivalent of fraud, in its rules of assessment and equalization. It is true that the court found the value of Bullard’s property to be excessive, but an assessment -is not fraudulent merely because it is excessive. We then have the judgment of the board that there is equality in the valuation of the property of the county and that there is in fact no excessive valuation of Bullard’s property. Thé trial court, upon a limited inquiry as to values, has given as its opinion that Bullard’s property is valued at fifteen per cent, higher than some other lands in the county; but the law does not give an appeal from the board of equalization to the court, nor does it warrant the court in substituting its opinion of values for that of the officers who are invested by law with the sole authority to determine values. The statute does not contemplate, nor would it be practical to permit, a review and revaluation in the courts of the state at the instance of taxpayers who might complain of overvaluation by assessors. The remedy for irregular or excessive assessments before the board of equalization was deemed by the legislature to be an adequate one, and in the absence of other grounds it is an exclusive remedy.
Reference is made to C. B. & Q. Rld. Co. v. Comm’rs of Atchison Co., 54 Kan. 781, 39 Pac. 1039, as an authority for an award of an injunction. That case, aside from being an extreme one, is easily distinguishable from the one before us. There the assessment was not only irregular and excessive but it was an intentional discrimination against one class of property, under which certain taxpayers were required to pay four times more than their proportion of the taxes. The rule adopted for the assessment there was designed to destroy equality and uniformity between classes of property, one basis being used for the disfavored class and another basis for all other property in the county. The rule making such a gross discrimination could not have been adopted or applied in good faith, and hence it furnished a case for equitable relief. There, too, it was found that no effective remedy could be obtained before the board of equalization, and, besides, it was possible to give relief by injunction in that case without affecting the whole tax levy of the county or locking up the revenue necessary to conduct the local government. The facts justifying a resort to a court of equity in that case do not exist in this one, and the findings of fact here did not justify the district court in awarding an injunction.
The judgment is therefore reversed and the cause remanded, with instructions to render judgment for the defendants. | [
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Per Curiam:
This case is reversed on the authority of Stevens v. Sheriff, 76 Kan. 124, 90 Pac. 799.
The order of dismissal is set aside and the case is remanded with instructions to reinstate the same. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a suit by Anna Oliver against Jacob Bichel and his wife, also Jacob Bichel as executor of an estate, and the Citizens State Bank of Haddam to set aside certain instruments purporting to affect the title to a tract of real estate formerly-owned by Adolph Fredericks, and to quiet her title, which was based on an oral agreement to transfer the property to her on certain conditions, which she alleged had been substantially performed.
On issues formed between the parties a trial was had, and the court in substance- found that for a long time before his death Adolph Fredericks was the owner of a quarter-section of land and occupied it as a homestead. His family consisted of his wife-, Herman Fredericks, a brother, and the plaintiff, Anna Oliver, a granddaughter of his wife, whom they had taken into the family when she was only a few years old but had never formally adopted. His wife died in 1901, and his brother, who was an invalid during the last years of his life, died in 1908, leaving only Adolph and the plaintiff, and when he died in 1904 he left no wife, children or known heirs to inherit his estate. He and his wife had frequently expressed to their neighbors an intention to leave all of their property to Anna, because of their love for her and her faithfulness to them, but no contract to that effect was made with Anna’s parents when she went to live with the Fredericks. Some time before Anna was married she had expressed an intention to leave the Fredericks home because of a disagreement with Herman Fredericks, and then Adolph and his wife urged her to remain and expressly agreed that if she would do so they would give her all of their property at their death. Anna married L. E. Oliver in 1895, with the approval of the Frederickses, and lived for a time on the Fredericks farm and continued to care for the old people as she did before her marriage. Later Anna and her husband moved to an adjoining farm, about a quarter of a mile away, and lived there until after the death of Mrs. Fredericks and‘until 1902. After the death of Adolph’s wife he and Herman continued to live on the farm, and in September, 1902, Herman being una ble to leave his bed, Adolph renewed the agreement with Anna and her husband that if they would move upon the farm and care for him and his brother, Herman, as long as they lived Anna should have all of his property and should enter into possession of it at once. They accepted his proposition and immediately took possession of the farm, and have continued in possession of it ever since.
During the. childhood of Anna the Frederickses sent her to the public school, and bestowed on her love and affection, and she in turn was obedient and kind to them, performing such household duties as are usually performed by girls of her years, and sometimes working in the fields. After her marriage, and while living on the farm, she continued to work and care for them, and after moving on the adjoining farm she washed, ironed and baked for the family and frequently performed other household duties. After Anna and her husband took possession of the farm in 1902 they cared for both Adolph and Herman, furnishing them with the necessaries of life until Herman died in 1903 and Adolph left their home in 1904. In April, 1904, and about eight months before Adolph died, he apparently became dissatisfied with their home and went to the house of Jacob Bichel, a brother of Anna, where he remained until his death. A few days before he died, and on December 7, 1904, he executed a deed to Jacob Bichel for the farm in controversy, the consideration named being one dollar, the support of the grantor during his lifetime, and a decent burial upon his death. On December 9, 1904, he executed a will purporting to give all of his property, real and personal, to Jacob Bichel, except a horse, which was given to others. He died on December 15, 1904, and the will was at once probated and Jacob Bichel was appointed as executor. On January 23, 1905, Bichel and his wife executed a mortgage on the farm to the Citizens State Bank of Haddam to secure a loan of $600, and at that time Anna and her husband were in pos session of the farm, a fact well known to Bichel and the officers of the bank. On these facts judgment was rendered in favor of the plaintiff and .against all of the defendants.
An attack was made on the sufficiency of the petition by a general demurrer, which the court overruled, and it is renewed here upon the ground that the allegations as to the means employed by Jacob Bichel to induce Adolph Fredericks to execute the deed and make the will in his favor were not such as to constitute fraud or undue influence. In her petition the plaintiff set up an oral agreement between the Frederickses and herself under which she was to acquire the property, and also such performance of the agreement by herself as would take it out of the statute of frauds. These facts, if established by proof, were sufficient to war-, rant a recovery by her without regard to whether or not Jacob Bichel obtained the will and deed from Fredericks by fraudulent means. Fraud and undue influence in procuring the execution of these,papers were set forth, it is true, but no question was raised by the-defendants as to the propriety of coupling her claim based on these averments with her claim setting up the contract and its performance. No effort was made to have any of these allegations stricken out- because of inconsistency or upon any other ground, nor was the petition challenged in any way except by the general demurrer for insufficiency of facts. That more than one ground of recovery may have been pleaded or that the grounds -set up may not have been entirely consistent did not constitute reasons for sustaining the demurrer. The principal considerations in the case are, first, Was there a contract to the effect that if plaintiff would live with the Frederickses and become one of their family, rendering them such love, obedience and services as are due from a child, they would rear her as their own child and at their death give all of their property to her? and, second, Was the contract, although oral, of such an equitable character and so far performed as to be enforceable ?
