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The opinion of the court was delivered by
Johnston, J.:
Simon Abeles leased to T. H. Winn lot 9 in block 49, in the city of Leavenworth, upon which there was a one-story brick building, for the. term of two years, commencing August 1,1881. Winn took possession at once, and used the building as a dry-goods and notion store, and occupied it for that purpose until the building fell, on April 4,1883. The falling of the building injured his stock to some extent, and made it necessary to remove the same to another location. Winn thereupon brought suit against Abeles, charging that he wrongfully and negligently permitted and caused the soil to be excavated and moved from the west side of lot 9 without leaving sufficient support to the building, thereby causing its fall; in consequence of which, he alleged he was damaged to the extent of $2,801.50, for which he asked judgment. The answer of the defendant was a general denial. At the trial it was shown that the lot adjoining on the west, which was known as lot 10, was owned by one John F. Col-yer, by whom it had been owned since 1863. He had erected, a brick building on the lot in 1864, Avhich remained there until January, 1883, when he removed it, preparatory to the erection of a large new building. The building upon lot 9, in Avhich the plaintiff was doing business, was erected about 1865, and had been placed from two to four inches over upon lot No. 10, but the fact that it extended beyond the west line of lot 9 avus not discovered or known until about the time that the building fell. In February, 1883, Colyer began an excavation on his lot for the building he proposed to erect, digging the full Avidth of the lot, and to the depth of seven feet. Soon aftei’ward Abeles became apprehensive that the excavation would injure his building, and so notified Colyer; but, notwithstanding this, Colyer continued to excavate up to the east line of his lot. On March 14,1883, Abeles entered into a contract with Colyer by which it Avas agreed that a party Avail should be constructed upon the dividing line between lots 9 and 10, which provided at length for the manner in which it should be done, and how the expense should be apportioned; and it contained a provision looking to the protection of the Avest wall of Abeles’s building. Testimony was offered tending to show that when Abeles observed that his west Avail was endangered by the action of Colyer, he proposed to Winn to protect him as well as the building, by the erection of a temporary wall, and that, although the plaintiff knew of the danger occasioned by the excavation, he refused to permit Abeles to thus protect the building. Under the agreement the exea vation was begun, for the purpose of putting in a party wall, and some supports were put under the west wall of Abeles’s building, but because they were insufficient, or by reason of an unusually strong wind, or for some other reason, the wall fell. The jury made special findings upon questions that were submitted, and also found generally in favor of the defendant.
Complaint is made of the instructions; and counsel for plaintiff says that the question presented for review is, whether the defendant had ’any right to permit the excavation to be made or to enter into a contract for the construction of a party wall during the term of the plaintiff’s lease. Under the lease the plaintiff was of course entitled to the quiet enjoyment of the leased premises without unnecessary interference from the defendant. But if an emergency arose during the term of the lease which made it necessary that something should be done to preserve the building from destruction or material damage, and which did not occur through the fault of the landlord, he would have a right to do whatever was reasonably necessary to preserve it from destruction or injury. This was the ruling of the trial court, and it is not combatted by the plaintiff. He contends, however, that no cause which would justify the interference of the defendant had arisen. His claim is that the building having stood over upon lot 10 for more than fifteen years, the title to that part occupied by the building, by virtue of the statute of limitations, vested in Abeles ; and therefore Colyer had no right to excavate under the wall beyond the limit of lot 10, and that Abeles had no right to apprehend an encroachment, or to consent to an interference with the wall as it stood. The court below proceeded upon the theory that Colyer owned and had the right to use all of lot 10, and the question therefore arises whether the occupancy of a portion of the adjoining lot by the building is such a possession as would ripen into a title in fayor of Abeles. Undoubt- [ edly the strip had been occupied by the Abeles building for more thau fifteen years; but possession alone is not sufficient to confer title. The holding must be hostile and adverse as against the true owner. There must, in addition to actual possession, be an intention of the party in possession to claim the land as his own. The occupancy of Abeles was not taken under color or claim of title; nor was there any purpose to oust or dispossess Colyer. The undisputed facts show that Abeles had no knowledge that his building extended beyond the boundary line of his lot, until about the time that this controversy arose. Pie supposed his building rested entirely upon lot 9, and made no claim to any portion of the adjoining lot, and he is here now asserting that he does not own or claim the narrow strip of lot 10 upon which his wall had inadvertently been placed. Colyer was equally ignorant that the building of Abeles extended beyond the dividing line of the lots. No survey had been made, and it does not appear that there was any agreement that the line to which the wall extended should be taken as the true line. It will thus be seen that there was no adverse possession. One of the essential requisites to obtaining title through the statute of limitations was wanting, viz: the intention of Abeles to claim the land exclusively and as his own. “Mere occupation by inadvertence or mistake without any intention to claim title may not be a disseizin, as where a fence is erroneously erected not on the dividing line.” (Abbott v. Abbott, 51 Me. 575.)
In St. Louis University v. McCune, 28 Mo. 481, an alleged encroachment beyond the boundary line was under consideration, and the court held that if the party erected an improvement accidentally upon the land of another through mistake or ignorance of the correct line dividing the tracts, and without intending to claim beyond the true line, the occupation thus taken and the possession which followed did not work a disseizin.
In Hitchings v. Morrison, 72 Me. 331, a case where a party claimed title to a strip upon an adjoining lot upon the basis of adverse possession, it was held that if the occupation was not accompanied by a claim of title in fact, but was merely inadvertence or mistake as to the extent of his line, without intention to claim title to the extent of his occupation, but only to the bounds described in his deed, then it was not adverse and would not give title.
In Howard v. Ready, 29 Ga. 152, it was held that a possession originating in and continuing under a mistake or misapprehension as to the true lines dividing two lots of land, will not ripen into statutory title. The current of the authorities runs in the same line. (Rickard v. Hibbard, 73 Me. 105; Brown v. Cockerall, 33 Ala. 38; Enfield v. Day, 7 N. H. 457; Riley v. Griffin, 16 Ga. 141; Brown v. Gray, 3 Greenl. 126; Walbrunn v. Ballen, 68 Mo. 164; Sedgwick and Wait on Trial of Title to Land, §§ 759, 760; Tiedeman on Real Property, § 699.)
Counsel for plaintiff insists if the occupancy continued during the statutory period it will constitute an adverse holding, even if the building was extended over the boundary line through a mistake, and cites French, v. Pearce, 8 Conn. 439, and some other authorities, to sustain his position. ' The authorities which he cites do not go to the extent claimed. It is evident from the foregoing authorities that in a question of boundaries, possession does not count for as much as where the whole tract is held adversely against a claimant. The authorities which he cites only go to the extent of holding that property occupied by a mistake, and which is claimed by the occupant as his own, will constitute an adverse possession. None of them hold that the intention to appropriate the property occupied as that of the occupant can be dispensed with. In French v. Pearce, supra, so much relied on by counsel, it was expressly held that the intention of the possessor claiming adversely is an essential ingredient, and that the person entering upon the land under a mistake must actually hold it as his own. The same court at a later day, in passing upon a case where a division fence between the lands of A and B was a stone wall three feet wide set wholly on the land of A, and B had for more than fifteen years held exclusive possession of his own land up to the wall, treating the center of the wall as the dividing line, and believing it to be so, but with no knowledge of such claim on the part of A, and with no other possession of the ground covered by the wall, held that there was not a sufficient adverse possession to vest in B a title to the center of the wall. (Huntington v. Whaley, 29 Conn. 391.) It follows from these authorities and the undisputed testimony that the accidental and inadvertent encroachment upon the four-inch strip of Colyer’s lot will not constitute an adverse possession.
It is further urged in behalf of the plaintiff, that the Abeles building having stood for twenty years or more upon the land of another gave its owner a prescriptive right in such land for the support of his building. The old rule respecting ancient buildings invoked by the plaintiff, and which is said to be in analogy to the rule as to ancient lights, is a doctrine unsuited to the condition of things existing in this country, and which it has been decided cannot be recognized or made applicable here. (Lapere v. Lucky, 23 Kas. 534; Hieatt v. Morris, 10 Ohio St. 523; Wood bn Nuisance, § 200.) Much of the argument made in support of the claim that Colyer had no right to excavate to the extreme limits of his lot is based upon the theory that the west wall of the Abeles building was a party wall, which it appears was not the fact. The wall was entirely separate and independent of any other structure on lot 10, and the owner of that lot had never owned lot 9 or contributed toward the construction of the wall, nor had either of the parties ever treated or regarded it as a party wall. It was built upon the surface, did not extend the full length of the lots, and had none of the characteristics of a party wall; and the rules relating to party walls do not, therefore, apply. Colyer was the absolute owner of all of lot 10, and had entire dominion over the same, both above and below the surface, limited only by the rule that he should so use it as not to injure the property or impair the existing rights of others. It is insisted that the rule last mentioned gave Abeles the right to the support of the soil of lot 10 for his wall, a support which could not be disturbed by excavations. This contention is certainly not sound. Abeles was entitled _ to the lateral support of the soil of the adjoining lot, but this right did not extend to the support of the buildings which he might have placed on his lot. The right extends only to the soil, and does not include anything placed thereon which sensibly increases the pressure. A person cannot Be deprived of the use of his land for ordinary and legal purposes by reason of the fact that an adjoining land-owner may, before that time, have erected a structure upon his land. It has been held that a man who builds a house adjoining his neighbor’s land should foresee the probable use by his neighbor of the adjoining land, and by an agreement, or by a different arrangement of his house, secure himself against-future interruption and inconvenience. (Thurston v. Hancock, 12 Mass. 220.) The reason for the rule has been stated to be —
“That if one land-owner sees fit to erect a house at the confines of his own land, it is his own folly, and he cannot, by being prior in point of time, prevent his neighbor from building there also, and the only restriction imposed upon the adjacent owner is that he must not negligently or carelessly excavate upon his own land, but if he proceeds with ordinary care he will be excused from liability, no matter how great the damage of his neighbor’s buildings.” (Wood’s Law of Nuisances, § 185.)
It seems to be well settled by the authorities that where an excavation is made by a lot-owner for an ordinary and proper purpose, which does not extend beyond the limits a ¶ • i ot his own land, and which is' not done unskili- ' fully, negligently or with improper motives, that an injury occasioned to the building upon the adjoining lot is damnum absque injuria. (City of Quincy v. Jones, 76 Ill. 231; Charless v. Rankin, 22 Mo. 566; Panton v. Holland, 17 Johns. 92; Shrieve v. Stokes, 8 B. Mon. 453; Railroad Co. v. Reaney, 42 Md. 117; Rockwood v. Wilson, 65 Mass. 221; McGuire v. Grant, 1 Dutch. 356; Radcliff’s Executors v. Mayor, &c., 4 Comstock, 195; Foley v. Wyeth, 2 Allen, 131; Washburn’s Easements, 521; 1 Sutherland on Damages, 3.)
There are numerous other authorities which go to the same extent,.many of which are referred to in those that havebeeu cited, and it is universally held in all that in cases like the present one, only reasonable care and diligence are required of the party making the excavation. Where there is a building upon the adjoining lot which may be injured by the excavation, it would ordinarily be the duty of the party to give the owner of such building sufficient notice so that he might adopt means for its protection. Hei*e the excavation was made for a proper purpose and not to an unusual depth, and whether it was done with ordinary care and diligence has been submitted to the jury and resolved in favor of the defendant. Both Winn and Abeles had ample notice that the excavation was to be made; and it may be remarked that the jury found that about the time the excavation was begun, Abeles proposed to Winn to put in a temporary wall that would prevent any damages in case the west wall of the building should fall, and that Winn refused to give his consent. He is therefore in no position to complain, and neither of the positions which he has advanced in argument can be sustained.
It is finally urged that the court erred in permitting Abeles to testify that he acted under the advice of E. T. Carr, who was an architect, in the steps taken to protect his building. The jury specially found that Mr. Carr was a skillful and competent architect, and also that the Avail which was the subject of agreement between Abeles and Colyer, Avas reasonably necessary for the protection of the building occupied by Winn. In determining what action he should take to protect, the building, it was proper for Abeles to consult a practical and skillful man who had had experience in such matters, dnd to regard his advice in the means employed to accomplish his purpose. The testimony complained of Avas therefore competent to prove that he acted Avith reasonable caution and with good faith in the steps taken by him.
We think there should be an affirmance of the judgment rendered by the district court, and it is so ordered. ■
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
William. Smith was charged with having, on January 31, 1885, beat and assaulted Samuel Snyder with a pistol with intent to kill him, and at a trial had in October, 1885, he was convicted of a simple assault. He appeals, and urges several objections to the conviction, the first of which is that the verdict is not supported by the evidence. We have looked into the evidence, and are of the opinion that the objection is not tenable. If the jury believed the witnesses for the state, they could do no less than convict. That an assault was made upon Snyder at the time charged, was practically conceded in argument, and cannot be doubted. He states that he went out in the dusk of the evening to do chores, and as he came out of his barn he was assailed by the defendant, who struck him, caught him by the whiskers, then drew a pistol or revolver and pointed it at him, when Snyder cried out in a loud voice, “Oh! oh! Bill,” and the defendant then ran away. There is also testimony that for some time previous, the defendant entertained an ill feeling toward Snyder. It is also agreed that the defendant, in company with another young man, traveled along the road near Snyder’s barn about the time of the assault. Another witness for the state claims to have seen the defendant and his companion leave the road and go toward the barn, and that very soon afterward the outcry by Snyder was heard. Then there was the correspondence of the tracks in the snow with the shoes worn by the defendant, and some other circumstances corroborative of SnydeFs testimony. Of course there was testimony given in behalf of the defendant strongly contradictory of that offered by the state. The defendant and his companion, while admitting that they passed by Snyder’s on the evening of the assault, flatly deny leaving the road or going upon Snyder’s premises, or that the assault was made by defendant. Some other testimony, was offered, tending to show that Snyder was mistaken as to the identity of the person who assaulted him'. But the credit of the witnesses, as well as the conflict of the testimony, have been settled by the jury. The testimony of the state, taken alone, was clearly competent, and sufficient to sustain the verdict; that verdict has been approved by the trial court, and it is well settled that in such a case-the verdict will not be disturbed by this court.
Counsel for defendant claims that the result reached by the jury is a “split verdict,” and should for that reason be set aside. In his argument he says: “The evidence of one side or the other is true. If Snyder’s is true, no simple assault was committed, but an outrageous battery; if the other, no assault was committed by William Smith; hence the evidence does not sustain the verdict of simple assault.” There is testimony, it is true, that the defendant pulled Snyder’s whiskers and struck him with a board, but the only battery charged in the information Mras that the defendant beat Snyder with a pistol or revolver. On cross-examination Snyder said that the defendant did not strike or shoot him with the pistol; hence a mere assau.lt was the highest degree of the offense that was warranted by the testimony under the information, and therefore no compromise of the verdict or prejudice of the jury can be properly inferred.
It is next urged that a new trial should have been granted, on the ground of newly-discovered evidence. Mrs. Morris, a witness for the state, testified that she was standing on her door-step and saw the defendant and his companion jump over the fence and run to Snyder’s barn just prior to the assault. By the new evidence it is proposed to show that the testimony of Mrs. Morris was untrue; that she had said at another time that it was so dark she was unable to recognize two men who passed along the road and went to Snyder’s barn, and also that the hedge and trees which were standing in front of where she was obstructed her view, so that she could not have seen all she claimed to have witnessed. The testimony of Mrs. Morris was upon a collateral fact, and was only corroborative of the direct evidence of Snyder. Besides, the sole purpose of this new evidence is simply to discredit Mrs. Morris; an(j generai ru}e that evidence of that character does not afford adequate ground upon which to obtain a new trial. (Parker v. Bates, 29 Kas. 597; Wharton’s Crim. Prac. and Plead., 869, and cases cited)
There was testimony offered on behalf of the defendant on the trial, tending to show that two men other than the defendant and his companion were seen near Snyder’s about the time of the assault. In the affidavits for a new trial, it is said two men, Eugene Brown and Al. Mitchell, returned from the town of Robinson to their home, on the evening of the assault, about half-past eight o’clock, and that they acted somewhat excitedly and strangely; and that some time after their arrival one of them made use of the expression, “ Oh! oh! Bill, don’t.*’ This expression corresponded with the one made by Snyder when he was assailed; but it was made by strangers to this prosecution, about two hours after the assault was made, and at a place somewhat remote from where it occurred, and cannot be regarded as a part of the res gestee. The action of these parties is not necessarily connected with the guilt or innocence of the defendant. Proof of their guilt would not establish the innocence of the defendant; and even if their statement had gone so far as to amount to a confession that they had assaulted Snyder on the evening in question, it would not be competent evidence in behalf of the defendant. Had these parties been upon trial, their acts and declarations as set forth in the affidavits for a new trial would have been competent evidence against them; but as they are strangers to this prosecution, their acts' and declarations cannot be admitted in evidence. (The State v. Duncan, 6 Ired. 236; The State v. White, 68 N. C. 158; The State v. Bishop, 1 Am. Crim. Rep. 594.)
Some objections were made to the ruling of the court in the admission of evidence, and also to the instructions that were given, but an examination shows them to be not well taken, and to need no comment.
We find no error in the record, and the judgment of the district court will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Shawnee county, by John J. Dyal and Seward E. Dyal, against the city of Topeka, to perpetually enjoin the defendant and its officers, agents and employés from interfering with the plaintiffs in the use and enjoyment of a certain piece of land which the defendant claims is a part of one of the public streets of the city, but which the plaintiffs claim is not a part of any street, but belongs to them as their separate and individual property. The case was tried before the court below without a jury, at a term of the court begun and held on January 7,1884. After the plaintiffs had introduced their evidence and rested, the defendant demurred to the evidence, which demurrer was sustained by the court, and the court then found generally in favor of the defendant and against the plaintiffs, and rendered judgment accordingly. On February 16, 1884, the plaintiffs filed a motion for a new trial. What the grounds set forth in this motion for a new trial were, or whether any grounds were set forth for a new trial, is not shown by the record. On March 1, 1884, the motion for a new trial was overruled, and the court then extended the time twenty days for making a case for the supreme court. The case was made and served within the time fixed by the court, and it was settled, signed and authenticated on March 27, 1884, and on February 24,1885, the case was brought to this court for review. Whether the motion for the new trial was filed within three days after the finding and judgment of the court below, is not shown by the record. Nor is it shown upon what grounds the motion for the new tidal was made. No case was made for the supreme court within three days after the judgment was rendered, (Civil Code, § 548;) nor was the time for making a case extended within three days after the rendering of the judgment. (Ætna Life Ins. Co. v. Koons, 26 Kas. 215.) The time, however, for making a case was extended within three days after the motion for the new trial was overruled; and the case was made, as before stated, within the extended time. Nor was the case brought to this court within one year after the judgment was rendered. (Sec. 556 of the Civil Code, as amended by the Laws of 1881, ch. 126, § 2; Estate &c. v. Loftus, 27 Kas. 68; Bennett v. Dunn, 27 id. 194; Brown v. Clark, 31 id. 521.") Of course, under such circumstances, we cannot review any judgment or order of the district court except the order overruling the motion for the new trial, and such other orders, rulings or judgments as may be nece’ssarily involved in the ruling upon the motion for the new trial; for the case for 'the supreme court was not made and served within proper time to give us authority to review such other orders, rulings, or judgments, independent of the ruling upon the motion for the new trial. (See the foregoing statutes and authorities.) But, under the circumstances of this case, can we reverse the order of the district court over ruling the motion for the new trial? As before stated, there is nothing in the case that shows that the motion was filed in time; nor is there anything that shows upon what grounds, if any, the motion for the new trial was made. From anything appearing in the record, the motion for the new trial may have been filed more than three days, and indeed as many as nine days, after the j udgment was rendered in the case, and it may not have stated any ground for the new trial, or it may have stated an entirely insufficient ground, one not recognized by any proper practice or by any law. How, then, can we say that the court below erred? Error is not to be presumed, but in all cases where it is alleged, it must be affirmatively shown, and certainly no error has been affirmatively shown in this case. But if we should go further, and examine the evidence introduced on the trial, we should find many defects and imperfections in the plaintiffs’ proof. The evidence does not show that the first plat filed by Crane, the plat under which the plaintiffs wish to have their rights determined, was ever signed or acknowledged. Neither does the evidence show that Mrs. Angelí, the person under whom the plaintiffs claim title, had any legal title to the property in controversy at any time until some time after Crane had filed his second plat, and at that time the legal title was in Crane, and if the second plat is to govern in this case, then the property in controversy is a part of Quincy street, in the city of Topeka, and the plaintiffs have no right to recover. According to the proof of what the first plat was —the plat itself having been lost—the original western boundary of Crane’s addition is indicated by certain “red dotted lines,” but where such “red dotted lines” are or were, is not shown by the record. All the record title which Mrs. Angelí ever had was a quitclaim deed from Crane; but this quitclaim deed was not executed until after Crane-had filed his second plat. The plaintiffs, however, claim that prior to that time Mrs. Angelí held under a written contract from Crane; but Crane testified that he never executed any such written contract, and none was introduced in evidence. The evidence also shows that at one time a judgment was rendered in favor of the city of Topeka and against Mrs. Angelí, determining that she had no interest in the property in controversy. Just when this judgment was rendered is not shown by the record, but counsel for the defendant says that it was rendered on August 5, 1882, after the quitclaim deed was executed by Crane to Mrs. Angelí, and before the deed was executed by Mrs. Angelí to the plaintiffs. It is wholly unnecessary, however, to comment furthér upon the evidence, for in the condition in which the case has been brought to this court we cannot decide the case upon the evidence. The fact that no case was made for the supreme court, nor any extension of time given for that purpose, ’within three days after the judgment was rendered, and the further fact that the case was not brought to the supreme court within one year after the judgment was rendered, preclude our examination of the judgment or any ruling involved therein, or any ruling of the court below made prior thereto, except so far as such judgment or ruling may be involved in some subsequent ruling properly reviewable by the supreme court, as for instance, the ruling on the motion for the new trial; and the fact that it is not shown that the motion for the new trial was filed within three days after the judgment was rendered, and the further fact that it is not 3 shown upon what ground, if any, the motion for the new trial was made, render it impossible for us to say that the court below erred in overruling the motion for the new trial.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This action was brought by W. H. Sikes, to recover the value of a crop of corn and oats alleged to have been converted by the plaintiffs in error, John F. and C. H. Beckman, who were defendants below. It appeared upon the trial that one C. M. Baker was the owner of the land upon which the crop was grown. He had mortgaged the land, and the conditions of the mortgage having been broken, it was foreclosed on December 15,1883. There being a stipulation in the mortgage for a waiver of appraisement, it was decreed that the land should be sold without ^praisement at the expiration of six months from the date of the decree. On June 19, 1884, an order of sale was issued under the decree, and after due notice a sale of the premises was made on August 1,1884, to one H. C. Crump. The sale was subsequently confirmed, and on September 5, 1884, a deed was made by the sheriff to the purchaser. After the decree of foreclosure, but before the sale was made, Baker planted and cultivated a crop of oats and corn upon the premises decreed to be sold. On July 31, 1884, just one day prior to the sale of the premises by,the sheriff, Baker sold, or attempted to sell, the crop to Sikes; and it was under this purchase that he claimed the oats and corn, the value of which he seeks to recover in this action. The Beckmans claimed under Crump, from whom they purchased the land on which the crops were grown. At the trial the plaintiffs in error contended that crops grown upon the land at the time it was sold and conveyed, passed with the land to H. C. Crump, the purchaser at the sheriff’s sale. This view was rejected by the trial judge; and instead, he directed the jury that the purchaser at the sheriff’s sale was not entitled to the crop grown upon the land where such crop had been sold by the judgment debtor prior to the day of sale, and that if they believed from the evidence that Sikes purchased the oats and corn from C. M. Baker prior to August 1, 1884, their verdict should be for the plaintiff.
For this ruling the judgment obtained by the plaintiff below must be reversed. The oat crop had matured and was harvested prior to the sheriff’s sale, but the corn crop was yet immature and unsevered. In Smith v. Hague, 25 Kas. 246, a case where a crop was planted upon the land after a judgment had been rendered decreeing a foreclosure of the vendor’s lien against the land, and ordering that it be sold to satisfy such lien, and under such order of sale the land was sold before the crop was ripe or harvested, it was ruled that the crops which were then growing upon the land, and not reserved in the order of sale or at the sale, passed -by the sale and deed of conveyance of the sheriff The fact that the mortgagor or judgment debtor sold the growing crop prior to the sheriff’s sale of the land, as it is claimed was done here, does not vary the case, because he could not pass a title greater than his own, and therefore Sikes obtained no better right to the growing crop than Baker had or could give. Of course the mortgage, as well as the judgment decreeing a foreclosure, was only a lien upon the land, and did not confer title. The title and right of possession remained in the mortgagor until the sale and conveyance of the land. Until that time he was entitled to the use of the land, and to all the crops grown thereon that had ripened and were severed. The lien of the mortgage and the judgment, however, attached to the growing crops until they were severed, as well as to the land. The mortgagor planted the crop knowing that it was subject to the mortgage and liable to be divested by the foreclosure and sale of the premises. Anyone who purchased such crops from him took them subject to the same contingency, as the recorded mp^tgage and the decree of foreclosure were notice to himSof the existence of the lien. If the land is not sold until the crops ripen and are severed, the vendee of the mortgagor would ordinarily get a good title; but if the land was sold and conveyed while the crop was still growing, and there was no reservation or waiver of the right to the # ° crop at such sale, the title to the same would pass with the land. (Smith v. Hague, supra; Chapman v. Veach, 32 Kas. 167; Garanflo v. Cooley, 33 id. 137; Jones on Mortgages, §§ 676, 780, 1658; 1 Washburn on Real Property, 3d ed., 124; Jones v. Thomas, 8 Blackf. 428; Downard v. Groff, 40 Iowa, 597; Shepard v. Philbrick, 2 Denio, 174; Lane v. King, 8 Wend. 584; Gillett v. Balcom, 6 Barb. 370; Scriven v. Moote, 36 Mich. 64; Howell v. Schenek, 4 Zab. 89; Pitts v. Hendrix, 6 Ga. 452; Rankin v. Kinsey, 7 Bradw. 215; Sherman v. Willett, 42 N. Y. 146; 1 Schouler’s Personal Property, 133.)
It follows that the instruction given was erroneous, and therefore the judgment will be reversed, and the cause remanded for another trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Miller filed his petition against Alice Madden, and H. W. Conrad as county clerk of Montgomery county, alleging, among other things, that he is the owner of lots eight and nine in block fifty-four, in the city of Independence, in that county; that lot eight was assessed for taxation in 1880 at $1,000, and lot nine at $1,105; that the lots were advertised in the tax list in the same manner; that in September, 1881, the lots were sold together to the defendant, Alice Madden, for the delinquent taxes of 1880; that afterward Alice Madden paid the delinquent taxes on the lots for 1881, 1882, and 1883, and had the same indorsed on her tax certificate; that in July, 1884, the plaintiff appeared before the board of county commissioners of his county and called to their attention the fact that the lots had been assessed separately and improperly sold together for the taxes of 1880; that he asked the board, for this error or irregularity, under the provisions of § 145, ch. 107, Comp. Laws of 1879, to order the county clerk not to convey the lots; that the board refused to make the order; that on August 7, 1884, he tendered to D. Madden, for Alice Madden, and also the treasurer of his county, all the taxes, penalties and costs due thereon, with interest on the amount at the rate of ten per cent, per annum.
The defendants filed a demurrer to the petition, which, upon the hearing thereof, was sustained by the court. The plaintiff elected to stand by his petition, and brings the case here.
The question presented is, conceding the facts stated in the petition are sufficient to avoid the tax-sale certificates issued upon the sale of the lots, is the plaintiff entitled, upon the tender made by him, to an injunction against the issuance of any tax deed? The plaintiff insists that the ten per cent, added to the taxes and charges paid by the purchaser at the tax sale is all that can be required to be refunded, and that his tender was sufficient. The defendants claim that he should have tendered interest upon the taxes and charges at the rate of twenty-four per cent, per annum, and therefore that the tender was insufficient. The plaintiff insists that as he discovered to the board of county commissioners the error or irregularity existing in the tax sale and applied for an order ■that the county clerk be directed not to convey the lots, and , tendered the amount paid upon the sale, together with the subsequent taxes and charges paid thereon, with interest on the amount at the rate of ten per cent, per annum, the board should have granted his application, accepted the money tendered by him, and turned the amount over to Alice Madden. Said § 145 reads as follows:
“If the county treasurer shall discover before the sale of any lands or lots for taxes, that o'n account of any irregular assessment, or from any other error, such lands ought not to be sold, he shall not offer the same for sale; and if, after any certificate shall have been granted upon any sale, the board of county commissioners shall discover that, for any error or irregularity, such lands or lots ought not to be. conveyed, they may order the county clerk not to convey the same, and the county treasurer shall, on the return of the tax certificate with a certified copy of 'such order of the board of county commissioners, refund the amount paid therefor on such sale, and such of the subsequent taxes and charges paid thereon by the purchaser, or his assigns, as may be so ordered by the board of county commissioners, out of the county treasury, with interest on the amount so ordered refunded, at the rate of ten per cent, per annum; and in all cases in which actions shall be now pending or may be hereafter commenced, the refusal of the county clerk to convey any lands or lots indorsed on any tax certificate shall not be deemed or held to constitute prima facie evidence of any irregular assessment or other error for which such land or lots ought not to be conveyed, nor shall any judgment be recovered against such county, or the board of county commissioners thereof, or liability held to attach therefor, under or by virtue of provisions of said section one hundred and forty-five, as heretofore or hereafter existing, or of section one hundred and twenty of chapter one hundred and seven of the general statutes, except in cases in which the board of county commissioners shall have made an order for the refunding thereof, and then only for the amount specified in the order for such refunding, and in all cases in which invalid taxes shall be included in such certificate, and only to the extent of such invalid taxes, with ten per cent, interest thereon.”
We need not decide, however, in this case, whether the granting of the order applied for was a matter of discretion, or a matter of absolute right. The board of county commissioners made no order for the county clerk not to convey the lots. The county treasurer did not refund to Alice Madden the amount paid by her on the tax sale, or any other sum. The board of county commissioners made no order for the treasurer to- pay to her any moneys whatever. If the plaintiff was entitled to the order he sought from the board of county commissioners, his remedy is by mandamus, not injunction. If the board has not. performed its duty he must seek another remedy than injunction. In auy view, injunction will not lie in such a case as this, where the antecedent statutory relief has been refused by the board. The case, therefore, stands as if the plaintiff never made any application to the county board for an order to the county clerk not to convey the lots. It is the same as if the board of county commissioners had never discovered any error or irregularity in the tax sale complained of.
The tender made was insufficient, and the demurrer to the petition was properly sustained. (Gulf Rld. Co. v. Morris, 7 Kas. 211; Hagaman v. Comm’rs of Cloud Co., 19 id. 394; Wilson v. Longendyke, 32 id. 267;. Knox v. Dunn, 22 id. 683.)
The judgment of the district court will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The petitioner claims that he is entitled to his discharge under the provisions of § 221 of the criminal code, which reads:
“If any person, under indictment or information for any offense, and held to answer on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending, which shall be held after such indictment found or information filed, he shall be entitled to be discharged, so far as relates to such offense, unless the delay happened on his application, or be occasioned by the want of time to try such cause at such third term.”
We do not think the proceeding by habeas corpus the proper remedy in this case. The petitioner alleges that the district court refused his application to be discharged . . . . under the provisxons oi § 221 ox the crxmxnal C0(je^ an(j remanded him to custody until he should give bail, and continued the cause for trial. The order of the district court, until reversed, is valid, and sufficient authoi’ity for the retention of the petitioner in custody. We cannot, in a proceeding of this character, review or reverse an order or judgment of the district court, having juris diction, when such order is neither void, nor in excess of its authority. (Civil Code, § 671; Ex parte McGehan, 22 Ohio St. 442.) The statutes construed in the cases of Brooks v. People, 88 Ill. 327, and In re Garvey, 4 Pac. Rep. 758, do not provide for any discharge of the offense, but operate merely to set the prisoner at liberty. In this state, the statute provides for the absolute discharge of the prisoner from the offense, and therefore Illinois and Colorado decisions are not applicable.
In the case of In re Dill, 32 Kas. 668, the petitioner was guilty of no offense, and the judgment rendered against him was void. In that case, he was released from imprisonment upon that ground. But waiving the irregularity of this proceeding, we think the ruling of the district court was correct. The information was filed against the petitioner one day prior to the commencement of the May term of the district court of Sumner county for 1885. At the May term, against the objection of the state and the petitioner, the court attempted to' remove .the case for trial to Cowley county, in another judicial district, upon the ground that the judge was disqualified to preside at the trial on account of his prejudice. This order was vacated upon the motion of the county attorney of Sumner county, on December 12, 1885. The regular tei’ms of the district court of Sumner.county for 1885 were held as follows: The first Tuesdays of May, September, and November. On account of the intervention of the district court of Comanche county, the November term of the district court of Sumner county was adjourned from December' 12, 1885, to January 2, 1886, at which time the application for the discharge of this petitioner was' presented. After the presentation of such application, the state announced itself ready to proceed at once with the trial. The court, however, in its findings of fact, states that there was not time during the period allowed by law for the holding of the November term of court, for the trial of the case upon its merits. The state was not responsible for the discharge of the jury, or the adjournment of the court on Decern ber 12, 1885, and we must assume that when it announced itself ready for trial on January 2d, whether any witnesses had „been subpenaed, or not, in behalf of the state, it was capable of producing them if allowed so to do. The statute expressly provides that if the delay to bring a prisoner to trial be occasioned by the want of time to try his cause, the court is not bound to discharge him. (See also §222, Crim. Code.) In several states, as above referred to, statutes similar to ours operate merely to set the prisoner at liberty; but our statute provides, in effect, an acquittal, if the defendant is not brought to trial within the time therein prescribed. Therefore there is good reason for holding that a prisoner ought not to be entitled to his discharge unless he brings himself within the spirit of the statute. The section quoted was designed to shield the innocent from oppression, but not to enable the guilty to escape. (Steward v. State, 13 Ark. 720.) In Clark v. Commonwealth, 29 Pa. St. 129, it was decided, concerning a similar statute, that “it was made to restrain the malice and oppression of prosecutors, and to relieve wrongful imprisonment; not to embarrass the administration of criminal law; not to relieve righteous imprisonment and to defeat public justice.” In Steward v. State, supra, the court construed a similar statute to mean that the prisoner was entitled to his discharge only where the delay of the state in bringing him to trial was for want of evidence; and that within the spirit of the law, the prisoner, to be eixtitled to his discharge for want of prosecution, must place himself on the x’ecord in the attitude of demanding a trial, or at least of resisting postponement.
On December 12,1885, when the jury were discharged, the petitioner was not present, being on bail to appear before' the district court of Cowley county, but his attorneys were all in the court, and when specifically intex’rogated concerning the case by the court, x’efused to appear or answer in any way for their client. During the several terras of the district court of Sumner county, held since the filing of the information, the petitioner has not announced himself ready for trial at any of the terms thereof. He has not seemed anxious for any hearing. of the case against him upon its merits, but has only desired a discharge, without any. trial.
The petitioner will be remanded.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Aultman, Miller & Co. against Samuli O. Swenson and John P. Swenson on a promissory note and a mortgage. John P. Swenson originally owed the debt to Aultman, Miller & Co., and his wife Samuli O. Swenson executed said note for the debt, and they both executed the mortgage to secure the payment of the note. Mrs. Swenson, set forth in her answer that her signature to the note and mortgage was obtained fraudulently. When the case was called for trial she asked for a continuance of the same until the next term of the court, and filed two affidavits in support of her motion for a continuance. The court overruled said motion; the defendants excepted, and this is the sole ground for error in this case. The first affidavit was filed for the purpose of obtaining'a continuance so as to procure the testimony of one William Stafford. The affidavit however does not show that any legal diligence was used to get the testimony of said Stafford. Although it appears that Stafford resided in the same county where this suit was brought and tried, at and after the time it was brought, yet no subpoena was ever issued to procure his attendance. And although he afterward removed from said county to Chicago, Illinois, yet no attempt was ever made to procure his deposition. Stafford told the defendants that he would be present at the trial, but that does not excuse the defendants’ want of diligence in not attempting to procure his testimony. (Educational Association v. Hitchcock, 4 Kas., 36.) The witness’ testimony could have been procured by the exercise of reasonable diligence. Hence we think the court below did not err in refusing to grant a continuance for the want of the testimony of such witness.
The other affidavit was filed for the purpose of getting a continuance to procure the testimony of one Charles H. Purinton. We think this affidavit is sufficient to procure a continuance, provided the alleged testimony of said Purinton is competent and material in this case. The said alleged testimony is as follows:
“ The said Purinton if present would swear and prove that he was present in Junction City, Kansas, on the 26th of February 1872, the date of the execution of the note and mortgage by Mrs. Samuli O. Swenson, wife of affiant John P. Swenson, and that at that time one Rhodes, the then general agent of the said plaintiffs, told him that all he wanted was to induce Mrs. Swenson to give her note and mortgage upon her own individual property to secure the payment of the money due to them from John P. Swenson, to-wit, the sum of $4,087.06, and then John P. Swenson might go the devil; and that immediately after securing said note and mortgage he the said Rhodes, as such general agent, told the witness Purinton that he had come it over Swenson (meaning John P. Swenson,) at last, and that by the assurance that he, as the duly-authorized agent of the said plaintiffs, would constitute the said John P. Swenson their agent for the counties of Davis, Morris, Dickinson, Clay and Cloud, in the state of Kansas, for the term and period of five years from that date. Witness will also swear that the agency of said plaintiffs aforesaid would have been worth at least $1,500 per year, and that after the procurement of said note and mortgage as aforesaid, the said Rhodes, as the duly-authorized agent, and acting for the said plaintiffs, disregarding the promises and agreement aforesaid, gave the agency aforesaid to other parties in Junction City.”
Now before we can reverse the judgment of the district court because it overruled said motion for a continuance, it must appear somewhere from the record of the case that this evidence was material and compeThis should really appear from the affidavit itself; (Gen. Stat., 689, code, § 317.) But beyond all doubt it should appear from the record, or some portion thereof. In the present case it does not appear from anything brought to this court that said evidence, or any portion thereof, was material and competent. The evidence is in substance, first, what an agent of the plaintiffs said to a third person prior to the time of the execution of said note and mortgage as to what the agent intended to do; second, what said agent said to this same third person after said note and mortgage were executed as to what the agent had done, and what he intended to do; third, what the opinion of said witness was as to the value of a certain agency which said agent agreed to confer upon John P. Swenson. It is not claimed in this court that the last-mentioned evidence was competent and material; and it was not competent and material, for there is nothing in the whole record that tends to show that said witness had any knowledge or intelligent opinion as to what was the value of said agency which said agent agreed to confer upon Swenson.
It is a general rule that the declarations of an agent in order to bind his principal must not only come within the scope of the agent’s authority, but they must also be made by the agent while he is transacting his principal’s business, and be connected therewith as a part of the res gestee: 1 Greenl. Ev., § 113; Story on Agency, §§ 134, 135, 136; Paley on Agency, 256, 257; U.S. Express Co. v. Anthony, 5 Kas., 490. Now the declarations in the present case were not made while the agent was transacting his principal’s business, and they formed no part of the res gestee. A part of said declarations was made before the agent commenced to transact his principal’s business, and the other part was made afterward. No portion of said declarations was made during the time the agent was negotiating with the defendants, and no portion thereof formed ,any part of the transaction had with the defendants. These declarations should have been made during the transaction, and as a part thereof, in order to constitute ,any portion of the res gestee. State v. Montgomery, 8 Kas., 351, 360, et seq.; Luby v. Hudson River Rld. Co., 17 N.Y., 131; Sweatland v. Ill. & Miss. Tel. Co., 27 Iowa, 433; Osgood v. Bringolf, 32 Iowa, 265. But if said declarations had been so made, Swenson and wife would have known it, and they would not now be claiming that they were defrauded in consequence of them. All that these declarations tend to prove is, that the agent did not intend to- appoint Swenson as an agent of the plaintiff at the time when said agent agreed to do so. Does this make any difference? If the agent made a contract for his principal to appoint said Swenson an agent, and then neglected or refused to do so, would not his principal be just as liable if the agent made the contract in good faith, as though he acted in the worst of faith and never intended to appoint Swenson to said agency? Does not the question depend upon whether there was a breach of any valid contract, without reference to what the intentions of the agent were? This question however is not in the ease. The only question is, whether the declarations of an agent when not in the performance of any business for his principal can be used as evidence against his principal. "We do not think they can. It does not seem from the record that the agent himself was examined as a witness on the trial. Continuances 4 , . are to some extent within the discretion of the trial court; and unless it is shown that the trial court abused its discretion in granting or refusing a continuance, the appellate court will not declare the ruling pf the trial court in such a case erroneous. Hottenstein v. Conrad, 9 Kas., 436; Davis v. Wilson, 11 Kas., 74. The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Brewer, J.:
The question in this case is as to the existence-of an alleged highway. The facts are these: In 1857 one Sophia Clement was the owner of a tract of about seventy acres, a little north of the city of Wyandotte. A portion of this, on the west side, was inclosed and occupied by her as a residence. Along the east of this inclosure was a traveled road which ran from the city of Wyandotte to a saw-mill. In 1857 or 1858 she sold ten acres east of her inclosure for a cemetery, and which in the latter year was fenced and platted into lots. Between the west cemetery fence and the fence-on the east of her inclosure, was left a road of about thirty feet in width, and the same as the previously traveled road,, none of which however was on the cemetery grounds. The two gates of the cemetery opened and the two avenues of the-cemetery led into this road, and it was the regularly traveled road to and from the cemetery, without objection, and without obstruction, from that time until the spring of 1873, when defendant in error fenced the south end of it. Prior to this-time however, and in 1867 or 1868, the saw-mill lying north of these grounds having been abandoned, the owner of the-land immediately north of the cemetery had fenced across the-road, so that, from that time the travel thereon had been only by the occupant of the tract north, the occupant of the Clement field, and parties visiting, them, and of parties going to and from the cemetery. Mrs. Clement lived on the place until her death in. 1864, with full knowldgee of the use of this road by the public. After her death it was occupied by a tenant for a series of years, and until 1870, when defendant in error bought and moved onto it. There was other testimony tending to show an intention on the part of Mrs. Clement to dedicate this road to the use of the public, but it is unnecessary to notice it here. At the instance of the defendant in error the court gave this instruction:
“If the jury find from the' evidence that the land in question has not been traveled since-1860 except by the owner of the real estate, one of his neighbors, and persons attending funerals to the cemetery of said defendant, then the court instructs the .jury that such travel is not sufficient to constitute said way a public highway by use, and they will find in favor of the plaintiff.”