The case as developed by the evidence falls fairly within the rule of Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743, 9 L. R. A., n. s., 229, wherein Mr. Justice Porter fully stated the reasons for the rule and cited many authorities sustaining it. If, as there held, the contract is sufficiently certain and definite in subject-matter and purpose and has been clearly and certainly established by the evidence, and the facts are such as. to take it out of the operation of the statute of frauds, and there are no circumstances or conditions which would make enforcement inequitable, courts do not hesitate to give effect to a contract, although it is not in writing. An oral agreement that operates as a transfer,of land must, of course, be made out by clear and satisfactory proof, but it is not essential that it: be established by direct evidence. If the facts and circumstances brought out are such as to raise a convincing implication that the contract was made and to satisfy the court of its terms, and that there would be' no inequity in its enforcement, it is enough. (Anderson v. Anderson, supra; Edson v. Parsons, 155 N. Y. 555, 50 N. E. 265.) This is especially true where, as here, the parol evidence is supplemented and supported by the acts of the parties. Aside from the frequent statements of Adolph Fredericks and his wife as to the relations between them and the child which they had taken into the family, and of their obligations to her, there was the direct agreement with Anna herself at the time she had trouble with Herman Fredericks, which made a reasonably clear and complete promise that Anna should have the land in consideration of the filial duties of love, obedience and services which had been and should thereafter be rendered to the Frederickses.
The defendants insist that there should be no relaxation of the rule requiring contracts of this character to be in writing, nor an exception made allowing the- transfer of land upon oral evidence. It cannot be said, however, that the evidence herein rests wholly in parol. The acts of Anna in performing her agreement, and of Fredericks in partially carrying out his agreement by putting her.in possession of the land, throw.considerable light on the character of the contract and strongly support the parol proof. Besides, the statute of frauds, invoked by defendants, should never be allowed to accomplish fraud, and, according to the facts and the findings of the trial court, a failure to enforce this contract, after performance by the plaintiff, would bé a fraud upon her. As to her the contract was fully executed. The services were rendered and her part of the contract performed during the lifetime of Adolph Fredericks. Her services in the family and her care and ministrations to the old people were not intended to be measured by any financial standard, and, as the court found, there is no measure by which she can be adequately compensated for the things she has done, nor would there be any estate from which she could be paid, if this action should fail. It is true there is some conflict in the evidence — some testimony that discredits that of the plaintiff and the theory upon which she recovered; but the testimony which the court appears to have believed, and which in view of its findings must be accepted as true by this court, abundantly justifies the decree enforcing the contract. There is nothing substantial in the objections made to the admission of testimony upon which the findings áre based.
The bank, which holds the mortgage given by Jacob Bichel, is in no better position than he occupies. At the time the mortgage was given the plaintiff and her husband were in actual possession of the land, a possession which they had held for considerable time and which was known to the officers of the bank. That open possession made it necessary for the bank to inquire as to the ownership of the land and the right of Bichel to execute a mortgage upon it. An inquiry would have disclosed that a binding contract had been made with the plaintiff and that Bichel had no interest in the land nor any right to encumber it.
The judgment of the district court is affirmed. | [
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Per Curiam:
The motion to make the petition more-definite and certain, the demurrer to the petition, and the objection to the introduction of evidence under the-petition, were all properly overruled,. and the objections to evidence were all properly dealt with, since notwithstanding, the failure of the plaintiff to list all his. property he could recover taxes which were wrongfully charged against him under color of section 7599 of the-General Statutes of 1901 and which' he paid under the compulsion of a tax warrant. (Douglas County v. Lane, 76 Kan. 12, 90 Pac. 1092.) The terms of the plaintiff’s protest did not form a part of his cause of action. The question was, Did he pay voluntarily? If not, he could recover. lie did pay under the coercion of a tax warrant, and that was sufficient.
Assignment of error No. 25 merely says the judgment was wrong. There is no assignment of error that the judgment in favor of the plaintiff is not sustained by sufficient evidence. However, the judgment for the pláintiff is sustained by the pleadings and the evidence.
In October of each year there is a general settlement between the treasurer and the board of county commissioners, which includes a séttlement of the financial affairs of each city, township and school district of the county. (Gen. Stat. 1901, §§ 1684, 1685.) The new tax-roll for thé year, which must be delivered to the treasurer and the amount of taxes shown thereon charged to him by November 1, then starts a new set of accounts, transactions and proceedings. The purpose is that personal property not listed with the assessor in any year shall be placed on the roll before the October settlement of that year, if the assessment be made by the county clerk-under section 7599, above referred to. (Douglas County v. Lane, 76 Kan. 12, 90 Pac. 1092.) Every proposition of merit presented by the plaintiff in error has been decided in the case cited.
SYLLABUS BY THE' COURT.
‘Taxation — Payment under Protest and Compulsion — Action to Recover — Interest—Liability of a County. The general interest statute allowing creditors to receive, in the absence of contract, interest upon money after it becomes due cannot be interpreted to impose a liability upon a county, which is a political subdivision of the state, organized for purely governmental purposes and endowed with gztasi-corporate powers only; and, in an action against county officers to recover taxes wrongfully exacted over the protest of the taxpayer and through the compulsion of a tax warrant, interest on the money from the time it was paid (it then being due) cannot ■be recovered.
There is no provision in the section referred to for double assessment, such as is permitted to assessors. The taxes having been brought upon the roll by a specific kind of authority, they stand, or fall by virtue of that authority. Therefore the cross-petition in error is well founded, and the plaintiff should have judgment for the remainder of the amount which he paid.
The cause is remanded with instruction to modify the judgment as indicated.
•OPINION DENYING A MOTION FURTHER TO MODIFY JUDGMENT.
The opinion of the court was delivered by
Burch, J.:
The plaintiff sued the county officials to recover a sum of money which was illegally charged against him as personal property taxes, and which he paid under protest and under the compulsion of a tax warrant. In his petition he prayed for interest at the rate of six per cent, per annum on the amount paid from the date of payment. The district court rendered judgment for the recovery of a portion only of the sum claimed and allowed no' interest. On proceedings in error in this court brought by both parties the judgment of the district court was modified, and an order was made that the plaintiff be given judgment for the whole amount he had wrongfully been compelled to pay. (Jackson County v. Kaul, ante, p. 715.) The question of interest was overlooked, and a motion is now made for a further direction to the trial court to include in its judgment interest as pi-ayed for in the petition.
The action being grounded upon official conduct in a matter affecting the public interest, and the object being to obtain reimbursement for funds paid into the county treasury, the suit is in fact one against the county. (Reeder v. Wexford Co. Treasurer, 87 Mich. 351.) If interest be recoverable it must be by virtue of section 3590 of the General Statutes of 1901, which reads as follows:
“Creditors shall be allowed to receive interest at the rate of six per cent, per annum, when no other rate of interest is agreed upon, for any money after it becomes due.”
The word “creditors” is here used in the broad sense of those who have the legal right to demand and receive the payment of money, and includes the plaintiff in the transaction under investigation. The money having been wrongfully extorted from the plaintiff by the threatened seizure of his property under the tax warrant then in the sheriff’s hands for execution, the county had no right to retain it for a single day. It owed the plaintiff the duty to make restitution at once. (See 22 Cyc. 1506.) No demand was necessary, because the money had been exacted over the plaintiff’s protest and denial of liability. Therefore the money was “due” as soon as the county had taken it.
So far the statute has been looked at from the creditor’s side. Considered from the view-point of the debtor, it imposes a duty and a liability outside of contract which would not otherwise exist. Do its merely general terms extend to counties? The general rule that the state is not bound by statutes limiting rights or imposing burdens unless it be expressly named or be intended by necessary implication is familiar. (The State v. Book Co., 69 Kan. 1, 24, 76 Pac. 411, and authorities there cited.) To bind the state by an implication it must be one that is unavoidable. If there be a doubt upon the subject, that doubt must be resolved in favor of the state. (The State v. School District, 34 Kan. 237, 242, 8 Pac. 208.)
Counties are mere political subdivisions of the state. (Commissioners of Shawnee County v. Carter, 2 Kan. 115.) They are mere instrumentalities of the state in the exercise of its governmental functions, and are given corporate power only so far as may be necessary to aid those functions. They are only' quasi-corporations (Comm’rs of Neosho Co. v. Stoddart, 13 Kan. 207, 210; Freeland v. Stillman, 49 Kan. 197, 207, 30 Pac. 235; In re Dalton, 61 Kan. 257, 264, 59 Pac. 336, 47 L. R. A. 380; The State v. Wilson, 65 Kan. 237, 238, 69 Pac. 172), and are clearly distinguished from municipal organizations like cities, which are given far greater powers and are endowed with much larger measures of • corporate life. (1 Dill. Mun. Corp., 4th ed., §25; 11 Cyc. 341 et seq.) This suit ,can be maintained only because it relates to a subject which falls strictly within the limits of expressly granted authority. If it does not, the county cannot be sued any more than the state itself. When the statutes have made no distinction a county is entitled to the same privileges and immunities as the state.
“A general'statute, declaring or affecting rights and interests, does not include the state, unless it be included expressly or by necessary implication; and counties being but political' subdivisions of the state are within the same rule.” (Cole v. White County, 32 Ark. 45, syllabus.)
In an editorial note found in 22 Am. St. Rep. 648 many cases are collated in support of the proposition that general interest statutes do not bind the states or the United States, the presumption being that such . statutes were intended to apply to individuals only, and not to the sovereign. In the following decisions the same rule in regard to general interest statutes was applied in cases against counties: Seton v. Hoyt, 34 Ore. 266, 55 Pac. 967, 43 L. R. A. 634, 75 Am. St. Rep. 641; Reeder v. Wexford Co. Treasurer, 37 Mich. 351; B’d Sup’rs Warren Co. v. Klein, 51 Miss. 807, 816; Madison County et al. v. Bartlett, 2 Ill. 67. In the case of Savings etc. Soc. v. San Francisco, 131 Cal. 356, 63 Pac. 665, an action against the county and city of San Francisco to recover taxes paid under protest, it was said:
“The code sections cited relate to interest as compensation or damage between parties to an action, and the language of the statute is general .and does not include the state or any of its political subdivisions.” (Page 363.)
Judge Cooley adopts the principle of this decision in the text of his work on Taxation, where, in. discussing remedies for the recovery of taxes wrongfully collected, he says: “Interest is recoverable only when expressly allowed by statutes.” (2 Cooley, Tax., 3d ed., 1510.) In a note to this text the case of Railroad v. State, 63 N. H. 571, 4 Atl. 571, is cited, in which interest was allowed to a taxpayer who had contributed more than his share to the public revenues, but the objections to such a ruling which are now under consideration were not raised; discussed or decided, the only question being, apparently, whether the case was one of tort, in which the ordinary rule of damages is the value of the property taken, with interest. The same is true of the cases of Boston and Sandwich Glass Co. v. City of Boston, 45 Mass. 181, and Railway Co. v. City Council, 49 S. C. 449, 27 S. E. 652. Perhaps the last two cases might also be distinguished because they were brought against municipal corporation proper. (See Shipley v. Hacheney, 34 Ore. 303, 55 Pac. 971; Monteith v. Parker, 36 Ore. 170, 174, 59 Pac. 192, 78 Am. St. Rep. 768.)
In the case of Robbins v. Lincoln County Court, 3 Mo. 57 (2d ed., p. 36), the court allowed interest on county warrants under the general statute relating to interest, and said:
“It may be true that the legislature did not even so much as think of embracing in the law counties as liable to pay interest. But the words of the act are extensive enough to embrace all persons, and bodies, capable of owing money by bond, bill, promissory note, or other instruments in writing.” (Page 58.)
This method of interpreting statutes is clearly at variance with the settled rules upon the subject.
The motion is denied. | [
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The opinion of the court was delivered by
Smith, J.:
Numerous errors are assigned, principally trial errors, but two questions of law will determine the case, viz.: (1) Was the contract a valid contract? (2) If not, was Moir entitled to recover upon a quantum meruit the value of the services he had rendered, in view of the benefits the county had received ? We will discuss these questions in order.
It must be conceded at the outset that the board of county commissioners is in a sense the general business agent of the county, and as such has charge of its financial affairs and business matters that are not expressly or by necessary implication delegated by law to other officers of the county or reserved to. the people. (See Gen. Stat. 1901, § 1621. See, also, Comm’rs of Stafford Co. v. The State, ex rel., 40 Kan. 21, 18 Pac. 889.) It must also be conceded that if the county has the power to make such a contract as the one in question the board of county commissioners is the only agency through which the power can be exercised. The general powers conferred upon counties and county commissioners by our statute are set forth in sections 1603 and 1621 of the General Statutes of 1901. If the power here contended for is embraced therein the contract is valid; otherwise it is not. The two sections must be construed together. The fifth clause of section 1621 is restrictive of the powers conferred upon the county board. (Brown v. The State, 73 Kan. 69, 84 Pac. 549.) It reads:
“Fifth, to represent the county^ and have the care of the county property, and the management of the business and concerns of the county, in all cases where no other provision is made by law.”
The statute relating to taxation prescribes a complete and entire system of listing, valuing and taxing all real and personal property, and also prescribes a procedure for discovering and listing property for taxation which has escaped the surveillance of the assessors, and assigns the several steps in the system and procedure to designated officers of the townships and counties of the state. It imposes upon certain officers the very duties which, by the contract in question, the county commissioners undertook to employ Moir to perform. (Gen. Stat. 1901, §§ 7585-7607.) It was beyond the power of the board of county commissioners to employ any other agency to perform these duties, and the contract is therefore ultra vires and void. (Brown v. The State, 73 Kan. 69, 84 Pac. 549; Coal Co. v. Emlen, 44 Kan. 117, 24 Pac. 340; Waters v. Trovillo, 47 Kan. 197, 27 Pac. 822. See, also, Chase v. Board of Com’rs [Colo. 1906], 86 Pac. 1011; Stevens v. Henry County, 218 Ill. 468, 75 N. E. 1024, 4 L. R. A., n. s., 339; Grannis v. Board of County Commrs., 81 Minn. 55, 83 N. W. 495; Storey v. Murphy, 9 N. Dak. 115, 81 N. W. 23; House v. Los Angeles County, 104 Cal. 73, 37 Pac. 796; Platte County v. Gerrard, 12 Neb. 244, 11 N. W. 298.)