The jury found against the existence of the highway. It may be remarked that the fee of this cemetery is in the city of Wyandotte, and the association, plaintiff in error, holds simply a lease for ten years from 1870. What the terms and conditions of that lease are, we are not advised. But as the grounds belong to the city, and as they have been used as a cemetery since 1858, and for a dozen years before this association obtained any control over them, we must presume that they are public cemetery grounds, and not a mere private cemetery for a single family or organization. It is true that this road has not for years had an outlet on the north, and has therefore not been in the ordinary sense of the term a thoroughfare; and it is also true that‘it has been one of the disputed questions in the law of ways whether such a road could be legally held a public highway. See on the one hand, Austin’s Case, 1 Ventr., 189; Woodyer v. Hadden, 5 Taunt., 126; Wood v. Veal, 5 B. & A., 454; Simmons v. Mumford, 2 R. I., 172; Holdam v. Trustees Cold Spring, 23 Barb., 103. And on the other, The Rugby Charity v. Merry weather, 11 East, 375; Rex v. Lloyd, 1 Camp., 260; Bateman v. Bluck, 14 Eng. L. & Eq., 69; People v. Kingman, 24 N. Y., 558; Ferris v. Bramble, 5 Ohio St., 109; Sherman v. Burck, 32 Cal., 241; Bankhead v. Brawn, 25 Iowa, 540; State v. Price, 21 Md., 448. In this state the question has been before the courts, and it has been settled that such a road may be a public highway: Masters v. McHolland, 12 Kas., 17. It follows from this, that the authorities may condemn land for such a road, that the owner may by dedication constitute such a road a public highway, and that the fact of such dedication may be proved in the same manner and by the same character of testimony as in case of a thoroughfare. We say nothing now of the comparative amount of testimony necessary to establish the fact of a dedication in the two cases. In order to constitute a way a public road, outside of cases of condemnation, and possibly of prescription, it is said that two things are essential, first, a dedication by the owner of the soi^ an(j seCond, an acceptance by the public. In the different cases reported stress is laid upon one or the other of these matters, according to the character of the questions involved. Thus, where the former owner is attempting to obstruct a way, the important matter, is, whether he has once actually made a dedication, and so estopped from obstructing it; and to that the testimony mainly runs. On the other hand, where the authorities are prosecuted for not repairing a highway, the important question often is, whether the public have accepted the dedication, and upon that is most of the testimony. For the mere fact that a land-owner has dedicated certain land to the use of the public, does not necessarily cast upon an unwilling public the duty of improving and keeping it in repair. No formal acceptance by any particular authorities is essential. The mere user by the public may be of such a character as to constitute an acceptance. Indeed, such user by the public with the knowledge of the owner may be sufficient evidence of both the dedication and the acceptance. We know this doctrine is denied by some courts, but it seems to us to rest upon the soundest principles. Of course, no mere temporary or occasional use will be sufficient. It was said by Ch. J. Richardson, in Barker v. Clark, 4 N. H., 380, that “ we entertain no doubt that a highway may be proved by long usage; but a way, to become public, must be used in such a manner as to show that the public accommodation requires it to be a highway, and that it is the intention of the owner of the land to dedicate the way to the public.” See also, Holdam v. Trustees Cold Spring, 23 Barb., 103; Clements v. West Troy, 10 How. Pr., 199; Onstott v. Murray, 22 Iowa, 457; Hanson v. Taylor, 23 Wis., 547; (though in this case see a vigorous dissenting opinion of Ch. J. Dixon;) Buchanan v. Curtis, 25 Wis., 99; Angell on Highways, § 161, and cases cited in note. It seems to us that the foregoing views are a fair statement of the rule applicable to these cases.
If a highway may be proved by usage, who is to determine whether the usage shown is sufficient? Does the usage prove an ideation on the part of the owner to dedicate, and an acceptance by the public? These are questions of fact, and questions in their nature eminently appropriate for the consideration of a jury. Drake v. Rogers, 3 Hill, 604; Trustees M. E. Church v. Council of Hoboken, 33 N. Y., 26. Both the intention and acceptance are evidenced by a series of acts. It is impossible generally to put the finger on a single circumstance and say that this is conclusive. It is true the user may be so temporary or occasional as to justify a court in stating as matter of law that it is not evidence sufficient to prove a highway; but we think this is not such a case. A cemetery is as public a place as a court-house, or a market. It may not be frequented as much, -but- visits to it are as necessary and as certain. The accommodation of the public requires a highway to it. Over that way all must travel. We may keep away from the court-house, and avoid the market, but the place of the dead none may shun. Now if the accommodation of the public requires a highway to the cemetery, the use of the public of a way to it may be evidence of the acceptance by the public, and, if with the consent of the owner, of the dedication by him; and when continued, as it has been in this case for years, it is error for the court to state as matter of law that it is not sufficient evidence. That is a question which must be left to the jury. For the error in giving the instruction quoted, the judgment must be reversed and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Appellant was convicted on a charge of attempting to maliciously sever and remove certain- property from a freehold, and from such conviction appeals to this court. The only error alleged is thus stated in the brief of counsel for appellant:
“ The court below erred in overruling the motion in arrest of judgment. The complaint does not state facts constituting a public offense. Wharton’s Am. Or. .Law, §2012.”
What specific objection there exists to this complaint, and wherein it fails to disclose a public offense, we are not advised. The counsel refer to a section in Wharton’s Cr. Law, but on turning to that section we find that it treats of more than one subject. It treats of the manner of “describing the property,” and the “value.” Now whether counsel intends to claim that the complaint is defective in not stating the value of the property attempted to be severed, or in not sufficiently describing the property, or the freehold, we are not informed; and we shall not attempt to consider the various questions which may suggest themselves to our minds in the expectation by so doing of reaching the specific objection counsel intended to present. The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
It would seem from the record in this case that in 1870 Crawford and Turner each had claims for money agaihst the other. Judgments were subsequently rendered on these'claims — one in favor of Crawford and against Turner, and two in favor of Turner and against Crawford. The judgment in favor of Crawford was greater in amount than both of the judgments in favor of Turner. Afterward, said Crawford, and one Johnson, as plaintiffs, commenced this action against Turner and the other plaintiffs in error for the purpose of having the Turner judgments applied (so far as they would go) in partial payment of the Crawford judgment, and also for the purpose of perpetually enjoining the collection of the Turner judgments. The court below rendered judgment in favor of the plaintiffs (Crawford and Johnson,) as prayed for in their petition, and the defendants below (Turner and others) now bring the case to this court. If no assignment of any of said claims or said judgments had been made, or if no right of third persons had intervened, we suppose such an action as this might properly be maintained. And in such a case the judgment rendered by the court below would be upheld by this court.
But it is claimed by the plaintiffs in error (defendants below,) that said judgments were. assigned, and that the right of thjrd persons had intervened, before this suit was commenced. The plaintiffs in error claim that the Crawford judgment was assigned to Bartlett & Hale, and that the Turner judgments were assigned to Hadley & Click, and that Hadley & Click also had an attorneys-lien upon said last-mentioned judgments. Now, as Crawford is seeking to have the Turner judgments and his judgment compensate each other to the amount of the Turner judgments, it would certainly seem necessary that Crawford should still be the owner of the Crawford judgment. A previous assignment by him of all his-interest in the Crawford judgment would certainly destroy his right to have it pay and cancel the Turner judgments. But did he so assign the same ? As the record is brought to this court we cannot say that he did. The findings of the court below were general, and in favor of the plaintiffs, Crawford and Johnson, and against the defendants, Turner and others. The findings of the court below were therefore in effect that no such assignment was made. And we cannot say that the findings were not supported by sufficient evidence. The evidence undoubtedly tends to show that Crawford at one time assigned his said judgment to Bartlett & Hale, and that Bartlett & Hale afterward, but before the commencement of this suit, assigned the judgment back to Crawford. But what kind of an assignment was this) ? Did Crawford assign said judgment to Bartlett & Hale merely as a collateral security for a debt, and himself still retain an interest in the judgment, or did he assign the judgment absolutely ? The evidence does not show what kind of an assignment was made, with any degree of certainty. It tends however to show that the assignment was merely as a collateral security for a debt. Crawford himself testified, “that in the spring of 1871 he assigned his judgment against Turner for $403.25 to Bartlett & Hale to spewre fees he owed them, and the same was not assigned back to him until just before the commencement of this suit.” Now if the assignment of the judgment to Bartlett & Hale was merely an assignment to secure attorneys-fees, and was not an absolute assignment of all the property in the judgment, then we think that Crawford had the right, after the judgment was reassigned to him, to commence this action. And under the evidence and the findings of the court below we must consider that the assignment was made merely to secure attorneys-fees, and not as an absolute assignment.
We do not think that the assignment of the Turner judgments to Hadley & Glick, or their attorneys-lien on said judgment, can make any difference in this case. Crawford’s claim and judgment existed prior to the Turner judgments, prior to the said assignment to Had]ey & Glick, and prior to their attorneys-lien. Turner could therefore not assign his judgments, nor the claims upon which they were rendered, nor incumber such claims or such judgments with attorneys-liens, or any other kind of liens, so as to defeat Crawford’s right to have his judgment or his claim compensate and pay the Turner judgments, or claims. A judgment is not like negotiable paper. It may be assigned, but will still be subject to all the defenses, counterclaims, or set-offs which the judgment-debtor might, at the time of the assignment, have against it. This right of Crawford to have his judgment compensate and pay the Turner claims and judgments existed from the time the Crawford judgment was rendered down to the present time, and still exists, except that possibly during the time the Crawford judgment was pledged to Bartlett & Hale to secure attorneys-fees Crawford’s right to so use said judgment would have been subject to the consent of Bartlett & Hale. If Turner had not assigned his judgments, or incumbered them with attorneys-liens, his right to have his demand compensate that of Crawford up to the amount of his demand would have existed, notwithstanding the assignment of the Crawford judgment to Bartlett & Hale'.
The view we have taken of this case is in accordance with our statutes. An action may be maintained in this state on a domestic judgment. (Burnes v. Simpson, 9 Kas., 658.) If either Turner or Crawford had commenced an action against the other on his judgment, the other could have set up his judgment as a set-off, (Gen. Stat., 648, 649, §§ 94, 98;) and § 100 of the code provides that, “ When cross demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or set-off could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other; but the two demands must be deemed compensated so far as they equal each other.” (Gen. Stat., 649.) The view that we have taken of this case is also in accordance with equitable principles. So far as this decision conflicts with the decision made in the case of Leavenson v. Lafontane, 3 Kas., 523, that decision is overruled.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Valentine, J.:
The laws of Kansas provide for such an officer as a judge pro tem. of the district court. (Constitution, article 3, § 20; Gen. Stat., 304, §§ 4 to 8.) And hence, whenever it appears from the record of a case that the action was tried before such a judge it will be presumed, in the absence of anything to the contrary, that such judge had the requisite authority to hear and determine the case. The district court of Kansas being a court of general and superior jurisdiction, all presumptions, in the absence of anything to the contrary, must not only be that the court acted within the scope of its jurisdiction, but that it acted regularly and legally. And a judge pro tem. of such a court, being as much a judge of the court for the time being as the regular judge, all presumptions, in the absence of anything tc the contrary, must be in favor of his authority, and in favor of the regularity and validity of his proceedings. Whenever his authority has been duly recognized, as in this case, by the regular judge, the clerk, the sheriff, the attorneys, the parties to the suit, and others, it would hardly seem proper to allow his authority to be questioned for the first time in this court. This case was tried'before a judge pro tem. But whether such judge was duly elected and -qualified, does not appear. It does appear however that all the parties consented to try the case before, him. It also appears that there were “no statutory provisions disqualifying the regular judge from presiding at the trial.” From this we suppose that the regular judge was not sick, absent, interested, related to either of the parties, or otherwise disqualified from hearing and determining the case. But suppose the regular judge was present, and competent to hear and determine the case, still he did not do it, but allowed a judge pro tem. to do so. The district court was in session. No question is raised as to the jurisdiction of the court over the subject-matter of the action and the parties to the suit. The case came regularly on for trial; a judge pro tem. tried it; the constitution and laws recognize such an officer; and whether this judge pro tem. was regularly and legally filling the office or not, still he did fill the office, and was therefore an officer de facto: and his acts are therefore not void, but like the acts and proceedings of all other officers defacto, are valid and binding. Of course, his proceedings could not be attacked collaterally. But attempt is now made to attack them directly by petition in error. This may be done where the question was raised in the court below, and proper exceptions taken. But unfortunately for the plaintiffs in error the question was not raised in the court below. Neither party objected to trying this case before said pro tem. judge, but all the parties consented thereto. The question of whether said pro tem. judge could legally try this case is now raised for the first time in this court, and we think the question is raised too late. (See Hunter’s Adm’r v. Ferguson’s Adm’r, 13 Kas., 462, 473, and cases there cited.)
This was an action to set aside a deed of assignment made for the benefit of creditors, on the ground that the assignment was fraudulent and void. The plaintiffs had separate rights and interests, and not joint interests. The defendants answered that the plaintiff Martin, with a full knowledge of all the facts, acquiesced in and became a party to said assignment, and instructed and encouraged the assignee to proceed under the assignment and sell the property, etc. There was no reply filed to this answer, and there was nothing in the case which tended to show that the defendants waived a reply. On the contrary, it seems that they twice objected to the introduction of evidence because of the condition of the pleadings. And they also asked for a judgment in their favor upon the papers in the case. It is true, the objection to the evidence went to both of the plaintiffs, while it could properly apply to only one of them. But still it shows that the defendants did not intend to waive a reply. Where a reply is necessary, as it was in this case, and none has been filed, it must appear affirmatively from the conduct of the defendants that the reply has been waived, or the court must take all the allegations of new matter contained in the answer as true. Where the defendants go to trial, and proceed with the trial in all respects as though a reply had been filed, such conduct on their part will authorize the court and the other party to consider that the defendants have waived a reply. But that is not the case. The evidence in this case failed to show that Martin acquiesced in said assignment with a full knowledge of all the facts. But still as such was so alleged by the defendants, and not denied by the plaintiffs, we must take it that such was the fact.
The answer does not allege, as is claimed by the plaintiffs in error, that the Ayres judgment was rendered against True as principal, and Higby as surety. The answer merely alleges that the judgment was rendered upon a promissory note on which note True was principal and Higby was surety. The answer does not state or show how the judgment was rendered; and there was no evidence upon the subject. (With reference to such judgments, see Rose v. Madden, 1 Kas., 445; Points v. Jacobia, 12 Kas., 50.) No question of champerty was raised in the court below. Such question is not in this case. It is immaterial whether the court below erred or not as to the amount of money which Doolen had received from the sale of Higby’s property. We must reverse the judgment as to Martin, and there was certainly more than enough to pay Ayres.
We hardly think that the deed of assignment was void upon its face, but as we view the case it is not necessary to decide that question now, and we therefore do not wish to be understood as deciding it. It is also claimed that the assignment was fraudulent in fact, and therefore void in law. It is claimed that the assignment was made for the purpose of hindering, delaying and-defrauding Higby’s creditors, and especially the plaintiffs, who were judgment-creditors of Higby. The court below finds this to be true. And while it is at least doubtful whether this finding is correct, yet there was some evidence to sustain the finding, and enough under the rules of practice to which this court has always adhered, to uphold the judgment rendered thereon. If the court below erred, as perhaps it did, in making this finding, the error was one of fact and not one of law. And as this court cannot retry the case upon the facts, but can only decide such questions of law as may be involved in the case, we cannot reverse the decision of the court below merely because it erred in its findings of facts, provided of course that there was sufficient evidence introduced from which if such evidence were uncontradicted and unexplained a court might reasonably infer what is contained in its findings. If there had been no evidence to sustain the findings, or any one of the findings, then we might reverse'the judgment of the court below for that reason; for then the question would be purely one of law. Some of the evidence which tends to show that said assignment was in fact fraudulent is as follows: lst.-Under the provisions of the deed of assignment the proceeds of the sale of the property assigned could be distributed among the creditors only, by and in accordance with the orders of all the creditors or the district court. This might cause delay and injustice. The assignee should allow all just and legal claims, and pay as much as he could on them, without waiting for the orders of all the creditors or the district court. (See Gen. Stat, ch. 6, §§ 21, 24, 35.). One creditor has no right to determine how much is due to another creditor, or when it should be paid. 2d. — It would seem from another provision of the deed of assignment that the assignor contemplated that there would be a surplus of his estate left, after paying all his debts, and there was no evidence introduced that would tend to show otherwise. Now it is generally fraudulent for a person who can pay all his debts to make an assignment. (Seibert v. Thompson, 8 Kas., 69; Burrill on Assignments, 190.) All assignments in trust for creditors tend to hinder and delay such creditors, and cannot as a rulé be sustained unless the assignor is insolvent. 3d.-The assignor in this case was a grocer, and the business was carried on in the same place and in the same manner after the assignment that it was before. The assignor continued to reside in a part of the same house where the grocery was kept. He was sometimes in the grocery and behind the counter, and also sold goods. The same clerks remained in the store, one of whom seems to have been a sister of the assignor. The signs remained the same. The assignor’s name still remained on all the boxes, casks, etc., and the name, “E. Higby, Grocer,” still remained on the delivery-wagon. There was really no apparent change in the business. There was some evidence about two different inventories of the property which we do not precisely understand, but it is claimed by the defendants in error that such evidence indicated fraud.
There are some questions in this case which counsel have not chosen to raise, and therefore we have purposely avoided saying anything about them. 'We however desire that it be distinctly understood that we have decided no questions in this case except such as are.mentioned in this opinion.
The judgment of the court below will be affirmed as to the defendant in error Alexander H. Ayres; and it will be reversed as to the other defendant in error, Gilbert Martin. The cause will be remanded for further proceedings as between the plaintiff in error and Gilbert Martin.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The only question in this case is as to the validity of a tax-deed, and one of the objections to it is the same as that which was held fatal in the case of Norton v. Friend, decided at the present term of this court; (13 Kas., 532.) It recites a sale to the county, not as a result of a failure to sell to an individual, but as the result of competitive biddings, in which the county entered as a voluntary bidder. The language of the deed is as follows:
“And whereas, at the time and place aforesaid, Bourbon county having offered to pay the sum of $23.05, being the whole amount of taxes, interests and' costs then due and remaining unpaid on said property, for the aforesaid lot, * * * which was the least quantity bid for, and payment of said sum having been by it made to said treasurer, the said property was struck off to it at that price.”
The county is not a voluntary bidder at a tax sale. It enters into no competition with individuals. It pays no money to the treasurer. It simply becomes the involuntary purchaser of that which no individual will buy. The distinction between a purchase by an individual, and one by the county, and the reasons therefor, are clearly pointed out by Mr. Justice Safford in the opinion in the case of Guittard Township v. Marshall Co., 4 Kas., 388. Hence a deed, which recites a purchase by the county under the same conditions as a purchase by an individual, recites an unauthorized and illegal purchase. A deed showing an illegal sale must be void. But it may be urged that this ruling conflicts with the decision in Hobson v. Dutton, 9 Kas., 477, where it is said that “the rule is clear, that where the statute contains a form of any instrument, a compliance with that form is sufficient.” This deed follows the form of the statute, and according to that rule must be held sufficient. The language of that opinion is general, and so far as the facts of that case are concerned states the law correctly. Yet we think here is found an exception. When the conditions of the sale are such, that, to follow the form is to recite an untruth, and show an illegal sale, the form must be modified to suit the facts. To make a statement of an illegal and void sale evidence of a legal and valid sale, is a contradiction not to be imputed to the legislative intent. The statute says the deed shall be in substantial compliance with the form. It thus contemplates minor modifications, and those modifications must be such as to make the deed recite the truth, and comply with the conditions of valid action.
The judgment will be reversed, and the case remanded with instructions to proceed in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Jacob Louis against "Williams & Pattee on an account for liquors and other articles sold by him to them. The defense to the action is, that Lonis sold said liquors in violation of law, having no legal license therefor, and therefore that he cannot recover. Section 3 of the act concerning the sale of intoxicating liquors, commonly called the Dramshop Act, makes it unlawful for any person to sell any intoxicating liquor “without taking out and having a license as grocer, dramshop-keeper or tavern-keeper.” (Gen. Stat., 400, §3.) Sections 1 and 2 of the same act provide that the license shall be granted by the city council of any incorporated town or city where the establishment for the sale of such liquors is located in such town or city, and by the county commissioners where such establishment is located elsewhere. Section 47 of the second-class-city act of 1872 provides among other things that, “The city council shall have exclusive authority to levy and collect a license tax on * * * grocers, * * * dramshops, saloons, liquor-sellers,” etc. (Laws of 1872, p. 206, § 17.) And it is not necessary that a person who desires to sell intoxicating liquors in an incorporated town or city should have a license therefor from the county board, but it is sufficient if he has a license from the council of such town or city. (The State v. Pitman, 10 Kas., 593; City of Emporia v. Volmer, 12 Kas., 633.) The liquor in the present case was sold in the city of Ottawa, a city of the second class. An ordinance of said city authorized the city council thereof to grant licenses “to sell intoxicating liquors in quantities of not less than one gallon, or in packages as bought and sold in wholesale markets.” And Louis at the time he sold said liquors had á license signed by the mayor, the clerk and the treasurer of said city, authorizing him “to sell intoxicating liquors at wholesale in quantities of not less than one gallon or in packages as bought and sold in wholesale markets.” The plaintiff below introduced all the evidence that was introduced. The defendants below did not even attempt to introduce any evidence. It does not appear from the record that Mr. Louis ever sold any liquor in violation of his license, or outside thereof. It does not appear that he ever sold less than one gallon of liquor at a time, or that he ever broke an original package, as he purchased such package at wholesale in the mar’ket. The only question then is, whether his license is valid or not. We think that prima facie it is valid. Its validity however depends as we think upon whether it was granted by the city council specially to him. But as the ordinance authorized the city council to grant licenses, and authorized no one else to do so, and as this license was signed by three of the principal officers of the city, it will be presumed, in the absence of anything to the contrary, that all the officers did their duty, and therefore that the license was granted by the city council, and that it was granted by them in special and express terms to Louis. After it was shown that Louis had a license to sell liquor, signed by the princL pal officers of the city of Ottawa, if the defendants then claimed that there was any irregularity in the granting oí the issue of said license we think it then devolved upon the defendants to show it.
But it is claimed that Louis was not a grocer, dramshopkeeper, or tavern-keeper, and that his license was not issued to him as such, and for that reason that the license is void. Now it is not shown that Louis was not a grocer, dramshopkeeper or tavern-keeper. It is shown that he was a wholesale liquor-dealer, but it is not shown that he was not also a grocer, dramshop-keeper, or tavern-keeper. But even if it were shown that he was not a grocer, dramshop-keeper, or tavern-keeper, still we do not think that it would make any difference. The law does not require that a person in order to obtain a grocery license, dramshop license, or tavern license, should actually be a grocer, dramshop-keeper, or tavern-keeper. Any person may obtain such a license, and sell intoxicating liquor under it, whatever his occupation or business may be. We shall therefore decide this case upon the presumption that Louis followed no occupation or business except that of wholesale liquor-dealer.
The next question is, whether the license itself should upon its face purport to be a grocery license, a dramshop license, or a tavern license. We do not think that it is necessary that it should, in direct terms. If it should be in substance and in fact just what a grocery license, a dramshop license, or a tavern license must necessarily be under the statutes, then we think it would be entirely sufficient as a license. Now a grocery license, a dramshop license, or a tavern license, under the statutes, cannot be anything more or less than a license to sell intoxicating liquors. Therefore, a license which in express terms authorizes the sale of intoxicating liquors will be deemed sufficient. ' The license in this case merely authorized the plaintiff to sell intoxicating liquors at wholesale. It might under the statutes have authorized him to sell both at wholesale and retail. But the fact that it did not authorize plaintiff to sell intoxicating liquors at retail, will not, as we think, invalidate the license as a license to sell intoxicating liquors at wholesale. The city council in granting the license were, not bound to exercise their whole power in the premises in order to exercise any portion of such power.
But even if this license were technically void, it does not necessarily follow that the plaintiff cannot recover. A party in such a case is debarred from recovering only where he willfully violates the law. Here was no willful violation of any law. The plaintiff innocently believed that he had a good license, and one that would protect him in the sale of liquors at wholesale. If he was mistaken, however, the mistake was probably such a mistake of fact as would excuse him. But the defendants are hardly in such a condition as to demand the most rigid scrutiny into the technical defects of the plaintiff’s license. They have no special claims that appeal strongly to men’s sympathies. Their virtuous indignation at the wickedness of selling intoxicating liquors at wholesale, under a license technically defective, and their pit eous wail for the vindication of violated law, may possibly not be prompted wholly by disinterested motives. If Louis had really violated the law by selling intoxicating liquors without a license, the courts would lend him no aid in recovering for the price of such liquors. But even then the defendants would have no high moral right to refuse to pay for what they had purchased, and used, and promised to pay for. There is no high moral principle, that we are aware of, requiring a retail liquor-dealer to repudiate obligations assumed by him for liquors purchased by him from the wholesale dealer. The wholesale dealer does not in any case sell the liquors to be used as a beverage, except possibly indirectly through the retail dealer himself. The case of Dolsan v. Hope, 7 Kas., 161, is good law, but it does not apply to this case. The judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action of ejectment for a tract of land in Franklin county. Both parties claimed title under the same patentee, one William Hurr, an Ottawa Indian. Defendant holds under a deed executed December 1st 1865; and the question is, whether this deed was void under art. 7 of the Ottawa treaty of 1862, (12 U. S. Stat. at Large, p. 1239.) There is no dispute, but that if this deed is void plaintiff’s title is good and he ought to recover. It was conceded that William Hurr, thé patentee, was a councilman and headman of the Ottawa Indians, and that the lands in controversy were patented under the provisions of art. 3 of the said treaty. The treaty provided in its first article that the Ottawa tribe should be dissolved at the expiration of five years from its ratification, and that the individual Ottawas should be deemed and declared to be citizens of the United States from and after that time. Article 3 reads as follows:
“It being the wish of said tribe of Ottawas to remunerate several of the chiefs, councilmen and headmen of the tribe, for their services to them many years without pay, it is hereby stipulated that five sections of land are reserved and set apart for that purpose, to be apportioned among the said chiefs, councilmen and headmen, as the members of the tribes shall in full council determine; and it shall be the duty of the Secretary of the Interior to issue patents in fee simple of said lands, when located and apportioned to said Indians.”
Said article also grants to these parties, and to all heads of families, 160 acres, and to all other members of the tribe, 80 acres each. By art. 6, twenty thousand acres are given for the endowment, and one section for the site, of a school. Art. 7 provides that ten acres shall be set apart for the Ottawa Baptist church, and eighty acres to each of the two children of a former missionary among the Ottawas, which last two tracts are to be selected and located as the other allotments- provided for are to be selected and located, and to be “inalienable the same as the land allotted to the Ottawas.” It then continues as follows:
“And all the above-mentioned selections of lands shall be made by the agent of the tribe under the direction of the Secretary of the Interior. And plats and records of all the selections and locations shall be made, and upon their completion and approval proper patents by the United States shall be'issued to each individual member of the tribe, and person entitled for the lands selected and allotted to them, in which it shall be stipulated that no Indian, except as herein provided, to whom the same may be issued, shall alienate or incumber the land allotted to him or her in any manner until they shall by the terms of this treaty become a citizen of the United States; and any conveyance or incumbrance of said lands, done or suffered except as aforesaid by an Ottawa Indian, of the lands allotted to him or her, made before they shall become a citizen, shall be null and void.”
Does this apply to the lands patented under art. 3? It seems to us that it does. It says, “All the above-mentioned selections.” Upon what shall be founded an exception in favor of this selection? It must refer to lands selected under art. 3, because it speaks of allotments to Indians, and only in that article are such allotments provided for. Indeed there are no personal allotments provided for except in art. 3, and those to the children of the missionary, and as to them we have seen that it is expressly mentioned that they are to be inalienable the same as the allotments to the Ottawas. Referring then necessarily to selections under art. 3, and declaring that it embraces “All the above-mentioned selections,” it must include this, unless’there be something to make this an exception. It is said that the restriction contemplates some exception, because it says, “no Indian, except as herein provided,” and that there can be no other exception than these selections for the chiefs, etc. The use of the term, “except as herein provided,” would naturally refer to some express exception, and not to one arising by mere implication, and we find in the treaty as originally made by the Indians, the express exception, attached to the first article was a proviso, “that John T. Jones, now a member of the Ottawas, being an educated and experienced man, * * * is hereby declared to be a citizen of the United States, exempt from the restrictions hereinafter provided concerning the purchase, alienation, or incumbrance of the Ottawa lands.” Here then was the express exception, and the only express exception, one which might properly be said to be “herein provided.” "When the treaty was presented to the senate this proviso was stricken out, and the treaty as thus amended finally ratified. Striking out the proviso to which this term of exception could alone properly apply, did not have the effect of creating an exception elsewhere, but left the term nugatory and meaningless. Again, it is said that patents are to be issued for these lands in fee simple, and this implies a full title, free from any restrictions upon alienation. This expression, at least when used in Indian treaties, carries no such necessary implication. See the briefs of counsel and the opinion of the court in the case of Blue Jacket v. Comm’rs of Johnson County, 3 Kas., 299, and the subsequent opinion of the supreme court of the U. S. reversing this case, The Kansas Indians, 5 Wallace, 737. Again, it is said that this restriction only applies to selections made by the agent, and that the selections for the chiefs, etc., were to be made by the Indian council. We do not so understand the treaty. The seventh article declares that “all the above-mentioned selections of lands shall be made by the agent;” while article S does not provide for any selection. It says that five sections are to be apportioned! among the chiefs, etc., as the council shall determine. This we understand to mean that the council shall determine the amount each chief and councilman shall receive. It also provides that the Secretary shall issue patents “of said lands when located and apportioned.” The location is not given to the council, only the apportionment.
It follows from these considerations that the restrictions of art. 7 applied to this land, and that the deed under which the defendant holds is null and void. The judgment of the district court must therefore be reversed, and the case remanded for a new trial.
Kingman, C. J., concurring. | [
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By the Court,
Kingman, C. J.:
The only error alleged in this case is the same as the first considered in the case of the Ottawa University v. Parkinson, just decided; and for the reasons therein given the judgment-in this case is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant in error brought his action in the district court of Greenwood county against Barrett Weaver and Lucy J. Weaver. He set up in his petition two notes signed by Barrett Weaver, and alleged the execution of a mortgage on certain real estate by both the defendants to secure them. A summons was issued and duly served upon both the defendants. Neither of them made any appearance, and a judgment was taken against both for the amount of the notes, and a decree entered against both for the foreclosure of the mortgage. An order of sale was issued, the property sold, and purchased by the plaintiff. Lucy J. Weaver then appeared and filed her motion to set aside the judgment, decree, and sale. The personal judgment against her was set aside, but the motion otherwise was overruled. The grounds of the motion were as follows: The single summons which was issued was indorsed, “Suit brought for the recovery of money — Amount claimed, $1,312.83 with interest from the 26th of May 1873, at the rate of 10 per cent, per annum.— G. W. Lillie, attorney for plaintiff'.” This, it is claimed, was notice to the defendants that only a personal judgment was sought, and that it was error to take anything more. This is not an open question in this court. As long ago as the' case of George v. Hatton, 2 Kas., 333, it was decided that in an action like this no indorsement was required on the summons, it not being an action for the recovery of money only, but that if an amount was indorsed, it was not error to take judgment for that amount together with a decree for the sale of the land. Counsel contends that the decision in that case properly rests on other grounds, and that the comments of Chief Justice Crozier upon this question are mere obiter dieta. We do not so understand it. It was made one of the points announced in the syllabus, and the decision may as fairly be said to rest upon this as upon any other ground. We are aware of contrary rulings in Ohio: Williams v. Hamlin, 1 Handy, 95; 1 Nash’s Pl. & Prac., 4th ed., p. 67. And if this was an open question we might be disposed to give considerable weight to these authorities. But being merely a question of practice, and having been once settled in this state, we deem it better to adhere to that ruling. Doubtless it has been accepted by the profession during the last ten years as the correct interpretation of the statute, and many rights founded upon it. Stare decisis, is eminently appropriate in such cases. It may be remarked that there is no showing here of any actual prejudice, no allegation that plaintiff in error did not in fact sign such mortgage, or that no decree of foreclosure thereon ought in equity to have been made.
The order of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
The appellants were charged with grand larceny, committed in Bourbon county on the 18th of September 1873, and tried and convicted of the offense. They claim that certain errors occurred on the trial. The first is, that there was no proof of the corpus delicti, and therefore a new trial should have been granted. There can be no doubt as to the law; but a careful scrutiny of the record has satisfied us that the proof on this point is satisfactory. The owner of the horse placed him in the stable of a neighbor with whom he was staying that night, and near ¿jje c]001- deposited his saddle and blanket. In the morning the horse was gone, and the owner has never seen him since. If it be said that the horse might have escaped, the answer is, that the saddle and blanket were also gone; and almost every fact that was in evidence tended to prove that the horse was stolen. It was in evidence that the accused, on the day and night after the horse was taken, went northward with the team and wagon of Folwell, one of the accused; that there were three horse-tracks northward, twenty miles, while Folwell drove but two; that a couple of men with a span of horses and a wagon, with a led horse, were seen stopping 150 yards from the road the accused traveled; that the team, wagon and horses corresponded with that of the accused, and so did the led horse with the horse alleged to be stolen, a similar team, wagon, harness, with a led horse of the same color and size of the one missing, passed through Osage the afternoon of the 19th of September; and many other minute facts, all tended to show that the missing horse was stolen. Taken altogether, the testimony is so convincing that we do not see any ground on which the claim of the appellants on this point can rest.
1. Admissibility of evidence of one offense, where it also proves another offense. The other errors alleged are the admission of improper evidence. The first is, the admission of evidence tending to prove another larceny. The facts are substantially as follows: The state was trying to prove the whereabouts of the accused on the 19th of September, to connect them with the'loss of the missing horse. The evidence' had tended to show that they had gone north as far at least as Prescott, twenty miles, and that on the way up the tracks showed three horses, and on the return two horses. Every fact that in any way tended ‘to show that the wagon of the accused made those tracks and that the defendants were with the wagon, was important and relevant. The witness had already testified that he had examined the wagon of defendants, and described it, pointing out peculiarities of its running, and had measured the track near where he lived, and that the “doubletrees on defendant’s wagon, as he saw it on September 20th, were the property of witness.” He was then allowed to testify that he left this property in the road five-and-one-half miles north of Fort Scott, on the Barnes-ville road, and next saw it the next day on defendant’s wagon at Fort Scott. It is true, that this evidence tended to prove a distinct felony, and it will readily be seen that it was likely to injure the defendants; but the testimony was essential to v show the guilt of defendants on the charge then being tried, and it would be a singular rule of law, that a person accused of a grave crime could compel the exclusion of important and relevant testimony merely by committing two felonies at the same time, or so nearly and intimately connected that the one could not be proven without also proving the other. The testimony was competent, not for the purpose of proving' another felony, but as tending to show the guilt of the accused in this case. The authorities are not conflicting on this point. (Wharton Crim. Law, § 649.) This testimony, relevant and proper in itself, was elicited by two questions propounded by a juror; and this asking questions by a juror is alleged as error by the counsel for appellants, who have apparently overlooked the fact that it was done by their own consent, as shown by the record.
It is insisted that witnesses were allowed to give their opinions without having shown themselves competent; and two instances are pointed out. In the testimony of Randall, it was on cross-examination by defendants that the testimony was brought out, and no exception taken in any ° ' , , way thereto. In Avery s testimony, the witness stated that in his opinion the defendant Folwell’s wagon made the track that was followed. This testimony the defendants moved to have struck out, which the court refused to do. It is very evident that the testimony could have had little or no weight with the jury; still it may possibly have had enough to make it necessary to examine the question raised. It is true, as a general rule, that witnesses are not allowed to give their opinions to a jury, but there are exceptions. In many cases they are the best evidence of which the nature of the case will admit, cases where nothing more exact than an opinion can be obtained. Duration, distance, dimension, velocity, etc., are often to be proved only by the opinion of witnesses, depending as they do on many minute circumstances which cannot fully be detailed by witnesses. (See note in case of Poole v. Richardson, 3 Mass., 330.) Questions of science, skill, or judgment, are also of this description. And where, as in this case, the witness knew the wagon of Folwell, the peculiarity of its construction, and that one wheel was dished, the whole wagon making a much narrower track than common, and the dished wheel making besides a very irregular track, and where he also testifies that he has followed the track for miles, noticing its peculiarities and measuring its width, we do not think it was error to permit his opinion to go to the jury, who, having a knowledge of its groundwork, can judge of its value. The question was not one of science, nor was the witness an expert. After giving the facts he gives only the conclusion he deduced from them; and as it was the same that the jury must have drawn from the same facts, we cannot say there was error therein. (1 Wharton’s Crim. Law, § 45.)
Another alleged error is, that the court admitted the dec larations of appellants to be given in evidence, said declarations being made while they were in custody, and y. n0£ ]3ejng first shown that they were voluntary. It is not necessary to examine the law on this question, for the facts are not such as to demand it. The record does not state that all the evidence is in the bill of exceptions; and as the testimony to show that the declarations were voluntarily made is for the judge only, to enable him to determine whether the declaration was a voluntary one, we cannot say that such testimony was not given. It is alleged that the ■evidence was not confined to the issue, and that the rule requiring it to be so limited was repeatedly violated; but no .specific instance is pointed out, and we think none exists. Upon a careful consideration of the whole case, we perceive no error that would justify us in reversing the judgment.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action in the district court to
foreclose two mortgages. The mortgages contained a stipulation to pay “reasonable attorney-fees” in case of foreclosure. There being a dispute as to the amount due on the notes, the case was tried by a jury. No testimony was offered concerning attorney-fees, and the verdict found simply the amount due on the notes. The motion for a new trial having been overruled, the court rendered judgment for the amount of the verdict, and a decree for the foreclosure and sale of the mortgaged premises. It also, upon the application of the plaintiff, and without hearing any testimony, taxed an attorney-fee of one hundred dollars, and included it in the judgment. To this at the time the defendants excepted. We think the court erred, and that what was a “reasonable attorney-fee” was a question of fact to be settled upon evidence. A party recovers attorney-fees upon the foreclosure of a mortgage, not by virtue of any statutory authority, but by virtue of the contract. In the absence of any stipulation therefor, none can be recovered. They are in no sense costs. Swartzel v. Rogers, 3 Kas., 380; Stover v. Johnnycake, 9 Kas., 367. If the amount is fixed by the mortgage, there is nothing to litigate except as to the validity of the mortgage. If it is designated as a certain per cent., there is nothing but a mere calculation. But if the stipulation is to pay “reasonable attorney-fees,” or what amounts to the same thing, “attorney-fees,” then a matter is presented which can be settled only upon evidence. The statute does not determine what are “reasonable attorney-fees,” and it is not a matter of which the court can take judicial notice. We are referred to Laws of 1870, p. 175, § 13, in which it is provided that “the court shall tax t]je costs, attorney-fees, and expenses which may accrue in the action, and apportion the same among the parties according to their respective interests,” etc. "We do not understand this as giving the court the power, of its owp discretion, and without testimony, to assess the amount of the attorney-fees, any more than the amount of the costs. It authorizes the court to tax costs, whose amounts are specified in the statute, attorney-fees, whose amounts are fixed by the contract of the parties or otherwise settled upon the basis of their stipulations, and adjust and apportion them between the parties,, and upon the respective interests. We do not decide that the court is not the proper tribunal to hear the evidence, and from that assess the attorney-fees. Indeed, it seems to us that at least as to all mortgages executed since the passage o'f the act of 1870, above noticed, (the mortgages in this action were executed before that act,) it is the proper tribunal. All we decide is, that such assessment, by whatever tribunal pronounced, must be based upon proper evidence. We are referred also to the decision in Tholen v. Duffy, 7 Kas., 405, in which a contract to pay ten per cent, was sustained, and quotations are made to us from the language of that opinion. We did not decide in that case that courts can take judicial cognizance of the proper amounts of attorney-fees, or assess them without evidence. We upheld the. contract because the amount did not appear so excessive as to be unconscionable for a court of equity to enforce. The principle of that case would apply here if, the amount having been determined upon evidence, it was insisted that such amount was so grossly excessive as ought not to be upheld. The question is one which in the very nature of. things'may require evidence. The proper fee depends upon several circumstances — the amount in controversy, the difficulty of the questions, the amount of time and labor employed. Now all of these things do not necessarily come before the court, or within its knowledge; and to ask a court to determine reasonable compensation therefor, without being fully advised therein, would be manifestly improper. Bowser v. Palmer, 33 Ind., 124; Wyart v. Pattorff, 37 Ind., 512. It will be unnecessary however to send this case back for a new trial. It will be sufficient to remand the case with instructions to modify the judgment by striking out the allowance for attorney-fees, and it is so ordered. The costs of this court will be divided.