The contract in this case grew out of an attempt to solve a problem in civil government which has vexed the ages since the dawn of history. The calling of the publican who sat at the receipt of customs furnished Hebrew literature with the most hated name it recorded. The question how to collect the necessary revenues to maintain the government was as distracting in the economy of Greece and Rome as it is in modern nations. In the Middle Ages the question was attempted to be met by reprisals in war or by arbitrary assessments upon wealthy subjects. Later the greater governments exploited their colonies, and this was a deciding factor in instituting the rebellion of the American colonies against Great Britain. The difficulties presented led the founders of our government to the evasion of indirect taxation, without which, possibly, the union of the states might have long since been dissolved. Even this evasion has evidently not eliminated all the difficulties, as it has furnished the doipinent questions in politics for two generations. Under all governments and in all times one of the greatest strifes has arisen from attempts to shift the burden of taxation upon other shoulders. Men have sent their sons into battle or recklessly given their own lives- to preserve their governments, for the maintenance of which they had denied the payment of a small portion of their accumulated wealth.
Our state has had equitable tax laws from its first organization, which, if obeyed, would have fairly equalized the necessary burdens, but, as administered, they have resulted in great injustice and dissatisfaction. Even the beneficent exemption from taxation of $200 worth of property to the family has been abused. Assessing officers, sworn to perform their duties impartially, have felt compelled to depart from the plain provisions of the law to avoid injustice to their respective townships. Men generally honorable and accounted good citizens have, in listing their property, done so in accordance with the general custom, and not at its true value. Indeed so general has been the evasion of the law that the citizen has been compelled to choose between following the custom and suffering a wrong. Taxing officers have held conventions to agree upon a basis of assessment other than that provided by law. On the other hand, the tax-ferret, coming upon the scene with a contract for fat commissions, acquaints himself with the evasions that have occurred in past years, and by threats of public exposure and even criminal prosecution — in short, by all the methods known to the blackmailer — forces from the citizen a statement of property to be taxed and even a payment of money for past delinquencies far beyond the requirements of the law. The situation has been such that it is not a wonder that boards of county commissioners should embrace almost any plan that promised a reasonably fair collection of necessary public revenues in proportion to the amount of property really owned by the citizens of their respective counties. Probably no board of county commissioners which ever made a contract such as is involved in this suit- anticipated the methods that would be employed under it. They probably had not studied the iniquities which have at all times grown up under every system that has been in vogue of farming out the collection of the public revenues. The experiences of the past, however, have been such that it is impossible to contemplate any civilized community, with a knowledge of its history, reviving the odious practice. The contract is not only void for want of authority but as being against' public policy.
The question whether the defendant is entitled to recover on a quantum meruit resolves itself into the question whether a contract which the county commissioners had no power to make should be implied. Such a contract will not be implied, especially in payment for services which were, as in this case, illegal in themselves. There are cases in which counties and municipalities are, upon the avoiding of a contract, held under obligations to put the opposite party in statu quo, or, if this cannot be done, to pay a reasonable price for the benefits actually received; but those cases are easily distinguishable from this. Here the services performed were illegal and against public policy, as was the contract, and Moir will be presumed to have made the contract and to have begun performance with full knowledge thereof. The law will afford him no relief.
There is no dispute as to the contract upon which this suit is based or as to the services rendered thereunder. Hence the conclusion at which we. have arrived terminates the suit. The judgment of the court is reversed and the case is remanded, with instructions to grant a permanent injunction in favor of the plaintiff as prayed for. | [
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The opinion of the court was delivered by
Graves, J.:
This suit was commenced in the district court of Meade county, by the plaintiffs in error, to quiet their title to certain real estate. They claimed title under a tax deed. The defendant in error appeared and filed an answer, in which he denied all right on the part of the plaintiffs to the real estate in controversy, claimed to be the owner thereof in fee, and prayed that plaintiffs be ejected therefrom. The plaintiffs replied with a general denial, and dismissed their petition to quiet title. The action then proceeded to trial as if a case in ejectment, wherein the defendant was plaintiff. On the trial the defendant proved a connected chain of title from the government to himself, and rested. The plaintiffs then offered their tax deed in evidence,( which was excluded because void on its face, and the defendant recovered judgment for- possession of the land. Plaintiffs bring the case here.
The validity of the tax deed is the only question presented. The recitals in the deed are in statutory- form to the point where the statement is made that the land was offered for sale, and there continues:
“And- whereas, at the place aforesaid, Dewitt C. Rynearson, of the county of Meade, and state of Kansas, having offered to pay'the sum of eighty dollars and thirty-four cents, being the whole amount of taxes, interest and costs then due and remaining unpaid on said property, for the whole of the above-de.scribed tract, which was the least quantity bid for, and payment of said sum having been by him made to the treasurer, the said property was stricken off to him at that price and a certificate of purchase issued to him by the treasurer.”
Then follow the recitals of payment of subsequent taxes and of final notice, closing with the following:
“Now, therefore, I, E. F. Rieman, county clerk of the county aforesaid, for and in consideration of the sum of one hundred dollars and twenty-four cents, taxes, cost and interest due on said land for the years 1892, 1893, 1894 and 1895, to the treasurer paid as aforesaid, and on presentation to me of the certificate of sale and by virtue of the statute in such case made and provided, have granted, bargained and sold, and by these presents do grant, bargain and sell unto the said the heirs of Dewitt C. Rynearson, deceased, their heirs and assigns, the real property last hereinbefore described, to have and to hold unto him the said the heirs of Dewitt C. Rynearson, deceased, their heirs and assigns, forever; subject, however, to all rights of redemption provided by law.”
The sale was made September 5, 1893. The deed was filed for record September 12, 1896. The-.petition in this case was filed August 29, 1905. The answer was filed March 1, 1906. This is sufficient to show the contention of the parties.
The defendant insists that the deed shows a sale to Dewitt C. Rynearson, and, no showing having been made of his death, or the heirship of the grantees, or a legal transfer of the certificate to them, the deed is void. It is urged, on the other hand, that the statute makes the recitals of a tax deed prima facie proof of the facts involved in the recitals, and under this rule the deed shows that Dewitt C. Rynearson died and by proper legal proceedings his heirs became the owners of the certificate and were entitled to the deed. In answer to this contention the defendant insists that no recitals in a tax deed have the evidentiary effect contended for, except such as the law requires to be placed therein, and these, being recitals of independent and extraneous facts, have no force as evidence.
This controversy hinges upon the legal effect of these recitals. It is the duty of a county clerk to recite in every tax deed the steps taken under the law which authorizes the execution of the ■ deed to the grantee therein named. Tax deeds are given only to the owner and holder of the tax-sale certificate. When the original .purchaser takes the deed he presents and surrenders the certificate to the county clerk. (Gen. Stat. 1901, § 7676.) When it is issued to another such other must show his ownership of the certificate by a written assignment thereof. (Gen. Stat. 1901, § 7648.) When the original purchaser dies leaving a tax-sale certificate as a part of his estate it may be sold and assigned by his executor or administrator (Gen. Stat. 1901, § 2884), and such assignments are sufficient evidence of ownership to entitle the assignee to a tax deed. The recitals in a tax deed necessarily consist of conclusions. It would be impracticable to state all the facts in detail, and where an attempt is made to state in a recital one of the steps required to be taken by the procedure leading up to the deed such recital will,' after five years from the time when the deed was recorded, for the purpose of upholding the deed, be liberally construed. (Neenan v. White, 50 Kan. 639, 32 Pac. 381 ; Penrose v. Cooper, 71 Kan. 725, 81 Pac. 489, 84 Pac. 115; Havel v. Abstract Co., 76 Kan. 336, 91 Pac. 790; Gibson v. Trisler, 73 Kan. 397, 85 Pac. 413; Nagle v. Tieperman, 74 Kan. 53, 88 Pac. 969; Robbins v. Brower, 74 Kan. 113, 85 Pac. 815.) In the case of Baughman v. Harvey, 76 Kan. 767, 93 Pac. 146, Mr. Justice Burch, in discussing the case of Neenan v. White, supra, said:
“In the case of Neenan v. White, 50 Kan. 639, 32 Pac. 381, the deed contained the following recital:
“ ‘And’ whereas, the said J. J. Locker did, on the 10th day of June, A. N 1869, duly assign the certificate of the sale of the property as aforesaid, and all his right, title and interest to said property, to Sami. Gard, of the county of Atchison and state of Kansas; and whereas, Hugh D. Fisher, administrator, did, on the 17th day of December, A. D. 1869, duly assign the certificate of the sale of the property as aforesaid, and all his right, title and interest to said property, to P. L. Hubbard, of the county of Atchison and state of Kansas.’ (Page 643.)
“It was claimed that no assignment from Gard to Hubbard was shown. The court held that the deed was entitled to a liberal interpretation for the purpose of upholding it and protecting the equities of claimants of the land in possession under it. The facts implied were the death of Gard, that Fisher was the administrator of Gard, probate proceedings resulting, in the appointment of Fisher and an order authorizing Fisher to assign the certificate. True, evidence was introduced on the trial in the district court showing the death of Gard and the appointment of Fisher as his administrator, but the decision, which sustained the deed, was apparently rested upon the ground stated, the question being if the deed was void on its face.” (Page 775.)
The recital in question states in substance that Dewitt C. Rynearson was the original tax purchaser; that he is dead, and his heirs present the certificate for a deed. This, while not as full and specific as it might have been, is sufficient to save the deed from being void on its face. From the facts stated it may be readily inferred that Dewitt C. Rynearson died the owner of the tax-sale certificate,'and that his heirs became the owners thereof by purchase from the executor or administrator, or by whatever legal procedure was necessary and proper. The recital is one required by statute. It is necessary for the purpose of showing why the deed was executed to the grantees. Being proper, it must receive the same force and effect given to other recitals.
•The judgment of the court is reversed, with direction to enter judgment in favor of the plaintiffs. | [
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The opinion of the court was delivered by
Benson, J.:
On November 13, 1905, Rachel Service, a girl under fourteen years of age, was injured by a car of the Kansas City Elevated Railway Company. James Service, her father, entered into an agreement with J. L. Colvin and Bird & Pope, attorneys of Kansas City, Mo., as follows:
“I hereby employ Bird, Pope & Colvin, attorneys, to bring suit against the Metropolitan Street Railway and Kansas City Elevated Railway Company for damages, for injuries sustained by Rachel Service and myself, on or about the 13th day of November, 1905; and I hereby agree to pay said attorneys for their services an amount equal to forty per cent, of the amount received either by suit or compromise. I further agree not to settle, compromise or otherwise dispose of said cause of action without the written consent of said attorneys. It is further agreed that said attorneys shall not compromise or settle cause of action or any suit brought thereon without my consent.
“Dated this 13th day of November, 1905.
(Signed) Jambs Service,
Colvin, Bird & Pope.”
On November 16 these attorneys commenced an action in the court of common pleas for damages in behalf of the minor, by James Service, her next friend. On March 15, 1906, judgment was rendered in that action, by agreement between James Service, the father and next friend, and the attorneys for the defendant company, for $2000, which was duly paid, and an entry of satisfaction made upon the record. This judgment, and the satisfaction thereof, were entered without the knowledge of Messrs. Colvin and Bird & Pope, attorneys for the plaintiff, who had previously given notice of an attorneys’ lien. Thereafter, on April 19, 1906, Colvin and Bird & Pope filed a motion to set aside the satisfaction of the judgment, and for an execution thereon for $800, their fee as claimed for their services in the action. Notice of this motion having been given, the railroad company filed various objections thereto, and the motion was heard upon the record and evidence and allowed, and an execution awarded for $800, to be issued upon the precipe of Messrs. Colvin and Bird & Pope. The railroad company excepted to this order and brings the case here.
The various assignments of error present but two questions: First, whether the attorneys prosecuting this claim are, under their contract of employment, entitled to the relief sought, and, second, whether they have followed the proper procedure to obtain such relief.
Upon the first question it is insisted that the contract in question is void, as being opposed to public policy, because of the provision contained in it that no settlement or compromise of the claim should be made without the written consent of the' attorneys employed under it. If the contention of the plaintiff in error that the contract is void be upheld, it will not be necessary to consider the minor question of practice discussed in the briefs. Provisions like the one now referred to have often been considered in connection with the subject of champerty, the two features being analogous and contained in the same agreement. The rule against champerty has its roots in public policy, which is opposed to the traffic in lawsuits and the promotion of litigation by intermeddlers for speculative purposes. This contract, however, is not champertous, for the attorneys, parties thereto, did not undertake to pay the costs and expenses of the litigation, which is an essential feature of champerty. (Aultman v. Waddle, 40 Kan. 195, 19 Pac. 730.)
The question, therefore, is whether the agreement that the action should not be compromised or settled without the consent of the attorneys makes the contract void. Greenhood, in his work on Public Policy, at page 474, gives the following rule on this subject: “A contract by which the control of the party in interest over litigation carried on in his behalf is limited is void.” This rule rests upon the policy of the law which favors the settlement of disputes and regards with disapproval all schemes that tend to foment and prolong litigation in the interest of third parties. In North Chic. St. R. R. Co. v. Ackley 171 Ill. 100, 49 N. E. 222, 44 L. R. A. 177, it was held that a contract with an attorney by which the control of the party in interest over litigation carried on in his name is attempted to be given over to the attorney, so that the interested party cannot settle the case without the co operation of the attorney, is void. In the opinion it was said:
“Whether a cause of action exists, and, if so, its nature and amount, are facts always involved in uncertainty, and a defendant has a right to buy his peace. The plaintiff has a right to compromise, and avoid the anxiety resulting from a cause pending to which he is a party. Any contract whereby a client is prevented from settling or discontinuing his suit is void, as such agreement would foster and encourage litigation.” (Page 113.)
This principle is applied in Huber v. Johnson, 68 Minn. 74, 70 N. W. 806, 64 Am. St. Rep. 456; Boardman & Brown v. Thompson, 25 Iowa, 487; Weller & Lichtenstein v. Jersey City, &c., St. Ry. Co., 68 N. J. Eq. 659, 61 Atl. 459; Davis v. Chase, 159 Ind. 242, 64 N. E. 88, 853, 95 Am. St. Rep. 294; Marshal Key v. C. Vattier, 1 Ohio, 132; Brown v. Ginn, Trustee, 66 Ohio St. 316, 64 N. E. 123; Stewart v. Welch, 41 Ohio St. 483.