All the Justices concurring. | [
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The opinion of the court was deliyered by
Brewer, J.:
Statement ofcase. The material facts in this case are these: On the 12th of August 1873, the town of Peru was the county-seat of Howard county. An election was on that day held for the relocation of the county-seat. Boston, Elk Falls, and Peru were candidates. No place received a majority. By the canvass of the commissioners Elk Falls and Peru were declared to have received the highest number of votes, and to be the two candidates to be voted for at the second election. This election was ordered to be held and was held on the 26th of August. No notice was given by the sheriff of this election. On the day for the canvass of the votes east at this election the commissioners were summoned to appear before the district judge, and were unable consequently to attend and make the canvass. But afterward and on the 26th of September 1873, they met, canvassed the votes, and declared Elk Falls to have received the majority, and to be the county-seat. At the canvass of the votes cast at the first election the commissioners rejected some of the returns, and thereby changed the result, for if all the votes had been canvassed, Boston and Elk Falls would have received the highest number of votes and been the competitors at the second election. Subsequently one of the Justices of this court issued an alternative writ of mandamus, commanding said commissioners to canvass the entire vote cast at said first election, or show cause, on the first Tuesday of January 1874, why they did not. On the receipt of this alternative writ the commissioners met on the 29th of October 1873, canvassed the entire vote, declared Boston and Elk Falls to have received the highest vote, and to be the competitors at a new election ordered to be .held on the 11th of November. On the 11th of November, in obedience to this call, an election was held, and Boston received the majority, and was declared by the commissioners the county-seat. All the county officers but the county clerk, the plaintiff in error, hold their offices at Elk Falls. He moved his to Boston after the last canvass, and this action was to compel him to move it back to Elk Falls.
Upon these facts counsel for plaintiff in error claim, “1st, That a partial canvass of the votes cast at the first ' election is not a compliance with the law; 2d, that a canvass of the entire vote is essential to the validity of the second election; and 3d, that proclamation of the result, and notice of the time of holding the second election, is necessary to make such election valid, and all these elements being wanting in this case, that Elk Falls takes nothing by the second election.” In reference to the last point it may be said that it is very doubtful whether the omission of the sheriff to give notice of any election would vitiate that election, provided the people generally participated in it. And again, while §10 of the act respecting county-seat elections (Gen. Stat., p. 298,) declares that all such elections “shall be conducted in all respects as provided for by the general election laws of the state,” yet the provisions in the latter laws concerning notices seem inapplicable. The sheriff is to give, “ten days before the holding of any special election, * * * public notice by proclamation, * * * one copy of which shall be posted up at each of the places where the elections are appointed to be held, and inserted in some newspaper published in the county, if any be published therein.” By the county-seat election law, § 6, the commissioners are to meet on the Saturday succeeding the first election to make the canvass; and by § 7, if a second election is necessary it is to be held on the second Tuesday thereafter. The day of the canvass is thus itself only the tenth day before the day of the election. The practical difficulties in the way of giving the notice indicate that the legislature did not intend to make that essential to the validity of such second election.
The other is however the more important and difficult question. Suppose that the commissioners ignorantly or willfully reject a part of the returns of the first election, and in consequence declare that A. and B. have received the highest vote, and are therefore the candidates at the second election, when in truth and upon a#full canvass A. and C. received the highest vote, and are entitled to be the subsequent candidates: what remedy if any has C.? Can the commissioners thus nullify the will of the people? and if not, how can the wrong be righted? It may be that there is no direct, full, and adequate remedy — that it is one of those wrongs which can only indirectly be remedied. Perhaps in case of glaring omission or misconduct the friends of the candidate improperly left out might ignore the canvass of the commissioners, and vote for that place' on the second election, and thus right the wrong. But this, if legal, would manifestly come far short of being adequate, because many would be loth to believe wrong or mistake on the part of the canvassers, and would be controlled by their proclamation of the result rather than by any evidence which in the brief time intervening could be collected and presented to the voters at large. Mandamus will lie to compel a correct canvass; but whether it will lie after the dissolution of the canvassing board, is a question perhaps doubtful under the authorities: People v. Supervisors of Greene, 12 Barb., 217; Hadley v. City of Albany, 33 N. Y., 603; S. C. in Brightly’s Con. Election Cases, 307; Bowen v. Hixon, 45 Mo., 340; People v. Hilliard, 29 Ill., 413. These authorities seem clearly to show, that a canvassing board having met at the legal time and place, made the canvass, and adjourned, cannot of their own will thereafter come together and make a second canvass. Their powers are exhausted by the first action. If however the board has not met, or having, met has refused to act, its action can be compelled: Hagerty v. Arnold, 13 Kas., 367. Doubtless the correctness of the canvass, at least of the final election, can be determined in mandamus proceedings under § 2, ch. 79 of the acts of 1871, (Laws of 1871, p. 191,) and §7, as amended in 1872; (Laws of 1872, p. 271, § 1.) But these mandamus proceedings do not run against the canvassers, and are not directly to compel a recanváss. But whatever may be the rule as to the power of the court by direct proceeding to compel a recanvass after the dissolution of the canvassing board, it seems to us that any proceedings to compel such recanvass as to the first election should be had before the second. In other words, parties cannot accept the canvass of the first election as correct, enter into the contests of the second upon the basis of such prior canvass, and then when disappointed in the result of the second election obtain a recanvass of the first, or contest the result of the second on the ground of an incorrect canvass of the first. This, while it has manifest fairness on its side, seems also warranted by the .legislation of 1872 above cited. That amendment, after declaring that in any action or proceeding under the adt the validity of the election, and of any votes cast or refused at such election, may be inquired into, adds this proviso: “Provided, however, that in- no case shall the validity of any election be inquired into beyond the one last had, and upon which the proceeding is based.” This proviso, which was first added in that year, contemplates proceedings in which two elections are provided for as sometimes necessary to a final determination; and the only proceedings named in the act requiring'two elections are county-seat- elections. It therefore obviously refers to such elections, and plainly indicates that a contest made after the second election must be limited to that election. It is true, that the proceedings named in the act are not directly to compel a recanvass, and a proviso cannot be extended beyond the reach of that to which it is a proviso. Yet this is evidence of the legislative will'in the matter, and sustains us in the conclusions otherwise reached. It seems to us therefore that the second meeting and canvass by the commissioners of the votes cast at the first election availed nothing, and that no proceedings having been taken to correct the first canvass prior to the second election, all parties must be held concluded by that canvass. It follows therefore that the judgment of the court below is correct, and must be affirmed.
Kingman, C. J., concurring.
Valentine, J.:
I think perhaps the decision of this case is correct, but still I have no doubt of the power of any proper court to allow a writ of mandamus to be issued to compel a. board of canvassers to canvass or recanvass election returns where such board has in the first instance neglected or refused to canvass the same, or to canvass some definite and ascertainable portion thereof. And this I think may be done, although a particular day is fixed by law for the canvass, and the board has met on that day and canvassed a portion of the returns and adjourned'. The canvassing board are simply ministerial officers, having no judicial power, and therefore when they neglect or refuse to canvass election returns they thereby create a cause of action against themselves, to-wit, the action of mandamus, and they cannot merely by an adjournment of their board defeat or destroy that cause of action. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an application for a temporary injunction at the commencement of an action for an injunction, under § 239 of the civil code, to restrain defendants in error pending the litigation from tearing down and destroying a mill-dam across the Verdigris river, in Wilson county. The application was made upon the petition in the cause, duly verified, to the judge of the district court at chambers. The defendants were notified, and appeared, and resisted the motion for the temporary injunction upon affidavits which are set out in the record. The judge denied the motion for an injunction, to which plaintiff excepted, and brings the cause to this court on error, as provided in § 542 of the code. The petition sets forth in substance that on the 1st of February, 1871, plaintiff in error was and ever since has been the sole' owner of the mill-dam in the petition described, and that on the 31st of January, 1872, the defendant in error, Lewis F. Davis, recovered a judgment in the district court of Wilson county against H. C. Akin, C. M. Akin, and C. M. Akin as administrator of the estate of C. G. Akin deceased, in an action then pending wherein said Davis was plaintiff, and plaintiff in error, together with said H. C. Akin, G. M. Akin, and G. M. Akin as administrator of the estate of C. G. Akin deceased, were defendants, for the sum of five cents and costs; and that it was further decreed by said district court that said H. C. Akin, C. M. Akin, and C. M. Akin as administrator of the estate of C. G. Akin deceased, should, on or before the 1st day of March, 1872, remove so much of said mill-dam as might be necessary to prevent the water from flowing back in the channel of said Verdigris river, by reason of said dam, upon the riffles situated on the N.E.J of the N.E.J of section 16, township 28 south, of range 16, in said county of "Wilson, and in default of compliance with said decree by said last-named defendants, within said time, then that the sheriff of said county should execute the said order by removing so much of said dam as might be necessary to satisfy said decree. The petition further states that plaintiff in error never had any notice whatever, either actual or constructive, of said action, nor did plaintiff in error ever appear in said action, nor is he (the plaintiff in error) a party to said judgment. The petition further states that at the instance and request of said Davis (defendant in error) a writ of execution has been issúed by the clerk of said district court to defendant in error B. W. Ladd, sheriff of said Wilson county, upon said judgment, and that the said B. W. Ladd is now threatening and intending, at the instance and request of said Davis, to carry into effect said execution, and remove so much of said dam as may be necessary to comply with the requirements of said judgment, which, if he is allowed so to do, will be to the great and irreparable injury of the plaintiff, and in so doing the said B. W. Ladd will be acting without leave or license of plaintiff in error. A certified copy of the former proceedings and judgment is attached to the verified petition, and made a part of the same. At the argument of said motion for an injunction plaintiff in error asked leave of the said judge at chambers to amend his verified petition by inserting in the proper place the fol lowing: “That said mill-dam is worth ten thousand dollars, and would be totally ruined and rendered worthless if said defendants were suffered to execute the said order of said court, which they are threatening to do” — which said judge refused to allow, and plaintiff in error excepted.
The defendants showing cause why said preliminary injunction should not be granted, set forth in their affidavits, in substance, that at the time of the commencement of said original action referred to, and, during the entire pendency of the same, and until after the final judgment, said plaintiff in error was not in charge of said mill-dam in said original petition described, nor had he the actual charge or control of the same, but was residing in another county, with his family, in the business of register of the land office; that at the commencement and during the entire pendency of said action, C. M. Akin, and C. G. Akin in his life-time, carried on said mill, and had the charge and management of the same; that the dam in question was adjudged a nuisance in said former action, and ordered to be abated; that said dam at the commencement of said former action was kept and maintained as a nuisance by said defendants, and is now kept by plaintiff in error so as to flood the water back in the channel of the Verdigris, and thereby to flood the land of said Davis, lying on both sides of said river, above said dam, so as to raise the water five and one-half feet in excess of the natural flow; and that said Davis had a good ford on said river on his premises, which has been ruined; that said defendant Davis, and said sheriff of Wilson county, intend only to remove so much of said mill-dam as will prevent the waters from flooding back on said Davis’ premises, and that said mill and dam are not worth over ten thousand dollars, and that said Davis is worth much more than that sum beyond exemptions and liabilities, and is-able, ready and willing to respond in damages on any judgment said plaintiff in error may obtain against him by reason of any injury to said mill-dam; and that said Davis has given the said sheriff a bond of indemnity, etc.
We shall not attempt to decide at the present time whether the proceedings to abate the nuisance caused by the erection of the dam was so far a proceeding in rem as to conclude the owner, although not a party to the suit, for we think that upon other and more obvious grounds the ruling of the district judge must be affirmed. No right to maintain a dam is disclosed in the petition. It does not show that proceedings were ever had under the mill-dam act, or that consent was ever obtained of the parties whose lands were flooded. The plaintiff bases his right to restrain the defendants upon the fact that the dam exists, that he owns it, and that he has never been ordered to remove it. It does appear from the whole case, that in a proceeding between the owner of the lands flooded, and the actual possessors and managers of the mill and dam, the dam was declared a nuisance, and the parties in charge ordered to abate it; that as a matter of iact it is a nuisance to one of the defendants; and that said defendant is able to respond to all damages which may be caused by the removal of the dam. Under these circumstances we cannot say that the judge in the exercise of a sound discretion erred in refusing an injunction.
Some full and clear showing might well be insisted on, of a right to maintain the dam, even though it were conceded that the prior judgment was not conclusive. An injunction in limine is not a matter of strict right. It may sometimes be properly refused upon the same facts which would entitle the party of right to an injunction on final hearing. (Stoddart v. Vanlaningham, ante, p. 18.) It may be a hardship to have the dam removéd, but if a party builds a dam without obtaining by consent or legal proceedings the right to flow lands above the dam, he has only his own imprudence to blame for the result. The order denying the temporary injunction will be affirmed.
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The opinion of the .court was delivered by
Brewer, J.:
We are asked to review an order of the district court of Lyon county discharging an attachment. The grounds for the attachment were, that the defendant was “ about to convert a part of his property into money for the purpose of placing it beyond the reach of his creditors, and had assigned, removed and disposed of a part of his property with the intent to defraud, hinder, and delay his creditors.” The cause of action stated in the petition grew out of a contract between the parties, of date March 17th, 1873, whereby the defendant agreed to build a house on a certain lot and then convey the lot and improvements to plaintiff. At the time of the contract defendant received a gold watch and chain valued at $200, and $32.50 in cash, as part payment. Nothing further was paid by plaintiff directly to defendant, though relying on the contract plaintiff built a barn upon the lot. Subsequently the defendant conveyed the lot to a third party, and hence arose this action for breach of contract. Defendant claims by his affidavit that the plaintiff was the party which broke the contract, and that the latter has no claim upon him for any amount whatever. That however is a question properly to be determined by a jury, and upon oral testimony, rather than upon affidavits, and on this motion. In support of the attachment plaintiff introduced several affidavits showing indebtedness on the part of the defendant to different parties amounting in the aggregate, and exclusive of plaintiff’s claim, to about $2,200. Some of this was secured by mortgages, and some had been standing for several months. He also showed that the only property he had been able to find standing in defendant’s name was a farm wbicb was valued by real-estate men at $2,000, and upon which were the mortgages spoken of; also, that since the contract with plaintiff defendant had bought one lot for which he gave the gold watch and chain received from plaintiff, another lot for which he paid $101, and ten acres for which he gave a horse valued at $150, and his note and mortgage upon said ten acres for $200; and the title to all these pieces of property he had taken in his wife’s name. On the other hand, the defendant’s affidavit showed that he was a minister, and authorized to perform the marriage ceremony; that when he married his present wife he promised to let her have for her own use all the fees he might receive for such services, and that these fees had amounted to $500 or $600; that at the time of his marriage he was worth about $400, and she nothing, and that all the property they had since owned or controlled had been the proceeds of their mutual labor; that the property which had been placed in his wife’s name at no time exceeded or even equaled in value the amount of the marriage fees above named; that he himself was solvent, and had property in this state not exempt from execution worth at least $2,000, and probably $3,000, over and above all his debts, exclusive of the plaintiff’s claim, the validity of which he denied, (though the items of his property, other than the farm heretofore spoken of, were not designated;) that in addition he owned 320 acres of land in Wisconsin, which he had traded to a party in Emporia for 640 acres of land in Lyon county and two lots in the city of Emporia; that the deeds had been made out and were in the possession of Almerin Gillett of Emporia, waiting to be delivered whenever a defect in the chain of title to the Wisconsin lands was removed, and that he had received information from Wisconsin that a missing deed, the only defect, had been found and would be immediately recorded; that the deed to said lands and lots was to himself, and not his wife, and that said property was worth $1,500 to $2,000. Other matters appeared in the several affidavits, (for they were many, and quite lengthy,) but these are the principal facts. Upon these facts ought the attachment to have been sustained, or discharged? We have examined the question as though it were an original question first presented to us, and not as reviewing the ruling of the district court. This we may properly do, for except as to some immaterial matters the whole testimony was in writing, and therefore comes to us in about the same way as to the district court. It is doubtless true, that the judgment of the district court even upon written testimony, is entitled to consideration, and in many doubtful cases may sometimes turn the balance in favor of affirmance; but for reasons to be hereafter noticed, we have preferred to examine this as an original question. And it seems to us that the attachment ought to have been discharged. It is unnecessary to affirm the validity of the agreement between defendant and his wife, that she should have the marriage fees as her individual and separate property, and yet it would be difficult to deny the justice or propriety of setting apart to the wife some portion of the property which is the proceeds of their joint labor. At any rate, such an agreement tends to overthrow the evil intent which might otherwise be inferred from the fact of placing property in her name, and to show that the act was in pursuance of a purpose formed long anterior to the present difficulties, and not in consequence of those difficulties. Especially is this significant in view of the solvency of the defendant, as shown by his own testimony, and the exchange by which he was at the time placing an additional amount of property within the jurisdiction of the court in which this controversy was pending. Not only has he means in this state with which to pay any judgments that may be rendered against him in this action, but at the very time he-is charged to have beeu disposing of his property with intent to delay, hinder and defraud his creditors he is trading property outside of the state for real estate in Lyon county worth more than the plaintiff’s claim. Such conduct is so manifestly at variance with any evil intent as against his creditors that it clearly overthrows any that might be inferred from the purchases in his wife’s name. And in addition, in reference to such purchases, while the amount invested is small, (only $400 or $500,) he is thereby converting property easy of concealment, and easy of sale, such as a watch and chain, and a horse, into real estate incapable of concealment, and difficult of sale. On the whole evidence it seems to us that the allegations of the affidavit for attachment are not sustained, and that it ought to have been discharged.
One other question is raised by counsel. After the dissolution of the attachment plaintiff moved to have the order dissolving the attachment set aside and the matter referred to a judge pro tem. on the ground of the interest of the judge, and in support of such motion filed an affidavit alleging that subsequent to the dissolution he had ascertained that the judge was security for defendant on a past-due note of $125, and that while the motion to dissolve' was pending before him he had received from defendant a chattel mortgage on a span of horses worth not over $120 to indemnify him. We have taken this case as if originally presented to us, and considered it independent of any prior adjudication, because even though the judge was disqualified by reason of interest it would be wrong to the parties to remand it for examination before a judge pro tem. if it was reasonably clear to us that the attachment ought upon the evidence to have been discharged. That would be simply making additional costs with the same ultimate result. We do not mean to decide that the judge was actually disqualified by interest, the showing having been entirely ex parte; but we cannot forbear remarking that it is the duty, as it is generally the wish of a judge, to avoid sitting in judgment upon questions in which he has a direct even though slight pecuniary interest.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff in error on the trial in the district court demanded a special verdict, which was refused. This was error. Under the laws of 1870, upon the demand of either party, it was the duty of the court to instruct the jury to return a special verdict. L. L. & G. Rld. Co. v. Rice, 10 Kas., 426. Eor this error the judgment must be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff bought a mortgaged farm from the defendant at an agreed price, and shortly thereafter the semiannual interest, $240, fell due, which plaintiff had- to pay, and in this action he seeks reimbursement.
The defendant advertised the farm for sale by circular letter in January, 1919. Plaintiff answered this letter by correspondence and by teléphone and other- conversations. On February 11, 1919, a deal was closed whereby the plaintiff was to assume an $8,000 mortgage on the farm, give a second mortgage on it, and pay $1,200 in cash. Plaintiff planned to let a third party, D.'C. Hall, have the farm, and Hall was to execute the second mortgage. This was explained to the defendant and apparently' it acquiesced therein. Plaintiff paid the agreed sum of $1,200 by a check on a distant bank, and until it was duly honored the defendant’s agent and depositary would not surrender the deed from the defendant. This and similar details, such as the necessary time to record Hall’s second mortgage, delayed the completion of the transaction until about the last of February, 1919. The deed from the defendant recited that it was given subject to mortgages aggregating $8,000—
“All of said mortgages bearing date of September 2, 1918, due September 1, 1323, at 6% semi-annual interest, payable to J. L. Pettyjohn & Co., of Olathe, Kansas, to accruing interest thereof, all of said mortgages grantee assumes and agrees to pay as part of the purchase price of said premises.”
On March 1, 1919, the semiannual interest on the first mortgages fell due; plaintiff paid this amount, $240, to prevent foreclosure; and now sues for its recovery.
Defendant’s answer set up the documents and correspondence, and the deed containing a recital of the grantee’s assumption of the mortgages which recital also included the words “to accruing interest thereof,” and the plaintiff's acceptance of the deed.
The oral evidence for plaintiff added nothing material to the matters pleaded, or to the documentary evidence including the recital in the deed which he had accepted. He testified that he noticed the words “to accruing interest thereof” but did not know what they meant:
“A. I did not understand it. Mr. Gray [banker] and I looked over it and we tried to see if it meant the past or future, and we could figure nothing out but the future, ‘to accruing interest.’ ”
[Counsel for defendant] : ‘.‘We object as wholly incompetent.
“By the Court: Sustained.”
Defendant’s demurrer to plaintiff’s evidence was sustained, and plaintiff appeals.
There is something wrong here. Plaintiff bound himself to assume the mortgages and “to accruing interest thereof”; and while this phrase is obscure and ungrammatical, it certainly is not so indefinite and clumsy as to be susceptible of an interpretation that plaintiff bound himself to pay the interest which had already accrued. Almost the entire sum of $240 had accrued when the deal was made on February 11. Only a few dollars of the $240 which would be due on March 1 were yet to accrue. Nothing is more common in the commercial world than the offer of interest-bearing securities “at par and accrued interest.” In such purchases and sales a computation is made as to what part of the interest is already earned or has “accrued,” and what part of it has still to accrue — “the accruing interest thereof” — before the next interest-paying period. In common parlance, accrued interest does not mean past due interest; it simply means earned interest; and accruing interest is that which is being earned in the present time and which is still to be earned during the period yet to run until the date fixed for payment.
We note the defendant’s citations, and have carefully read Gross v. Partenheimer, 159 Pa. St. 556, but as we construe this particular contract with all the light available up to the point of the interposition of defendant’s demuirer, the plaintiff, by the acceptance of the deed with its recitals of his assumption of the mortgages and “to accruing interest thereof,” bound himself only to pay the interest accruing after the contract was made, and did not obligate himself to pay the interest which had already accrued.
This necessitates a reversal of the judgment on the demurrer, and that the cause be remanded for a new trial.
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The opinion of the court was delivered by
DAWSON, J.:
The defendant was convicted of grand larceny for the theft of a Ford automobile.
• The state’s evidence, in brief, disclosed that the car in question belonged to Guy Chase, a resident of Smith county. Chase and his family attended a show in Smith Center one evening in September, 1919, leaving their car nearby. After the show their car was missing. The defendant, Dan Bell, and one Parsons who had previously discussed the possibilities of the business of dealing in stolen automobiles, met some time after the theft of the Chase car, and defendant told Parsons that he had a car for him.
“Q. What was that conversation? A. Well, he told me he had a car for me.
“Q. Did he tell you where this car was? A. Yes, sir.
“Q. Well, go ahead and state what he said about it. State fully. A. This car was near or at the home of his mother.”
Parsons and Bell went to the farmhouse of Bell’s mother some ten miles from town. They carried with them a can of paint procured at Bell’s home in Smith Center. After supper Bell left the house and a few minutes later Parsons heard a motor running and walked out and met Bell coming from its direction. Bell said to him: “Your car is ready.” The car was sitting out in the road about a hundred yards from the house. Parsons found the engine running, and the paint which they had carried from Bell’s house in Smith Center was in the car. Parsons drove the car to Glade (in Phillips county) where he stopped and painted it. Then he drove it to a place near Jennings (in Decatur county) where he traded it to a man named Hahn for a Liberty bond, a motorcycle, and a check for $125. Parsons left the motorcycle with an acquaintance near Lenora, and deposited the check in a bank in Oronoque with instructions to the banker to pay the proceeds to “Charles Smith.” Parsons then returned to Smith county and told Bell what he had done with the car; and some days later he and Bell drove out to Oronoque and Bell called at the bank,, representing himself to be “Charles Smith”; and the proceeds of the check were paid to him. Parsons and Bell then went to Lenora and got the motorcycle and put it in their car and drove to Norton where they tried to dispose of it. Failing in that, they carried it home with them to Smith Center. Another significant incident was the fact that another Ford car belonging to a man named Coleman, of Downs,- had been stolen about the same time as the Chase car,, and this Coleman car was proved to have been in Bell’s possession. The tires and top of the Coleman car were on the Chase car at the time it was made ready by Bell for Parsons’ run with it to Glade and Jennings, and the tires of the Chase car were on the Coleman car when the latter car was in defendant’s possession.
The first specification of error relates to the overruling of defendant’s demurrer to the state’s evidence. In view of the foregoing brief summary of the evidence, that contention cannot be sustained. It is argued that there is no evidence that Bell stole the car or that he was aware of its theft for some days after it was stolen. Bell’s guilt was proved in the common and usual way that the guilt of most thieves is established —by showing the fact of the theft of the car and showing it to have been in his possession shortly after it was stolen, with no satisfactory explanation of such possession forthcoming from Bell consistent with innocence on his part. (The State v. White, 76 Kan. 654, 92 Pac. 829.)
It is urged, however, that the state did not prove that Bell ever had possession of the Chase car. It is true that no witness sato Bell in possession of the car, but it was shown, that shortly before the theft he was disposed to consider the business of dealing in stolen cars; the car was stolen; a few days later the car had the tires and top of another stolen car which had been in Bell’s possession; it was first seen after its disappearance in front of Bell’s mother’s house where Parsons had come to get it pursuant to Bell’s statement that he had a car ready for Parsons. It was found with the paint fur nished by Bell to disguise it. It was made ready by Bell to be driven away and disguised and disposed of by Parsons. Under such circumstances a jury would be dull or derelict if they failed to discern the fact of Bell’s possession of the car.
It is next urged that error was committed in permitting a witness to testify that at the home of Bell there were dies suitable for cutting or altering the numbers' on automobile engines.. The numbers on the Chase car were altered after it was stolen; and this testimony, while perhaps of slight probative value standing alone, was competent and admissible. (1 Wigmore on Evidence, § 149.)
Complaint is also made of the admission of the testimony of Parsons touching the conversations he had with Bell relative to the business of buying stolen cars in Kansas City, Mo., and trading or selling them out in western Kansas. Whether or not the trial court ruled altogether correctly on this matter, the defendant is in no position to complain, because defendant’s objection.thereto was sustained, and the trial court directed the jury to disregard this phase of the evidence. (Griffith v. Railroad Co., 100 Kan. 500, 506, 166 Pac. 467.)
Fault is found with the trial court’s instruction:
“9. The possession of property proved to have been recently stolen is usually regarded in law as a criminating circumstance, tending to show that the possessor stole the property and as sufficient evidence upon which a conviction may be founded, unless the facts and circumstances surrounding and connected with such possession are such as to produce in your mind a reasonable doubt as to whether or not the property might have been acquired honestly or through mistake. But this rule only pertains when such possession is in such person, or exclusively in the common possession of such person and others.”
But this instruction must be read in connection with another also given by the court: •
“10. When recently stolen property is found in the possession of another,-still if the attending circumstances, or from any explanation made, or in view of the evidence or from the lack of evidence, if any, there remains a reasonable doubt as to whether or not such person stole the property, he should not be convicted.”
Appellant contends that these instructions erroneously shifted the burden of proof by requiring him to show that he came rightfully into the possession of the property. His counsel say, “We do not think that the court can at any stage of the trial of a criminal case shift the burden of proof to the defendant.” It is of course correct that the court cannot shift the burden of proof to the defendant in a criminal case, but when the state has established a complete prima facie case against him, the defendant is under the necessity of combating that prima facie case or of incurring the risk of conviction. He can take his choice. If this be properly characterized as a shifting of the burden of proof, it arises from the stern necessities of defendant’s predicament and not because of any arbitrary rule of law imposed on him.
In The State v. Cassady, 12 Kan. 550, it was said:
“The possession of stolen property, recently after it is stolen, is prima facie evidence of guilt, and throws upon the possessor the burden of explaining- such possession, and if unexplained may l?e sufficient of itself to warrant a conviction.” (Syl. ¶ 5.)
(See, also, The State v. McKinney, 76 Kan. 419, 91 Pac. 1068; The State v. White, 76 Kan. 654, 664, 92 Pac. 829; The State v. Jewell, 88 Kan. 130, 127 Pac. 608; The State v. Rice, 93 Kan. 589, 144 Pac. 1016; 4 Wigmore on Evidence, §§ 2485-2513.)
Complaint is also made of the trial court’s instruction touching the matter of possession of the car by defendant. The instruction reads:
“11. Possession as used in these instructions does not require that the defendant be actually or physically in said automobile' nor that he have hold of it, but does mean the exercise of dominion or control over said automobile to the exclusion of the owner, with such proximity to the said automobile as renders it possible to physically and actually possess it.”
The evidence touching Bell’s possession was established, if at all, by the facts and circumstances narrated above, and fully warranted the giving of this instruction, and it was a correct statement of pertinent law.
The other matters urged for defendant have been carefully . noted, but 'nothing of merit or requiring further discussion can be discerned in this appeal. The record contains no error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
These are consolidated actions for the right of possession of two tracts of farming land in Gove county. In one of these, S. S. Reynolds as owner, leased forty-two acres to the defendant under a written contract for the crop year from September 1,1918, to August 31,1919. In the other case, Reynolds as agent of Charles E. Trediek, the owner, leased 160 acres to the defendant for the crop year from September 1, 1919, to August 31, 1920. No written contract for the Trediek land was executed. The defendant remained in possession of the Reynolds land the second year without a written contract. In June, 1920, according to the jury’s findings, defendant had an oral conversation with Reynolds in which the latter assured him that he might have the land for another year; but on August 26, 1920, Reynolds served written notices on defendant of termination of tenancy and demand for possession on the ensuing date of August 31. Defendant refused to vacate. Hence these lawsuits.
The trial court gave judgment against defendant as to both tracts of land, and he appeals.
While the cases were tried as one lawsuit, it seems necessary to consider their respective phases separately. Of course, under well considered precedents, the contract founded on the oral promise of Reynolds made in June to rent these lands to defendant for another year which was to commence,- not at that time but at a future date, September 1, was void under section 6 of the statute of frauds. (Gen. Stat. 1915, § 4889; Wolf v. Dozer, 22 Kan. 436; Jamison v. Christman, 95 Kan. 131, 133, 148 Pac. 247; Jellett v. Rhode, 43 Minn. 166, 7 L. R. A. 671. See, also, the authorities pro and con in 49 L. R. A., n. s., 820-825.)
But as to the Reynolds land, the defendant had leased that land for a year under a written contract. The contract was for the year beginning September 1, 1918, and ending August 31, 1919. When that year expired, defendant was permitted by Reynolds to hold over without a new or a different contract. Another contract in writing was prepared, but it was not executed, and therefore entitled to no significance. In such a situation defendant became a tenant from year to year under the statute (Gen. Stat. 1915, § 5957) ; and, as such, he was entitled to thirty days’ notice prior to August 31, 1920. He only received five days’ notice, which was altogether insufficient to terminate his tenancy. (Gen. Stat. 1915, § 5960.)
Plaintiff argues that defendant cannot take advantage of this because in his pleading he set up the invalid contract of June. There was much more the matter with plaintiff’s pleading than with defendant’s. Plaintiff’s action was for an injunction to restrain defendant from farming and seeding the land in the autumn of 1920. By stipulation at the trial, the cause was tried as a possessory action, and in such a situation defendant’s pleading, drawn to answer the suit for an injunction, should not rigidly be construed against him. As an injunction suit, the case should have been thrown out of court. (Snyder v. Hopkins, 31 Kan. 557, 559, 3 Pac. 367) because the plaintiff had a very plain, very speedy, and altogether adequate remedy at law. As a possessory action — forcible detainer, for such it necessarily was according to plaintiff’s standpoint after the stipulation was filed — defendant’s general denial was sufficient answer to that. Indeed, the issues were so badly framed on paper that they could not form a basis for any proper judgment. The effect o^the stipulation was to discard the pleadings, and that the case should be tried on the facts without pleadings.
The judgment touching the right of possession of the Reynolds’ land was incorrect.
Touching the defendant’s tenancy of the Trediek land, he went into possession' for one year only, for a term definitely fixed, September 1, 1919, to August 31, 1920; and therefore, no thirty days’ notice nor any other notice to quit was necessary. (Gen. Stat. 1915, § 5964; Edwards v. Land & Cattle Co., 98 Kan. 720, 722, 160 Pac. 205.) It follows that the judgment entered for the plaintiff Trediek was correct.
The judgment for the possession of the Reynolds land is reversed, and the judgment for the possession of the Trediek land is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover the value of a lost or stolen suitcase and its contents, which the defendant was employed to transfer from the plaintiff’s address in Kansas City, Kan., to the union station in Kansas City, Mo. The plaintiff recovered, and the defendant appeals.
The defendant was engaged in the transfer business. Ellis, his baggageman,, called for two trunks belonging to the plaintiff and for the suitcase, and testified he was instructed to take them to the baggage department of the union station. He further testified he took the baggage to the station, unloaded it on the dock, took it to the baggage room, and delivered it there. He placed it inside the baggage room by the door. Depot baggagemen were there, and they weighed the suitcase and put it away before he left. The trunks were not weighed before he left. He reported delivery of the baggage to the defendant. The jury did not believe the witness, and with the general verdict returned the following special findings of fact:
“1. Did plaintiff give defendant’s driver instructions about where to deliver her baggage? A. Yes.
“2. Was the suitcase to be delivered at the baggage room of the union station? A. Yes.
“3. Did defendant’s driver deliver the suitcase and trunks obtained from 706 Garfield, Kansas City, Kansas, at the baggage room at the union station? A. Trunks were delivered and suitcase was not.”
There was ample evidence to sustain the special findings.
The plaintiff pleaded an engagement to carry the baggage to the union station and there deliver it to the plaintiff, her agents, or assigns. It is said there was no proof that the plaintiff had any agent at the union station to receive the baggage. The. plaintiff and the defendant’s driver both testified that the driver was instructed to deliver the baggage at the baggage room of the depot. The transaction was of the everyday kind between traveler and carrier, and the technical legal relation of the baggage department of the union station to the plaintiff is not of the slightest consequence, especially in view of the findings of fact.
One count of the petition charged the carrier with negligence. It is said there was no proof of negligence. There was substantial proof that the suitcase was in an insecure position on the defendant’s wagon when the defendant’s driver started to the station with it; but the issue of negligence was not submitted to the jury. The instructions based liability on nondelivery by the carrier, and correctly stated the law on that subject.
The suitcase had been used, and its contents consisted of female wearing apparel and articles which, because of use or for other reasons, had no market value, in the sense in which that expression is used. Under the circumstances, proof of market value was not essential, and there is no suggestion that any article was overvalued.
None of the objections to the proceedings is of sufficient moment to require a reversal'of the judgment of the district court, and it is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:1
Irvin Shriver sued W. J. Bell for a real-estate broker’s commission, and appeals from an order sustaining a demurrer to his petition.
The plaintiff was a resident of Wallace county, where the land is situated. The defendant lived in Oswego, N. Y. The entire transaction was conducted by correspondence and the controversy can be determined upon the face of the written communications between the parties. The plaintiff wrote to the defendant April 22, 1918, asking as to the terms on which he would be willing to sell the land — a section containing 645 acres. The defendant replied saying that he still held it at $11 net to him, adding — “I am not very anxious to dispose of it for I think it will increase rapidly in value, but will hold that offer good for the present.” On May 6, 1918, and March 10, 1919, the defendant wrote in response to further inquiry, his letters reading:
“I would not sell ior $10’ per acre, my price is $11 per acre net to me, nor would I sell for only a payment of $1,000 and I would expect six per cent per annum interest.”
“I have held my land at $11 per acre net to me and would sell for that price; should you get a reasonable offer submit it to me, for I want to sell if I can get my money out, providing there was a good fair payment I would give reasonable time on the balance.”
The following communications were then interchanged, the first being a telegram sent by the plaintiff May 14, 1919, arid the second a letter written by the defendant three days later:
“Have offer seven thousand for section seven fourteen forty two Wallace county, Kansas, two thousand cash will give mortgage back on land fori five thousand for ten years at six per cent with privilege of paying part or all at any interest payment answer at once.”
“Now about the sale of my land there is nearly 645 acres and I do not like to wait so long for my money ion so small a payment at time of purchase. I have not sold the land and have had equally as good an offer but thought the payment too small, see if you can’t get $11 per acre and $2,000 down with an annual payment of $200 and the interest. If you can I will advise you at once and may accept your offer as you have made it.”
On receipt of the last letter the plaintiff telegraphed the defendant : “Accept offer of May seventeenth answer by wire at once.” The petition alleged that the plaintiff had procured a purchaser ready, able and willing to pay $13.50 an acre for the land, or $8,707.50, upon the terms stated in the letter of May 17, but that the defendant refused to make the sale. Judgment was asked for $1,612.50.
We think the demurrer was properly sustained on the ground that the defendant did not unconditionally put the land on the market on the terms mentioned in his letter. His exact language was “see if you can’t get $11 per acre and $2,000 down with an annual payment of $200 and the interest. If you can I will advise you at once and may accept your offer as you have made it.” We regard this as unambiguous, the clear meaning being that in case the plaintiff should; submit an offer on the terms stated the defendant would at once let him know whether he would accept it, and that if such an offer were not obtained the defendant might later conclude to let the property go for what had previously been offered. The defendant merely agreed to give further consideration to the offer already made and to consider the new one if it should be submitted. He retained the right to reject both. The plaintiff’s telegram undertaking to' accept the offer of May 17 could not affect the matter, for the defendant’s letter of that date made no outright offer. In' that situation, the plaintiff’s right to compensation being contingent on his producing a buyer on terms at which the defendant had agreed to sell, no recovery could be had. Cases denying the right of a broker to a commission in somewhat similar circumstances are referred to in note 9, 4 R. C. L. 304. See, also, Hale v. Kumler, 85 Fed. 161.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action in replevin for the possession of goods and chattels pertaining to a hotel. Plaintiff’s original petition exhibited a “Schedule A” which described the property, and contained the usual allegations of ownership and right to immediate possession, the wrongful detention by the defendants, that the property was not taken on execution to satisfy a judgment, nor for the payment of a tax or fine nor by virtue of any order issued in replevin' or other mesne or final process. The schedule attached to the petition contained a list of some two or three hundred articles. The petition alleged that their aggregate value was $800, but did not attempt to state the value of each separate article.
This petition was sworn to by the positive affidavit of plaintiff, and was filed on July 7, 1919. The same day the clerk of the court issued to the sheriff an order for the delivery of the property to the plaintiff. On the following day, July 8, 1919, plaintiff filed an amended petition, which contained the same recitals as her original petition with the addition of an allegation of her residence, and added a second and third count against defendants for damages. This amended petition referred to a “Schedule A” as being attached to it, but it was not in fact so attached. It was attached to the original verified petition. Three days later, on July 11, the plaintiff filed a paper in the nature of a motion and entitled “Amendment to Replevin Affidavit,” reciting that she deposed on oath that in her original affidavit she intended to claim all the chattels in the premises described except in the basement and that in her original list she had omitted many articles, towels, pots, pans, family heirlooms, etc., which she therein set out, alleging that the total value of this second list together with those articles set out in her original schedule did not exceed the total value of $800. Plaintiff prayed that this second list of articles be added to the original schedule and that the sheriff be ordered to deliver them all to her. This motion was presented to the trial court, and it was ordered:
“Now on this 11th day of July, 1919, it having been made to appear to the court that it was the intention of the affiant in the replevin affidavit in this cause to include all property located in the first, second 'and third stories of the hotel at 118 W. 6th Street, except the basement, and including all property in the upstairs of the barn on said premises. The court further finds that the value of said property was included in plaintiff’s affidavit, and that the total of all such property does not exceed eight hundred dollars.
“It is therefore by the court considered, ordered and adjudged that the Clerk of the District Court issue a supplemental order in said cause directing said sheriff to put plaintiff in possession of all perso'nal property, as aforesaid, found in said hotel at 118 W. 6th Street, excepting the basement thereof, including the upstairs to the barn located on said premises. “Robert Garver, Judge.”
Pursuant thereto, a supplemental order was issued to the sheriff, to which he made the following return:
“Received this Writ, this 11th day of July, a. d. 1919, at 2:45 o’clock p. m., July 11th, 1919. Executed the same by seizing and taking the within-named goods and chattels into my custody, and delivering the within-named defendants, A. L. J. Pendry, H. E. Pendry a copy thereof.
The within-named goods was turned over to plaintiff by me for reason that defendants did not give redelivery bond within 24 hours after serving this order. “Hugh Larimer, Sheriff,
“By C. W. Carlson, Deputy, and
“G. W. Larimer, Deputy.