The opinion in Potter v. Ajax. Mining Co., 22 Utah, 273, 67 Pac. 999, is referred to as opposing this view, but it was there said that the clause referred to was “against public policy, inoperative” (p. 291) and void. It was held, however, that the balance of the contract was not affected by it. ' The case of Kusterer v. The City of Beaver Dam, 56 Wis. 471, 14 N. W. 617, 43 Am. Rep. 725, is also referred to in this connection, but we find nothing in the opinion sustaining the contention of the defendants in error.
This contract was obtained on the day after the injury occurred, before any effort for a settlement had been made. It provided for a suit, which was commenced almost immediately, and it prohibited .any settlement after its date without the written consent of the attorneys. Thus the parties in interest were barred from any compromise, however desirable. Without such consent they must continue the litigation, with all its attendant hazards and expense. Such a contract is obnoxious to public policy, whether viewed in the light of reason or authority, and, within the principle of the authorities already referred to, is void.
This case is within the principles decided in A. T. & S. F. Rld. Co. v. Johnson, 29 Kan. 218. In that case it was held that the contract of the plaintiff with her attorneys was champertous and void and that a settlement between the defendant company and the plaintiff was valid, as against the claim of the plaintiff’s attorneys under their agreement for an interest in the recovery, of which the company had notice, and the order of the district court setting aside the release of judgment and awarding execution to the extent of the attorneys’ claim was reversed. It was further held that the release conferred upon the company the right, if it did not already have- such right, to treat the contract between the plaintiff and her attorneys as void. .
But it is argued that, even if the contract is void, the attorneys nevertheless had the right to recover the reasonable value of their services, and there are authorities which seem to sustain this view. This claim, however, was decided adversely to the defendants in error in Moreland v. Devenney, 72 Kan. 471, 83 Pac. 1097, where it was held that the preliminary oral negotiations were merged in the written agreement, and that there could be no recovery upon quantum meruit for the services rendered under the illegal agreement. The court said:
“The services were rendered under an agreement which was void, not because of a mere want of power to make it, but because it was against public policy; and in such a case it is held that no recovery can be had upon the contract or for the value of the services rendered under it. (Bowman v. Phillips, 41 Kan. 364, 21 Pac. 230, 3 L. R. A. 631, 13 Am. St. Rep. 292.)” (Page 474.)
Other objections are made to this agreement: that it does not purport to bind the minor, but only her father; and that the father had no authority to bind her to pay any specific amount. In view of the fact that the agreement is void for the reasons already stated it is not necessary to consider these matters.
The question of practice was referred to but left undecided in A. T. & S. F. Rld. Co. v. Johnson, 29 Kan. 218. Since then, however, the legislature has provided a procedure to enforce an .attorney’s lien by motion, which was followed in this case. (Laws 1903, ch. 65.)
Other minor questions are discussed, but need not be considered. Holding that the contract in question is void, the order brought here for review is reversed. | [
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The opinion of the court was delivered by
Porter, J.:
In 1904 plaintiff in error entered into a contract with Isaac Gregory to burn the grass on a strip 300 feet wide on each side of its right of way in Cowley county for a distance of seven miles. While engaged in burning this strip the fire escaped from his control, ran over the land of defendant in error and destroyed the grass on the ground and the hay in stack. The owner of the land recovered a judgment against the railroad company for the amount of the damages and attorneys’ fees. The defendant brings error.
The sole contention of the railroad company is that Gregory was an independent contractor, not an employee of the company, and inasmuch as the relation of master and servant did not exist the company is not responsible for his negligence.
The contract between the railroad company and Gregory was in writing but was not put in evidence. It appears, however, that he had no other employment with the company, and the work was to be completed within a specified time, for which he was to be paid the sum of twelve dollars per mile. He testified that he was his own boss, and that he procured from the owners of adjacent lands their consent to enter thereon for the purpose of burning the fire-guard. On the day the fire was set out there was a strong wind blowing in the direction of the land of plaintiff, and it was this which caused the fire to escape control. Gregory testified that he was ordered by the foreman of the section gang of defendant to do the work that day, and that in pursuance of such order he set out the fire which caused the damage.
The single question to be determined, therefore, is whether under the circumstances of this case the railroad company is liable for the negligence of Gregory. The general rule is that the employer cannot be held responsible for the negligence of an independent con tractor. The party injured must look to the person whose actual negligence caused the injury. (Kas. Cent. Rly. Co. v. Fitzsimmons, 18 Kan. 34; St. L., Ft. S. & W. Rld. Co. v. Willis, Adm’x, 38 Kan. 330, 339, 16 Pac. 728; Engel v. Eureka Club, 137 N. Y. 100, 32 N. E. 1052, 33 Am. St. Rep. 692; Hexamer v. Webb, 101 N. Y. 377, 4 N. E. 755, 54 Am. Rep. 703; Uppington v. City of New York, 165 N. Y. 222, 59 N. E. 91, 53 L. R. A. 550; The Wabash, St. Louis and Pacific Railway Company v. Farver, 111 Ind. 195, 12 N. E. 296, 60 Am. Rep. 696. For additional authorities see note to Central Coal & I. Co. v. Grider, 65 L. R. A. 455.) There are, however, numerous well-established exceptions to the general rule. One of these is said to be that, where the employer retains the right to exercise authority as to the manner and method in which the work shall be performed, he will be held liable for injuries to third parties the same as though the relation of master arid servant existed between him and the contractor.. With respect to this exception the test most usually applied is not whether the owner actually exercised control over the work but whether he had the right to exercise direction or control. (Atlantic Transport Co. v. Coneys, 82 Fed. 177, 28 C. C. A. 388; Hardaker v. Idle District Council, [1896] 1 Q. B. 335; Pickens & Plummer v. Diecker & Bro., 21 Ohio St. 212, 8 Am. Rep. 55; Linnehan v. Rollins, 137 Mass. 123, 50 Am. Rep. 287.)
Of course, the fact that the owner exercised control over the work during its performance would furnish some ground for the inference that he had reserved the right to do so by the terms of the contract itself. It is also apparent that in a case where the injuries resulted directly from his interference it would make no difference whether or not the relation of master and servant existed, because, under such circumstances, he would be regarded as the principal tort-feasor. (Davie v. Levy & Sons, 39 La. Ann. 551, 2 South. 395, 4 Am. St. Rep. 225; Tutrix v. Sellers & Co., 39 La. Ann. 1011, 3 South. 363, 4 Am. St. Rep. 256; Mahar v. Steuer, 170 Mass. 454, 49 N. E. 741.) On precisely the same principles rests the exception to the general rule which was recognized in Cloud County v. Vickers, 62 Kan. 25, 29, 61 Pac. 391, that where the injury is caused by defective construction inherent in the original plan of the employer or where defective plans and specifications for the work have been adopted by the employer the latter is liable. Again, where the work to be done is in its nature dangerous to others, however carefully performed, the employer will be held liable, because it is incumbent upon him to foresee such danger and to take precautions against it. (Atlanta Railroad Co. v. Kimberly, 87 Ga. 161, 13 S. E. 277, 27 Am. St. Rep. 231; Bower v. Peate, 1 Q. B. Div. [Eng.] 321; Covington & Cincinnati Bridge Co. v. Steinbrock & Patrick, 61 Ohio St. 215, 55 N. E. 618, 76 Am. St. Rep. 375.) Nor is a person permitted to escape liability for his failure to perform a duty imposed upon him by law. This principle is true whether the duty arises by virtue of a statute, as in C. K. & W. Rld. Co. v. Hutchinson, 45 Kan. 186, 26 Pac. 576, or where the duty is one imposed upon him by law. (Fowler v. Saks, 18 D. C. 570, 7 L. R. A. 649.) The cases illustrating the general rule and the numerous exceptions thereto may be found in a mono-graphic note to Covington, etc., Bridge Co. v. Steinbrock, 76 Am. St. Rep. 375. (See, also, extensive note to the case of Central Coal & I. Co. v. Grider, 65 L. R. A. 455, and note to Louisville & N. R. Co. v. Tow, 66 L. R. A. 941.)