“Piled Jul 18 1919. Mary E. Chapin Clerk District Court.”
On July 17, 1919, plaintiff filed an affidavit reciting:
“That the defendants failed to give a redelivery bond within twenty-four hours and that the sheriff delivered the possession of said property to the plaintiff and notwithstanding said order the defendants refuse to let plaintiff remove and take possession of said property and remove the same from the hotel at 118 W. 6th Street, Topeka. And has eloigned much of said goods.”
The defendants were cited to appear for examination touching the concealing and “eloigning” of certain articles of the replevined property, and a hearing was had on the following day. The journal entry recites:
“Now, on this 18th day of July, A. d. 1919, comes on to be heard plaintiff’s motion to require defendant to produce the property. Both plaintiff and defendant were present in court in person and by their attorneys.
“Whereupon, testimony was introduced by both sides and the cause submitted to the court, and the court after being fully advised, ordered that the defendant immediately deliver to the Sheriff of Shawnee County, all property in their possession which was in the Hotel Victoria at the time of the issuance of the replevin order in this cause.
“Robert Garver, Judge.”
Later, on October 13, 1919, by permission of court, the defendants filed an answer and counterclaim for damages.
The cause was tried in March, 1920-, and the jury returned a verdict for plaintiff. No abstract of the evidence is presented, but we note that among the special questions answered'by the jury is the following:
“4. What was the reasonable and f-air price or charge for the accommodations in said hotel furnished the plaintiff for herself and her agents, servants and employees from the time defendant, A. L. J. Pendry, was put in possession of the same by the marshal of the Court of Topeka, on or about the Sd day of July, 1919, until they finally moved out of said hotel on or about the 12th day of July, 1919? Ans. Nothing under the circumstances.”
The record of judgment thereon reads:
“Thereupon, the court received the verdict of the jury and the special questions and answers thereto and ordered the same filed with the clerk of said court, thereupon, discharging the jury from the further consideration of said case.
“It is, therefore,-.by the court, considered, ordered and adjudged, That said verdict with the questions and answers be filed and entered of record, final judgment being reserved.”
On April 17, 1920, a hearing was had on defendants’ motion for a new trial. The motion was overruled.
Defendants appeal.
It has been no small task to this court to put together in sequence, from the abstracts of the parties and the files of this court and of the district court, the foregoing chronicle of the principal features of this lawsuit. With that done, however, and following closely the appellants’ specifications of error, our task becomes less difficult.
The first error urged is the overruling of defendants’ motion for judgment on the pleadings.
This is based upon the fact that the affidavit and schedule A were not physically attached to plaintiff’s amended petition. But the affidavit and schedule A were attached to plaintiff’s original petition, and this was still on file. It was not necessary that the replevin affidavit be written on a separate sheet of paper. All the requisite allegations of a replevin affidavit were in the petition, and when verified it stood both for a petition and an affidavit; and although the pleading was abandoned as a petition when the amended petition was filed in its stead the original document still served the purpose of a replevin affidavit. In 34 Cyc. 1432, it is said:
“If plaintiff’s pleading contains a statement of every fact which the statute requires to be shown in the affidavit, and the pleading is verified by affidavit covering every statement therein, this will be sufficient without a separate affidavit; but in no event can the pleading supply the absence of the affidavit unless all that the affidavit is required to contain is embodied in the pleading, and the pleading is verified in the form as required in the case of a separate affidavit. On the other hand, the affidavit need not be annexed to the pleading or filed contemporaneously with it, but may be an independent instrument.”
Defendants’ motion for judgment on the pleadings was properly overruled.
The second, third and part of the fourth assignments of error are chiefly founded on the consequences supposed to flow from an entire absence-of a replevin affidavit and description of the property sought to be replevined — error in overruling defendants’ objection to the introduction of evidence, error in overruling defendants’ motion to set aside the order of delivery, and overruling the motion of defendants to dismiss plaintiff’s action. On these, it is argued that there was no affidavit such as is positively required by statute, that in the supplemental order of delivery “all personal property found in the hotel,” etc., was not a description of the property claimed, as required by the civil code (§ 177), and that no value was shown as to the goods demanded under the amendment to the replevin affidavit.
Much of the argument on these propositions becomes pointless when, as we have shown above, the original verified petition with the schedule of property attached did constitute a sufficient affidavit in replevin. No error can be discerned in denying the motion to set aside the order of delivery. Because the sheriff’s return shows that the writ was served on defendants on July 11,1919, and the goods seized the same day, and no other date is set down reciting when the goods were delivered to plaintiff, it is argued that “absolutely not one moment’s time was offered or permitted the defendant to file a redelivery bond.” The sheriff’s return is not susceptible of such an interpretation. While the date of delivery is not given in the sheriff’s return, it expressly recites that the goods were turned over to plaintiff “for the reason that defendants did not give a redelivery bond within twenty-four hours after serving this order.” There is also in the district court files of this case an affidavit of plaintiff that defendants failed to give a redelivery bond within twenty-four hours.
It is also contended that the amendment to the replevin affidavit did not cover the matters prescribed by section 177 of the civil code, such as description of the property, the value of the separate articles as nearly as practicable, etc. The original schedule A contained a comprehensive list of two. or three hundred articles, the supplemental affidavit recited that plaintiff intended to' claim all the chattels at the premises described, and described them as best she could, and deposed that they together with the goods set out in the original schedule were of the aggregate value of $800 and not more. When property to be recovered in an action in replevin consists of several hundred articles, such as the miscellaneous goods and chattels for conducting a hotel, it would seldom be possible and scarcely ever be practicable to describe these in detail with the value of each particular pot, pan, towel, spoon, chair, quilt, pillowcase, etc. When plaintiff set out in her original schedule the two or three hundred articles enumerated, and supplemented that with a showing — before the court itself — that she intended to claim all the chattels on the premises defined, and gave their aggregate value, she complied with the statutory requirements as to description and value as nearly as practicable — at least, it must be so held, on appeal, when no showing is made of any prejudice to defendants because a more detailed schedule of description and separate values was wanting. (Brady v. Whaley, 79 Kan. 33, 98 Pac. 1134.) In Threshing Machine Co. v. Francisco, 106 Kan. 704, 708, 189 Pac. 919, it was said:
“The affidavit could have Been amended so as to comply with the statute. (Burton v. Robinson, 5 Kan. 287; Meyer v. Lane, 40 Kan. 491, 20 Pac. 258; Rothweiler v. Mason, 92 Kan. 612, 141 Pac. 245; 34 Cyc. 1439.) It does not appear that the defect in the affidavit was called to the attention of the trial court. The action could have proceeded to final judgment without any affidavit. (Lamont v. Williams, 43 Kan. 558, 23 Pac. 592; Varner v. Bowling, 54 Kan. 380, 38 Pac. 481.) ”
Moreover, this action and all these proceedings were had in the district court, not before an inferior court whose jurisdiction would largely depend upon the value of the chattels in' controversy. (34 Cyc. 1436-1438.)
The fifth specification of error, and the last clause of the fourth, relate to the trial court’s refusal to permit the defendants to litigate the matters involved in their counterclaim along with the question of plaintiff’s right to the possession of the property. This was a matter within the discretion of the trial court. The counterclaim was for damages in ten counts, aggregating $10,537, because of alleged wrongs of plaintiff in the matter of rents, occupation of certain rooms in the hotel by plaintiff,. for “wrongful, malicious, wanton, fraudulent and grossly oppressive taking of goods on void orders” in replevin, “damages punitive, in rendering .sick, making hysterical by the malicious, wanton, grossly oppressive, abusive, fraudulent, illegal taking under void orders,” and “otherwise in like manner abusing and mistreating both defendants, and in illegally, wantonly, fraudulently, maliciously and oppressively violating their legal, personal rights of possession both of premises and property therein contained at 118 West Sixth street, Topeka, Kansas,” etc. There is much of that sort of recital in defend-, ants’ counterclaim, and the trial court might well and reasonably seek to avoid the necessarily long and distracting portrayal of all these alleged wrongs, if perchance this could be avoided, as most of it certainly would, should it transpire that plaintiff had the right to possession of the replevined goods. The plaintiff’s right to the goods being established, the material matters set up. in the counterclaim will be greatly abbreviated, and so the court committed no error in postponing a hearing on the counterclaim. On that subject the trial court instructed the jury:
“8. Various claims for damages are made by the defendants against the plaintiff, set out in their answer, based upon the further claim that the possession of the goods was taken by plaintiff under the writs in this action, Wrongfully and unlawfully, and that defendants have suffered damage on account of such conduct and acts of the plaintiff since the filing of the petition in this action. As to the claims of this character, made in the defendants’ answer, the court will simply say to you that these claims are not properly triable in this action but if defendants have any such claim or claims for damages arising since the commencement of this suit, and out of the proceedings herein, the same will have to be presented, if at all, in some suit brought hereafter, and after the termination of this action, and the defendants will not be concluded by the verdict or judgment herein from hereafter suing plaintiff on such claims.”
It is perhaps fortunate for defendants that the trial court so declared, otherwise they might be in serious difficulty because they did not produce the evidence on the motion for a new trial which the trial court “refused to permit the defendants to introduce.” (Scott v. King, 96 Kan. 561, 152 Pac. 653; Elliott v. Oil Co., 106 Kan. 248, 251, 187 Pac. 692.)
There is no material error in the record. Affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
The action was one for specific performance of a contract to convey real estate. A demurrer to the petition was overruled, and the defendant appeals.
On October 17 the plaintiffs wrote a letter which the defendant received, inquiring if the land were for sale, and asking for price and terms. On November 7 the defendant, who was living at the .Hotel Rothwell, Atlantic City, N. J., responded by saying she had been offered $1,350 for the land, asking if the plaintiffs would like to give $1,400 for it, and stating she would sell on time, one-third or one-half cash, and the balance secured by first mortgage bearing six per cent interest, running from one to five years. On November 10 the plaintiffs sent the defendant the following telegram: “Will buy your land fourteen hundred letter follows.” The letter reads:
“We are in receipt of your card of the 7th, and have wired you that we will buy the land, being the above described.
“We will accept the same on your terms of one-third cash, and the balance first mortgage on the land to run five years with interest at the rate of six per cent. Please send the abstract to us with authority to have the same brought down to date, and send your deed to the First State Bank, Tribune, Kan., for the collection of the one-third and the proper execution of the mortgage, and also authorize them to take out whatever revenue stamps it takes. Have the deed read one dollar and other valuable consideration, and make same in favor of J. W. Wamberg.”
On November 14 the defendant wrote the plaintiffs as follows:
“I can’t get at the abstract to send to you for a few days. My papers are not with me. I have been here only a short time, and can’t take things with me, but inside of a week I think you will have them. I will write to bank to notify you when they arrive.”
The contract, if any, is to be found in this correspondence.
The plaintiffs say the action is founded on acceptance of the offer contained in the defendant’s card of November 7. The telegram of acceptance was qualified by letter, and the letter imposed new terms, which converted it into an offer. (Wallace v. Bogigian, 108 Kan. 216, 194 Pac. 632, and cases cited in the opinion.) The defendant’s letter of November 14, whether artlessly or artfully written, committed her to nothing, and did not constitute an acceptance of the plaintiff’s offer. The result is no contract was concluded.
The judgment of the district court is reversed, and the cause is remanded with direction to sustain the demurrer to the petition. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff seeks to recover damages from the defendants, physicians and surgeons, for malpractice. On the trial, the court sustained the defendants’ demurrer to the plaintiff’s evidence, and she appeals.
The plaintiff introduced evidence which tended to prove the following facts: She was pregnant, in ill health, and consulted defendant Nevitt on a number of occasions. He made examinations from time to time and first informed the plaintiff that she had tumor in the mouth of the uterus; and later, after the plaintiff had informed him that she was pregnant, said that her condition was not due to natural pregnancy, but that, if she were pregnant, the fetus was in the Fallopian tube and must be removed by an operation or her condition would result in her death. Defendant Nevitt requested the plaintiff to go with him to defendant Smith in Kansas City for an X-ray examination which. would reveal the cause of her trouble. She went to Kansas City with defendant Nevitt for that purpose, and they consulted defendant Smith who made a digital examination and said that an X-ray was unnecessary; that a blind physician could tell what was the matter; that the ailment was pregnancy outside of the uterus; and that it was necessary to have an operation at once. No X-ray examination was made. The plaintiff went to her home at Mildred in Allen county, remained there a few days, and returned to Bethany Hospital in Kansas City, where an operation was performed, and it was discovered that the plaintiff was pregnant, but that the fetus was in the uterus and not in the Fallopian tube. The incision was closed, and in a short time, the plaintiff returned to her home. Afterward, she gave birth to a normal, healthy child. After the operation, the defendants re- . ported to the plaintiff that they had discovered a number of tumors in and about the uterus, and that after the birth of the child they must be removed. When the child was born, a hernia developed in the incision that had been made. Some months later, the plaintiff returned to Bethany Hospital and was operated on by Dr, Steman for the purpose of reducing the hernia. He made an incision, examined the abdominal viscera, and found that the Fallopian tubes and the appendix were in bad condition. They together with the ovaries were removed by him. He discovered no tumors about the uterus, but did discover some scars and adhesions on the omentum, some of which might be called tumors.
On the cross-examination of one of the plaintiff’s witnesses, a physician and surgeon, he testified that there are pregnancies where unusual and extraordinary symptoms appear that are hard to diagnose, but that it is not hard to ascertain whether the condition is serious; that the conclusion might be reached that the condition is serious without knowing exactly what it is; and that then is the time to make an exploratory operation. In their brief, the defendants say:
“It is conceded here that if the defendants made a wrong diagnosis, they did not operate in pursuance to this mistaken diagnosis, but so far as the hazy evidence of the plaintiff throws any light on the subject, it appears that they made an explorative operation, on account of the seriousness of plaintiff’s condition, a method which is approved by the best' surgeons according to the testimony of Dr. Charles Christian, the plaintiff’s own witness.”
The defendants further say:
“It appears that the defendants . . . opened up the abdominal cavity for the purpose of ascertaining whether their first diagnosis was true and correct.”
Recapitulating the evidence thus far briefly stated, we have this situation: an examination by one of the defendants; his conclusion therefrom that the plaintiff was suffering' from extra-uterine pregnancy; his advice that an X-ray examination be made; a trip for that purpose to Kansas City where a digital examination was made by the other defendant; the latter’s conclusion expressed in the following language, “We need no X-ray here. Why, a blind physician could tell what is the matter with this woman;” and then, according to the argument of the defendants, an exploratory operation to ascertain her condition.
Another physician and surgeon testified in response to questions, as follows:
“Q. Tell whether or not the skeleton of a six-months-old baby would appear clear upon an X-ray in the abdomen of a woman bearing the baby? A. A six-months-old child would show shadow I think.”
“Q. So if you diagnosed a case by an abdominal condition and were convinced beyond a doubt, without an X-ray, that it was a case of immediate surgery, a serious case, you wouldn’t bother with an X-ray? A. If I felt positive I wouldn’t.”
“A. There are pregnancies where unusual extraordinary symptoms appear.
“Q. Hard to diagnose? A. Yes, but not hard to ascertain whether the condition is a serious one.
“Q. And doctor, if the case is so clear and the diagnosis so plain that, to use the language of the man diagnosing it a ‘blind doctor could tell what was the matter’ an exploratory operation wasn’t justified, was it? A. Not under that circumstance.”
It is the rule in this state that negligence of a physician or surgeon must be proved by expert evidence. (Sly v. Powell, 87 Kan. 142, 123 Pac. 881; Paulich v. Nipple, 104 Kan. 801, 806, 180 Pac. 771.) The evidence just quoted was sufficient to satisfy the rule.
It is unnecessary to make any extended comment concerning the manner in which the defendants treated the plaintiff as their patient. It is enough to say that they made a serious mistake in their diagnosis, and that the evidence tended to show that they were negligent in not making an X-ray examination. The demurrer should have been overruled, and the evidence should have been submitted to the jury.
The defendants say that—
“There is no allegation in this petition of failure to use the X-ray, although part of plaintiff’s case is based upon that complaint, and counsel for plaintiff in the trial objected to testimony on that subject.”
An examination of the petition of the plaintiff shows that the contention of the defendants is correct; but, if the plaintiff’s evidence established a cause of action, she should not be precluded from recovering by reason of her failure to make that allegation. The defendants were not misled thereby. The petition may readily be so amended and is now considered as amended.
The judgment is reversed, and a new trial is directed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to set aside the will of Frank Sharp, late of Gove county. The plaintiff, William Sharp, who was the only son and heir of the testator, charged that his father was mentally incapable of making a will, that the will was made through the undue influence of the defendant, Nettie B. Losee, and another, and that the will was made in violation of a contract between plaintiff and his father by the terms of which plaintiff was to receive all his father’s property at his decease.
The will provided certain substantial bequests to various persons who were all made defendants, but all these parties have dropped out of this lawsuit except Nettie B. Losee and the plaintiff to whom the will bequeathed—
“I. To Nettie B. Losee, my daughter in law of Denver, Colo., the sum of Two Thousand Dollars.
“IV. To my son Wm. F. Sharp of Ball E. O. Gove County, Kansas, the sum-of ten dollars and all the personal property belonging to me now on the farm where he resides.”'
An advisory jury was called to assist the trial court in ascertaining the facts. The jury returned answers to 25 special questions, Nos. 22 and 23 reading—
“22. Was the execution of the will in question procured by the undue influence of any person or persons, and if so, by whom was such undue influence exercised? Ans. Yes, by Nettie B. Losee.
“23. If you find that undue influence was exercised, state fully of what such undue influence consisted, and- what acts constituted it, and when they were done? Ans. By inducing Frank Sharp to sell out and get his property into cash and come and live with her (Nettie B. Losee) in Denver Colorado.”
The trial court adopted the answers of the jury to all the questions except Nos. 3 and 19. These read:
“3. Was Frank Sharp of sound or unsound mind at the time of the alleged making of the will? Ans. Cannot decide.
“19. Did the testator at the time of the execution of the will, possess sufficient mental capacity to understand the nature of the act in which he was then engaged? Ans. Cannot decide.”
The answers to these two questions were set aside and the trial court itself made extended findings thereon, which in substance were that the testator at the time of making his will and for long prior thereto was a person of unsound mind and incapable of making a will.
The trial court also amplified and modified the jury’s finding No. 23, touching the nature arid extent of the uridue influence exerted upon the testator by Nettie B. Losee.
The jury’s findings Nos. 24 and 25 read:
“24. Was there a contract between plaintiff and his father concerning the disposition of his father’s property? Ans. Yes, verbal.
“25. If you answer the last preceding question ‘yes’ then state:'
“(a) When was such contract entered into? Ans. Fall of year 1914.
“(b) State fully what the plaintiff, William B. Sharp, agreed to do as a consideration for said contract? Ans. Stay on the farm and make a home for his father.
“(c) What did the deceased, Frank Sharp, agree to do? Give the language of the promise which he made. Ans. All of my real and personal property when I am done with it shall go to Bill.
“(d) State fully what acts plaintiff performed in fulfilling his portion of said contract? Ans. Stayed on the farm and made a home for his father.
“(e) If you find that the plaintiff .did acts in performing his portion of the contract, over how long a period of time did the acts extend? Ans. From the time contract was made until his father voluntarily left.”
The trial court found for the plaintiff on all the issuable facts, held the will void, and adjudged the plaintiff to be the owner of all the testator’s real and personal property.
The defendant, Nettie B. Losee, appeals. She makes twenty- three specifications of error but no attempt is made in the brief of her counsel to follow that outline. However, we have carefully perused her abstract, brief and reply brief, and we have also resorted to the original files and to the transcript; and we will endeavor to note the matters of which she makes complaint in the order'of their discussion. We must, however, remark that an abstract should not be interlarded by comment of counsel. The abstract should be restricted to such portions or abridgment of the record as may be necessary for us to consult in order- to understand the specific errors assigned and relied on for reversal of the judgment; and in the perusal of the abstract we should not have to determine whether we are reading the record, or merely the interpolated comment of' counsel upon the record. The comment of counsel should appear only in his brief and argument.
It is first urged that the petition was not sufficient to constitute a cause of action. This should have been raised by a demurrer, and no demurrer was filed. On the contrary, the defendant j oined issues by filing an answer. It is said:
“Neither the day, month nor year, nor the date of the death of Frank Sharp, nor the day, month or year, nor the date when the will is alleged to have been made or executed is alleged with reasonable certainty nor at all.”
We discover no such infirmity in the petition. Plaintiff’s petition, count 1, alleged:
“That on or about the 8th day of July, 1917, one Frank Sharp, a resident of Gove County, Kansas, died leaving a certain instrument in writing which said defendants allege to be his last will and testament.”
A copy of the alleged will was attached to plaintiff’s petition and it showed that it was executed on June 19, 1917.
Defendant criticizes that portion of the petition which pleaded the oral contract between the deceased and his son whereby the latter was to have all his father’s property at his death if the son would remain on the farm and make a home for his father. But unless the other grounds on which the will was held void should fail — testamentary incapacity and undue influence — that phase of this lawsuit will not greatly concern this defendant; so for the present that feature of the appeal will be laid aside.
It is next urged that the allegation of undue influence was - not sufficiently pleaded. This might have been a point of some merit if raised by demurrer (Ladd v. Nystol, 63 Kan. 23, 64 Pac. 985) or by motion to make the petition more definite and certain, but when issues were joined and the matter tried out, and no showing made of surprise or prejudice by reason of the evidence adduced thereon, it furnishes no basis for reversible error. In Kinne v. Waggoner, 108 Kan. 814, 197 Pac. 195, it was said:
“Where the prolix, defective and inconsistent allegations in the pleadings of the plaintiff are clarified by the pleadings of the defendant, and defendant’s pleadings show that he has not misunderstood the issue between the parties, it is not error to overrule objections to plaintiff’s petition nor to overrule objections to the introduction of evidence.” (Syl. ¶1.)
The next assigned error which we note in defendant’s brief reads:
“The court erred in allowing Will Sharp to be sworn and testify over defendant’s objections and exceptions, as being a party to the suit, plaintiff, and therefore, incompetent.”
Here is no error. Our civil code, section 317, provides:
“No person shall be disqualified as a witness in any civil action or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting Ms credibility.”
It is contended that “the record discloses plaintiff’s entire failure to establish any of the allegations of the petition.” This contention is far from correct. The testimony of several witnesses, some of whom had known the testator for thirty or forty years, was to the general effect that during the last few years of his life Frank Sharp was an irrational, maudlin, drunken reprobate, so coarse and obscene in his language and conduct that mental and moral irresponsibility alone could reasonably explain his depravity. True, scarcely any of these witnesses had seen him during the last months of his life after he left Gove county and took up his abode with defendant in Denver. But it would be contrary to human experience that a man of Sharp’s advanced age, 77 years at his death, who was and had been mentally unbalanced for years would recover his mental equilibrium and reacquire testamentary capacity less than a month before he died. (Lantis v. Davidson, 60 Kan. 389, 56 Pac. 745; Howard v. Carter, 71 Kan. 85, 91, 80 Pac. 61.) Furthermore, the record is not wanting in evidence that his mental incapacity continued after he went to Denver. In November, 1916, an old acquaintance of the testator was in Denver and had a conversation with defendant :
“Q. Did you have any talk with Mrs. Losee at that time? A. Yes, sir.
“Q. And whereabouts did that talk take place? A. In the Union Station.
“Q. Whereabouts. A. Denver.
“Q. Tell all that was said between you and she, as far as you can remember. A. I don’t know as I can remember exactly the words; I can the substance. I asked Frank’s condition, and she says he is just like a child, I have to watch him all the time, but I might as well have this money as anyone else. . . .”
The defendant denied making such remarks but she corroborated this witness in part; she admitted meeting and talking with him at the depot in Denver.
A niece of the testator who resided in Denver saw him occasionally while he made his abode with the defendant. She testified:
“Q. Did you observe him closely then or during any time as to his condition? Is he of sound or unsound mind? A. I did.
“Q. What was your .opinion? A. I would not consider him a person of sound mind.
“Q. During the three years you last knew him, would you consider him a person of sound or unsound mind? A. I would say he was not a person of sound mind.
“Q. You say he was not a person of sound mind. A. Yes, sir.”
Cross Examination.
“Q. Do you mean by that his mind was beclouded by drink? A. I do not remember whether it was drink or women. She said ‘He cannot leave home, he cannot find the way home.’
“Q. You mean Mrs. Losee said ‘He cannot find his way home’? . A. Yes, sir.
“Q. The time you last saw Mr. Sharp was here in Denver, Colorado? A. Yes, sir.
“Q. Did Mrs. Losee object to his staying with you? A. Yes, sir.
“Q. What did she say? A. She said he had not been able to find the way home, that she was unable to leave him.”
Another witness, who had known Sharp since 1874, testified:
“Q. And were you at Denver, Colorado, at any time after Frank Sharp left here? A. Yes, sir.
“Q. What year was it? A. I was there — let’s see, the April before he died.
“Q. Was that the last time you saw him? A. 1917.
“Q. Was that the last time you saw him alive? A. Yes, sir.
“Q. What was the condition of his health? A. Well, it looked had to me. His legs and feet was swelled up. .
“Q. Who was he living with? A. Mrs. Losee. . . .
“Q. . . . The last time you were there you may state how long you were there. A. About an hour.
“Q. During that time, did Mrs. Losee leave the house at any time? A. Yes, she went out just before I left.
“Q. And did you have any talk with Mr. Sharp? A. Yes, sir, he gave me a letter to post.
“Q. Tell the jury how he done that? A. He had a letter wrote and addressed to Alex Haney, and he reached his hand in his pocket and took out the letter and said ‘Put that in your pocket and don’t let no one see it, and put it in the mail box for me.’
“Q. How did he speak in giving you that direction? A. In a lower tone than he done before. Then I refused.
“Q. Did you mail the letter for him? A. I did, but I made an objection. ... He said no, Mrs. Losee would catch him, and I told him I would do it myself.”
It is unnecessary to reproduce the evidence on this point at greater length. It must be held that it was sufficient to support the judgment that the testator was without testamentary capacity at the time the will was made. (Howard v. Carter, 71 Kan. 85, 91, 92, syl. ¶ 6, 80 Pac. 61.)
The findings and judgment that the will was made through the undue influence of the defendant were equally well supported by the evidence. The evidence showed that defendant was well acquainted with Sharp’s mental infirmities, that she induced him to turn his property into cash and come and reside with her in Denver, that she induced him to deposit his money in bank to the joint account of himself and defendant, that she engaged and paid the lawyer who wrote the will, and selected the witnesses to the will and one of these testified that he was a total stranger to Sharp, and that he, this witness, did not know it was a will he signed, and two of them testified that Sharp said nothing indicating that he was making or knew he was making a will. During the months just preceding the making of the will, defendant endeavored to prevent the plaintiff from coming to see his father, and dis couraged the testator’s niece from having him stay or visit at his niece’s residence; defendant avowed her purpose to get his property — “that she might as well have it as anyone”; she resisted the doctor’s suggestion that Sharp should go to a hospital for treatment; she lived alone with Sharp under circumstances which seemed to violate the proprieties since she was no relation of his except as the forsaken wife of the testator’s stepson. These and other significant circumstances tended strongly to support the finding and judgment that the will was not the free and uncoerced act of a normal and rational man of testamentary capacity but was the result of the undue influence of defendant upon the enfeebled and irresponsible mentality of an aged dotard who knew not what he did. (Hoff v. Hoff, 106 Kan. 542, 547, 189 Pac. 613.)
The will being void for want of mental capacity on the part of the testator and because of defendant’s undue influence (Hoff v. Hoff, supra), it is no concern of hers whether the plaintiff, William Sharp, had a valid contract with his father that he should have all the old man’s property at the death of the latter or not, nor is it of any further concern to her whether that contract was established by sufficient evidence or not. That might concern his administrator or persons having claims against the elder Sharp’s estate. No such claimants are here, and the administrator who was also a defendant has followed out of court all the other defendants who were beneficiaries under the will, and has retired from this lawsuit. But since the will was void, the question whether plaintiff had a valid contract with his father resolves itself virtually into a lawsuit against himself — as plaintiff under his contract, and defendant as sole heir at law and legal successor of the estate. However, we have perused the evidence touching the contract, and we cannot say that it was insufficient to sustain the finding on that point. Such a contract may be proved by parol evidence in this jurisdiction (Cathcart v. Myers, 97 Kan. 727, 731, and citations, 156 Pac. 751; Harris v. Morrison, 100 Kan. 157, 162, 163 Pac. 1062; Taylor v. Holyfield, 104 Kan. 587, 180 Pac. 208), and the plaintiff’s testimony touching what his father said to plaintiff’s wife in the presence of plaintiff was admissible. (Page v. Sawyer, 101 Kan. 612, 168 Pac. 878; Griffith v. Robertson, 73 Kan. 666, 85 Pac. 748.)
The foregoing disposes of the principal matters presented in defendant’s first brief so far as they can well be discerned from the somewhat haphazard manner of their presentation. We come now to the reply brief and regret to note that it makes a bad start. It commences:
"As to appellee’s counter abstract: The instructions, objected to, many of which were surreptitiously slipped to the jury, with the connivance of the court, simply put into the mouths of the jury the desired findings wished by appellee.
“The irregularities of court and counsel for plaintiff in placing instructions in the hands of the jury, surreptitiously, and without submitting them to defendant’s attorney for criticisms and objection, is not denied.
“The journal entry is a mass of irrelevant, immaterial, incompetent findings, showing determination on the part of the trial judge to disregard the evidence and find for plaintiff, regardless of the evidence and law.”
We must observe that such a tone and statement'in a printed brief for this court serves no purpose. The record shows no unseemly conduct on the part of the trial court or counsel. Furthermore, ’the jury only served in an advisory capacity; it was of no consequence what findings the jury made, unless they were approved by the trial court, and the court was at liberty to adopt those findings or to reject them, or to amplify or modify them according to his discretion. In Medill v. Snyder, 61 Kan. 15, 58 Pac. 962, it was said:
“In an action to set aside a will, the court may call a jury to aid it in determining disputed questions of fact, but it is optional with the court whether it will adopt the findings of the jury or ignore them and make findings of its own. When the court gives independent consideration to the evidence and makes its own findings of fact, on which judgment is rendered, errors committed by the jury become immaterial.” (Syl. ¶ 3.)
Two sections of the syllabus in In re Holloway’s Estate, 100 Kan. 368, 164 Pac. 298, read:
“If the case had been tried as though a jury trial could be demanded as a matter of right, and the judgment of the court had been rendered without giving independent consideration to the facts, error in charging the jury might become important; or if the rulings in charging the jury showed that the court had misconceived the law applicable to the case or decided it upon the wrong theory, to the prejudice of a party, error might be predicated on them.
“Upon the record it is found that the court did not treat or dispose of the case as one triable by a jury as a matter of right, but while approving the special findings returned by the jury it made findings of its own on which the judgment was rested.” (¶¶ 3, 4.)
Touching the journal entry of judgment it neither discloses the defects urged against it nor does it appear that any motion was made by defendant to correct any defects which may have inhered in it.
It is useless to go over the evidence which tended to show that the testator was not mentally incapacitated from making a will, nor the evidence that tended to show that the will was not procured by the undue influence of the defendant. There was considerable evidence, if the trial court had seen fit to give it credence, that Sharp was not mentally incapable of making a will; and there was evidence, although not very convincing, that the will was not procured to be made through the undue influence of Nettie B. Losee; but the determination of the trial court concludes those questions, and we are bound by them. (Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057.)
A point is sought to be made that a party is bound by the uncontradicted testimony of his.own witnesses. Just what this may refer to is not clear, but the rule has its exceptions. In Matassarin v. Street Railway Co., 100 Kan. 119, 120, 163 Pac. 796, it was said:
“It would be a hard doctrine, indeed, to hold that if every witness produced in support ai a cause of action did not give testimony in substantial accord with the evidence of every other such witness, the party producing such witnesses would lose his cause.” (p. 120.)
In Cobe v. Coughlin; 83 Kan. 522, 112 Pac. 115, it was said:
“A court or jury is not required to believe a witness or accept his statements as conclusive merely because there is no direct evidence contradicting his statements.” (Syl. ¶ 2.)
The reply brief continues—
“The finding by the court that ‘Frank Sharp had but one living child, a son, William Sharp, plaintiff in this action,’ ... is not proved. .
“Will Sharp is not only a ‘bastard’ but ‘he is a dam liar and a thief.’ ”
While the defendant’s answer did deny that the plaintiff was the testator’s son, and the evidence which was adduced to show the testator’s mental incapacity also showed that when angry, drunk or irrational, the old man applied to plaintiff the epithets above quoted, it does not appear that the question of plaintiff’s legitimacy was ever a serious issue in this lawsuit. This point is an afterthought. In defendant’s first brief, she seems to have forgotten that plaintiff’s sonship was in dispute. It is there said:
“Upon reaching old age with its infirmities, and no longer being able to work or manage the farm, and always being in disagreement and dispute with his son, Will Sharp, plaintiff, it was only natural that the testator should, sooner or later, dispose of the farm which could be of no further use or enjoyment to him, and find rest and a home with his friend and daughter as he called Nettie B. Losee for many years.”
Here and there throughout the record, the plaintiff is spoken of by various witnesses as the son, the only son, of the deceased. One witness, while testifying on other matters, said:
“Q. How long were you acquainted with Frank Sharp? A. I don’t know whether we knew him in 1882, but I was acquainted with him in 1883, anyway..
“Q. Where did he live in all these years, up to the time of his death? A. The same place until his death. Not until his death, but until the sale.
“Q. Were you acquainted with Will Sharp? A. I was there when he was born.
“Q. Were you ever over to Sharp’s? A. I was there when he was born.
“Q. Did you visit there after that? A. Once or twice a year.
“Q. And did the Sharps qver visit at your home? A. Yes, sir, back-, wards and forwards.”
That a son is born in lawful wedlock may. not be conclusive evidence of his paternity (Hospital Co. v. Hole, 64 Kan. 367, 67 Pac. 848; Brooks v. Fellows, 106 Kan. 102, 104, 186 Pac. 985), but it is evidence of a very potent character. (4 Wig-more on Evidence, § 2527.) This belated point is without merit.
After a patient perusal of this case we discover no error in it, and the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued for damages alleged to have resulted from a careless and sudden starting of the defendant’s car. The jury found for the defendant and the plaintiff appeals.
The plaintiff was a passenger on the defendant’s car and alleged that on arriving at Girard, as she was in the act of alighting and before having reached the ground, the car suddenly started forward without warning, throwing her down, injuring her ankle, her shoulder and right knee and bringing on a miscarriage. Error is assigned upon rulings on evidence, instructions, misconduct of counsel, and refusal to grant a new trial.
The plaintiff was asked what effect the pain in her ankle had on her and answered that it caused her to have nervous chills. This was stricken out as calling for a conclusion. The plaintiff seems to have been permitted to testify quite fully as to her condition and suffering, after the alleged injury, and it was doubtless correct to strike out her statement that the pain brought on chills, that being a question for the jury or for expert medical testimony.
The same may be said touching her assertion that the fall not only hurt her ankle but caused her miscarriage. This was fully covered by medical testimony introduced later on in the trial.
Another witness was permitted to tell of her observations of the plaintiff while at home after the alleged injury and to describe her outward expressions and appearance and to state that in her judgment she suffered pain, but was not permitted to tell in what part of the body she thought the pain was located. There was no error in this ruling.
A doctor who attended the plaintiff and testified was cross-examined touching his former arrest on certain charges and his trial and acquittal on the charge of homicide. It does not appear that the discretion of the court in this matter was abused.
Complaint is made that Ed Banks was permitted to testify that he was not in charge of the car in question, although the answer admitted his employment as conductor. The plaintiff was permitted to offer this answer in evidence. We see no error in the result.
The answer alleged that if theie was any injury it was due to the plaintiff’s own mistake and negligence and not the negligence of the company. Complaint is made because the court instructed on contributory negligence. This seems to be based on the fact that the answer alleged also that if the plaintiff was injured it was not while she was a passenger of the defendant. Both of these allegations were covered by the instructions, and correctly so.
Examination of the instructions given by the court shows that the law was correctly stated and we find no error in refusing those submitted by the plaintiff, practically all of which were given in substance.
One controversy arose about a claim that the plaintiff was making signs to a witness while on the stand. This matter was covered by affidavits on the motion for a new trial, and appears to have been correctly disposed of by the trial court.
It appears that during the argument one of the defendant’s attorneys asserted that the plaintiff’s husband had a suit pending for the same injury and wanted to get $20,000 out of the company and quit his job as janitor at the courthouse, and concerning the plaintiff said:
“Oh she is so delicate, this ‘lily-white’ lady, she wants to dress up on this money.”
Counsel states in an'affidavit that this statement was made “in a dramatic and ridiculous manner and thereby caused the jury to laugh then and thereafter during the trial.” No claim is made that any objection was made to this argument or that the attention of the court was called to it, and it seems to have been passed by as one of the ludicrous instances marking the trial between the plaintiff, a colored woman, and the railroad company.
The contention is made that the plaintiff’s color and the color of some of her witnesses and the levity exhibited by counsel prevented her .from having a fair trial. She testified that the car started up while she was in the act of alighting, and one witness testified that he was about 125 feet from the place and that the car stopped within a few feet after it started, and another that he saw her fall and that as she went to step down the car started and she fell right on the ground. But the conductor of the car swore that he helped her off and after she had gotten clear off—
“She had a baby in her arms, and it seems like as I reached down after the grip to give to her, it seems like she sank down to the ground and I got down and helped her up.”
Another witness testified that he was on the car and got off when it stopped and saw the conductor helping her up. She was in a kneeling position when he first saw the conductor helping her. “The car never started till she was very near the walk (side walk).”
A lady who was on the same car testified:
“I saw a colored lady get off. I saw a lady with a child in her arms and a satchel in her hand. She set the satchel inside the step and stepped off the car, and she practically went down on her knees. The car standing perfectly still. There was no sudden jerk of the car. No movement.”
In view of all this evidence it cannot be said that the jury were not justified in returning the verdict found by them. Neither does it appear from anything in the record that the plaintiff was prevented from having or did not have a fair trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered a judgment against the defendants for damages sustained by reason of defective work and materials in a bridge built by the Topeka Bridge & Iron Company for the plaintiff, and the defendants appeal.
The bridge company entered into a contract with the plaintiff to build a cement bridge, according to certain plans and specifications, on the county line between Trego and Graham counties for $2,145, and gave a bond in that sum, signed by the bridge company and by the Lion Bonding & Surety Company, for the construction of the bridge in strict accordance with the plans and specifications, and for the indemnification of the plaintiff against any loss or injury which it might sustain by reason of any defect in workmanship, design, quality, or quantity of materials used in the bridge during the term of four years from and after its completion. The bridge was washed out and destroyed by high water within four years after it was completed.
The jury returned a verdict in favor of the plaintiff for $2,347.81, the amount paid to the bridge company for the construction of the bridge together with interest thereon. The answers of the jury to special questions showed that the bridge company did not construct the bridge in accordance with the plans and specifications; that the workmanship on the bridge was poor; that materials used in its construction were defective and of a grade inferior to that called for in the plans and specifications; that the poor workmanship and defective materials caused the bridge to give way under the pressure of high water; and that it would have been impossible to have repaired the bridge at any time after its completion.
The defendants complain of the following instruction.:
“If you find by a preponderance of the evidence that the bridge in question was defective, either by reason of a defect in workmanship, design, quantity or quality of material used in its construction, and that such defect resulted from failure on the part of said bridge company to construct said structure in accordance with the plans and specifications set out in the contract, and if you further find that the plaintiff suffered any loss by reason of such defect or defects, then you will find for the plaintiff for whatever loss the evidence establishes that the plaintiff has suffered, not exceeding, however, the sum of $2,145 with interest from May 30th, 1918; unless you should further find that the collapse of said bridge was the result of the negligence of the plaintiff in improperly loading said bridge and constructing the approaches thereto, in which case your verdict should be for the defendant.”
Two objections are urged to this instruction; one is, that it permitted the jury to find breaches of the contract other than those alleged in the petition; and the other'is, that there was no evidence to show the amount of damage sustained by the plaintiff. The answers to the special questions showed a number of breaches of the contract, but an examination of those answers and of the petition reveals that all the breaches shown by the answers were within the allegations of the petition. It is thought not necessary to set out the allegations of the petition or the answers to the questions for the purpose of showing the correctness of this conclusion. The petition alleged that $2,145 was paid by the plaintiff to the bridge company for the building of the bridge, and the answers to the special questions showed that the bridge was worthless and useless; the damage then must have been the contract price with the interest thereon. But the defendants urge that the plaintiff paid only one-half of the contract price, and that Graham county paid the other half. The contract was made with Trego county; Graham county does not appear to have been a party to it. The $2,145 was paid by Trego county,- but it appears that Graham county reimbursed Trego county for one-half of that amount. It may be that Trego county will be responsible to Graham county for one-half of the amount of the judgment after it is collected, but that does not concern the defendants if Trego county had the right to maintain this action for the entire amount. The contract and the payments give to Trego county the right to maintain this action for the full amount of the loss sustained by reason of the defective construction of the bridge. (Civ. Code, § 27.)