Some of the exceptions we have noted above apply with more or less force to the present case. It is th& contention that the.railroad company made itself liable by directing that the work should be done at a time' when a strong wind was blowing. It directed the work to be done on a certain day. Presumably this was in accordance with the contract. There was evidence' showing that the fire escaped from the control of Greg ory on account of the high wind, and that except for the order and direction of the foreman the fire would not have been set out on that day. The fire was set out on Monday; the order of the foreman was given on the Saturday before, and there was no reason to suppose at that time that Monday would not be a suitable day for the work. It is not reasonable to presume that when the foreman directed Gregory to begin the work on the following Monday it was the intention thereby to deprive him of the use of all discretion in the matter, or that the order meant that he should begin the work on that day regardless of wind and weather. The' right of the employer to exercise a limited control over the work without thereby destroying the independent character of the contract has been recognized by the courts in numerous cases. The rule seems to be well established that where the control reserved does not apply to the mode or manner of having the work done, and does not in any way take the work out of the hands of the contractor, it will not destroy the independent nature of the contract. (Railway Co. v. Loosley, 76 Kan. 103, 90 Pac. 990.) In other words, the relation of master and servant is not to be inferred from the reservation by the employer of powers which do not deprive the contractor of his right to use his own methods in accordance with his contract. (See cases cited in note to Central Coal & I. Co. v. Grider, 65 L. R. A. 455.) It would hardly be a safe rule to establish to say that the mere direction of an employer that he wanted the work done at a certain time would render him liable for injuries resulting to third parties, unless it were shown that the injuries were such as might reasonably have been expected to result from the giving of the order.
There are two exceptions, however, to the general rule relieving an employer from liability caused by the, negligence of an independent contractor which, in our opinion, govern this case and take it out of the operation of the rule. Whenever an injury to a third party results from the failure of the employer to perform a duty which he owes to such party he will not be permitted to avoid his liability by letting the performance of the work to another. A familiar illustration is found in the law of master and servant. Where the master owes to the servant the duty of providing a safe place to work, or there is imposed upon him by the law any duty or obligation to the servant, he cannot, by letting out the performance of the work to an independent contractor, escape liability for injuries to the servant caused by his failure to perform the' obligation. And it makes no difference whether the duty is- imposed by statute or by the common law. (Pickard v. Smith, 10 Com. B., n. s., [Eng.] *470; Gray v. Pullen, 5 B. & S. [Eng.] *970.)
A railroad company is liable in damages' to any person whose property is injured by fire caused by the negligent operation of its railroad. Our statute (Gen. Stat. 1901, § 5923) recognizes this common-law liability and provides that in actions against railroad companies to recover such damages certain rules of evidence shall obtain. It also allows the person injured to recover a reasonable attorney’s fee in the action. (Gen. Stat. 1901, § 5924.) Thus there is cast upon the railroad company an obligation to the owner of property injured by fire caused by the operation of the railroad which is in many respects different from the obligation resting upon an individual who negligently permits fire to escape. This obligation is one which the railroad company cannot escape by farming out the contract for a part of the operation of its railroad to an independent. contractor. In Fowler v. Saks, 18 D. C. 570, 7 L. R. A. 649, the owner of a building who let a contract to repair his building which required the taking down of a party wall was held liable to the adjoining owner for damages resulting therefrom. It appeared in that case that there was a building regulation in the District of Columbia requiring the owner of a building taking down a party wall to respond in damages to the adjacent owner for any injuries occasioned thereby. In the opinion the court used this language:
“Another exception to the rule would be where a party is under an antecedent obligation to do a thing, or to do a thing in a particular way. In that case he cannot get rid of his responsibility by deputing it to somebody else.” (Page 585.)
It was also said that the duty in that case rested upon defendant by operation of the common law, aside from any building regulation, and was one which could not be delegated to an independent contractor.
The object of burning the fire-guard which caftsed the injury to plaintiff’s property was to enable the railroad company to operate its railroad without injury to the property of others. The purpose for which the work was performed was the same as a railroad company has in view when it provides screens and sparkarresters upon its engines. The work was therefore performed by the company in the operation of its railroad. Thus, in Pound v. Port Huron & S. W. Ry. Co., 54 Mich. 13, 19 N. W. 570, the railroad company employed a contractor to grade its road-bed. Cattle escaped upon the right of way by reason of his failure to keep up the fences along the right of way. The company was held not to be released from its liability for the damage, for the reason that the duty to keep its right of way fenced was imposed upon it by law.
The present case falls within another exception to the general rule, which may be stated as follows: One who has a piece of work the performance of which is in its nature dangerous to others is under an obligation to see that it is carefully performed so as to avoid injury, and he cannot delegate the obligation to an independent contractor and thus avoid his liability in case the work is negligently done to the injury of another. That such is the law is settled by the weight of reason and authority. Thus, in Bower v. Peate, 1 Q. B. Div. (Eng.) 321, a leading case, Lord Chief Justice Cock-burn used the following language:
“That a man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbor must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing some one else — whether it be the contractor employed to do the work from which the danger arises or some independent person — to do what is necessary to prevent the act he has ordered to be done from becoming wrongful. There is an obvious difference between committing work to a contractor to be executed from which, if properly done, no injurious consequences can arise, and handing over to him work to be done from.which mischievous consequences will arise , unless preventive measures are adopted.” (Page 32.6.)
In Hardaker v. Idle District Council, (1896) 1 Q. B. 335, a contractor was employed to construct a sewer for defendant. Owing to his negligence a gas-main was broken and gas escaped into the house where plaintiffs resided, causing injury to them and their property. Defendant was held liable because it owed a duty to the public, including plaintiffs, so to construct the sewer as not to injure the gas-main, and it was said that this duty could not be delegated to another so as to relieve it from liability. (To the same effect see Tarry v. Ashton, 1 Q. B. Div. [Eng.] 314; Dalton v. Angus, 6 App. Cas. [Eng.] 740; Storrs v. The City of Utica, 17 N. Y. 104, 72 Am. Dec. 437; Water Company v. Ware, 83 U. S. 566, 21 L. Ed. 485; Black v. Christchurch Finance Co., (1894) App. Cas. [Eng.] 48.)