Complaint is made of the evidence introduced to show that defective workmanship and materials were used in the construction of the bridge. Sometime after it had broken down, one of the piers or abutments was opened by exploding dynamite in it, and material taken from the inside of the pier was introduced in evidence. That material could be crushed by the fingers, and showed that shale, a material not called for in the contract, was used in mixing the concrete for the pier. It is argued that the explosion of the dynamite would have a tendency to crush the concrete and make it friable. This criticism of the evidence cannot be sustained; in addition there was other evidence to show that the workmanship and materials used in the abutment were defective — an opening into the abutment for the purpose of introducing the dynamite was readily made with a bar of iron without the use of a hammer. That could not have been done if the concrete had been properly mixed and composed of proper materials. There was other evidence to show that the concrete was not properly mixed — the sand and cement were in separate layers and in pockets in the abutment.
Large cracks appeared in the bridge before it was destroyed. The defendants insisted that those cracks could have been repaired at an expense not exceeding $450. There was evidence to show that the cracks which appeared before the bridge washed out could have been repaired for that sum, but that did not include replacing the defective material in the bridge by other material of the kind and character required by the specifications. The cracks might have been repaired, but repair's could not remedy the defective workmanship or materials. That could be done only by replacing the bridge with a new one properly constructed with the kinds of materials called for by the plans and specifications. The jury found that it would have been impossible to repair the bridge at any time after its completion. That must have been true if defective workmanship and materials were used.
Another question was presented by the defendants. The contract provided for the construction of a bridge, not for making the approaches thereto. Trego and Graham counties built the approaches. Complaint is made of the construction of the one built by Trego county. The defendants argue that its proper construction was necessary to support the abutment and keep it from giving away under the weight of the bridge during high water. The approach was made of earth thrown against the pier. In answer to special questions the jury found that this approach was sufficient to withstand the action of the water in case of freshet, and that the washing away of the approach was not the proximate cause of the collapse of the bridge. The approach might have been made of piles, none of which would have touched the pier and would not have given it any substantial support. Neither the contract nor the plans and specifications provided that the approaches should support the pier. It should have been constructed under the contract in such a way that it alone would support the bridge.
The judgment is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages against .the city and against an employee of the city, for personal injuries sustained by the plaintiff when, run down by an automobile truck belonging to the city and driven by the employee. The verdict and judgment were for the defendants, and the plaintiff appeals.
The city owns and operates a gas, electric light, and water plant. Its power house is located about a mile beyond the western limit of the city. Webster was foreman in the city’s gas and water departments, and used the truck in the course of his employment. For greater convenience, he kept the truck at his own home, and sometimes did repair work upon it. On the evening of the accident Webster drove the truck to the power house to remove carbon from the cylinders and to grind some valves. When he started home, about 7:30 in the evening, the electric lights of the car went out. He lighted the.oil lamps, and proceeded eastward along the south side of the macadamized portion of a highway leading to the city. The night was dark and stormy, and violent gusts of wind blew snow and dust across the road to such an extent that Webster’s vision was sometimes completely obscured. On one of these occasions the truck struck the plaintiff, who was walking eastward, and inflected the injuries complained of. The petition alleged that Webster was acting for the city in the transaction of its business, and was negligent in that he was driving without any white or bright light and at a dangerous rate of speed. With a general verdict for each defendant, the jury returned the following special findings of fact:
“1. At the time of the injury to the plaintiff, during what hours of the day did M. L. Webster’s employment cover? A. From 8 a.m. .to 5. p. m. except when on special duty.
“2. Was it any part of M. L. Webster’s duty to take the car to the power house and work upon it? ' A. No.
“3. On the evening of the accident, did M. L. Webster go to the power house for his own convenience, or in the performance of a duty required under his employment? A. For his own convenience.
“4. Did M. L. Webster and the witness Stroupe turn up the oil lamps on the car just a short distance west of the place where plaintiff was injured? A. Yes.
“5. Were the oil lamps burning when the plaintiff was injured? A. Yes.
“6. At what rate of speed was the automobile going when it struck the plaintiff? A. Approximately 10 miles per hour.
“7. At the time plaintiff was injured, did the wind and drifting snow obstruct M. L. Webster’s view in front of the car and prevent him from seeing the plaintiff? A. Yes.
“8. Were the lights on the car at the time of the accident the ordinary coal oil lights giving a white light through a clear, uncolored glass? If not, then what kind of lights were they and what color? A. Yes.
“9. At the time of the accident was M. L. Webster driving slowly and carefully because of the bad condition of the weather? A. Yes.
“10. At the time of the accident was the car driven at a dangerous rate of speed? A. No.”
Webster told the whole story of the accident. When he left the power house the truck carried electric lights. Between the power house and the highway the electric lights burned out. He had no extra bulbs, and lighted the oil lamps. After driving some distance he stopped and turned up the lamp wicks. The oil lamps were put on the car to give light at night, were on the front of the car above the engine, had reflectors behind them, and gave clear white lights, visible under ordinary conditions a distance of three 350-foot blocks. Complaint is made of the statement that Webster did not have extra electric, light bulbs with him, the argument being that the jury might be disposed to excuse use of insufficient light in driving home. This could not be, because the issue submitted to the jury was whether or not the lights met the requirements of due care at the time the accident occurred.
There was much evidence regarding Webster’s relation to the city at the time of the accident, and his duties, general and special, were well established. Webster himself was examined, cross-examined, and reexamined on the subject, and he told everything he did during the evening of the accident. The plaintiff then asked him this question: “Was that the last work you did for the city that evening?” An objection to the question was sustained, on the ground of repetition. It is argued the ruling was prejudicial because the answer would have shown Webster was working for the city. If the purpose of the question were to secure details of conduct, as the court and opposing counsel evidently understood, the witness had made it plain he had told all he did, and the objection was properly sustained. If the purpose were, as the plaintiff now seems to contend, to have the witness decide for the jury a principal issue in the case, the question was improper, and prejudice may not be predicated on the ruling forbidding an answer.
It is contended the court misdirected the jury in respect to the law governing responsibility of the city for Webster’s acts. There was no dispute that the city supplied the car for Webster’s use in the city’s business, that Webster kept the car in his own garage, with knowledge and without disapproval on the part of the city, that he sometimes did repair work on the car, that on the day of the accident he went to the power house to remove carbon from cylinders and to grind valves, and that he was on his way home from the power house when the accident occurred. Repair work on the car, if needed, would benefit the city. The plaintiff seems to think that these facts were in themselves sufficient to make the city liable, and he requested that full instructions correctly stating the law of reRvond°at superior be modified accordingly. Not a single authority is cited in support of the plaintiff’s position, and it is manifestly untenable. The subject, however, is no longer of consequence, because the material facts have been found, and this court is able to apply the law to them. Webster’s duties, for the day ended at 5 p. m., unless accident or other special circumstance made additional service necessary. It was no part of his duty, general or special, to take the car to the power house and there work upon it, and he went to the power house, not in performance of any duty required by his employment, but for his own personal convenience. The result is, he was outside the course and scope of his employment in going to the power house, and in setting out for home from that place.
The plaintiff contends the court misdirected the jury in stating one of the essentials to liability on the part of the city, as follows:
“That at the time of the injury there were no white or bright lights burning on the car or that the car was being driven at a dangerous and reckless rate of speed.”
It is said the instruction ignored the statutory regulations relating to automobile lights. The subject is not material, because the city was not chargeable with Webster’s negligence, if he were negligent, in the matter of lights; but beyond that, the plaintiff did not base his action on violation of the statute, and the instruction is in the language of the charge of negligence contained in the petition.
In discussing the subject of Webster’s negligence, the plaintiff employs a method which renders his argument valueless. For example, it is said Webster testified his lights were such that he could not see the plaintiff more than twelve or fifteen inches away. Webster’s testimony relating to the character of his lights has been stated. There was other testimony that the lights were such they could be seen a distance of a quarter of a mile on a clear night. The reason the plaintiff was not seen until the car was upon him was that Webster’s view was obstructed by a blast laden with snow and with dust from the field north of the highway. Special .findings of fact consonant with this testimony were returned, and the plaintiff’s argument would be more persuasive if it took cognizance of the testimony on which the special findings and general verdict were rested.
The court gave an instruction relating to contributory negligence of the plaintiff. It is said there was no evidence on which to base the instruction. The assertion ignores the record. The subject, however, is not important, because the jury concluded Webster was not guilty of actionable negligence. .
There were some discrepancies in the testimony, some responses to questions were to be interpreted, and the jury were obliged to solve the usual problems which arise in dealing with testimony. Their answers to the special interrogatories were in accord with the clear weight of the evidence.
Nothing else requires special mention, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The action was brought by the appellant for the rescission and cancellation of a contract for the sale of a quarter section of school land, on the ground that the appellees had failed to make payment.of the purchase price according to the terms of the contract. Mrs. Phares, who is the principal appellee, her husband being joined with her, filed an answer and cross-petition admitting the execution of the contract, the payment of $2,500 on the purchase price by the endorsement of a note to the appellant which he had collected; admitting the failure to pay $2,000 due on October 1, 1919, and subsequent payments, and alleging that she was induced to purchase the land by the fraudulent representations of the appellant as to the quality, character and boundaries of the land. She asked to recover as damages the $2,500 and interest, and expenses incurred in moving from her home in Stafford county and in taking possession of the land. There was a general verdict in her favor for $3,027 and with the verdict the jury returned a number of special findings.
A number of trial errors are complained of, but the principal contentions are that the court should have sustained a demurrer to the evidence under the cross-petition, ■ and should have given judgment in appellant’s favor on the pleadings and evidence.' Error is also assigned with relation to the instructions and the overruling of the motion for a new trial.
The appellant, M. D. Gonder, is a real-estate agent at Cimarron. Mrs. Phares and her husband owned a farm in Stafford county which they sold in January, 1919, and were looking for another place. In company with her husband and two real-estate agents, Mrs. Phares went to Gray county and examined land there. The agents introduced her to Mr. Gonder who took her and her husband to look at the land on January 29.
Mrs. Phares testified in substance as follows: She was but a child when she came to this country, has never attended school and is unable to read and understand English very well. It was late in the evening and quite dark when they got to the land. The ground was covered with snow so deep that there was difficulty in getting there with the auto. The appellant told her the land was all hard land and would be all right. She was not able to get out and make an examination of the land. Mr. Gonder took her into the house, lighted a lamp, showed her the bathroom, tank heater and other conveniences. ‘ He told her that he was a good Christian and never liked to beat a woman in a trade. She had full confidence in him and they shook hands and she agreed to take the land. The contract was executed the' same day and Mrs. Phares endorsed to the appellant a note for $2,500 as the first payment. She moved from Stafford county and reached the place on the 29th of March. The next day she examined the land and discovered that it consisted mostly of what is called blow sand, and was of little value. The wheat, which had been represented to her as good, was blowing out. Mr. Gonder came to the place the next day and she offered him $500 to release her from the contract and give her back $2,000 of her money. It was at this time that he made the misrepresentations as to the boundary line, telling her that there were 16 acres on the other side of a fence that belonged to the land she had bought. She discovered afterwards that the fence was the boundary line and that the owner on the other side claimed the 16 acres. Mr. Gonder came to the place shortly afterwards and she offered him $1,000 if he would release her from the’ contract. He assured her that if she would remain where she was and farm the land he would sell it for her for $9,000. Her testimony is: “He said the war is on and everything goes up, and he says if you stay there and work right good and farm it good he says when the corn looks best in August positive I will sell it, and well he come up to me and he shakes hands two or three times and he says woman I will have that sold, now he says, mind what I say; when Í say anything I mean it; mind what I say I will have that place sold before the last of August.” An additional agreement was then signed by Mr. Gonder and herself by which she was to pay him a certain commission for selling the land and she agreed that if he received anything from the purchaser she was not to complain.
Several witnesses testified that they were familiar with the land. They had made an examination of it and had dug holes in places in the cultivated part which demonstrated that it was blow sand for a distance of two and one-half feet from the surface. There was some testimony tending to show that a half section of land in the immediate vicinity and of the same general quality had sold for $10,500. The price which Mrs. Phares was to pay for the quarter section was $8,500.
The appellant’s testimony and that of his son and some of the real-estate agents who were assisting in the trade and others, contradicted that of Mrs. Phares’ witnesses, but the most that can be said is that there was a sharp conflict in the testimony not only as to the representations but other matters. The contention, however, that the court erred in submitting the issues of fact to the jury cannot be sustained.
One of the main contentions is that the cross-petition stated no cause of action because of the failure to allege a tender to the appellant of a deed and possession of the land, and that as she was seeking by her cross-petition to recover damages on the theory of a rescission on the ground of fraud, it was necessary for her to tender a conveyance and possession. . This point seems to have been raised merely by a demurrer to the evidence and by a motion for judgment on the pleadings. The court’s attention does not seem to have been specifically called to any defect in the cross-petition. It may be conceded that it was defective in this respect, but the appellees’ testimony showed that on two occasions after she discovered the fraudulent representations respecting the land she begged the appellant to release her from the contract and offered to let him retain a considerable portion of the first payment. The appellant understood, of course, that he was to have the title and possession of the land if he accepted either of these propositions. It is apparent, too, that a tender would have been of no practical effect; it would never have been accepted. The position of the appellant has been from the first that there was no defense to the contract and that because of the failure to make the subsequent payments of the purchase price he was entitled to have it canceled and a j.udgment for the possession of the land.
Another of the principal contentions urged is that because the undisputed testimony showed that appellee offered at different times prior to October 1 to pay to appellant $2,000 due at that time under the contract she thereby estopped herself to set up a claim to recover damages on the theory of a rescission of the contract, and it is contended that the question of estoppel on the undisputed testimony became a question of law for the court and not for the jury. A sufficient answer is that Mrs. Phares’ testimony, which the jury accepted as true, shows that after she had informed appellant of her discovery that she had been defrauded he persuaded her to remain on the land and cultivate it and allow the contract to stand (which, of course, required her to make the payments when due), and that if she would do this he would procure a purchaser at a price which would-be sufficient to recoup any losses she had sustained by entering into the original contract. At the time she made the offers of payment the subsequent agreement had not been carried out, and doubtless Mrs. Phares at that time was unwilling to risk the loss of everything by a failure on her part to comply with the contract. She frankly admits in her testimony that she tried to make the payments before they were due. Afterwards she determined, apparently, to make no further payments. It cannot be said that as a matter of law she was estopped by offering to pay at a time when she was relying upon appellant’s agreement to resell the land. The jury probably gave the same explanation to the testimony showing that she did not complain to her neighbors and others about being dissatisfied with the land and even went so far as to make statements indicating that she was satisfied with her contract. The court properly instructed the jury on the issue.
There is a complaint that the court erred in submitting to the jury the issue of the fraudulent representations respecting the boundaries, because the testimony showed that these representations were made after the execution of the contract. It is true the evidence is silent as to representations in respect to boundaries except those made when Mrs. Phares first informed appellant that she had discovered the fraud. Her theory is that these representations were made as an inducement for her to abide by the contract and to remain where she was, until, by his subsequent agreement to find a purchaser for the land, he had lulled her into security. Moreover, the principal representations upon which Mrs. Phares relied were those relating to the character of the soil — the quality of the land. Upon that issue there was sufficient evidence to sustain the verdict and special findings.
The appellant complains of the failure of the judgment to protect his rights by ordering possession of the land given to him. He brought the action in the first place to recover possession and for cancellation of the contract. The judgment against him on the cross-petition rests upon the theory that the contract-has been rescinded, not by the appellant but by the appellees. Moreover, by merely-calling the attention of the court to the fact that, notwithstanding the general* ver diet, he was entitled to judgment for possession, appellant’s rights would have been protected in the journal entry of judgment; and it is not too late for him to ask the court to give him that relief. There is a statement in the brief of the appellees that Mrs. Phares moved from the place after the judgment and that she makes no claim of any right to possession. It is apparent that it woüld be folly to order another trial on the ground that the cross-petition made no offer to return possession or because the trial court’s attention was not called to the fact that appellant was entitled to possession.
We discover in the record no error prejudicial to the appellant, and the judgment is affirmed.’ | [
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The opinion of the court was delivered by
Porter, J.:
The action was for the partition of real estate which belonged in his lifetime to H. S. Noel who died in 1916. His son, H. E. Noel, died in 1918, and the plaintiffs are the widow and children of the son. The defendants are Mary Noel, widow, and the other children of H. S. Noel. All of the defendants, except Mary Noel, filed disclaimers. Mary Noel filed an answer and cross-petition alleging that H. S. Noel, on September 22, 1896, executed his last will and testament devising to her all the real estate and other property belonging to him at the time of his death; that his death occurred February 28, 1916; that the will was duly probated; that she elected to take under the will; that an administrator with the will annexed had been appointed, the-estate had been finally settled, and the administrator had been discharged. She asked that her title and right of possession to the real estate be quieted as against plaintiffs. There was a judgment in her favor and against the plaintiffs for costs, from which they appeal. Two legal questions are involved: First, whether the instrument executed by H. S. Noel is a will or deed; second, if it be construed as a will, does it pass after-acquired property?
The instrument reads:
“I, H. S. Noel, of Dickinson County and State of Kansas, declare this to be my voluntary- act, Assignment, Will and Testament.
“1st. I give to my wife, Mary Noel all my property both personal and real estate consisting of all household goods, farming utensils and all chattels I have, also the real estate, the farm on which I now reside, together with all the appurtenances thereunto belonging, to have and to hold the same unto herself and her assigns forever.
“In witness Whereof, I, H. S. Noel, have to this My Assignment, Will & Testament subscribed my name this 22d day of September in the year 1896. [seal] H. S. Noel.
“Subscribed by the testator in the presence of each of us,- and declared by him to us to be his own voluntary act will and testament.
“[seal] L. E. Steigelman.
“[seal] A. K. Brechbill.”
It is the plaintiffs’ contention that the instrument is a conveyance and not testamentary in character. It is said that the body of the instrument carries no intimation of an intention to have it take effect at the death of the maker and that if the introductory paragraph and the attestation be omitted, what remains shows an intention to pass a present, existing interest in the property, both real and personal. A better rule, however, is to consider the instrument from its four corners, not omitting any portion of it. While the document bears extrinsic evidence that it was not drawn by a person skilled in legal phraseology we have no hesitation in construing it as a will and not a deed. Crudely drawn and containing some surplus phrases, it shows an intention of the testator to leave all his property, both real and personal, to his wife. The rule is to disregard the form of a will except so far as formal words and declarations throw light upon the testator’s intention. The fact that the testator speaks of the instrument as his “voluntary act, Assignment, Will & Testament” shows that he regarded it as his will. The word “deed” is not mentioned. In one part of the instrument he uses the words “to have and to hold the same unto herself and her assigns forever.” While this is language appropriate to a deed, it is clear that it is nothing more than surplusage, language used to fill out the sentence. It is suggested that he omitted any provision for the payment of his debts, but it will be presumed that he knew this was not necessary because the law made his property liable for his just debts.
Upon the second proposition the plaintiffs rely upon the provisions of section 11809 of the General Statutes of 1915, which is section 58 of the statute of wills. It reads: •
“Any estate or interest in lands or personal estate or other property acquired by the testator after the making of his will, shall pass thereby in like manner as if held or possessed at the time of making the will, if such shall clearly and manifestly appear by the will to have been the intention of the testator.”
The plaintiffs contend that the reference in the will to the real estate as “the farm on which I now reside” amounts to a qualifying statement of the testator showing a clear intention to devise to his wife the particular property he possessed at the time the will was executed. But the reference to the particular real estate amounts to no more than if the testator had given the legal description of the real estate he then possessed. It is insisted that if he had intended to convey all the property he might own at the time of his death he would not have used the words “I have” in reference to his property. The whole contention of the plaintiffs leaves out of consideration the statement of the testator “I give to my wife, Mary Noel, all my property both personal and real estate.” It was not necessary for him to describe what he owned then, but out of the abundance of caution, testators very often do follow a general devise with a particular description of the property then owned.
In Durboraw v. Durboraw, 67 Kan. 139, 72 Pac. 566, the will devised to an heir “all my real and personal property of evéry description and wherever situate. The real property above referred to is more particularly described as follows,” followed by a definite description. The same contention was urged in that case but the construction given to the statute was that it does not require the will to show that the testator had in contemplation the future acquisition of real estate which he intended to pass thereby. (Citing Winchester v. Forster, 3 Cush. 366.) The Durboraw case followed and cites a number of authorities construing similar statutes and holds that the words “clearly and manifestly” are themselves indefinite, and that a testator makes his will understanding that it speaks from his death, and that so long as he lives there is no restriction upon his right to buy or sell; that the language used by him in the will must necessarily be construed with reference to this understanding. It is the policy of the •courts to construe a will so as to prevent intestacy. (See authorities cited in the Durboraw opinion, swpra.) Tested by these rules it is clear, in our opinion, that the manifest intention of the testator was that all the real estate he might own at the time of his death should pass to his widow.
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The opinion of the court was delivered by
Porter, J.:
This is an appeal from a judgment in plaintiff’s favor for damages for injuries resulting from a collision between a motorcycle on which plaintiff was riding and a motor car driven by the defendant.
The plaintiff’s evidence showed the following facts in substance: The accident occurred in Kansas City, Mo., on the afternoon of May 25, 1919. A fellow workman, one Friberger, invited plaintiff to ride home as a passenger on his motorcycle. Twenty-fifth street runs east and west and is crossed by Southwest Boulevard, which runs northeast and southwest. The motorcycle was being driven on the right of the center of Twenty-fifth street near the intersection of that street and Southwest Boulevard; the defendant was operating his automobile in a northeasterly direction on the Boulevard and driving to the left of the center, and when he reached the intersection of the two streets, failed to make a proper turn, and negligently drove his automobile with great force and violence against the motorcycle, overturning it and injuring the plaintiff.
Each party, as usual in such accidents, claims that the other was in fault, and each contends that the other violated ordinances of the city which require motor cars and vehicles to be driven on the right of the center of a street, and prohibit a higher rate of speed than ten miles an hour at a street intersection. There was a sharp conflict in the evidence, but the special finding .to the effect that just before the accident occurred plaintiff was giving attention to the manner in which the motorcycle wns being driven is sustained by his testimony that he knew they were on the right side of the center of the street and that the motorcycle was going slow, and further, by evidence that immediately before the accident the motorcycle was passed by another car. There was evidence to sustain the special finding that defendant did not do everything in his power to avoid the collision and that he was negligent in failing (to make a proper turn at the intersection of the twh streets. This disposes of the merits of the case.
The principal contention is that the trial court was prejudiced against defendant, abused its discretion by making improper remarks in the presence of the jury, and in many other respects prevented the defendant from having a fair trial. After the opening statements of counsel for the parties and before any testimony had been introduced the defendant asked to have the rule enforced as to witnesses, but for the reason that defendant’s witnesses had not appeared, the court refused to enforce the rule until they were present. The court might have enforced the rule as to plaintiff’s witnesses and might have ordered that when defendant’s witnesses appeared the rule should be enforced as to them. Neither the refusal to enforce the rule nor the refusal to adjourn the trial until defendant’s witnesses could be present can be held an abuse of discretion.
The plaintiff called an X-ray specialist who' produced photographs showing a fracture of both bones of the right leg of plaintiff, which were taken the day following plaintiff’s injury. These were introduced in evidence. On cross-examination the witness said that he did not know whether the fracture had been reduced before the plates were made and could not say from the plates whether the fracture was a compound one ór not. The court sustained an objection to a question calling for his opinion as to whether a compound fracture could be reduced the same as any other kind of a fracture. The ground of the objection was that it was not proper cross-examination. Although the witness was a physician, he was called merely for the purpose of identifying the plates made by him and the ruling was correct.
On cross-examination of one of plaintiff’s witnesses she testified that she had been in court as a witness for plaintiff three days without a subpoena and was laying off from her work. The counsel for the defendant then inquired whether the plain tiff’s attorneys had agreed to pay her for coming to the Kansas side to testify. In sustaining an objection the court said:
“In order to save time, I will simply say to the jury, a person cannot be compelled to come from Missouri by subpoena; there is no use taking up the time; it is immaterial whether she came on a subpoena, and as to whether she is receiving any compensation outside of her witness fee or anything of that kind, I presume that is a competent question. If it refers to witness fees, it is immaterial.”
It is seriously insisted that this showed that the court was prejudiced against the defendant. We think, in view of the fact that the statement gave an opportunity to defendant to show by proper quéstions whether the witness was to receive any compensation aside from the usual witness fees, the defendant could not have been prejudiced by the remarks of the court. There is no merit in the contention that the motion to discharge the jury should have been sustained because of voluntary remarks made by the court during the progress of the trial.
The defendant’s attorneys after obtaining written statements from some of plaintiff’s witnesses took their depositions in Kansas City, Mo., and the depositions were on file at the time of the trial. The witnesses, however, were in attendance and testified. A great deal of unnecessary time was taken in the cross-examination of these witnesses in an attempt to show contradictions between their testimony and their former statements. The court permitted an extensive cross-examination for this purpose, but endeavored to hasten the trial and manifested some impatience at the persistence of counsel in going over the same matters. We discover no error in the rulings respecting this cross-examination.
An objection was sustained to the introduction of the depositions which were offered for the avowed purpose of impeachment. The witnesses gave their explanations as to how the contradictions occurred and the evidence went before the jury, which passed upon the weight of the evidence and the credibility of the witnesses. Section 358 of the Civil code provides that when a deposition is offered to be read in evidence it must appear to the satisfaction of the court that for any cause specified in section 337, the attendance of the witness cannot be procured. It cannot be held, therefore, that the depositions themselves were admissible.
A young woman, who witnessed the accident and who testified for the plaintiff, after being cross-examined with respect to her statements was asked on redirect examination what the attorney for the defendant said when he asked her to make the statement. Her testimony was that she asked him if he was an attorney for the defendant and that he answered that he represented the insurance company. It is insisted that this .was prejudicial error and that the answer should have been stricken. The question was not improper, and any representations the attorney made at the time he procured the statement were competent. Moreover, the defendant can hardly complain of what his attorney said to the witness when asking for her statement.
We fail to discover any prejudicial error in the rulings of the trial court and the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action of ejectment to recover possession of large tracts of land situated in Butler and Greenwood counties and designated as the Red Ranch. The plaintiffs, H. L. Brinkerhoff and his wife, alleged that they were owners of the ranch in 1910 and being indebted to their uncle, A. B. Brinkerhoff, they executed a- mortgage on the ranch to him to secure an indebtedness, which was in form an absolute deed. They further alleged that plaintiffs held a lien on 2,400 acres of land in Nebraska, called the Neleigh ranch, and that in March, 1912, they proposed to their uncle to transfer a note and mortgage and certain collaterals on the Neleigh ranch in lieu of the lien which he held on the Red Ranch; that these papers were held by the uncle for some time before ac-. ceptance but in 1913 the uncle did accept the note and mortgage and at that time executed a quitclaim deed to the Red Ranch intended to be a release, of the lien which he held on that ranch. They allege that after the acceptance of the lien on the Neleigh ranch in satisfaction of the lien held by the uncle, the collateral notes were surrendered to the plaintiffs and the uncle afterwards asserted and foreclosed a lien on the Neleigh ranch. It was therefore claimed by the plaintiffs that the indebtedness due from them to their uncle had been fully satisfied and that neither A. B. Brinkerhoff who has since died, nor the defendants who held possession under him have any interest in the Red Ranch.
In their answer the defendants stated that the deed of January 24, 1910, was originally executed by plaintiffs to their uncle as security for indebtedness and for such further advances as he might make to them, that the indebtedness-was increased, and that on October 17, 1912, the nephew proposed to the uncle that he take over the.Red Ranch, consisting of 4,560 acres at a valuation of $25 per acre, in payment of indebtedness to the uncle which then amounted to approximately $145,-000. It was averred that an agreement between them was reached by which the uncle did take the title to the ranch and gave the plaintiffs a credit of $114,000 on their indebtedness to him. As an evidence of this agreement and a transfer of the plaintiffs’ interest in the ranch, it is alleged that plaintiffs took the original mortgage deed which on its face was an absolute deed and attached thereto the following instrument in writing:
“Huntley, III., October 17, 1912.
This is to certify the attached warranty deed is given without any conditions verbal or written and the deed dated Jany 10th, 1910, given as collateral but not recorded has been cancelled and returned to us.
H. L. Brinkerhoff
Edith Nye Brinkerhoff.”
The defendants further averred that this combination instrument was executed in pursuance of an agreement that the original warranty deed should no longer stand as a security but that it together with the new agreement should operate as a complete transfer of title in fee without conditions, reservations or restrictions. The instrument was delivered and shortly afterwards, it was alleged, A. B. Brinkerhoff went into possession, of the ranch and held it exclusively and uninterruptedly until his death, and since that time the trustee under his will has held possession of it. The defendants further stated that the plaintiffs had admitted a sale of the Red Ranch to the uncle and had given testimony to that effect in other litigation. It was also alleged that after the transfer of the Red Ranch by plaintiffs to the uncle they were still indebted to him for an amount between thirty-five and forty thousand dollars, and they specifically denied that the deed and mortgage to the Neleigh ranch were given in lieu of the indebtedness and lien held by the uncle on the Red Ranch, but were given as security on a different and new debt owed by them to the uncle. The defendants further set up the defense of res judicata based upon an action brought by the Interstate Cattle Loan Company against A. B. Brinkerhoff in a Nebraska court in which the cattle company alleged ownership and possession of the Neleigh ranch containing about 2,690 acres, and that defendants claimed some title or interest in the land, but without ground or right and it therefore asked to have its title to the property quieted. A. B. Brinkerhoff answered in that action and alleged that the deed held by the cattle company was obtained without consideration and was made subject to certain liens, including one of $35,000 in favor of A. B. Brinkerhoff; that thereafter a warranty deed for the land was executed which was in fact a mortgage, executed to secure the indebtedness to the cattle company, and was accepted by that company with full knowledge of the fact and subject to the lien in his favor for $35,000. The cattle company replied with denials and the allegation that the mortgage lien of $35,000 was fictitious and made for the purpose of cheating the company. H. L. Brinkerhoff was brought into the case and he filed an answer denying the averments in the petition of the cattle company and alleging that the deed under which the company claimed title was invalid inasmuch as it was without consideration. He did not file any pleading nor contest with his uncle as to the item of indebtedness of $35,000 and the mortgage deed which he had given to secure the payment of that amount. The judgment in the Nebraska case upheld the title of the cattle company, but it was determined that the title was held by the cattle company subject to the mortgage lien set up by A. B. Brinkerhoff and the court decreed a foreclosure of this lien, giving A. B. Brinkerhoff a judgment for $1,961.67, which was not secured by the mortgage. In the present case the jury returned a verdict finding for the defendants, and of the rulings and judgment the plaintiffs complain.
The first point raised by the plaintiffs is on instruction number seven, in which the jury was told that by the decision of the Nebraska court involving the title of the Neleigh ranch -and the mortgage claimed thereon, there had been a full accounting between A. B. Brinkerhoff and H. L. Brinkerhoff, upon all of their many transactions and accounts up to that time, and in the accounting so had in that case it was judicially determined that H. L. Brinkerhoff was then indebted to A. B. Brinkerhoff in the sum for which judgment was rendered in that case, after deducting a credit in favor of H. L. Brinkerhoff amounting to $114,000, on account of the sale and transfer by him to A. B. Brinkerhoff of the lands now in controversy in this action known as the Red Ranch. There is reason to complain of the instruction as the rule declared was of vital consideration in the present case. The adjudication in the Nebraska court can only be conclusive on the parties as to matters which were directly in issue in the former case and not to those incidentally brought into the case during the trial. What was in issue in the Nebraska case? The cattle company alleged ownership and possession of a tract of land, stating that A. B. Brinkerhoff unjustly and without right claimed an interest in it and asking for the quieting of its title. A. B. Brinkerhoff answered challenging ownership of the cattle company, alleging that the deed under which it claimed title was without consideration and invalid. He also set up a lien upon the land evidenced by a mortgage deed given him by H. L. Brinkerhoff to secure a note for $35,000 and he also asked for a foreclosure of the lien. The only pleading filed.by H. L. Brinkerhoff was an answer that the deed executed by him to Nye and Hover who conveyed to the cattle company was without consideration, and he asked that his title should be quieted against the claims of the cattle company. Two matters were involved in that controversy. One the validity of the deed under which the cattle company held and the other the validity of the lien claimed by A. B. Brinkerhoff. The first matter was determined in favor of the cattle company, and as to that there is no longer any controversy. As to the second the facts in controversy were the existence of the deed from H. L. Brinkerhoff to A. B. Brinkerhoff and the validity of the mortgage purporting to secure its payment. The cattle company was contending that the note did not evidence a real indebtedness and that there was no real basis for the mortgage deed set up by A. B. Brinkerhoff. That was the only question that divided the parties on the second branch of the case. Testimony was introduced pro and con on the point whether or not the note represented a real indebtedness and good faith attended the execution of the mortgage. In resisting the attack upon the validity of these, testimony as to the transactions involved in the giving of the note was brought out. It was not necessary to a decision of the question that the inquiry should extend further into the dealings of the parties than to show that there was a consideration for the note and mortgage. Anything outside of that was not within the issues and not necessary to the decision of that case. The cattle company was not asking for nor was it interested, in a general accounting between the Brinkerhoifs. Those codefendants were not asking for an accounting between themselves and cannot be regarded as adversary parties. H. L. Brinkerhoff, as we have seen, did not question the validity of the note and mortgage or the right of his uncle to foreclose it. There was nothing adverse between them in the pleading or evidence and no attempt to have determined the effect of any other of the many transactions which occurred between these defendants running through a period of more than seven years. They stood together on every issue raised between the plaintiff and the defendant and no conflicting or hostile claims were brought into issue between them. Standing in this attitude their rights and liabilities other than was involved in the issue of the cattle company cannot be regarded as adjudicated. (23 Cyc. 1279.) As between the Brinkerhoifs there were conveyances of lands, mortgages made and' deeds executed which were in fact mortgages; there were shifting of liens, moneys invested, collected and reinvested, instruments made, claimed by one party to be releases of liens and by the other to be actual transfers of property; numerous personal loans were involved, some of which were for comparatively large amounts; and there were other dealings between them of great number and variety. It is plain that a general accounting between them covering all these transactions was not within the contemplation of the parties or the scope of the judgment. If it had been adjudged that a general accounting was had when the question had not in fact been submitted to the court for a decision, the judgment to that extent would have been void. (New v. Smith, 86 Kan. 1, 119 Pac. 380; 23 Cyc. 1318.) The fact that an inquiry was had as to an indebtedness sufficient to constitute a basis for the mortgage on the Neleigh ranch did not conclude the parties beyond the real matters in controversy in that litigation. It is not enough to bind the parties that a matter was touched upon incidentally. To work an estoppel the judgment must fairly have covered the point. It has been said:
“For estoppel by judgment results from a matter having been directly and substantially in issue in a former suit, and having been heard and finally decided.” (Caspersz on Estoppel, 4th ed., 472.)
As to matters merely incidental or immaterial it has been remarked:
“But the rule does not extend to every issue determined in the former suit. It extends only to those which were necessary to the disposal of the matter involved. Although a judgment may, in express terms, purport to affirm a particular fact or rule of law, yet if such fact or rule of law was immaterial to the issue, and the controversy did not turn upon it, the adjudication will not conclude the parties in reference thereto.” (24 A. & E. Encycl. of L. 768.)
Another statement of the rule is:
“In order that a judgment may operate as res judicata and be conclusive evidence of a fact sought to be established by it, it must be made to appear that the same fact not only was in issue and determined in the former suit, but that it was a material fact therein. Pacts found which were not necessary to uphold a former judgment do not conclude the parties. Although a ^decree in express terms professes to affirm a particular fact, yet if such fact was immaterial, and the controversy did not turn upon it, the decree will not conclude the parties in reference to that fact.” (15 R. C. L. 980.)
Our conclusion is that the instruction challenged was not warranted, and that the giving of it was material error.
There is a further complaint as to an instruction in which the jury was told that under the deed executed by plaintiffs on January 24, 1910, and the written instrument dated October 17, 1912, attached to the deed mentioned, the execution and delivery of which was not controverted, A. B. Brinkerhoff became the owner of the Red Ranch, and that the verdict must be for defendants unless it was found that the alleged deed dated March 11,1912, from A. B. Brinkerhoff to plaintiffs, was executed and delivered during his lifetime. As already shown the deed of January 24, 1910, although absolute in form, was given and received as a security for the payment of a debt, and has been treated as a mortgage by all the parties. Was its character changed by the subsequent agreement and the instrument executed as evidence of the agreement on October 17, 1912 ? Plaintiffs invoke the rule or maxim “once a mortgage, always a mortgage,” and insist that the actual title being in them could not be transferred or affected by a parole agreement or the writing of October, 1912. Some of the courts have held that when a deed is given, absolute in form, to secure an indebtedness and there is an agreement or bond of defeasance or any equities of the grantor, these may be surrendered or canceled by such a parole agreement, and in that way leave or vest the title absolutely in accordance with the terms of the first deed. (Cramer v. Wilson, 202 Ill. 83; Sears v. Gilman, 199 Mass. 384. See other authorities mentioned in case last cited.) In Kansas where a mortgage does not transfer an estate in land and is only an incumbrance or a security for a debt, and where a deed absolute in form given to secure a debt is no more than an equitable mortgage, the decisions of states in which mortgages have a different status and convey an estate to the mortgagee are not entirely. applicable. While upon its face the instrument in question transferred the title to the uncle, it in fact was not a transfer, and “it has always been sufficient in a court of equity to show a state of facts outside of the deed which should render the deed a mortgage or would render it defeasible.” (Moore v. Wade, 8 Kan. 380, 387.) That such an instrument may be shown by parole proof to be something else than it purports to be is an anomaly in the law, but one that has been sanctioned from the beginning. The deed in question was a mortgage when made, and remained a mortgage at least until the second instrument was executed. The title to the land was not changed by the execution of the deed any more than it would have been by the execution of an ordinary mortgage, and it is well argued that under the statute of frauds an estate or interest in land cannot be conveyed by parole. Is the written instrument of October 17, 1912, a valid transfer of the land? In LeComte v. Pennock, 61 Kan. 330, 59 Pac. 641, an instrument in form a warranty deed was executed as security for a debt, and although possession of the property was obtained by the mortgagee, and some repairs were made by him upon it, it was held that the mortgage continued to be a mortgage and that the title would remain in the mortgagor until a new agreement was executed which would operate as a transfer of title. It was there said:
“It is a general rule that the character of a transaction is fixed at its inception, which is in line with the old maxim ‘once a mortgage, always a mortgage.’ The instrument given to Chartier was confessedly a mere equitable mortgage at the beginning, and nothing short óf a new agreement could convert it into a deed or transfer of title.” (p. 334.)
It was there held that under the facts in the case no new agreement was made, and that the mortgagor was not estopped by any of the facts to claim title in himself. It may be conceded that the change may not be effected by a parole agreement, and we have the question then, Was the later writing sufficient for that purpose? It is contended that it is indefinite and lacks the ordinary recitals of a conveyance. By itself it would be indefinite, but the plaintiffs making the instrument included in and made a part of it the original deed, and together they constitute a written contract relating to the transfer of title to land. The two writings must be considered together as a single instrument, and when so considered substantially all the clauses and covenants of a conveyance are found in it. We think it may be regarded as a new agreement or rather a written evidence of one, and according to some of the testimony there was consideration for the agreement. Besides, as the agreement was in writing and signed by the plaintiffs, it imports a consideration. The later writing to which the deed was attached is open to the interpretation that the collateral or mortgage feature of the deed had been canceled, and that the reissued deed is a present grant and an unconditional conveyance. If there is no question as to the execution and delivery of the combined writings, they may be regarded as sufficient to meet the requirements of the statute of frauds, and in the absence of evidence of a different intention, to convert the deed formerly a mortgage into a transfer of title. It is true that there is some ambiguity in the written instrument, and it is contended that it was not given or accepted as a transfer of title. There was. introduced in evidence a letter written by A. B. Brinkerhoff about two years afterwards which tended to show that he was holding the land under an agreement that if within five years the plaintiff should pay back the money or debt for which the deed was given with six per cent interest the land would be retransferred to him. There is not only a question as to the intention of the parties in making the instrument of October, 1912, but it is also insisted that there is no evidence that the first deed was in fact attached to the writing when it was made, and no evidence of delivery of that instrument. The court should have qualified the instruction by stating in effect that if the deed was in fact attached to the later instrument, and both were delivered with the intention of transferring the interest of the grantors to the grantee, it would b.e sufficient to show a' transfer of title of the ranch to A. B. Brinkerhoff, and that if these facts had been shown by sufficient evidence the defendant would be entitled to a recovery unless a subsequent transaction or transfer affected such ownership and right of possession of the land. From what has been said it is manifest that the court was not warranted in saying to the jury that the only question for its determination was whether or not the deed from A. B. Brinkerhoff to plaintiffs, dated March 11, 1912, as to which evidence had been offered, was in fact executed and delivered by A. B. Brinkerhoff during his lifetime.
Another contention is that the court erred in admitting evidence of previous statements of the plaintiff at the trial of other cases and elsewhere to the effect that he had sold the land and parted with all ownership in it. These statements were inconsistent with his claims in the present action and were" properly admitted. (2 Wigmore on Evidence, § 1048.) It may be that the evidence of plaintiff’s testimony in the Nebraska case took too wide a range, but it related to some extent to matters about which the plaintiff had given testimony in the present case, and the undue extension of the inquiry cannot be regarded as reversible error.
There is some reason to complain of the testimony of the judge of the Nebraska court as to the considerations that moved him in his decision of that case after weighing the evidence. Like any other witness he was competent to give testimony hot inconsistent with the record as to the identity of the matters actually litigated in the former action. The considerations and findings of a court should be expressed in the record, but his secret and unexpressed reasons which actuated him in making the decision are not admissible any more than are those of a jury. (Packet Company v. Sickles, 72 U. S. 580; 1 Herman on Estoppel and Res Judicata, 237; 2 Van Fleet’s Former Adjudication, 845; 23 Cyc. 1538.) Within the rule portions of the evidence of the judge should have been excluded.
For the errors pointed out the judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Johnston, J.:
The averments iu the amended petition filed by the plaintiff below, who is defendant in error here, were, in substance, that on the 20th day of December, 1874, Peter French sr. was the owner of lot 16 in block No. 3, in the city of Parsons, and that about that time he and his wife Daphney French, through James W. French, who was their duly-authorized agent for that purpose, entered into a verbal agreement to sell the lot to the plaintiff Wade for the sum of $375, which sum was to be paid by the plaintiff within a reasonable time thereafter upon the execution and delivery to him of a good and sufficient deed to the premises. A part of the alleged agreement was that Wade might enter and take possession of the lot upon payment of the purchase-money; and it was averred that on March 15, 1875, and within a reasonable time after the making of the agreement, he paid to Peter French sr. the full amount of the purchase-money, and demanded a deed of general warranty to the lot. He states that upon the payment of the purchase-money he took possession of the lot under the agreement, and has retained the same ever since, and that during that time he has expended the sum of $400 in making valuable and permanent improvements thereon. It is further alleged that after the making of the verbal agreement, the payment of the purchase-money, and the taking of possession by the plaintiff, Peter French sr. and Daphney French, by James W. French, their agent authorized by parol, executed and delivered to the plaintiff their written contract for the sale of the lot, a copy of which is set out, and is in form an absolute conveyance. It is further averred that on October 17, 1876, Peter French sr. died intestate, leaving defendants as his heirs at law. It is then stated that on or about August 1, 1883, he demanded of the defendants a conveyance of the lot in accordance with the agreement mentioned, but that they had failed and refused to convey the same by quitclaim deed or otherwise, and that Peter French sr. did not in his lifetime convey said premises to the plaintiff except as hereinbefore stated, and the plaintiff therefore prayed that the defendants be ordered to convey their interest and title in the lot to the plaintiff, and that the plaintiff’s title and possession be quieted in him.
The defendants denied the selling of the lot by Peter French sr., and denied that James W. French was at any time the authorized agent of Peter French sr. and Daphney French; to act for or represent them in the sale of the premises, or in the making of the agreement alleged by the plaintiff, and they claim the property as the heirs-at-law of Peter French sr. At the trial a jury was impaneled to whom the principal questions of fact arising under the pleadings were submitted, and upon which findings wrere made. One of the most important controverted questions submitted was, whether James W. French was the authorized agent of Peter French sr. and Daphney French, his wife, in the sale of the lot in question. This question was affirmatively answered, and the other questions having been found in favor of the plaintiff Wade, judgment was rendered in accordance with his prayer.
The errors alleged here relate chiefly to the admission of evidence. The plaintiff was called as a witness on his own behalf, and was asked if James W. French represented himself to be the agent of his father; and was also requested to state what was said by James W. French as to the fact of his agency. Although a specific objection was made that agency could not thus be proved, the witness was permitted to testify what the supposed agent said with respect .to his authority, and that he represented himself to be acting as the agent of his father in the premises. .This testimony was clearly incompetent. It is well settled that while an agent may testify under oath as to his authority to act for the principal, the mere declarations of one who professes to be an agent are not. competent evi-
dence to establish his agency. (Streeter v. Poor, 4 Kas. 412; Howe Machine Co. v. Clark, 15 id. 492; Mo. Pac. Rly. Co. v. Stults, 31 id. 752.) The objectionable testimony related to a very material if not the pivotal question in the case. The plaintiff did not claim to have communicated or negotiated directly with Peter French sr. regarding the sale of the lot. All negotiations respecting the same were with James W. French, who claimed that he was authorized to sell it to the plaintiff. This authority was denied by the defendants, who claimed that the only authority that was ever given to him by Peter French sr. was to execute a. mortgage on the lot to Wade to secure a debt owing to him for the construction of a house thereon; and as the record discloses that subsequent to the alleged agreement, and on January 14, 1875, Peter French sr. and Daphney French actually executed an instrument appointing James W. French as their attorney to execute a mortgage to Wade upon the house and lot in controversy, the importance and effect of the testimony objected to is apparent. This assignment of error must be sustained.
The plaintiff, over the objection of the defendants, read in evidence the deposition of Daphney French, which had been taken at his instance some time prior to the trial. A large part of the testimony which she gave related to communications had with her husband concerning the sale of the lot at Parsons. It therefore falls within that prohibi- . tion of the code which forbids husband or wife “to testify concerning any communication made by one to the other during the marriage, whether called while that relation subsisted, or afterward.” And its admission was error. (Code, § 323.) .
After the jury had returned its findings, the plaintiff asked and obtained leave to amend his petition by striking therefrom the copy of the written contract as set forth, together with all reference thereto, so as to make the petition conform to the evidence and findings of the jury; and the defendants complain that they were not permitted to plead to or try the case on the petition as amended. It is not clear that the defendants were prejudiced by this-ruling; but however that may be, the cause for complaint can now be removed, as the case will have to be remanded for a new trial, and an opportunity will thus be afforded them to amend their answer and meet the issues as. now tendered by the plaintiff.
There are no other questions raised that we need to notice, ■but for the errors mentioned the judgment must be reversed, and a new trial granted.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case are these: Charles W. Brown had his life insured in a mutual benefit insurance company of Mansfield, Ohio, called “The National Union,” for the sum of $5,000, payable, on proof of his death, to Sarah Brown, his wife. This insurance company conducted its business chiefly through a number of men selected by'the policyholders, who constituted a body called the senate, of the National Union. The defendant was a policyholder in the company, and formerly resided at Mansfield. He held an office in the company known as deputy senator; the duty of such' officer was, in part, to organize councils, which bore the same relation to the senate that subordinate lodges'of masons bear to the grand lodge of the state. He located at Beloit, in this state, in the spring of 1885. Soon after, the secretary of the council to which Charles W. Brown belonged, received notice that he had died at Blue Hills, Mitchell county, in this state. Upon the receipt of this intelligence, the secretary forwarded blanks for proof of death to the address of Mrs. Sarah Brown, the blanks being the forms of proof of death in use by the company. The defendant was then appointed by the council to which Brown belonged a committee to investigate the cause of his death, and after a short time the proofs of death were sent by the defendant to the secretary of the council. Dr. Joel Miley made affidavit that Brown died May 2, 3885, after an illness of three days; and John Mehl made a statement that Miley was a respectable physician, entitled to credit, and in active practice. The affidavit of Miley was false, though made and signed by himself. The defendant made a statement, signed by himself, upon the third page of the proof of death, that Brown died May 2, 1885, but this was also false. Attached to this proof of death were the following affidavit and certificate:
“Undertaker’s Certificate.—I, N. G. Munn, certify that I am an undertaker, residing at No.-street, city of Mitchell, state of Kansas, and as such undertaker I attended the funeral of C. W. Brown, and that his remains were interred in-cemetery, at Mitchell, on the 4th day of March, 1885.- N. G. Munn.
“Sworn and subscribed beforeme,this 22d day of June, 1885.
S. Peele, J. P.”
“Clergyman’s Certificate.—I, H. G. Miller, do hereby certify that I am a clergyman, residing at Blue Hills, Kas., and that I officiated at the funeral of tne late C. W. Brown on the 4th day of March, 1885. H. G. Miller.”
Upon receiving the papers containing the alleged proof of death, the secretary of -the senate of the National Union at once discovered that in the statement of the defendant it appeared that Charles W. Brown had not died until May 2, .1885, while the undertaker’s and clergyman’s certificates showed that Brown had been buried on March 4,1885. The secretary at once wrote to the defendant as to this discrepancy, and he answered, if the papers were returned to him he would try to have the errors corrected, as they were simply clerical. The papers were not returned, nor were the proofs approved, and no money was paid upon the policy issued to Brown. Subsequently an information was filed by the county attorney of Mitchell county, in this state, against the defendant, charging him with the forgery of the “undertaker’s certificate” and the “clergyman’s certificate” isent to the secretary of the National Union to obtain the payment of $5,000 upon the life policy taken out by Charles W. Brown in the National Union. Upon the trial, the defendant was convicted of forgery in the third degree, and sentenced to confinement and hard labor for the term of seven years. From the judgment he appeals to this court!
The contention of counsel for defendant is, that the making of the affidavit of the undertaker and the certificate of the attending clergyman could not, in this instance, be forgeries, and in support hereof, cite the rule of criminal law that an instrument void upon its face cannot be the subject of forgery, because it has' no legal tendency to effect a fraud. In support of this contention, it is claimed that the affidavit and certificate were a part of the “ official notice and proof of death,” and that all the papers constitute only one instrument; that other recitations in' the instrument are so repugnant and irreconcilable to those set forth in the affidavit of the undertaker and the certificate of the clergyman, the whole death proof is a mere nullity and absolutely void upon its face. The claim of counsel is more plausible than sound. We concede that a writing invalid on its face cannot be the subject of forgery, but a false instrument, which is good on its face, may be legally capable of effecting a fraud, though inquiry into extrinsic facts would show it to be invalid, even if it were genuine; therefore the forging of such an instrument is a crime. (Sections 129 and 139 of the act regulating crimes and punishments; 2 Bishop on Crim. Law, 7th ed., §§538-541.) The papers headed “Official Notice and Proof of Death” embrace several separate and complete documents or written instruments. On page one we have a statement, with questions answered; on page two, the certificate of the attending physician, with the statement of an officer, under oath, that the attending physician is respectable, entitled to credit, and in active practice; on the third page there is a report of the council examining committee on the cause of death, and on the same page the undertaker’s affidavit and the clergyman’s certificate; on the fourth page are blanks for the medical directors and president of the senate. The undertaker’s affidavit and clergyman’s certificate, as executed, are complete and separate instruments, and are not defective or in any way invalid on their faces. It is true that all of these separate and independent instruments are necessary to complete the proof of death, but in our opinion the undertaker’s affidavit and the clergyman’s certificate as executed, are as complete and separate instruments as though they were wholly detached from the other papers constituting the proof of death. We do not think that where a certain number of written instruments are required to be presented in connection with each other as indispensable to establish any alleged fact, that a person who falsely and fraudulently makes one or more of these written instruments is guiltless of offense because he does not falsely make all, or because in some of the other written instruments to be presented a discrepancy or defect occurs which prevents the accomplishment of his fraudulent purpose. The undertaker’s affidavit and the clergyman’s certificate are in the exact form required, and we think are the subject . n , ... of forgery, withm the terms ot the statute. (¡Sec-
tions 129/139, supra.) The fraud of the defendant was not defeated by the form of the forged affidavit, or the forged certificate, but only through an examination of the other written instruments. That these written instruments are connected or attached together, we do not think exculpates the defendant. The case before us is the same as where the invalidity of .an instrument depends on some fact not appearing on its face; that is, not appearing upon the face of the forged paper or instrument. (People v. Galloway, 17 Wend. 540.)
Complaint is made of the ninth instruction given by the court, to the effect that the crime of forgery is complete when the written instrument is made and forged with a criminal intent. No exception, however, was taken to this instruction by the defendant, and therefore no question is before us concerning the correctness of the instruction for our determination. Complaint is also made of the reception of certain evidence, the giving of certain other instructions, and the refusal of the court to compel the state to elect upon which of the counts of the information it would rely for a verdict. We have examined all of these matters, but we discover no errors in the proceedings affecting prejudicially the substantial rights of the defendant. (Crim. Code, §293; Wharton’s Crim. Plead, and Prac., 8th ed., §§ 285, 290, 293; Noakes v. People, 25 N. Y. 330.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The right of possession to the clothing in controversy depends upon whether the proposition made to the plaintiffs by Moore & Weaver on November 16, 1884, was accepted and became a contract before the execution of the mortgages by Moore & Weaver to their creditors on the 15th day of December, 1884. It appears that the plaintiffs, who were engaged in the wholesale clothing business at Cincinnati, Ohio, sold on credit a stock of clothing through one of their agents, to Moore & Weaver, at Ottawa, Kansas. The goods were sold and shipped in the early part of September, 1884, upon the terms that Moore & Weaver were to have a discount of 6 per cent, off the prices named not later than ten days after January 1, 1885, and credit was given them until the expiration of that time for a discount. On Noveipber 10, 1884, Moore & Weaver wrote to the plaintiffs, claiming that if they did not choose to discount the bill within ten days after January 1, 1885, they were entitled to a credit of four months from that time. The plaintiffs answered this letter on the 14th of November, 1884, insisting that the credit did not extend beyond ten days after January 1,1885. Moore & Weaver again wrote to the plaintiffs, on November 16,1884, insisting on the additional credit of four months from January 1, and in closing their letter, stated: “If you think we are misrepresenting the facts in the case, we will return the goods which we have ’on hand, and pay for what we have sold out of them. Hoping to hear from you soon, we remain/’ etc. This letter was received by the usual course of mail, but was never answered. It seems that soon after the plaintiffs received the letter of November 16, Mr. Harper, one of their firm, started out from Cincinnati on a business trip, with the intention of attending to some important business matters of the firm in Indiana and Illinois, which demanded immediate attention, and with a view of coming on to Ottawa as soon as those matters were disposed of. He reached Ottawa on the evening of December 16,1884, one month after the proposition was made, when he demanded the possession of the goods from the defendant Sellers, who was in charge of them under the mortgages executed the preceding day.
It is insisted by the plaintiffs that the court erred in not holding the conduct of the plaintiffs in starting from Cincinnati as an acceptance of the proposal made by Moore & Weaver, and as a completion of the contract, which vested the title and right of possession of the goods in the plaintiffs. In our opinion the conduct of the plaintiffs did not indicate a purpose to accept the proposal made by Moore & Weaver, and cannot be regarded as an acceptance. Although the proposition did not within itself limit the time or manner of acceptance, it cannot be regarded as a perpetual one, forever open to be accepted or rejected at the will of the plaintiffs. In Maetier v. Frith, 6 Wend. 103, the rule laid down with respect to a proposal made ] by letter is, that the offer continues until the letter containing i it is received “and the party has had a fair opportunity to answer it.” It has also been held-that “ a letter written would not be au acceptance so long as it remained in the possession or under the control of the writer. An offer then made through a letter, is not continued beyond the time that the party has a fair opportunity, to answer it.” (Averill v. Hedge, 12 Conn. 423.) Upon receipt of Moore & Weaver’s . . x letter, the plaintiffs were bound “to accept in a reasonable time and give notice thereof, or the defendant was no longer bound by the offer.” ( Chicago & G. E. Rld. Co. v. Dane, 43 N. Y. 240. See also Martin v. Black’s Executors, 21 Ala. 721; Admr’s v. Mocksley, 2 Metc. [Ky.] 309; Minn. Oil Co. v. Collier Lead Co., 4 Dill. 43; Judd & Co. v. Day Bros., 50 Iowa, 247; Taylor v. Rennie, 35 Barb. 272; Benjamin on Sales, 61, note 7.)
The offer which was made was the result of correspondence through the mails, and as the dates of the letters indicate, they had been promptly answered and responded to by both the parties. Besides, the letter containing the proposal by its terms enjoined an early reply. It closes with the words, “ Hoping to hear from you soon,” etc. While the mode of acceptance was not indicated in the letter making the offer, the nature of the negotiations as well as the manner in which they were carried on, suggested not ■ only the desire and necessity for an early reply, but also that the parties making the offer would expect an answer through and by the usual course of the mails. It has been said that —
“ Where an individual makes an offer by post stipulating j for, or by the nature of the business having the right- to ex- \ pect, an answer by return post, the offer can only endure for • a limited time, and the making of it is accompanied by the implied stipulation that the answer will be sent by return post. If that stipulation is not satisfied, the person making the offer is released from it.” (Maclay v. Harvey, 90 Ill. 525; Dunlop v. Higgins, 1 H. L. Cas. 387.)
If the plaintiffs intended to accept1 the proposal, it was their duty to have signified their acceptance, either through the mails or by 'some equally expeditious means. The plaintiffs say that they determined to accept L . . . . . the proposition as soon as the offer was received, and that Mr. Harper’s act in starting to Ottawa was an overt act amounting to an acceptance. Every overt act caused by a determination to accept a proposition does not constitute an acceptance. If it was the intention of the plaintiffs to accept the offer, they could and most likely would have written Moore & Weaver a letter, which was the usual mode of communication between the parties, and which is the usual mode of accepting an offer made by letter. Instead of sending a letter or telegram announcing a determination to accept, one of them started on a business trip through the country, intending finally to come to Kansas and take the goods, which trip consumed almost thirty days’ time, during which time they were at liberty to change their purpose and reject the proposition. The mere determination to accept an offer does not constitute an acceptance which is binding on the parties. “ The assent must either be communicated to the other party, or some act must have been done which the other party has expressly or impliedly offered to. treat as a communication.” (Benjamin on Sales, 54.) Where parties are distant, and ^he contract is to be made by correspondence^ Writing of a letter or telegram containing a notice of acceptance is not of itself sufficient to complete a contract. In such a case the act must involve an irrevocable element, and the letter must be placed in the mail, or the telegram deposited in the office for transmission, and thus placed beyond the power or control of the sender, before the assent becomes effectual to consummate a contract; and not then, unless the offer is still standing. (See authorities above cited.) The action of the plaintiffs in sending a member of the firm by a circuitous route to Kansas, was no more . _ ~ . , - than a mere mental assent, which, as we have seen, is insufficient. There was no act of acceptance until Harper arrived at Ottawa and demanded the goods. This was not within a reasonable time, and when the proposition was not met within a reasonable time, Moore & "Weaver were at liberty to regard their proposition as rejected, and to make other disposition of their property, which they manifestly did do.
In regard to the objections made to the findings of fact, it is enough to say that after an examination of the record, we think they conform to and are supported by the testimony.
Finding no error in- the record, the judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Thomas G. New against Richard W. Reed, to recover $1,373.50, the alleged value of certain personal property, consisting of horses, buggies, harness, etc., used in carrying on and conducting a livery stable, which property it is alleged the defendant intentionally burned and destroyed by'fire. The answer was a general denial. The case was tried before the court and a jury, and the jury rendered a general verdict in favor of the plaintiff and against the defendant for $1,250, and the court rendered judgment accordingly. The defendant brings the ease to this court, and asks for a reversal of the foregoing judgment.
The right of the plaintiff to recover depends solely upon the question whether it was the defendant, or some one else, who set the fire to the livery stable which consumed it and the plaintiff’s property; and the only proof that tended to show that it was the defendant who started the fire, was purely circumstantial evidence. There was no direct testimony introduced on the trial tending to show that the defendant started the fire, while his own testimony was that he did not. It appeared at the trial that foi; some time pi'ior to the burning_ of the livery stable, and up to within five days of that time, the defendant carried on and operated the livery stable himself; that he then owned the entire stock and materials necessary for that purpose, and that he also owned two sheds attached to the livery stable, but that he did not own the stable itself, but only had a lease thereof. It also appeared that prior to the fire, the defendant’s lease expired, and that the plaintiff leased the stable from the owners thereof, and had taken possession of it. The defendant, however, owned the following property, which still remained in the stable: Six horses, four double sets and four single sets of harness, four saddles, and some other articles; and he also owned the two sheds above mentioned. All this property was consumed by the fire, except three of the horses. The plaintiff also had a large amount of property in the stable, all of which was consumed by the fire, except one horse. The plaintiff’s property destroyed by the fire was found by the jury to be worth $1,250. The value of the defendant’s property destroyed by the fire was about $650. The plaintiff prosecuted this action upon the theory that the defendant set. the fire to the stable for the following reasons: For revenge against the owners of the stable for renting it to the plaintiff, and for revenge against the plaintiff because he procured a lease thereof and deprived the defendant of the use of the same; and the plaintiff also introduced evidence for the purpose of showing that the de fendant had his own property insured for more than it was worth, and therefore that he would not lose anything by having it destroyed by fire. The defendant objected and excepted to the introduction of this evidence; and whether the introduction of such evidence constitutes material error or not is the principal question involved in this case, and the first one which we shall consider. It was clearly proper for the plaintiff to prove that the defendant had an insurance on his property, but whether the evidence introduced to prove this fact was competent or not is the real question which the defendant (plaintiff in error) desires to present. We hardly think that we need to consider this question, for the defendant himself proved by his own testimony that he had an insurance on the property; that he had a sufficient insurance to cover all the property destroyed; that the property destroyed was worth about $650, and that he received from the insurance company by way of compromise $500. This was a waiver of the original error, if any error was committed.
There does not appear to have been any claim in the case that the original insurance was excessive; nor does it appear that in fact it was excessive. The defendant’s property in the barn'was in all probability at the time the insurance was effected worth vastly more than the amount of the-insurance; and while he had removed a large portion of the property from the barn before the fire, yet it appeared from the evidence that he had removed it for a sufficient reason. In fact, all of it should have been removed before that time, as the defendant no longer had any right to the premises. It will also be noticed that the question whether the defendant had an insurance on his property, or not, arises only incidentally in the case, and not directly. The suit is not án action on the insurance policy.
It was necessary on the trial for the plaintiff- to prove the value of the property for. which he sued and which was destroyed by fire, and in doing so he introduced the testimony of himself and several other witnesses; and it is claimed that the court belo.w erred in permitting these witnesses tp testify with regard to the value of the property, for the reason that they were not shown to have sufficient knowledge of the value of such property. And here again we might say, that it is not necessary to decide whether the court erred in admitting the-testimony without sufficient preliminary proof of the witnesses’ knowledge of values having first been introduced, for additional evidence of their knowledge of values was afterward introduced. The question is, whether it appears from the whole of the witnesses’ testimony that they had sufficient knowledge of the value of this kind of property to testify intelligently with regard thereto. The plaintiff testified with regard to the value of the horses. He stated that he had some knowledge of the value of this kind of property. It was also shown that he was 38 years of age; that for several years he had been a farmer in that county, and had been such up to about eighteen months before the fire occurred, when he removed to the city of Abilene, where he remained for about eighteen months before the fire occurred; that he had dealt in cattle and horses; that he had leased the livery stable and had stocked it'with horses of his own, and that he had been in the possession of the livery stable and in the livery business for about' five days before the fire occurred. This, we would think, gave him-sufficient knowledge of the value of horses to enable him-to testify with regard thereto. Indeed, the most of people, and particularly farmers and livery-stable men, have some knowledge of the price of horses. Besides, the defendant did not attempt by cross-examination or by other evidence to dispute the values placed upon the horses by the plaintiff. It is also claimed that the evidence of the witness Worley, with regard to the value of harness, whips, lap-robes, etc., was not competent. We however think otherwise. He was shown to be a dealer in such articles, and evidently knew their value. In the absence of evidence to the contrary,' such at least will- be presumed;
It is further claimed that the court below erred in charging the jury.- Now we think the- instructions of the court were very fair as toward the defendant; and the defendant did not ask for any additional instructions, nor, indeed, for any instructions.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Per Curiam:
This is an action in the nature of ejectment, brought by Esther King against Horace Wiggin and Albert E. Wiggin, for the recovery of an eighty-acre tract of land situated in Franklin county, Kansas. The trial having resulted in favor of the plaintiff, the defendants bring the case here for review. Esther King was an Ottawa Indian, and the land in controversy, being a part of the Ottawa reservation, was allotted to her under the provisions of the treaty concluded- on the 24th day óf June, 1862, and upon this allotment her right of recovery was based. The plaintiffs in error claim the land under a guardian’s deed, which purported to be executed by the guardian of Esther King in October, 1872, before she became of full age. The question presented for determination was whether, under the restrictions of the treaty of 1862 and the treaty of 1867, the lands allotted to Esther King could be alienated while she was yet a minor. The court answered this question in the negative, and excluded the guardian’s deed from its consideration. The case, as will be seen, falls within the decision of Campbell v. Paramore, 17 Kas. 639. The provisions of the treaties of 1862 and of 1867 relating to restrictions upon the alienation of land were there considered and interpreted, and it was held that the restrictions upon the sale of land allotted to minors were not removed until they arrived at full age. If the contention of the plaintiffs in error, that the Ottawa Indians, under the terms of the treaty of 1862, became citizens before the treaty of 1867 took effect, was upheld, it would result in nullifying the treaty of 1867, because the president and senate are not authorized to enter into a treaty with citizens of the United States. If we are in error in the view which has been taken in the treaties, the plaintiffs in error are not without remedy, as the question is one which may be presented to the supreme court of the United States for its decision; but we are disposed to follow the ruling in the caáe cited, and therefore the judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
John M. Price is the owner of the patent title to the lots in controversy. These lots were subject to taxation for the year of 1862, and were sold for delinquent taxes, May 15, 1863, and bid in by the treasurer of Atchison county; the certificate of sale was assigned by the county clerk of said county, August 10,1869, to William Mack, and a deed issued to him for the lots on December 7, 1869, which was recorded May 25, 1871. In 1870, Mack took actual possession of the lots, and has ever since occupied them as a homestead for himself and family. The trial court determined that the tax deed under which Mack claims is not in substantial compliance with the provisions of law.
Two questions are presented by the record: First, Is Mack estopped by the steps he has taken in order to avail himself of his rights as an occupying claimant from instituting proceedings in error to reverse the judgment? Seeond, Is the tax deed sufficiently regular on its face to set the statute of limitations iu operation? The trial court filed its findings of fact and conclusions of law on December 2,1884, and rendered judgment upon that day. The part of the judgment following the conclusions of fact and law was not actually entered upon the journal until December 6th. Price was adjudged the owner in fee simple of the lots in dispute, and entitled to the possession thereof, subject to all taxes, interest and costs allowed by law, and to the rights of Mack, if any, as an occupying claimant. On December 5, 1884, Mack filed in the office of the clerk of the district court his motion for the benefit of, the occupying-claimant act, which motion was allowed, and when the judgment was entered, it recited that Mack ha'd made claim for improvements as an occupying claimant. On January 16, 1885, Price filed in the office of the clerk of the district court his written demand for a jury to assess the value the improvements. In Bradley v. Rogers, 33 Kas. the defeated parties did not stop with merely requesting to be reimbursed for the taxes, interest and costs which they had paid upon the property in controversy, and for the benefit of the occupying-claimant law, but they went'further, and demanded a jury for the assessment of their improvements, and such jury was awarded to them by the court. In this case, Mack made no demand for a jury, and the action of Price in making such demand cannot be considered to his injury, and therefore cannot be urged as an election by him to take the rights of a defeated party. We followed, in Bradley v. Rogers, a Nebraska case, but are unwilling to extend the law of election, concerning the institution of proceedings under the occupying-claimant law, any further than already announced. (Buchanan v. Dorsey, 11 Neb. 373.) Mack excepted to the findings of fact and conclusions of law of the trial court, and also to the judgment as rendered. He filed a motion for a new trial, and when that was overruled, he excepted, and obtained twenty days’ time in which to make and serve a case-made to review the rulings of the trial court. Having made no demand for a jury for the assessment of his improvements as an occupying claimant, and hav-v G ; 1ÜS the exceptions he did, we do not think the steps taken by him after the rendition of the judgment debar him from instituting and maintaining these proceedings in error to reverse the judgment.
In support of the conclusion of the trial court that the tax deed is not in substantial compliance with the provisions of law, the following supposed irregularities are referred to:
First. It is said that “the tax deed recites that the sale was an adjourned sale begun and held on the first Tuesday of May, 1863;” but the recitation in fact is, “Whereas, the treasurer of said county did, on the 15th day of May, 1863, by virtue of authority in him vested by law, at an adjourned sale begun and publicly held on the first Tuesday of May, 1863,” etc. The words “of the sale” in the statutory form are omitted from the deed. Section 36, ch. 197, Comp. Laws of 1862, in force at the date of the tax sale provides:
“The county treasurer shall, immediately after the day specified in the preceding section, make out a list of all the lands and town lots, describing such lands and town lots, as the same are described on the tax-roll, with an accompanying notice, stating that so much of each tract of land or town lot described in said list, as may be necessary for that purpose, will, on the first Tuesday of May next thereafter and the next succeeding days, be sold by him at public auction, at some public place, naming the same, at the seat of justice of the county, for the taxes, penalty and charges thereon.”
And sec. 39 of said chapter 197 reads:
“On the day designated in the notice of sale, the county treasurer shall commence the sale of those lands and town lots on which the taxes, penalty and charges have not been paid, and shall continue the same from day to day (Sundays excepted,) until so much of each parcel thereof shall be sold as shall be sufficient to pay the taxes, penalty and charges thereon, including the cost of advertising and the fees for selling.”
As a tax deed need not be in the exact form prescribed by the statute, but is good if it is substantially in the form prescribed, we do not think the omission of the words “ of the sale” fatal. The recitation in the deed clearly shows that the treasurer sold the lots on the 15th of May, 1863, and that such sale was an adjourned sale succeeding the first Tuesday of May, 1863. The tax sale must of necessity have been an adjourned sale of the sale begun on the first Tuesday of May, 1863.
Second. The following words in the statutory form, “which was the least quantity bid for,” are also omitted in the deed, but this omission is proper in every respect. The statute in 1863 required, as now, that if any land could not be sold- for the amount of taxes and charges thereon, it should be bid off by the. county treasurer for the county for such amount. The county is not a voluntary or a com- # ^ . petitive bidder, and therefore, where a deed recites that no person offered to pay the taxes and charges and the county treasurer bid the same off for the county for the amount thereof, it would be improper to recite in a tax deed based upon.such a sale, that the land bid off for the county “was the least quantity bid for.” When the treasurer bids off property for the county, the county takes the whole property. (Larkin v. Wilson, 28 Kas. 513; Magill v. Martin, 14 id. 67.)
Third. Another objection to the deed is, that it shows on its face that it was executed for a less consideration than the amount due. If. this be true, the objection is without force, as it was disposed of in the case of Bowman v. Cockrill, 6 Kas. 311. We quote from that decision as follows:
“As to the second supposed irregularity in the tax deed, this court is of the opinion that the blank was not filled up with the proper amount, but that it should have been filled up with a much larger amount—an amount equal to and including all the taxes, costs and interest due on said lot at the time the deed was made and paid by the holder- or holders of the tax-sale certificate upon which said tax deed was made; but still, we think it is immaterial whether that blank was filled with the right amount or with a less amount, as a less amount can do no one any possible injury, unless it is the grantee of the tax deed himself. It can certainly do no injury to the original owner of the lot.”
In the case of Noble v. Cain, 22 Kas. 493, to which we are referred, the county commissioners, without any authority, made an order that Cain might purchase certain lots struck G0,mty ^ a tax sal® for want of bidders, for a surQ 0f money less than the cost of redemption. "We held that this order was void, and that the purchase by Cain thereunder was equally void. This and nothing more. We did not intend to overrule or modify Bowman v. Cockrill, supra. The tax deed, however, recites a sale to the county on May 15, 1863, and that the county clerk of Atchison county, on August 10, 1869, duly assigned the certificate of sale of these lots, and all the right, title and interest of said county in and to the lots, to Mack. Within the case of McCauslin v. McGuire, 14 Kas. 234, upon such a recitation it will be presumed that the certificate was duly assigned, and that the assignee paid the amount required by law at the time of the assignment.
Fourth. The tax deed is not void because it shows the two lots were assessed, sold and deeded as one tract of land. (McQuesten v. Swope, 12 Kas. 32; Watkins v. Inge, 24 id. 612; Cartwright v. McFadden, 24 id. 662.)
Fifth. From the attestation or conclusion of the deed, “by virtue of authority aforesaid,” and “my official seal,” are omitted. The attestation or conclusion is as follows:
“In witness whereof, I, Chas. W. Rust, county clerk as aforesaid, have hereunto subscribed my name and affixed my official seal, on this 7th day of December, 1869.
[Seal.] Chas. W. Rust, County Clerk.
Witnesses: Wm. H. Williams,
D. E. Merton.”
The statute provides that it shall be substantially in the form prescribed. The deed recites that the sale is made by Chas. W. Rust, county clerk of Atchison county, and is witnessed by Chas. W. Rust as county clerk. As Chas. W. Rust signs the deed as county clerk, “my official seal” evidently refers to his official seal as county clerk, and therefore “the official seal of said county.” We do not think the omission of the words noted renders the deed void. (Haynes v. Heller, 12 Kas. 381; Morrill v. Douglass, 14 id. 294; Bowman v. Cockrill, supra; Geekie v. Company, 9 Reporter, 37; Scheiber v. Kaehler, 5 N. W. Rep. 817; Barr v. Randall, just decided.) The substance of the words “by virtue of authority aforesaid” is fully expressed in other recitations of the deed, when the whole deed is taken and considered together.
Several cases in Wisconsin' and other- states are referred to by counsel, showing omissions in tax deeds which constituted, in those cases, fatal defects. So far as any of these decisions are in conflict with the prior adjudications of this court, we are not inclined to follow them. There is no doubt that the form of a tax deed prescribed by the statute must be substantially pursued, or the deed will be invalid, but all the tprms of the deed must be considered, and if everything substantially required by the statute as to form is found in the deed, the deed will be prima fade valid although some immaterial words are omitted therefrom. There are no equities in this case in favor of the original owner, and if the tax deed is valid on its face, the statute of limitations having completely run in its favor, the deed becomes conclusive evidence of the regularity of the tax proceedings, and vests in the grantee an absolute estate in fee simple of the lots therein described. The original owner seems to have abandoned these lots in 1862, and has never paid any taxes thereon since'that time— over twenty years—and no legal 'steps were-taken by such owner, or any person claiming under him, to regain possession of the lots, until July 28, 1883. No taxes having been paid upon the lots for 1862, they were bid off by the county on May 15, 1863'. On August 10, 1869, the county clerk of Atchison county assigned the certificate of sale to Mack, and on December 7, 1869, the county clerk issued to him a tax deed. In 1862, the lots were assessed at $20 each, and are now worth between $600 and $700 without any improvements on them. Mack took possession of the premises in the spring of 1870. During that year he built a house thereon, into which he moved with his family, and since that time has fenced the lots and planted a great many trees on them. He has continued in the actual and peaceable possession of the lots ever since 1870, and has paid all the taxes assessed against the lots since 1862.
Upon the findings of fact of the trial court, we are of the opinion its conclusions of law that the tax deed is not in substantial compliance with the provisions of the statute, and that the original owner of the real estate is not barred by the statute of limitations, are erroneous. Therefore, upon the findings of fact Mack is entitled to judgment.
The judgment'of the district court will be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All-the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
There are but two points urged here against the judgment rendered by the district court. The first of these arises upon rulings of the court in admitting in evidence the sheriff's deed, under which the defendant in error claims title, as, well as the record of the preliminary proceedings upon which the deed was founded.. Both parties claim title to the lot in controversy from the Blue Eapids Town Company. The sheriff's deed, which is admitted to be regular in form and valid upon its face, was executed on December 26, 1878, in pursuance of an execution sale made to satisfy a judgment obtained by Jane E.- Hathaway against the Blue Eapids Town Company. The plaintiffs in error claim title to the lot through a conveyance made by the Blue Eapids Town Company subsequently to the sale and conveyance by the sheriff, and on December 13, 1879. The judgment in favor of Jane E. Hathaway was obtained on March 28,1877, and after two executions had been issued upon the judgment and returned unsatisfied, a third was issued and levied upon the lot in controversy as the property of the Blue. Eapids Town Company. It is admitted that the lot was duly ap praised and offered for sale, and the amended return of the sheriff is that it was sold to Jane F. Hathaway for a sum greater than two-thirds of the appraised value, she being the highest and best bidder therefor. The validity of the judgment and execution and the regularity of the sale and prior proceedings are not questioned, and it is further conceded that immediately prior to the sale and conveyance of the lot, the .title to the same was in the Blue Rapids Town Company. The objection to the sheriff’s deed is based upon the returns made by the sheriff upon the execution. It seems that W. H. H. Freeman was the attorney of Jane F. Hathaway, and was present at the sale and made a bid upon the property, as he claims, for and in the name of his client. In the return first made by the sheriff it was stated that the lot was sold to Freeman, who refused to pay the amount of his bid, and on the 15th day of November, 1878, the execution was returned unsatisfied. At the next term of court, which convened in the month of December following, Jane F. Hathaway moved the court to require the sheriff to correct his return so as to show that the property was sold to her instead of to her attorney, and that the sheriff be required to accept the sum of $146.85, which was the amount of the bid in excess of her judgment. This motion was allowed, and the amendment was made by the sheriff, as hereinbefore stated. The plaintiffs in error say that the first return was conclusive, and when filed could not be amended or corrected. This is a mistaken position. The return of the officer upon the execution is only a history of the steps taken by him in obedience to its command. It is the duty of the court to protect its process, and as the return is the evidence of what was done by the officer under the execution, and upon which the rights of the parties and the liability of the officer depend, it is important that the facts therein should be correctly stated; and if they are not, it is the duty of the court upon proper application, to permit the officer to amend his return conformably to the facts. Before the return is finally filed, it may be amended by the officer without leave; but when it has been filed and made a record of the court, it can only be changed or amended with the permission of the court. The court does not make the amendment nor change the facts, but only allows the return to be made so as to correctly evidence the facts.
The objection is made that the officer resisted the motion to amend his return, and was by the court compelled to make the amendment. What the action of the court was, can only be learned from the record of the proceedings on the motion to amend, and the amended return which was made. From these the most that is shown is, that the motion was made to amend by Jane F. Hathaway, the plaintiff in the action and purchaser of the property, who appeared by her attorney, while the sheriff appeared by his attorney, who was one of the attorneys of record for the Blue Rapids Town Company. The amendment could be made upon the application of the plaintiff or the purchaser of the property, as well as upon the application of the officer himself. For aught that appears, the application may have been made by the plaintiff upon the suggestion or request of the sheriff. At first he may have thought that the bidder must be personally present, and that Freeman, who was the agent and attorney of the plaintiff, could not bid in her name, and accordingly made the return that the lot was struck off to Freeman; or he may have misunderstood the bidder, and after investigation of the facts before the court upon the motion to amend, become satisfied that the bid was made for the plaintiff instead of for Freeman; but be that as it may, it does not appear that there was any compulsion, nor that the court dictated in any manner what should constitute the return. And even if the sheriff at first resisted the application, it will make no difference, as it appears that the return was subsequently amended by him and not by the court, and that it was made after an inquiry into the facts which presumably satisfied him that the bid was made for, and the sale made to, Jane F. Hathaway, as stated in the amended return.
It is also objected that the amendment was made without uotice to the Blue Rapids Town Company, or to the plaintiffs in error. By some of the courts it is held that the return may be amended as a matter of course, and that no notice is necessary. In Rickards v. Ladd, 6 Sawyer, 40, the court, in determining the authority of an officer to amend his return, says:
“ Strictly speaking, then, the proceeding is one between the officer and the court. It is ex'parte in its very nature; and no one has an absolute right to a notice of it. In contemplation of law the amended return is made under the same sanction and responsibility as the mistaken one. In effect it becomes the return of the case, and cannot be questioned collaterally by the parties to the action, or those claiming under them as .privies.” (Morris v. Trustee, 15 Ill. 269; Dun v. Rodgers, 43 id. 260; Wright’s Appeal, 25 Pa. 373; Kitchen v. Reinsky, 42 Mo. 427.)
There are cases holding that notice of the application to amend a return is necessary, where a long time has elapsed after the original return has been made, or the term to which the process is returnable has passed and the case has been stricken from the docket, or where a return has been made upon an execution which shows that it is satisfied and the amendment would have the effect ol; restoring the liability • of the defendant. (Coopwood v. Morgan, 34 Miss. 368; Thatcher v. Miller, 13 Mass. 271; Hovey v. Wait, 17 Pick. 197; O’Connor v. Wilson, 57 Ill. 226; Williams v. Doe, 9 Miss. 559; Freeman on Executions, § 358.)
It may generally be said that applications to amend returns are addressed to the sound discretion of the court, and are only to be allowed in furtherance of justice. If much time has elapsed since the first return, or if new rights have likely intervened, it is. necessary and proper that notice to those interested should be given; but it will be seen that this amendment was made at the succeeding term of court, and within a few days after the original return was filed. The amendment was made at the same term, but before the confirmation of the sale was made. The parties are deemed to be in court until the sale is confirmed so that no notice is necessary of a motion to confirm the sale; and it would seem that the application to amend the return of the execution sale might be made before the confirmation of the sale without a new or additional notice. In any event, the plaintiffs in error are not entitled to notice. At the time the amendment was made, they had no interest whatever in the proceedings under the execution, or in the property sold. The Blue Rapids Town Company is not complaining of the want of notice, and the plaintiffs in error cannot complain for them. They did not purchase the lot on the faith of the original return, and could not have been misled by it. When they attempted to purchase the property the amended return had been made "and filed, and therefore no notice to them of the application to amend was necessary. [Baker v. Binninger, 14 N. Y. 270.) We may rest this decision, however, upon another and the broad ground, that the judgment and execution being confessedly valid, the sheriff’s deed cannot be attacked, nor the proceedings impeached by strangers, nor by anyone in this collateral action. (Freeman on Executions', §§ 334, 339, 364, 365; Rorer on Judicial Sales, §§479, 480, 789, 1059; Herman on Executions, §§248, 249, 301, 326, p. 402; Rounsaville v. Hazen, 33 Kas. 76; Dickens v. Orane, 33 id. 344; Cross v. Knox, 32 id. 725; Pritchard v. Madren, 31 id. 38.)