The case of Covington & Cincinnati Bridge Co. v. Steinbrock & Patrick, 61 Ohio St. 215, 55 N. E. 618, 76 Am. St. Rep. 375, also a party-wall case, was ruled the same way. In that case the court said:
“The duty need not be imposed by statute, though such is frequently the case. If it be a duty imposed by law, the principle is the same as if required by statute. [Citing Bower v. Peate, 1 Q. B. Div. (Eng.) 321.] It arises at law in all cases where more or less danger to others is necessarily incident to the performance of the work let to contract. It is the danger to others incident to the performance of the work let to contract that raises the duty and which the employer cannot shift from himself to another, so as to avoid liability, should injury result to another from negligence in doing the work.” (Page 224.)
In Circleville v. Neuding, 41 Ohio St. 465, and Railroad Company v. Morey, 47 Ohio St. 207, 24 N. E. 269, 7 L. R. A. 701, the same doctrine was declared. In the latter case the railroad company employed a contractor to do for it certain plumbing which involved the opening of the public highway for the purpose of laying a drain. Plaintiff in the night-time fell into the ditch by reason of the negligence of the contractor in not protecting it. The railroad company was held liable. It was said in the syllabus:
“One who causes work to be done is not liable, ordinarily, for injuries that result from carelessness in its performance by the employees of an independent contractor to whom he has let the work without reserving to himself any control over the execution of it. But this principle has no application where a resulting injury, instead of being collateral and flowing from the negligent act of the employee alone, is one that might have been anticipated as a direct or probable consequence of the performance of the work contracted for, if reasonable care is omitted in the course of its performance. In such case the person causing the work to be done will be liable though the negligence is that of an employee of an independent contractor.”
The same principle is also one of the grounds upon which the exception was predicated in Fowler v. Saks, 18 D. C. 570, 7 L. R. A. 649. Indeed, authorities might be multiplied in support of the proposition that where the work is inherently dangerous to others the employer is under an obligation to see that it is carefully performed, and cannot escape liability by the employ-' ment of an independent contractor.
In the following eases, most of which involved damages occasioned by fires set out by contractors, the railroad company or employer was relieved of liability on the ground that the negligence was that of an independent contractor, but, so far as we have examined the cases, in none of them does it appear that the contractor was employed for the purpose of setting out fires, as in the present case; the fires were either set out to iacilitate the work of clearing the land or right of way or for some incidental purpose, and escaped through the negligence of the contractor or his employees : Eaton v. European and North American Railway Company, 59 Me. 520, 8 Am. Rep. 430; Callahan v. Burlington and Missouri River R. R. Co., 23 Iowa, 562; Burbank v. Bethel Steam Mill Co., 75 Me. 373, 46 Am. Rep. 400; Woodhill v. Great Western Railway Co., 4 U. C. C. P. (Canada) 449, 451; Carroll v. The Corporation of Plympton, 9 U. C. C. P. (Canada) 345; Ferguson v. Hubbell, 97 N. Y. 507, 49 Am. Rep. 544; Gillson v. North Grey Railway Co., 35 U. C. Q. B. (Canada) 475.
In the last-mentioned case one of the justices dissented, and an important question involved was whether there was such an interference on the- part of the employer as to destroy the independent character of the contract.
The case of The Wabash, St. Louis and Pacific Railway Company v. Farver, 111 Ind. 195, 12 N. E. 296, 60 Am. Rep. 696, is apparently opposed to this doctrine. There the railroad company was engaged in constructing a well from which to supply water for its engines. The running water interfered with the work, and the railroad company contracted with the owner of a small portable steam-engine to pump out the accumulating water in order to keep it out of the way. The plaintiff, driving on the highway, was injured by reason of his horses’ fright at the engine. It was held that as the railroad company had no control over the use of the engine it was not liable. Upon examination, however, it will be found that the principles upon which the decision turned are not in conflict with the doctrine we are considering. Here was an independent contract to do something which might be said to be a part of the operation of the railroad; but obviously the question whether the work was a part of the operation of the road was unimportant, for the reason that the company owed no particular duty by statute or common law to the public or to the plaintiff. The work was not dangerous, nor did it constitute a nuisance. In the opinion it was said that the use of a portable steam-engine for the purpose of pumping water in close proximity to a public highway is not necessarily a nuisance, if the engine is used in the proper manner. Injury could only result from, its negligent use. It was also remarked that the work was not of a character which imposed upon the employer any peculiar obligation to the plaintiff or others using the highway, and that if the employer had been under peculiar obligations to the person injured it would have been liable for a breach of that duty, regardless of the relation between the employer and the person whose negligence caused the injury. In other words, the company might let to an independent contractor the performance of work in connection with the operation of its road without necessarily becoming liable to third persons for the negligence of the contractor. It is only where the company owes some duty or .obligation to the third party, placed upon it by statute or arising out of the peculiar nature of the work itself, which prevents it from escaping liability by an independent contract.
The general rule and the particular exception we are considering were well stated by Lord Blackburn in Dalton v. Angus, 6 App. Cas. (Eng.) 740, in the following language:
“Ever since Quarman v. Burnett [6 M. & W. 499] it has been considered settled law that one employing another is not liable for his 'collateral negligence.unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it.” (Page 829.)
Let it be conceded that the burning of the fire-guard was a part of the operation of the railroad and the conclusion irresistibly follows that the defense of an independent contract is of no avail. The statute places upon the company an additional and peculiar obligation to the owner of property injured by fire in the operation of its road; it is made liable not only for all damages sustained but for reasonable attorneys’ fees in an action brought to recover therefor. No obligation to pay attorneys’ fees rests upon an individual through whose negligence damage by fire results to the property of another, and in order to recover against such individual the plaintiff would be obliged to prove negligence, while the statute provides that where the action is brought against a railroad company, and the fire was caused by the operation of the road, negligence is presumed as soon as these facts are shown.
We find no difficulty in determining that the work of burning the fire-guard was a part of the operation of the road. The company could not, therefore, absolve itself from the liability by letting out the work to an independent contractor, for the reason that it owed to the plaintiff an obligation, placed upon it by the law, to respond in damages for all injuries by fire thus caused; and for the further reason that it employed a dangerous agency which in the experience of every one required that precautions be taken to prevent damage to the property of others. Thus a second duty was cast upon the railroad company not to cause the work to be done, either directly by its employees or indirectly by a contractor, without seeing that precautions were taken to prevent the escape of fire and consequent injury to the property of plaintiff. Neither of these obligations, or duties, could be avoided by delegating the performance of the work to another.
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Per Curiam:
The trial court might well have allowed the motion to strike out parts of the defendant’s answer. The answer pleaded some of the evidence, hut doubtless this was in explanation of certain allegations of the petition which charged defendant with extreme cruelty. The denial of the motion, however, was not prejudicial error, and cannot furnish ground for reversal.
Inasmuch as the court denied any relief to the defendant under his cross-petition, it is apparent that the plaintiff was not prejudiced in the overruling of her demurrer to it.
The evidence was conflicting, and the judgment refusing to both parties a divorce must be accepted as final. We are unable to say from all the evidence that the court erred in refusing the plaintiff a divorce.
The judgment is affirmed. | [
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