The second point urged by the plaintiffs in error is, that the testimony does not support the finding of the court that the land conveyed by the sheriff’s deed is the same as that described in the petition. In the sheriff’s deed, under which Freeman claims, the land is described as lot eleven on the county road. The same description was given in the petition, but it was further described by metes and bounds. It appears that the Big Blue river runs through the city of Blue Rapids, and that having been dammed there, it affords a water power which has been largely utilized to propel machinery in mills and manufacturing establishments that have been constructed at that place. There was an irregular strip of land lying near to the dam and between what was called the county-road and the river, which was laid out by the town company as water-power lots, and designated by number, and as county road lots, among which is the lot in controversy. The plat embracing the water-power lots was regularly made and filed, but no monuments are to be found of the survey then made. The testimony in the record does not show very satisfactorily the identity and boundary of' the water-power lots, but we deem it sufficient to sustain the conclusion reached by the court. . The plaintiffs in error claim that a certain half-section line was the base line or initial point from which these lots were measured and surveyed, but there is little in the testimony to support this claim. On the other hand, the defendant in error claims that the lots were surveyed and measured from a point near the dam and bridge over the same. It appears that the tract first sold was for an oil mill, and was immediately below the dam, and is claimed to be upon lot thirteen. The adjoining tract, or what is claimed to be lot twelve, was next sold for a gypsum mill. The tract next sold was for a paper mill, and is on what was claimed to be lot ten. Upon each of these lots so sold large and substantial buildings have been ejected. It is claimed that lot eleven lies between the gypsum mill and the paper mill. Upon what is called lot eleven, and immediately north of the gypsum mill, there is a water wheel, and it appears that the Élue Eapids Town Company, while it yet owned the ground, entered into an agreement with Price Bros., who owned a foundry and machine shop on the opposite side of the county road, giving them the right to use the water wheel above mentioned, and the machinery connected therewith, and in that agreement the land upon which the wheel was located was described as lot eleven. A witness named Loban, who had resided in Blue Eapids for thirteen years, testified that he was called as an appraiser to appraise the land upon which the execution was levied, and that the land between the gypsum mill and the paper mill was appraised as lot eleven. One I). Fairbanks, an old resident of the city, testified that he was familiar with the water-power lots, and that, he was present and assisted in making a survey of them. It does not appear that this was the original survey, but it- does appear that it was made for the purpose of locating the water-power lots where the oil, gypsum and paper mills were located, and that monuments were then placed at the corner of their premises. Upon inquiry, the witness stated that the ground lying between the mills was understood to be and was called lot eleven. This testimony was objected to as incompetent, and its admission is assigned for error. The court found that there was no way to determine from the recorded plat or from .any measurement, exactly where lot eleven is or was, and that there were no monuments on the ground from which its boundaries could be ascertained with any degree of accuracy. In view of this condition of the case, and in absence of evidence of a higher and better na(,ure> we think that the testimony was admissible. It will be observed that the boundaries are public ones, which it is generally conceded may, in cases of necessity, be established by hearsay and reputation. In Boardman v. Lessees of Reed & Ford, 6 Pet. 328, the supreme court of the United States, in passing upon the admissibility of that class of testimony, stated:
“That boundaries may be proved by hearsay testimony, is a rule well settled, and the necessity and propriety of which is not now questioned. . . . Landmarks are frequently formed of perishable materials, which pass away with the generation in which they are made; by the improvement of the country and from other causes they are often destroyed; and it is therefore important in many cases that hearsay and reputation should be received to establish ancient boundaries.”
In Kinney v. Farnsworth, 17 Conn. 355, it was decided that—
“ Within whatever limits the rule of evidence as to the admissibility of imputation on the questions of boundary is restricted elsewhere, it is well settled in this state that general reputation is admissible for the purpose of showing not only public boundaries, and such as those between towns, societies, parishes, and other public territorial divisions, but also the boundaries of lands of individual proprietors.”
In support of the same view, see also Harriman v. Brown, 8 Leigh, 697; Ralston v. Miller, 3 Rand. 44; Cox v. The State, 41 Tex. 1; Conn v. Penn, 1 Pet. C. C. Rep., 496.
Under these authorities the admission of this testimony was not error. While the testimony 'upon the identity and boundaries of the lots is weak, we think it must be held sufficient to uphold the judgment of the district court, which will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
It is immaterial in this case, whether the proceeding be called a civil or a criminal one. The record is singularly defective. The certificate to the record is as follows:
“State op Kansas, Shawnee County, ss. : I, B. M. Curtis, clerk of the district court within and for the county and state aforesaid, do hereby certify that the above and foregoing is a full, true and correct copy of the pleadings and record entries in the above-entitled cause as the same appear on file and of record in my office.
“Witness my hand and the seal of said court hereunto affixed, at my office-in the city of Topeka, this 17th day of April, 1886. [Seal.] B. M. Curtis, Clerk.”
Even if we treat the record as a certified transcript, we cannot pass upon all of the alleged merits of the case. The petition in error alleges that the judgment, rulings and decisions of the trial court are contrary to law, and are not supported by the evidence. The record purports to contain a copy of the bill of exceptions, but it does not clearly appear that this bill was ever filed with the papers in the case. Treating the bill as properly filed, it is incomplete within the decision of Railroad Co. v. Wagner, 19 Kas. 335.
The bill of exceptions of December 10, 1885, referred to in the bill of exceptions contained in the record as having been introduced as evidence in the cáse, is not inserted in or attached to the record, and is in no way identified. We therefore cannot say what evidence was considered by the district judge. There are other defects in' the bill of exceptions, but those noted are sufficient.
It appears from the record that a^ temporary injunction was granted September 10, 1885. This injunction was never dissolved, and on March 27,1886, Billard was adjudged in contempt for violating the injunction and adjudged to pay for his disobedience the fine of one hundred dollars, together with all costs. The court had jurisdiction of the parties and of the subject-matter, and the fact that an order of injunction has been erroneously granted affords no justification or excuse for its violation before it has been dissolved. (Civil Code, § 247; 2 High on Injunctions, 2d ed., p. 921, § 1416.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Leavenworth county by Frank A. Phelps against B. C. Clark & Co., to recover the sum of $1,344.07, for services and money advanced. The case was tried before the court and a jury, and a verdict and judgment were rendered in favor of the plaintiff and against the defendants for $507.50, and the present plaintiffs in error, as successors to the original defendants below, now bring the case to this court for review.
The first assignment of error is, that the court below refused to permit the defendants below to ask the plaintiff’s witness, C. L. Knapp, on cross-examination, the following question: “Didn’t you try to get away their [the defendants’] salesmen, so as to leave their [the defendants’] house without salesmen ? ” This question was not asked for the purpose of obtaining any evidence concerning the merits of the controversy, and it was wholly irrelevant to the merits; but it was asked for the purpose of eliciting evidence tending to show that the witness, Knapp, was prejudiced against the defendants. The court might very properly have permitted the question to be asked and answered. (The State v. Krum, 32 Kas. 373.) But under the circumstances of this case, we do n0£ ^hat aay material error was committed by the refusal. Many other questions were asked and answered tending to show the exact relations existing between the witness and the defendants and his feelings toward them, and hence the refusal to permit this question to be asked or answered was of but very little consequence, and not material error. Besides, courts seldom enter into the small details of transactions, or into the minute investigation of collateral facts, merely for the purpose of ascertaining any bias or prejudice that may possibly exist on the part of the witnesses óf the adverse party. Such a course would have a tendency to render the trial of cases interminable.
The next assignment of error is, that the court below erred in refusing to permit the same witness, upon cross-examination, to answer the following question propounded by the defendants, to wit: “State how the fact is—whether the position of book-keeper in the wholesale department is not one of the most responsible positions there can be in a house?” This question has nothing to do with the merits of the case, nor could the answer to the question have affected the merits; aa(l we cannot see that the court committed any material error in refusing to permit the question to be answered, although the court, under the circumstances, might very properly have done so, as it had already been shown what the book-keeper received as compensation, and as the object of the question was to show that the position of bookkeeper was a more responsible position than that of the plaintiff,- Phelps.
The next claim of error is, that the court below asked a certain witness many questions, and, after the answers were given, then remarked: “ It is only a basis; that is all I- want to get.” It is admitted that it would not have been error for the court to have permitted the counsel for the plaintiff to ask the questions, and we cannot say that the court below committed any material error in asking them itself, or in making the remark it did.
The next ruling of the court below complained of is in permitting the plaintiff’s witness in rebuttal, James J. Daniels, to detail a conversation had between him and one of the defendants’ witnesses, Charles Thompson, who had previously testified in the case, showing what Thompson had said in such conversation that B. C. Clark, who had been the principal plaintiff in this case, but who was then deceased, had said in his lifetime. We cannot say that the court below committed material error in this. The testimony of Thompson concerning this conversation between him and Daniels had previously been given, and Thompson had testified that this conversation was the only one which they had had upon the subject, and that this conversation was had in a car while they were going from Leavenworth to Kansas City. Thompson was asked by the plaintiff on cross-examination the following, among many other questions: “ Did you say to Mr. Daniels in any conversation that you had told B. C. Clark that he was in the wrong, and that Frank would beat him. in any case?” Thompson answered: “No, sir; I never did.” Thompson also testified in substance in answer to other questions by the plaintiff, that he had always stated substantially the reverse of this. The only thing which Daniels testified that Thompson said that B. C. Clark said, was as follows: “B. C. Clark told him that there would probably be a law suit, but he should fight it to the end.” And Daniels further testified that Thompson said that his (Thompson’s) reply to this remark of Clark’s was: “ If he went into court with the case there was, Frank was sure to beat him.” Some of the testimony of Daniels could not have been introduced for any purpose except for the purpose of impeaching some.of the testimony of Thompson, and' some of it was not proper in the case at all; but, under all the circumstances of the case, we can-gay cour(. ke]ow committed any such material error in permitting such testimony to go to the jury as will require a reversal of the judgment below.
We do not think that the charge of the court was erroneous or misleading.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case, not contradicted, are as follows: A. D. McMillan and William Quigley, under the firm-name of A. D. McMillan & Co., opened a wholesale store in North Topeka, in this state, in August, 1882, for the sale of groceries, boots and shoes, hats and caps, and clothing. They continued in business until October 7, 1882, paying for only a few of the goods they bought, and owing for nearly all of them. On October 7, McMillan, for the purpose of defrauding the creditors of A. D. McMillan & Co., sold all of their goods in lump, without invoice, to Charles Collins, through his agent, William H. Frease, for $7,500. At the time of purchasing, Frease did not inquire of A. D. McMillan whether the firm owed anything, and asked nothing whatever about their financial condition. At this time A. D. McMillan & Co. were indebted to their creditors for goods purchased, over $18,000. The stock sold by McMillan to Collins on October 7th was worth about $12,000, although some of the estimates of the value of the stock at the time of the sale were as high as $15,000 to $18,000. Collins is a cattle-dealer, residing in Reno county, in this state, and a man of considerable wealth. At the time of the purchas'e he had $20,000 on deposit in one of the banks of his county. On and prior to October 7, William H. Frease was employed by Collins as general manager of a store owned by him at Nickerson, in this state. The store carried a stock of about $6,000 of general merchandise. On October 6, 1882, Frease received a telegram from A. D. McMillan to come to Topeka. He arrived there at three o’clock on the morning of October 7th, and met McMillan at the Gordon Hnuse. After breakfast he went oveir to North Topeka with McMillan, and bought for Collins all the goods in the store for $7,500. The bargain was concluded about eleven o’clock A. M-., McMillan accepting in payment of the stock the note of Charles Collins, executed by Frease, for $7,500, due in sixty days. Frease paid $200 to McMillan on the note. He took possession of the goods about noon of October 7th — Saturday—and immediately procured teams, engaged cars, and began to ship the goods out of the store to the depot, to be hauled off, and was so engaged when the attachments of the creditors of A. D. McMillan & Co., to the amount of over $18,000, were levied upon the stock. There is some contradiction in the evidence as to the value of the goods Collins actually got away with, but Frease testifies that the sugar received and retained by Collins was worth $260. On Sunday morning, October 8, Collins reached Topeka. Soon after his arrival Frease informed him about the transaction, and also informed him that the creditors of A. D. McMillan & Co. had attached the stock. At this time a large number of the creditors of Á. D. McMillan & Co., or their representatives, had an'ived at Topeka, and Collins became fully informed of the fraudulent scheme of McMillan & Co. in disposing of their goods to defraud their creditors. After this, Collins hunted up McMillan and tried to get his note executed for the stock. Collins told McMillan “there was going to be a law suit; that the creditors had run.attachments on the goods, and that he did not want to have any trouble about it.” McMillan insisted to Collins “ that the same was fair and square.” Collins then proposed to McMillan to pay him a thousand dollars if his note was put in somebody’s hands, to be held until this case was decided. McMillan first demanded $3,500, but finally dropped down to $1,000, and Collins agreed to give him a little money along from time to time, not exceeding $1,000. Hiram Raff, then postmaster at Hutchinson, in Reno county, was agreed upon as the party to hold the note, with the understanding between Collins and McMillan that the note should remain in Raff’s hands pending this action, and if Collins lost the suit, it was not to be paid. Under this arrangement, the note was turned over to Raff, and he now holds the same. After this Collins paid McMillan from time to time certain sums of money, not amounting, however, to the $1,000 agreed upon.
As McMillan & Co. sold their stock of goods with the intent to defraud their creditors, if Frease, the agent of Collins, had knowledge of such intent, the transaction, not being bona fide, must be deemed fraudulent as against the creditors of McMillan & Co. So, also, if Erease, as the agent of Collins, did not have actual knowledge of the intent of McMillan <& Co., yet if his situation was such that as a reasonably prudent man he could and would have known of the fraudulent intent, the transaction must also be deemed fraudulent. A vendee cannot blind his eyes to facts which surround him, and protect himself by claiming that he had no actual knowledge of his vendor’s fraudulent intent. A knowledge of facts sufficient to put one upon inquiry, is equivalent to actual knowledge of the ultimate fact. (Kurtz v. Miller, 26 Kas. 314.) If the circumstances surrounding the purchase by Frease were such as would' put a prudent man upon inquiry, which if prosecuted diligently would have disclosed the fraud of McMillan & Co., Collins cannot be deemed a bona fide purchaser. (McDonald v. Gaunt, 30 Kas. 693.)
Again, the rights of a vendee, innocent of the fraudulent intent of the vendor, are only protected where such vendee gives a valuable consideration. If there be no valuable consideration, the mere acceptance of the transfer by the vendee does not make the transaction a bona fide one. Where a valuable consideration is paid in good faith for a transfer from -the vendor, who acts with fraudulent intent, the ; / interest of the creditor is superseded. The innocent purchaser, in such a case, having parted with value upon the faith of the vendor’s possession and ownership of the property, acquires not only the legal title, but an equity which is paramount to that of the creditors of the failing and fraudulent debtor. So, in this case, if it be .conceded that the transaction between Collins and McMillan was in good faith, so far as Collins is concerned, yet if there was no consideration, the interest of the creditors is paramount to any claim of Collins. More than this, the protection to which a bona fide purchaser without notice is entitled, extends only to money which has been actually paid, or to securities or property which have been actually appropriated by way of payment before notice, and notice before actual payment of all the purchase-money is binding as to the consideration not paid, in the same manner as notice had before the contract. In other words, to entitle a person to the character of a bona fide purchaser without notice, he must have acquired the legal title and have actually paid the purchase-money, or parted with something of value by way of payment before receiving notice. And even if notice is only after a payment of a part of the purchase-money, the purchaser is only entitled to reimbursement for the money paid. Before A. D. McMillan or McMillan & Co. had ever parted with the note executed by the agent of Collins, Collins had full notice of their fraud. The only money paid by Collins or his agent before the attachments were levied upon the goods in controversy, was the sum of $200. Collins has received for this $260 worth of ¿roods, which he has converted to his own use. He therefore has been reimbursed for all money paid by him upon the purchase. All the moneys paid subsequently upon the note were paid by Collins with full knowledge of the fraud, and Collins cannot be heard to say that he made these payments in ignorance of the rights of the creditors. The note executed for the purchase of the goods was placed in the hands of Raff, and therefore could not be sold or negotiated to the injury or prejudice of Collins. Indeed, it does not clearly appear that the note was payable to the order of McMillan & Co., or to bearer. It may have been a non-negotiable note; but in any event, it never passed out of the hands of McMillan & Co. to any bona fide holder, and Collins never paid anything upon the note, except $200, until after the note had been deposited with Raff. These sums, whatever they were, were paid by Collins at his own peril, with full knowledge of the fraud of his vendors. As Collins ascertained, soon after his arrival at Topeka, full knowledge of the fraudulent purpose of McMillan & Co., he could, if an innocent purchaser, have immediately brought an action to rescind the' sale and cancel the note, as the note was then in the hands of McMillan. Even after Collins had entered into an agreement to pay McMillan $1,000 and to put the note in Eaff’s hands to be held until the determination of this action, he could have protected himself from the payment of any of this money by an action against McMillan & Co., if the promise to pay $1,000 was obtained by the fraudulent statements of McMillan that the note had already been negotiated.
■ Among other instructions prayed for by defendant below, was one to the effect that if Collins received notice that the sale of McMillan & Co. was fraudulent as to the creditors, he would be protected only to the amount and extent of the payment made before receiving such notice, and if he had taken goods from the stock so purchased exceeding in value the amount he had paid, and converted the same to his own use, he could not recover. This instruction was refused, and the court nowhere in its charge informed, the jury that Collins could not be a bona fide purchaser unless he paid the purchase-money before he had notice of the fraud of McMillan & Co. If his note had been negotiable and had passed out of the hands of McMillan & Co. before notice of the fraud to Collins, the result would have been the same as though Collins had actually paid the money at the time of his purchase of the stock of goods; but the consideration in money, note, or otherwise, must in all cases like this, to protect the purchaser against attaching creditors, be actually passed before notice. The judgment rendered for Collins was to the amount of $9,000. As the purpose of McMillan & Co. was to defraud their creditors, and as Collins' did not pay and has not yet paid all the purchase-money, even if he bought without notice of the fraudulent intent on the part of McMillan & Co. he is not a purchaser for a valuable consideration, as to the purchase-money not paid, and is not entitled as against the creditors of McMillan & Co., to the goods seized by the sheriff upon the attachments, and the judgment is therefore wholly unsupported by the evidence. The trial court refused to inform the jury of the effect of the failure of Collins to pay the purchase-money, and the judgment must be set aside.
Upon the argument, it was insisted by the counsel of Collins that the judgment should stand, because Collins was liable to certain creditors of McMillan & Co. under proceedings in garnishment which had been instituted against him. It affirmatively appears from the record that Collins had notice of the fraud of McMillan & Co. before the notices of garnishment were served upon him. In any event, he is not liable as a garnishee if he is not indebted to McMillan & Co. ■ On account of the fraud of McMillan & Co., Collins is not liable upon the note in the hands of Raff. The interest of the creditors who attached the goods in controversy is paramount to any claim of Collins, is also paramount to any claim of McMillan & Co., or of creditors who have simply garnished Collins as the debtor of McMillan & Co. The failure .in the title to the goods purchased by Collins from McMillan & Co. exonerates him from paying the purchase-price. (Dixon v. Hill, 5 Mich. 404; Kerr on Fraud, 318; Bump on Fraudulent Conveyances, 2d ed., 194-201.)
As an apology for the failure of the trial court to properly direct the jury, and for the judgment in this case, counsel of Collins insist that the subsequent arrangement entered into between Collins and McMillan as to the disposition of the note' executed by Collins, was not set forth in the answer. This was not necessary. Collins alleged in his petition that he was the owner and in possession of a stock of goods and merchandise, which the sheriff of Shawnee county had seized and taken possession of in his official capacity, and demanded damages therefor in the sum of $25,000. The sheriff filed an answer denying the allegations of the petition, and setting up that the goods and merchandise seized by him were the. property of McMillan & Co., and that upon several writs of attachment, (giving the names of the parties thereto,) he seized and took possession of the goods and merchandise in dispute, and further alleged in his answer that the sale from McMillan & Co. to Collins was fraudulent and void, and made with the intent to defraud the creditors of McMillan & Co., and especially the creditors named in the attachment proceedings. In support of this answer, the sheriff had a right to prove that Collins was not a purchaser for a valuable consideration. He had the right to show that the note which Collins had executed was non-negotiable; that even if negotiable, it had never passed out of the hands of McMillan & Co. to a bona fide holder. No one but a purchaser for a valuable consideration can claim title to property whjph has been fraudulently disposed of against the action of attaching creditors. The arrangement entered into between Collins and McMillan & Co. on October 9, 1882, fixed conclusively the transfer of the stock of goods to Collins without consideration, excepting as to the $200 already paid, and Collins has received and converted to his own use goods in excess of that amount. This arrangement was disclosed by Collins upon his own examination.
A great many other questions are presented and discussed, but in view of the undisputed fact that the sale of McMillan & Co. was to defraud their creditors, and that Collins was not a purchaser for a valuable consideration as to the purchase-money not paid, it is unnecessary to' comment upon these matters.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
"Valentine, J., concurring. | [
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Per Curiam:
An examination of the voluminous affidavits presented satisfies us that Samantha E. Hodson, one of' the plaintiffs in error, is in no condition to complain of the judgment of the trial court. Since that judgment was rendered, there has been a settlement of the matters in litigation between her and Hester F. Welden, the defendant in error. She has thereby waived any errors that may have occurred. (Fenlon v. Goodwin, ante, p. 123; Babbitt v. Corby, 13 Kas. 612.) The other plaintiffs in error, Egbert Welden and Gilbert Welden, never filed any motion for a new trial. They cannot avail themselves of the benefits of the motion filed by Samantha E. Hodson. An examination of the petition, the findings of the jury, and the judgment of the court, show that as to Egbert and Gilbert Welden no errors appear of record.
Inasmuch as an attempt has been made to show that Messrs. Saxey & Son, who appear in this court as attorneys for Egbert Welden and Gilbert Welden, have no authority therefor, it is but justice to them for us to say that their appearance seems to us to be fully justified; but as Egbert and Gilbert Welden neglected to take proper steps to except to the alleged errors occurring on the trial, there is nothing now in the record of which they can complain. The petition sustains the judgment, and the special findings of the jury are not in conflict with the general findings of the court or the judgment rendered.
The motion to dismiss must therefore be sustained. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by F. A. Head against Kentuck B. Piatt, F. M. Lavering and H. J. Bond, on two promissory notes executed by Piatt to Lavering and indorsed to Head, and a mortgage on real estate executed by Piatt to Lavering to secure these two notes and to secure another claim. Lavering owned and had become entitled to recover on this other claim, and set up the same in his answer, and also asked for the foreclosure of the mortgage. The case was tried before the court without a jury, and judgment was rendered in favor of the plaintiff on both of his notes and the mortgage, and also in favor of Lavering on his claim and the mortgage; and Piatt and Bond, as plaintiffs in error, bring the case to this court, making Head alone the defendant in error. Lavering has not been made a party to.the case in this court. Bond, in the court below, made default, not having either answered or appeared in the case, although duly summoned, and the pleadings of the plaintiff, Head, unquestionably authorized the judgment that was rendered in his favor. Hence Bond can certainly have no grounds for a reversal of the judgment of the court below. As to Piatt, he consented that judgment should be rendered against him upon one of the promissory notes sued on by Head, and also upon the claim set up by the defendant Lavering, and that the mortgage should be foreclosed with respect to both these claims. Hence Piatt has no ground for alleging error, except with respect to the other promissory note sued on by Head and the mortgage so far as it secures such note. This other promissory note last mentioned was executed December 26, 1882, by Piatt to Lavering for $400, and was indorsed by Lavering to Head, and became due on February 1, 1883. The defendant alleged a failure of consideration with respect to this note; that it was indorsed to Head after it became due, and that Head had knowledge of such failure of consideration. And these were the only disputed questions of fact submitted to the court below for decision. We shall assume for the purposes' of this case that there was a failure of consideration for the note. There was also some evidence introduced by the defendant -Piatt, tending to show that the note was transferred to Head after maturity, and that he had notice of the failure of consideration. But, on the other side, there was ample evidence introduced to show that the note was indorsed to the plaintiff before maturity, and that he did not have any ’ notice of any failure of the consideration therefor. The court found generally in favor of the plaintiff and rendered judgment accordingly, without any argument having been made on the evidence by counsel on either side. This judgment was rendered on December 2, 1884. On December 3,1884, the defendants, Piatt and Bond, filed a motion for a new trial, and also filed an affidavit in support of their motion. The grounds set forth in their motion for the new trial are as follows:
“1. Irregularity in the proceedings of the court during the trial.
“ 2. Abuse of discretion on the part of the court in refusing to allow said cause to be argued by counsel.
“ 3. Accident and surprise which ordinary prudence could not have guarded against.
“ 4. The decision is not sustained by sufficient evidence.
“ 5. The decision is contrary to law.
“6. Errors of law occurring at the trial and excepted to by the defendants at the time.
“7. Newly-discovered evidence material for the said defendants, which they could not have discovered and produced at the trial by the use of ordinary diligence.”
The principal grounds urged for the new trial were the second, fourth and fifth, as above set forth. The defendants, in support of said second ground, filed an affidavit of A. M. Hallowell, the attorney for the defendants, Piatt and Rond, which affidavit tended to support such ground.- On the other side, the plaintiff filed a counter affidavit of J. G. Lowe, which states, among other things, the following:
“After the evidence had been all introduced in the cause. Charles Smith, partner of the affiant and one of the attorneys for plaintiff, asked .of A. M. Hallowell in a loud voice, and in the presence and hearing of the court, two or three times, if he wished to argue the case, and stated that counsel for the plaintiff did not wish to argue the cause unless counsel for defendant should wish to do so. Counsel for defendant remained quiet, and did not answer counsel for plaintiff nor demand a right to argue. The court then rendered judgment for plaintiff, and asked defendant’s counsel if he wished to except to the ruling; counsel for defendant then took an exception, and then told the court that he would like to argue the cause. The court then informed counsel that he was satisfied, and did not care then to hear any argument. Every legal point in the case had been as fully argued by counsel for both parties as they desired, without limit or restraint.”
This motion for a new trial was fully argued upon both sides, and was overruled by the court, to which ruling the defendants excepted. The only question presented to this court is, whether the court below abused its discretion in refusing to hear an argument in the case after the evidence had all been introduced and before a motion for a new trial was filed. After the motion for a new trial was filed, and upon such motion, a full argument was had in the court below, but the real question presented to this court is, whether the court below erred in refusing to hear such argument prior to the filing of the motion for the new trial. Of course the court below knew what had occurred in the ease; and taking the affidavit of J. Gk Lowe to be true, which it evidently did, and we think we must also do, we cannot under the circumstances say that the court below committed any material error. We think the defendants waived all their right to argue the case upou the evidence before the decision. It seems that the case had already been sufficiently argued upon all the legal questions involved in the case. When the plaintiff’s counsel asked the defendants’ counsel whether they desired to argue the case or not, stating that the plaintiff’s counsel did not wish to do so, and the defendants’ counsel failed and refused to make any answer, the court had a right to infer that the defendants’ counsel did not wish to argue the case, and had a right to render its decision as it did, without first hearing any argument upon the evidence. There is no claim or pretense that the defendants’ counsel did not' .hear the plaintiff’s counsel, and unquestionably they did. The affidavit above quoted shows that counsel for the defendants did not ask to argue- the case until after the decision of the court below had been made, and until after they had taken an exception to such decision. Besides, in the present case the entire case was submitted to the court for decision. The court was the trier of the facts of the ease as well as of the law, and the defendants on the motion for the new trial had a right to make and did make an argument to such trier upon the entire case, the facts^ the evidence, and the law. Under such circumstances, we think a clearer case of error and a stronger case for reversal should be made out than where the case has been tried before a jury.
In the case of Douglass v. Hill, 29 Kas. 527, the case was tried before a jury, and a strong case of error was made out. In' that case there was really no .excuse for refusing to permit an argument to be made to the jury, and of course the judgment rendered therein had to be reversed. In this case, however, we think there was not only a sufficient excuse but a justification for the action of the court in rendering its decision without arguments having first been made; and we think there was a sufficient excuse for the refusal of the court to hear arguments after the decision was made and prior to the time of the hearing of the motion for the new trial. Bond was in default, and had no right to make any argument at all, and Piatt’s counsel, by his action, or rather silence when he should have spoken, waived his right to make an argument at the close of the trial.
Before closing this opinion, we might suggest the question that if there was really a failure of consideration for the $400 note sued on, by Head, why did the defendant Piatt voluntarily permit a judgment to be rendered against him and in favor of Lavering, the oi'iginal payee of said $400 note, for money due on still another claim still held by Lavering, and for the foreclosure of this same mortgage, which secured all the claims? He knew that the said $400 note was a negotiable instrument, and that Head claimed to be an innocent holder thereof for value and by indorsement before maturity, and. he should have been prepared to defeat all claims of Lavering up to the amount of this note.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, broughtjby Mary A. Newkirk against John W. Marshall, jand Mary E. Marshall, in the district court of Chase county, for the recovery of certain land situated in that county. The case,j was tried before the court and a jury, and the jury rendered a general verdict in favor of the defendants and againstjthe plaintiff, and also made special findings of fact; and upon this general verdict and these special findings, the court below rendered judgment in favor of the defendants and against]¡the plaintiff. The plaintiff brings the case to this court for review.
The facts of the case appear to be substantially as follows: In the year 1861 the northwest quarter of- section 8, in township 22, of range 8 east, in Chase county, was government land. Sometime during that year Augustus M. Landsbury, with his wife Mary A. Laudsbury, and his daughter Mary E. Landsbury,. who was then a girl of about 9 or 10 years of age, settled upon and occupied this quarter-section of land as their homestead. Landsbury also made an entry for the land under the homestead laws of the United States, but just when he made it, is not shown. On November 27, 1866, Lands-bury executed a will, giving to his wife, Mary A. Landsbury, all his personal property and the east half of said land, and to his daughter, Mary E. Landsbury, the other half of the land, and appointed his wife executrix of his last will and testament, and guardian for his said minor daughter. Soon afterward, and sometime in the year 1866, Landsbury died. On January 7, 1867, Mrs. Landsbury caused the will to be probated in the probate court of Chase county, and she was also appointed executrix under the will; and there was also evidence tending to show that she was appointed guardian for her step-daughter, the said Mary E. Landsbury. At the July term of the probate court of Chase county, Mrs. Lands-bury made a report, showing that she had paid the debts of the estate and had a balance remaining in her hands belonging to the estate of $718, and further showing as follows: “Said balance is in the hands of said Mary Ann Landsbury, as the lawful owner by law of said property, except the one-half of homestead she now lives on, which belongs to Mary Eliza Landsbury, the daughter of deceased.” Some time after Landsbury’s death, but just when is not shown, Mrs. Landsbury, as his widow, made final proof, under the United States homestead laws, of the settlement and occupancy of the aforesaid land, and also of Landsbury’s death, and that she was his widow. Mary E. Landsbury continued to reside with Mrs. Landsbury on the east half of said land, and during all that time it was understood and agreed between them that Mary E. Landsbury owned the west half thereof, and. that Mrs. Landsbury should at some time execute a deed to her for the same. Sometime in the year 1869, or 1870, Mary E. Landsbury was married to William Wagoner. On May 2, 1870, the patent for the entire quarter-section was issued by the United States, conveying the title to Mrs. Landsbury. At that time all the improvements were on the east half thereof. Some time after the marriage of Mary E. Landsbury to William Wagoner, they, in accordance with the understanding and agreement of all the parties that the west half of said quarter-section belonged to Mrs. Wagoner, and under the promise of Mrs. Landsbury that she would execute a deed therefor to Mrs. Wagoner, Mrs. Wagoner and her husband took possession of the land, made permanent improvements thereon, and occupied the same as their residence and homestead for about two years, when Wagoner died. The improvements made on the land by them during their occupancy were worth about $75. Soon after Wagoner’s death Mrs. Wagoner removed to the state of Kentucky, and resided there for about ten years. During all the time that Mrs. Wagoner remained in Kentucky Mrs. Landsbury had charge of this land as well as of the east half of the quarter-section, leasing the same, receiving the rents and profits thereof, and paying the taxes thereon, and, for a part of the time, occupying the same herself, but all the time recognizing Mrs. Wagoner as the owner thereof—that is, as the owner of the west half of the quarter-section. Also, while Mrs. Wagoner was in Kentucky, both she and Mrs. Landsbiuy were married. Mrs. Waggoner was married to John W. Marshall, and Mrs. Landsbury to a man by the name of Newkirk. In February, 1881, Mrs. Marshall returned from Kentucky to Kansas, her husband, John W. Marshall, having preceded her some three or four weeks. For some time afterward they resided with Mrs. Newkirk on the east half of said quarter-section, and during nearly all this time Mrs. Newkirk still recognized Mrs. Marshall as the owner of the west half of the quarter-section, and accordingly permitted Marshall to make improvements thereon as though the land was his wife’s; but finally Mrs. Newkirk and Marshall quar relecl, and then she told Marshall that they should not have the land unless they got it by law, and forbade his moving upon the land. Shortly afterward, however, he, with his wife, did move upon the land, and they have continuously occupied the same as their homestead and residence ever since, and have continued to make improvements thereon. The improvements made upon the land by them after they took possession thereof, and before and after they occupied the same as their homestead, are worth about $368. Whether Newkirk ever expressed any assent or dissent with respect to the Marshalls’ claim to the land, is not shown. The land, however, at the time the Marshalls took possession thereof, was in the .actual possession of a tenant of Mrs. Newkirk, which tenant also resided thereon. Soon after the quarrel between Marshall and Mrs. Newkirk, Mrs. Marshall demanded a deed for the land from Mrs. Newkirk, but she refused, and some time afterward, to wit, on April 2,1883, Mrs. Newkirk commenced this action against the Marshalls to recover the land from them. Mrs. Newkirk always up to the time of the said quarrel recognized Mrs. Marshall as the actual and present owner of the land in controversy, with an actual and present right to the possession thereof, and always agreed that she would execute a deed for the land to Mrs. Marshall, although no particular time was ever fixed for the execution of such deed.
Under the foregoing facts, has Mrs. Newkirk a right to recover the land in controversy? The court below held that she has not, but Mrs. Newkirk claims that she has such right, and claims that the court below erred, and founds this claim principally upon the ground that no consideration for the land ever passed from Mrs. Marshall to herself. Was such a consideration necessary, under the circumstances? It must be remembered that Mrs. Newkirk herself never paid any consideration for the land. She procured the title thereto merely by virtue of being the widow of Augustus M. Landsbury, who settled upon it and occupied it with his family under the homestead laws of the United States, and his right did not depend upon her any more than it depended upon his daughter Mrs. Marshall. If he had lived he could have procured the title thereto by occupying it with his daughter alone, just as well as he could have done by occupying it with his wife alone. A homestead can be entered under the homestead laws of the United States only by the “head of a family,” (U. S. Rev. St., § 2, 289,) which shows that the homestead entry is for the benefit of the whole family, and not for any single individual. The homestead under such laws is virtually a gift or donation by the general government to the family; and hence, when the title to such homestead is taken in the name of any single member of the family, there should not be much consideration required to vest the title to a fair proportion thereof in another member of the family. Landsbury in the present case entered and occupied his homestead for the benefit of himself and his wife, the present Mrs. Newkirk, and his daughter, the present Mrs. Marshall, and when he died it seems only fair and just that the homestead should be equally divided between the survivors. This was thought to be just by all the parties, and Landsbury so expressed it in his will; and after providing in his will for the division of his homestead equally between his wife and daughter, he then gave all his personal property to his wife, which, in all probability, he would not have done if he had not expected the real estate to be equally divided between them. And his widow and daughter constituted a family till long after the patent was issued. Under such circumstances, should there be much consideration required to pass from the daughter to the widow in order that such equitable division of the real property should be made? But it is not always necessary in cases of the equitable transfer of title to land that a consideration should pass from the person obtaining the land to the person from whom the land is obtained. Mr. Pomeroy, in his work on the Specific Performance of Contracts, § 130, uses the following language with respect to gifts or donations of real estate:
“. . . The statute of frauds is satisfied by possession as a part performance, and the general doctrines of equity demand, in addition thereto, a valuable consideration. This latter de mand is answered by the outlays, expenditures and labors of the donee in making the valuable improvements as a consequence of the gift. The doctrine, therefore, has been generally -accepted that, when the donee takes possession and makes outlays upon valuable and substantial improvements, in execution of the donation, or does other analogous acts, which would render a revocation or a refusal to complete inequitable, a parol gift of land will be specifically enforced, since the labor and expenditures of the donee supply a valuable consideration, while the possession and betterments constitute a part performance which obviates the statute of frauds. This doctrine has been criticised in some American decisions, and wholly repudiated by others.”
Mr. Pomeroy cites a large number of authorities supporting the proposition which he enunciates. (See also Galbraith v. Galbraith, 5 Kas. 402; Twiss v. George, 33 Mich. 253.)
Under the facts of this case, we do not think that the plaintiff can maintain her action. Under the United States homestead laws, and by a compliance with them, a person. entering a homestead, or in case of his death, his widow, or in case of the death of both, his heirs or devisee, obtains a vested right in the homestead at the expiration of five years from the entry thereof, and upon making proper proof is entitled to a patent for
. xL , -a the land from the United States. And as soon as a person is entitled to a patent, although it may not yet have been issued, and may not be issued for years, he or she ma7 contract and be contracted with concerning ]anc^ or ggJJ p. Qr convey the same precisely the same as though the patent had already been issued. Equity, in order to do justice and to protect the rights of parties and to prevent frauds, will generally consider .that as having been done which ought to be done. And in order to protect the rights of all parties, where a patent is due but has not yet been issued, equity will consider such rights precisely the same as though the patent had in fact been issued on the very first day on which it ought to have been issued.
We might further say, that in this case the burden of proof rested upon the plaintiff, and as the jury found a general verdict in favor of the defendants and' against the plaintiff, everything will' be considered as having been found in the defendants' favor and against the plaintiff, except such facts as the jury specifically found otherwise by their special findings. And viewing the facts of the case in this manner, we think the taking of the possession of the land by Mrs. Marshall and her first husband under the parol agree- † ° meats between them and Mrs. Newkirk, and the majcing 0f the lasting and valuable improvements on the land, not only took the case out of the statute of frauds, but also supplied a sufficient consideration for the property, and the acts of the parties since that time have enhanced and made stronger Mrs. Marshall's equities in and to the land.
The plaintiff also makes some points upon the introduction and exclusion of evidence, and the instructions given and refused; but we do not think that the court below committed any-'material error in these respects. Upon the entire facts of the case, taken as a whole, we think Mrs. Marjs entitled to the land in controversy; and believing that no material error has been committed in the case, and that justice and equity have been done, the judgment of the court below will be affirmed.
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The opinion of the court was delivered by
Hokton, C. J.:
A preliminary question is presented in the motion made to dismiss the petition in error, upon the ground that it is barred by the statute of limitations. (Laws of 1881, ch. 126, § 2.) The case was tried April 10, 1884, and judgment appears to have been entered upon the same day. A motion in arrest of judgment and for a new trial was filed April 12, 1884, heard April 16, l'884, and upon that day overruled. Among the grounds for a new trial it was alleged in the motion that there were errors of law occurring at the trial, which were excepted to by the plaintiff. Said § 2 provides :
' “No proceeding for reversing, vacating or modifying judgments or final orders shall be commenced, unless within one year after the rendition of the judgment, or making of the final order complained of.”
The petition in error in this case was filed April 14, 1885, less than a year from the time of the overruling of the motion for a new trial. This court has the authority to reverse, vacate or modify an order that grants or refuses a new trial. (Code, § 542.) Upon the hearing of a motion for a new trial, all of the rulings of the court made during the trial and therein referred to and excepted to at the time they were mad§, should be again considered by the court. (Backus v. Clark, 1 Kas. 303; DaLee v. Blackburn, 11 id. 190; City of Ottawa v. Washabaugh, 11 id. 124.) As the order complained of is the overruling of the motion for a new trial, and as the petition in error has been filed within one year from the making of the order complained of, the motion to dismiss must be overruled. (28 Kas. 769; 29 id. 476, 481.)
The plaintiff, for his cause of action against the defendant, alleged in his petition that on September 1, 1881, he entered into a contract with the defendant whereby the latter agreed to furnish him five hundred bushels of good merchantable corn, at forty cents per bushel, to delivered at the Douglas farm, west of Thayer, or in the vicinity of Altoona, Kansas, at the option of the defendant; the corn tó be measured at four thousand cubic inches to the bushel, and to be cribbed by December 1, 1881. The petition also alleged that the plaintiff paid the defendant two hundred dollars, as the purchase-price of the corn; that on April 10, 1882, he demanded of the defendant delivery of the corn contracted for; that the defendant refused to comply with his contract and failed to deliver any corn, and at the time of such refusal, good merchantable corn was worth at the place of delivery, eighty-five cents per bushel.
The defendant in his answer stated, among other things:
“That in pursuance of the written contract between himself and plaintiff, he purchased five hundred bushels of good merchantable corn, and caused the same to be cribbed at the place designated in the contract, during the month of November, 1882, and held the same until April 10, 1883; that plaintiff refused to receive the corn, and wholly failed to comply with the conditions of the contract.”
To this answer the plaintiff filed a reply, denying generally the allegations contained in the answer, except those specifically admitted. He denied that any corn of the quality contracted for was delivered or tendered to him. He further alleged that the corn tendered or offered to him by the defendant, was light and damaged corn; that subsequently the defendant took the corn and appropriated it to his own use.
The important question upon the trial was, whether the corn tendered by the defendant was good merchantable corn. The plaintiff asked the court to instruct the jury that the burden was upon the defendant to prove that the corn tendered was good merchantable corn. The court refused this instruction, and charged the jury that “the burden of proof was upon the plaintiff to satisfy them by a preponderance of the evidence that the corn tendered was not good merchantable corn.” It appears from the evidence that there was great conflict in the testimony, as to the quality of the corn cribbed and tendered, and this was the substantial issue in the case.
"We think the trial court mistook the scope of the allega tions contained in the reply of the plaintiff. There is no admission therein that the defendant cribbed or tendered any corn of the quality described in the written 'contract. The reply stated that “the corn tendered or offered to plaintiff by the defendant was light and damaged.” If the .plaintiff had filed a reply containing a general denial only, we suppose it would be conceded that the burden of proving a tender of good merchantable corn would have rested upon the defendant, as he asserted affirmatively that a-tender of such corn had been made by him. We do not 'think the allegations in the reply change this burden in any respect. The plaintiff alleged and proved, and the defendant ■ admitted, the payment of the money under the contract, and the non-delivery of the corn. As a compliance with the contract, the defendant alleged a tender of the amount and quality of the corn, and the plaintiff’s refusal to accept it. In order to establish a tender of the corn, it was necessary for the defendant to show that a tender of good merchantable corn'was made. The rule is, that where a party pleads a tender or payment, the burden is upon him to prove it. (1 Best on Ev., §§268, 269, 270; Burton v. Boyd, 7 Kas. 32; Lathrop v. Davenport, 20 id. 285.) In this case, under the pleadings, the burden was upon the defendant to prove that he made a fender of good merchantable corn. "There is no admission in the reply of the plaintiff of a tender of good merchantable- corn, and the trial court committed material error in throwing upon the plaintiff the burden of proving that the corn tendered was not good and merchantable.
The judgment of the district court will be reversed, and the case remanded for a new trial.
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The opinion of the court was delivered by
Johnston, J.:
Hiram Higgins sued M. N. Anderson before a justice of the peace, to recover $300 alleged to be due as rent for the use of a tract of land. He also caused the issuance of an attachment, which was levied upon a crop grown upon the land. A trial was had, which resulted in favor of the defendant. In due time the plaintiff filed an appeal bond, which recited that the plaintiff intended to appeal from the order of the justice discharging the attachment, as well as from the judgment in favor of the defendant. The cause was transmitted to and docketed in the district court, and the defendant there moved to dismiss that part of the appeal which purports to appeal from the order of the justice discharging the attachment, and ordering the attached property to be restored to the defendant. This motion was overruled, and the court, upon application of the plaintiff, appointed a receiver to take possession of and preserve the attached property during the pendency of the suit. The defendant, as plaintiff in error, brings the case heré and seeks a reversal of these orders of the district court. ■ The refusal of the court to dismiss the appeal from the justice of the peace is not a final order, nor is it one which can be reviewed in this court until the case in which the ruling is made is finally disposed of in the district court. (Edenfield v. Barnhardt, 5 Kas. 225; Brown v. Kimble, 5 id. 80; Dolbee v. Hoover, 8 id. 124; Potter v. Payne, 31 id. 218; Kansas Rolling Mill Co. v. Bovard, 34 id. 21.)
Neither have we jurisdiction to review th§ other ruling of the district court which is complained of. The order appointing a receiver is not one which can be brought up to this court and reviewed in advance of the cause in which the order is made. (Hottenstein v. Conrad, 5 Kas. 249; Kansas Rolling Mill Co. v. A. T. & S. F. Rld. Co., 31 id. 90.)
The motion of the defendant in error that this proceeding be dismissed from this court must therefore be allowed.
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The opinion of the court was delivered by
PIojkton, C. J.:
We think the trial court committed error in striking out of the answer of Challiss his set-off against Robert W! Wylie for the sum of $2,000. In this state, any cause of action arising from contract, whether it be for a liquidated demand or for unliquidated damages, may constitute á set-off and be pleaded as such in any action founded upon contract; and a cause of action founded . -,. 1 , , , -, . upon an implied contract may be pleaded m set-off as well as any other cause of action. Even where a cause of action is founded upon a tort, a party may waive the tort if he choose, and treat his cause of action as one arising upon an implied contract. Wherever a person commits a wrong against the estate of another, with the intention of benefiting his own estate,- the law will, at the election of the party injured, imply or presume a contract- on the part of the wrong-doer to pay to the party injured the full value of all benefits resulting to such wrong-doer. And in such a case the party injured may elect to sue upon the implied contract for the value of the benefits received by the wrong-doer. (Stewart v. Balderston, 10 Kas. 142; Stevens v. Able, 15 id. 584; Read v. Jeffries, 16 id. 534; Tightmeyer v. Mongold, 20 id. 90; Fanson v. Binsley, 20 id. 235.) The answer of Challiss alleged that Mrs. Mamie A. Wylie, the plaintiff, was not the real party in interest; that the consideration of the note sued upon was furnished by Robert W. Wylie, and that he was the actual owner of the note. If this was true, Challiss had the right to plead and establish his alleged set-off. ■ ■
The material question in the case is, conceding the error of the court in striking out portions of the answer, was this error a material one; that is, did it affect or prejudice in any way the substantial rights of Challiss? After the trial court had sustained the motion of Mrs. Mamie A. Wylie to strike from the answer the alleged set-off of • Challiss against Robert W. Wylie, there still remained in the answer the allegations that the plaintiff was not the real party in interest, as the owner of the subject-matter in controversy; that she was not entitled to make any claim of ownership to the note sued on, or any part thereof; but that, on the contrary, the entire consideration of the note at the time of its execution belonged to Robert W. Wylie; that he then had the consideration of the note in his possession and under his control, and was the actual owner thereof.
The action was tried, with consent of all the parties, by the court, without a jury. In support of the allegations of the answer, Challiss testified that in the month of May, 1884, after the execution of the note, he had a conversation with Mrs. Mamie A. Wylie concerning her - knowledge and interest in the same; that she told him that she didn’t know anything about the note, and had never seen it. Robert W. Wylie testified, in rebuttal, on the part of Mrs. Mamie A. Wylie, that he acted as agent for his wife when he took the note from Challiss; that the money for which .the note was given was in the- bank at the time of its execution, in his own name; that he drew his individual check therefor, and had it transferred to the account of Challiss; that he counseled with his wife before he loaned the money; and that he made the note payable to her. It was also shown that the note was subsequently indorsed as follows: “Pay to the order of A. M. Wylie. (Signed) Mamie A. Wylie.” Subsequently, it was indorsed with the name of “A. M. Wylie.” The trial court rendered judgment for Mrs. Mamie A. Wylie against the defendant for the full amount of the note, with interest and costs.
The special findings of fact made by the court in no way ■ conflict with the conclusion of law and the judgment rendered. Upon the findings of fact and the judgment rendered, it is clear that the trial court found that Mrs. Mamie A. Wylie was the real party in interest, and entitled to recover. Therefore, upon the evidence, the court found as a fact that the allegations of Challiss in his answer were not true. One of the findings of fact is, “that at the commencement of the action the plaintiff was, and ever since said time has been, the indorsee and holder of the promissory note sued on.” Now the possession of a note, where the note itself and the indorsements thereon do not show who the owner is, is prima fade evidence that the person in possession is the owner and has good title to it. (*Eggan v. Briggs, 23 Kas. 710.) If Challiss had been successful in showing that Mrs. Mamie Wylie was not the owner of the note, and therefore not the real party in interest in the action, the error of the t J t t \ trial court in striking out' his alleged set-off would have been material and prejudicial. As the court, however, found otherwise, we can see no reason for disturbing the judgment rendered. It is admitted that the note was payable to the order of Mrs. Mamie A. Wylie; that Challiss knew this at the execution of the same. At that time it does not appear that Robert W. Wylie was indebted to any person. Even, therefore, if the money for which the note was given was the individual property of Robert W. Wylie, he had the lawful right to give it to his wife. If thereafter, and before the wrongs committed by Robert W. Wylie, the wife became the holder and owner of the note by gift of her husband, her ownership in the same was as full and complete as if she furnished her own money for the consideration of the note. It appears from- the evidence that she must have seen and known of the note, as she at one time indorsed it to A. M. Wylie. A. M. Wylie subsequently indorsed it, and the finding of the court is, “that at and before the commencement of the action Mrs. Mamie A. Wylie was the indorsee and holder thereof.” If Challiss, at the execution of the note, had desired to protect himself against any misconduct of Eobert W. Wylie as his manager or clerk, he might, if the parties had consented, have made the note payable to Eobert W. Wylie only, and thereby rendered it non-negotiable. If at the time of the execution of this note, Eobert W. Wylie had been contemplating and planning the embezzlement, which it is alleged he subsequently committed, it would seem that he might have more readily secured the confidence of Challiss by making the note negotiable and payable to his own order. He could then have transferred it to his wife or to any other bona fide holder, so as to be freed from any counterclaim or off-set of Challiss. Where a case like this is tried by the court without a jury, the court, in its discretion, may direct the manner in which evidence shall be received. Eor instance, in this case, if the alleged set-off of Challiss had not been stricken out, the court could have directed before hearing any evidence concerning the set-off, that it would hear first the evidence whether the plaintiff was the real party in interest; and if, upon the evidence submitted, the court was satisfied that the plaintiff was the real and only party in interest, it might then have refused any evidence to support the alleged set-off.
The judgment of the district court will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action .brought by Alice N. Cooper and Caleb T. Noell, against Isabella Holland, Augustine .Holland, and John Morris, on a guardian’s bond. Judgment was rendered in favor of the plaintiffs and against the defendants, and the defendant John Morris brings the case to this court for review, making Alice N. Cooper and Caleb T. Noell the defendants in error.
It appears from the evidence in the case that sometime in November, 1861, Caleb T. Noell died, leaving a widow, Isabella Noell, now Isabella Holland, and a daughter, Alice N. Noell, now Alice N. Cooper; and soon afterward, to wit, on March 27, 1862, a son, Caleb T. Noell, was born. Caleb T. Noell, deceased, also left a small amount of real estate, but whether he left any personal property or not, is not shown. On May 13,1870, Isabella Holland, as principal, and Augustine Holland, her husband, and John Morris, as sureties, executed the following bond, and Isabella Holland took and subscribed the following oath, to wit:
“guardian’s bond.
“Know all Men hy these Presents, That we, ■ Isabella Holland, as principal, and - and Augustine Holland, as sureties, are held and firmly bound unto the state of Kansas in the sum of five hundred dollars, for the payment of which ■we bind ourselves, our heirs, executors and administrators by these presents, upon the condition that Whereas, the said Isabella Holland has been appointed by the probate coui’t of Coffey county, Kansas, guardian of the persons and estate of Alice N. Noell and Caleb T. Noell, children and heirs of Caleb T. Noell, deceased, minors, of Coffey county, Kansas, under the age of eighteen years:
“Now if the said Isabella Holland shall faithfully discharge all of her duties as such guardian according to law, then the above bond to be void, otherwise to remain in full force in law.
“ In witness whereof, we hereunto subscribe our names, this 13th day of May, 1870. Isabella Holland. (Seal.}
John Morris. (Seal.)
Augustine Holland. (Seal.)
“ State of Kansas, Coffey County, ss.—I, Isabella Holland, do solemnly swear that I will faithfully and impartially and to the best of my ability, discharge all the duties that shall devolve upon me as guardian of the persons and estate of Alice N. Noell and Caleb T. Noell, children and heirs of Caleb T. Noell, deceased, minor heirs of Caleb T. Noell, deceased. Isabella Holland.
“Sworn to and subscribed before me, this 13th day of May, 1870. John M. Rankin, Judge.”
This bond and oath were filed in the office of the probate judge on May 18, 1870, and on the same day Mrs. Holland was by the probate judge appointed guardian for the property of the minor heirs of Caleb T. Noell, deceased, by the following order, to wit -:
“In Vacation, May 18, 1870.—And now comes Isabella Holland, and represents that' she is the mother, of Alice N. Noell and Caleb T. Noell, minors under the age of fourteen years, and that the said heirs have property which may depreciate in value or remain unproductive if a guardian be not appointed'; and the court being satisfied of the fitness of said Isabella Holland to act as guardian of the said wards, it is ordered that letters of guardianship issue accordingly'to the said Isabella Holland, she having filed a sufficient bond as such guardian. John M. Rankin, Probate Judge.”
On the next day, to wit, May 19,1870, Mrs. Holland filed an application in the office of the probate court, asking permission to sell the aforesaid real estate which had descended to the said -minor children, as the heirs of Caleb T. Noell, deceased, which application was granted by the probate court. No other or additional bond was ever given by Mrs. Holland; but, nevertheless, on June 6, 1-870, as guardian, she sold said real estate to Joseph Newlan for the sum of $250, which sale was approved by the probate court; and on the same day Mrs. Holland ■ executed to Newlan- a guardian’s deed for the land. On Jane 8, 1876, Mrs. Holland reported that she had in her hands, belonging to her wards, $258, principal and interest, all being the proceeds of said sale of real estate. On May 21, 1883, she further reported to the probate court that she had in her hands, belonging to her wards, $361.64; this sum being the said $258 and interest. This was her last report to the probate court. These reports were approved by the probate court. It does not appear that Mrs. Holland ever received anything belonging to her wards except the proceeds of the sale of said real estate and interest thereon. Some time after the time when this last report was made, but just when is not shown,, this action was commenced. It was tried on July 24, 1884, before the court and a jury, and the jury rendered a verdict in favor of the plaintiffs and against the*7 defendants for $361.64; and to reverse this judgment the defendant Morris now brings the case to this court.
- This action was on the aforesaid bond, and the principal question involved in the case is, whether there was any such breach of the bond as would render the sureties liable thereon. The plaintiffs below, defendants in error, claim that there was, while the defendant Morris, plaintiff in error, claims that 'there was not. The statutes providing for the giving of guardian’s bonds, §§ 7 and 15 of the act relating to guardians and wards, read as follows:
“Sec. 7. Guardians appointed to take charge of the property of the minor must give bond, with surety, to be approved by the court, in a penalty double the value of the personal estate, and of the rents and profits of the real estate of the minor, conditioned for the faithful discharge of their duties as such guardian, according to law. They must also take an oath of the same tenor as the condition of the bond.”
“Sec. 15. Before any such sale or mortgage [of real estate] can be made or executed, the guardian must give security to the satisfaction of the court, the penalty of which shall be at least double the value of the property to be sold or of the money to be raised by the mortgage, conditioned that he will faithfully perform his duties in that respect, and account for and apply all moneys received by him, under the direction of the court.”
The first question presented in this case is, whether the bond in controversy was executed under § 7 of the act relating to guardians and wards, or under § 15 of said act. We think it was executed under § 7. We would think so from the language of the bond itself. Also the oath required to be taken by § 7, by a newly-appointed guardian, is attached to the bond, which would not be the case if the bond were given under § 15, which does not require that any oath should be taken. It was executed before Mrs. Holland was appointed guardian, and not afterward. It was filed on the day on which she was appointed guardian, and the appointment seems to have been made in pursuance of the filing of such bond. And at the time when the bond was executed and filed, no application had been made for the sale of any of the real estate of the minor children; and the bond does not mention real estate; and whatever may have been the intention of Mrs. Holland, there is nothing tending to show that at that time any of the other parties or the probate court had in contemplation the sale of any of such real estate. There is certainly nothing that tends to show that Morris when he executed the bond had the slightest hint or intimation that any of the real estate was ever to be sold. We therefore think that the bond was given under § 7 of the act relating to guardians and wards, and not under § 15. ■
The question then arises: Was there any breach of such bond? This question we think must be answered in the negative. This identical question has been decided under a similar statute by the supreme court of Indiana. That court held that a bond given by a guardian on assuming the duties of his trust is designed only to secure the faithful appropriation and investment of the personal estate of the ward, including the rents of the real estate, and that the sureties on such bond are not responsible for the misapplication of money received on the sale of real estate; the statutes requiring that another bond should be given as a security for the proper use of the purchase-money received on the sale of real estate. (Warwick v. The State, 5 Ind. 350. Also, to the same effect, see Williams v. Morton, 38 Me. 47.) And in Wisconsin it is stated as a general rule “that where an. officer is required to perform a duty which is special in its nature, and he is required to give a special bond for the faithful performance of such duty, in the absence of any declaration that the general bondsmen shall be liable, no such liability attaches.” (Milwaukee County v. Ehlers, 45 Wis. 281, 293.) And the Wisconsin court cites a large number of authorities in support of the foregoing proposition. Under § 7 of the act relating to guardians and wards, the guardian has no right to sell real estate. He simply takes charge of the personal property and the rents and profits of the real estate; and this is all that the bond is intended to cover. If it should be desired that the guardian should sell any portion of the real estate for his ward, he must first procure a special order for that purpose; and he must then, before he sells any of the real estate, execute another bond to the satisfaction of the probate court in the penal sum of at least double the value of such real estate, and the sureties on the general bond given at the time of the appointment of the guardian will have a right to suppose that the guardian will never be permitted to sell any of the real estate before he executes and files the special bond re- . quired by § 15.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
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The opinion of the court was delivered by '
Horton, C. J.:
Action by the State Savings Association of St. Louis, Mo., against W. H. Barber, upon the following promissory note:
“$70. Kirwin, Kansas, June 30, 1883.
“On or before the first day of October, 1883, I, of the township of Valley, county of Phillips, state of Kansas, for value -received, promise to pay to the order J. E. Hayner & Co., seventy dollars, with interest at 7 per cent., and if not paid at maturity, with interest at 12 per cent, on the amount then due until paid. Payable at Kirwin Bank.
W. H. Barber.”
On the reverse side of above note appears as follows:
“For value received, I hereby guarantee the payment of the within note. Demand for payment, protest and notice of protest waived. W. H. Barber.
“For the purpose of obtaining the within credit, I hereby certify that I own 160 acres of land in my own name, in section 2, township 5, range 16, in the county of Phillips and state of Kansas, which is worth, at fair valuation, $1,600; all incumbrances do not exceed-, and the title is perfect in me in all respects. I have stock and personal property to the amount of $600, and my debts and liabilities do not exceed -. There is no judgment against me.
W. H. Barber.”
On the back of the note there was also the following written indorsement:,
“J. E. Hayner & Co., (dated September 1, 1883:) Pay Kirwin Bank or order, for collection, account of State Savings Association of St. Louis, Mo.
J. H. McCau-ley, Cashier.”
The defendant filed an amended answer, verified by his affidavit, admitting the execution of the note; that the plaintiff is a corporation; but denied every other allegation, statement and averment contained in the answer. The defendant also alleged in his answer as follows:
“4. Said plaintiff did not purchase said note in good faith and for a valuable consideration.
“5. The said note was transferred to plaintiff without consideration, and for the pui’pose of cheating, wronging and defrauding the defendant.
“ 6. The said note was transferred to plaintiff after maturity of the same.”
The defendant also set forth as a defense to the note, that the same was executed for a binding and harvesting machine sold to the maker by J. E. Hayner & Co.; that the machine was warranted to be a good machine and perfect in its construction, but was worthless and wholly unfit for the use for which it was intended; that after a fair trial, it was returned to J. E. Hayner & Co., and therefore there was a failure'of any consideration for the note.
The action was tried before the court, with a jury, and the plaintiff offered in evidence the original note, and then offered in evidence the indorsement on the back of the note for the purpose of' proving that the note was duly indorsed by J. E. Hayner & Co. to the plaintiff. To the introduction of the indorsement, the defendant objected, which objection was sustained by the court. To this, exception was taken. Without further evidence, the plaintiff rested his case. The defendant introduced no evidence. At the instance of the defendant, the court instructed the jury upon the pleadings and evidence to return a verdict for the defendant. The plaintiff requested the court to instruct the jury to return a verdict in its behalf. This instruction was refused. Upon the instruction of the court, the jury found the issue in favor of the defendant, and judgment was" entered thereon.
In the ruling of the court in refusing to permit the indorsement upon the back of the note to go to the jury, we perceive no error. The plaintiff alleged in his petition that after the note had been executed to J. E. Hayner & Co., and before the same became due, that J. E. Hayner & Co. sold the same to the plaintiff, and that the same was duly indorsed by J. E. Hayner & Co. The alleged indorsement is in words as follows: “J. E. Hayner & Co. Dated Sept. 1, 1883.”
The allegation of the execution of the indorsement on the note was denied by the answer, and this denial was verified by the affidavit of the defendant. Before the indorsement upon the note was entitled to Be received in evidence, preliminary evidence of its execution should have been presented. No offer was made to show that the signature of J. E. Hayner & Co. was genuine, and as the defendant had put the existence of the indorsement in issue by denying its execution, the trial court very properly refused to let the indorsement go to the jury, in the absence of the necessary preliminary evidence; but the. instruction to the jury by the trial court to return a verdict for the defendant upon the pleadings and evidence was error. The answer admitted that the note had been transferred to the plaintiff. A note payable to order may be sold and transferred without indorsment, but of course thus transferred it is not. negotiable. Upon the admissions in the answer, and the fact that the .plaintiff was in the possession of the note, the plaintiff was entitled to judgment, in the absence of all evidence that the note was given without consideration. To protect the plaintiff as a bona fide holder and thereby to cut off the defense of the want of consideration, it was incumbent upon the plaintiff to establish that it held the note by written indorsement, and if the plaintiff had offered evidence proving the execution of the indorsement, the burden of proof would have been upon the defendant to establish that the indorsement was made after maturity. Even if there was no written indorsement, none was necessary to enable the plaintiff to sue in its own name. A negotiable promissory note may be assigned orally, and the mere delivery for a valuable consideration will pass the title. Possession of a note—where it does not appear upon the note who the owner thereof is — is prima fade evidence of ownership. (Williams v. Norton, 3 Kas. 295; Eggan v. Briggs, 23 id. 710.) After the plaintiff failed to prove the genuineness of the indorsement of the note, it was still entitled to judgment thereon, unless the defendant had made out his case of the failure of consideration. The latter offered no. evidence to support his defense; and therefore the trial court should not have given the instruction to the jury which appears in the record.
The judgment of the district court must be reversed, and the cause remanded for a new trial.
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The opinion of the court was delivered by
Johnston, J.:
This was a proceeding in mandamus, brought by the state, upon the relation of the county attorney of Wabaunsee county, to compel D. R. Brayman, a justice of the peace of that county, to issue a summons in an action instituted before him, to a defendant who resided. in Shawnee county. The summons was asked for in an action in which J. F. Limerick & Co. were plaintiffs, and A. W. Miles and Tom E. Guest were defendants, to recover upon a promissory note which A. W. Miles had made and delivered to the Burlington Insurance Company, and which had been indorsed by that company to Tom E. Guest, who had in turn transferred the same to J. E. Limerick & Co. Tom E. Guest was a resident of Wabaunsee county, but A. W. Miles was a bona fide resident of Shawnee county. The defendant refused to issue the summons to the sheriff of Shawnee county, claiming that he had no jurisdiction, as a justice of the peace of Wabaunsee county, over a defendant residing outside of such county, and had no authority to issue the summons to any officer of Shawnee county. The district court held that the justice of the peace could not be compelled to issue the summons, and refused a peremptory writ, and the plaintiff seeks here a reversal of that ruling.
The only question presented by the record is, where a right of action exists against two persons living in different counties, and an action is brought before a justice of the peace where one of them resides, and service obtained upon him, whether the justice of the peace can issue a summons to an officer of another county, and obtain jurisdiction of the defendant residing outside of the county where his-court is held. It is not claimed that authority for such a practice is expressly given by the code regulating procedure before justices of the peace. The claim is that the provisions of § 60 of the code of civil procedure,' with respect to summoning a co-defendant living outside of the county where the action is brought, is made applicable by the following provision of the justices code:
“The provisions of the act entitled ‘An act to establish a code of civil procedure/ which are in their nature applicable to the jurisdiction and proceeding before justices, and in respect to which no special provision is made by statute, are applicable to proceedings before justices of the peace.” (Comp. Laws of 1879, ch. 81, § 185.)
This section cannot have the effect claimed) because provisions respecting the commencement of an action and the issuance of summons have been made in the justices code, and these do not harmonize with the provisions in the civil code sought to be applied. In art. 2 of the justices act, full provisions are made for the issuance of summons, and its form, to whom it shall be directed, when it shall be made returnable, and how and by whom it shall be served. Provision is also made for the service of summons upon foreign and domestic corporations, also the manner of service when the defendant is a minor. These provisions are so full as to indicate that the legislature intended to cover the whole ground upon the question of summons. Again, by § 12 of the justices code, the summons must be returnable not more than twelve days from its date, and may be made returnable in three days after its issuance; while by the civil code a summons issued to another county than the one in which the action is brought, must be made returnable in not less than ten days nor more than sixty days from the date thereof. (Civil Code, §61.) In the justices court the action is triable upon the return-day of the summons. Rut by the civil code no appearance of the defendant by answer or demurrer is required until twenty days after the return-day of the summons, and the action is not triable before the next succeeding term of court, and not then unless tbe issues in the case have been made up ten days before such term. It is apparent that these provisions are inconsistent with each other, and that those in § 60 of the civil code are not in their nature applicable to an action before a justice of the peace. Besides, the jurisdiction of justices of the peace is limited, and therefore cannot be extended beyond the prescribed limits, nor can it be exercised in any other manner nor upon any other terms. There are restrictions not only upon the class and subject-matter of civil actions that may be brought before justices of the peace, but also upon the territorial extent of his jurisdiction. It is provided that “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.” (Justices Code, §1.) Being thus limited to his own county, he cannot send a summons to another county, and thus acquire jurisdiction of persons who are beyond tlie limits of the county where his court is held.
We think the ruling of the district court in disallowing the peremptory writ of mandamus is correct, and its judgment must therefore be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, brought by S. M. Barr against William Randall and Elizabeth Randall his wife, to recover certain real estate situated in Marshall county. The action was tried before the court without a jury, and the court, after making certain findings of fact and conclusions of law, rendered judgment in favor of the defendants and against the plaintiff for costs. The plaintiff brings the case to this court for review.
It appears that one James C. Smith held the original patent title to the land in controversy, and that the plaintiff claims under a quitclaim deed from him. The defendants claim through intermediate conveyances under a tax deed executed by- the county clerk of Marshall county to Russell S. Newell. It appears that on May 6, 1862, the taxes against the land in controversy for the year 1861 were still due and unpaid; that ou that day the land was sold for such taxes to Marshall county, and on the same day the county treasurer assigned the tax-sale certificate to Eussell S. Newell. Newell at the time was county clerk of Marshall county, but under the laws as they then existed the county clerk had nothing to do with the tax sale, or the tax-sale certificate, or the assignment of the tax-sale certificate. All these things were then embraced within the duties of the county treasurer. Newell afterward paid the taxes for the years 1862 and 1863, and on May 13, 1864, by the authority vested in him as the county clerk of-Marshall county, and in pursuance of said tax sale and the assignment of the tax-sale certificate and the payment of the taxes for the years 1861,1862 and 1863, executed to himself, as an individual, the tax deed in controversy. In other words, the grantor in the tax deed appears to be Eussell S. Newell, the county clerk of Marshall county, and the grantee appears to be Eussell S. Newell; and the parol evidence introduced on the trial shows that the two are one and the same person. On May 14, 1864, this tax deed was duly recorded in the office of the register of deeds of Marshall county. On July 17, 1875, Newell by a quitclaim deed conveyed the land in controversy to I. G. Legere; on June-5, 1876, Legere by a quitclaim deed conveyed the same to Mary A. Watkinson; on March 21, 1881, Mary A. Watkinson by a quitclaim deed conveyed the land to the defendant, William Eandall, and Eandall immediately took possession of the land, and has continued in the possession thereof ever since, and has made lasting and valuable improvements thereon; and he and his grantors have paid all the taxes assessed against the land from the year 1861 up to the present time. On January 25, 1884, the plaintiff Barr commenced this action-to eject the defendant Eandall and his wife from the premises. '
The only question involved in the case is, whether the aforesaid tax deed is absolutely void, or not; and the principal objection urged against its validity is that it was executed by Eussell S. Newell, as county clerk, to himself, as an individual. The sale seems to have been regular and valid in every particular. The purchase of the tax-sale certificate by Newell from the county treasurer seems also to have been regular and valid; but concerning this matter we shall have more to say hereafter. So also does the assignment of the tax-sale certificate seem to have been regular and valid; and at the time when all these proceedings were had, the county treasurer, under the statutes, had the right to sell and assign the tax-sale certificate to any person -who desired to purchase, without any aid or assistance from the county clerk or consultation with him. Hence, at the time when the tax deed was executed, Russell S. Newell, as an individual, had an unquestionable right to the tax-sale certificate, and an unquestionable right to have a valid tax deed executed thereon to himself; and if he had resigned his office of county clerk and another person had been appointed to take his place, he could have compelled such other person by a writ of mandamus to execute to him a valid tax deed.
There is another supposed irregularity, as follows: It is probable that Newell paid the entire purchase-money for the tax-sale certificate in county scrip, and not in cash or in the various warranté on the treasuries of the state, cities, townships, school districts, etc., to which the various items of the consideration for the tax-sale certificate belonged. This may not be the case, however, for presumptively the officers did their duty. Presumptively also, from the prima facie character of the tax deed in whose favor the statute of limitations has long since completely run, everything except the fact that Newell appears to be both the grantor and grantee in the tax deed, was regular and valid. Also, upon the face of all the tax proceedings prior to the tax deed, everything seems to have been regular and valid. But Newell, who was a witness on the trial for the plaintiff, testified in terms that he paid for the tax-sale certificate in question in county scrip. Now it was unquestionably proper for him to pay a portion of the consideration for the tax-sale certificate in county scrip, and possibly all, under the statutes as they then existed. Indeed, it would be difficult to give a good reason why all might not have been thus paid under the statutes as they then existed; but supposing, for the purposes of this- case, that such a payment was not proper, still such payment did no harm to the original owner of the land or to any grantee of his, or to any person claiming under him. Under the decisions of this court, made in an early day under the statutes as they then existed, the original owner or his grantee had the same, right to redeem the land from the taxes and the right to use the same kind of funds in doing so, after the assignment of the tax-sale certificate as before. (Judd v. Driver, 1 Kas. 455, 464, 465; Guittard Twp. v. Comm’rs of Marshall Co., 4 id. 388, 397. See also Comp. Laws of 1862, ch. 198, §8, proviso.) And further, neither the original owner nor his grantee in the present case has ever attempted to redeem the land from the taxes, but totally abandoned the land from the year 1861 up to 1884, when this action was commenced, a period of nearly twenty-four years. Hence this irregularity of paying the entire consideration for the tax-sale certificate in county scrip, if it can be called an irregularity, is of such small dimensions, and of such inconsiderable consequence, that we shall hereafter entirely ignore it and exclude it from all further consideration.
The only irregularity, then, of any considerable consequence, is the one, that the person who executed the tax deed as an officer and as grantor was also the individual person to whom the tax deed was executed as grantee. We shall assume that the fact that the grantor and the grantee mentioned in the tax deed were one and the same person, acting and receiving merely in different capacities and in different relations, would render the tax deed voidable; and that any person having an interest in avoiding the tax deed might do so at any time before the statute of limitations had completely run in its favor. But the question then arises: Is the tax deed so absolutely void that no statute of limitations can make it good? The tax deed in the present case was on record nearly twenty years before this or any other action was commenced to defeat or avoid the same, and before this or any other action was commenced which could have the effect of defeating or avoiding the same. We hardly think that the tax deed in this case ever was more than voidable: and we are also inclined to think 7 that the statute of limitations has so completely run in its favor that all action having for its object
the defeat or avoidance of the tax deed is now completely barred. The tax sale was itself unquestionably valid; the transfer of the tax-sale certificate, notwithstanding the aforesaid slight irregularity, was also unquestionably valid, and Newell, as before stated, had an absolute right to a tax deed; and no one but himself as county clerk could execute the same; and there is no statute which in terms prohibits him from executing the same, or which prohibits any county clerk from executing a valid tax deed to himself. We shall assume, however, upon general principles, that such a tax deed would be voidable so long as no statute of limitations had completely run in its favor; but is such tax deed absolutely void? Possibly it would have been better for Newell to have resigned his office of county clerk and allowed his successor in office to execute the tax deed to him; or perhaps it would have been better still for him to have held his tax-sale certificate until his term of office had expired, and then to have allowed his successor to execute the tax deed. But he chose to execute the tax deed himself, and in doing so he did not act in his own individual capacity, but acted in the capacity of county clerk, in the capacity of agent for the county or for the public, and possibly, also, as agent for the original owner; and'if. his action is wrong or unjustifiable, it would seem that he could be called to an account only by his principal, and within reasonable time, and not by some other person or persons, and after he had been favored by the complete running of a statute of limitations. Generally, where an agent sells the property of his principal to himself, no one but his principal can complain; and his principal may ratify and confirm the sale, and make it absolutely good. (Eastern Bank v. Taylor, 41 Ala. 93; Leach v. Fowler, 22 Ark. 143; Ellis v. Peck, 45 Iowa, 112; Wharton on Agency, § 235.) Wherever an agent, in acting for his principal, also deals with himself, the principal may ratify and confirm such dealings and make them good; and in all cases such dealings will be held to be valid unless the principal chooses to hold them invalid. Such dealings are not void, but only voidable at the option of the principal. (See authorities above cited and hereafter cited.) If they were absolutely void, then any person under any circumstances and in any case could treat them as void, which we suppose would be carrying the doctrine of invalidity for irregularities further than any person would desire. Now the county clerk was the agent of the public, and executed the tax .deed as the agent of the public, and under an express statutory authority, and whether he was also the agent of the original owner, or not, can make no difference. In either case the tax deed would not be absolutely void, but at most only voidable. If we should assume, however, that a county clerk, when executing a tax deed, is not only the agent for the public, but is also the agent for the original owner of the land, still we would think that the original owner ini the present case would not have much to complain of. The original owner in the present case, including his grantee, had failed to pay his taxes and his land had been sold therefor, and a tax deed was due thereon, and Newell, as county clerk, was the only person who could execute it; and Newell, as an individual, was the only person who was entitled to receive it; and there is nothing in the statutes that would prevent Newell, as county clerk, from executing the tax deed to Newell, as an individual. And whether a valid tax deed were executed to Newell or to some one else, or by Newell or by some one else, could not make the slightest difference to the original owner, or to anyone holding under him. This objection to the tax deed is purely technical, and yet it is not founded upon any inflexible rule or mandate of written law, but only upon some supposed general principles of unwritten law.
Besides, the original owner, ancl his grantee, the present plaintiff, abandoned the land for about twenty-four years, and allowed the defendant, Randall, and his grantors, to pay all the taxes thereon, and to make lasting and valuable improvements thereon. No fraud is shown in the present case, nor the slightest unfairness. Everything seems to have been fairly done, and in good faith, and in accordance with the letter of the statute, except as we have heretofore stated, and the worst that can be urged against the tax deed is the peculiar mode in which it was executed. . Hence, we would think that the tax deed ought to be held valid, after the statute of limitations has completely run in its favor. By abandoning the land for so great a time, and allowing the statute of limitations to run in favor of the tax deed, the plaintiff and his grantor have ratified, confirmed, and made good the irregular execution of the tax deed. (Pierce v. Benjamin, 31 Mass. 356; Bassett v. Brown, 105 id. 551; Greenwood v. Spring, 54 Barb. 375; Marsh v. Whitmore, 88 U. S. 178.) And, indeed, every other supposed irregularity or illegality has been cured, by the running of the statute of limitations. In this state, the statute of limitations relating to tax deeds purports by its terms to apply to all tax deeds, whether good or bad, or void or voidable, “ except in cases where the taxes have been paid or the land redeemed as provided by law.” (Gen. Stat. 1868, ch. 107, § 116; Comp. Laws of 1879, ch. 107, § 141.) Now the plaintiff in this case does not claim that he or his grantor ever paid the taxes on the land, or ever offered to pay them, or ever redeemed the land from the taxes, or ever offered to redeem the same. He merely sets up supposed irregularities to defeat the tax deed.
We would also refer to the following cases, not as being entirely applicable to this case, but as furnishing some support to the views we have herein expressed: Cuttle v. Brockway, 24 Pa. St. 145; Russell v. Reed, 27 id. 166; Cuttle v. Brockway, 32 id. 45; Chorpenning’s Appeal, 32 id. 315; Ellis v. Peck, 45 Iowa, 112; Morton v. Waring, 18 B. Mon. 72, 84, et seq.
There are some other objections urged against the tax deed, but we do not think that any of them are tenable. We might, however, in conclusion, say that even if it were true in the present case that the tax-sale certificate which was made by the county treasurer in 1862 was so made for an amount which did not include the county treasurer’s own fees, but was sufficient in every other respect, the fact that the amount did not include the county treasurer’s own fee would not render the tax deed, afterward issued thereon, void. (Case v. Frazier, 30 Kas. 343.)
The judgment of the court below will be affirmed.
Johnston, J., concurring.
Horton, C. J.:
It appears from the evidence in this case that Russell S. Newell was the clerk of Marshall county from 1862 to 1864; that he had to take his pay for his services in scrip worth from twenty-five to thirty-five cents on the dollar; and that while acting as county clerk he procured assignments of tax-sale certificates to himself under an arrangement with the county treasurer, but did not, as a general thing, pay for the certificates until redemptions were made. When he did pay, the county treasurer accepted county scrip in full payment. When he did not have enough -of his own scrip to pay for these assignments, he obtained scrip from the county . treasurer so to do. In this way, both the county clerk and the treasurer realized dollar for dollar from their, scrip. The county treasurer was a merchant, and in addition to receiving county scrip for his services, also received it at a depreciated pi’ice in payment of his goods. This collusive arrangement between these officers of course cannot be sustained, and I am very clearly of the opinion, that any person having an interest therein could have set aside the alleged assignments of the tax-sale certificates made in pursuance of the foregoing arrangements; and I am further of the opinion, that, in this case, any person having an interest in avoiding the tax deed in controversy might have done so, at any time before the statute of limitations had fully run in its favor; but it does not appear that James C. Smith, the patentee of the land in controversy, or anyone for him or holding under him, ever offered to redeem the land from the sale of taxes before the issuance of the tax deed, or before the statute of limitations had completely run in its favor. Indeed, it appears from the facts that the original owner abandoned the land for a very great length of time, and the holder of the tax deed and his grantees have paid all the taxes from 1861 to the present time, and have also made lasting and valuable improvements thereon. This action was nob commenced until January 25, 1884, nearly twenty years after the tax deed was recorded; therefore, I think that after the statute of limitations has fully run, considering all of the circumstances of this case, it is too late now to say the tax sale is absolutely void upon its face.
In the case of Cole v. Moore, 34 Ark. 382, to which we are referred by counsel for plaintiff in error, where the purchase at a tax sale by a county clerk was held illegal, the tax sale was made on August 2, 1869; the action to set aside the certificate of purchase was brought April 19,1870, less than one year. No question of the statute of limitations running in favor of any deed or tax certificate was in issue, argued, or discussed. | [
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The opinion of the court was delivered by
Johnston, J.:
The appellant was charged and convicted before a justice of the peace of a violation of § 319, ch. 31, Comp. Laws' of 1879. He appealed to the district court, and was there tried upon the original complaint. A motion to quash the complaint was made by the appellant, and overruled, and this ruling is the one complained of here. The language of the complaint, omitting the caption and verification, is as follows:
“Alfred W. Rice, of lawful age, being first duly sworn, on oath says, that on the 1st day of December, 1885, in the county of Dickinson and state of Kansas, one Lewis Wahl, then and there being, did then and there unlawfully put a part of the carcass of a dead animal into a certain stream of water then and there commonly known as Mud creek; contrary to the form of the statute in such cases made and provided.”
It is contended that as the affidavit failed to state that the act charged against the appellant resulted to the injury of the health or annoyance of the citizens of the state, it did not state a public offense. The language of the section upon which the affidavit was founded is as follows:
“ If any person or persons shall put any part of the carcass of any dead animal into any river, creek, pond, road, street, alley, lane, lot, field, meadow, or common; or if the owner or owners thereof shall knowingly permit the same to remain in any of the aforesaid places, to the injury of the health or to the annoyance of the citizens of this state, or any of them, every person so offending shall, on conviction thereof before any justice of the peace of the county, be fined in any sum not less than one dollar nor more than twenty-five dollars; and every twenty-four hours during which said owner may permit the same to remain thereafter, shall be deemed an additional offense against the provisions of this act.” (Comp. Laws of 1879, ch. 31, §319.)
Eor the state it is claimed that the first clause of the section states an offense, and that the subsequent phrase “to the injury of the health, or to the annoyance of the people of the state,” has no reference to that clause, and does not qualify it. The section is somewhat bunglingly drawn, and some room is given for the interpretation placed upon it. According to that view, however, any person placing the smallest part of the carcass of any dead animal in his own field containing hundreds of acres, and where the public could not in the least be affected by it, and who allowed it to remain there but a few minutes, would commit a crime. We cannot infer that the legislature intended an absurdity. Many acts of putting a diminutive portion of some carcass into an alley, lot, field, road, or common, can be thought of, which would not, in their nature or consequence, affect the public in the slightest degree. Unless the act produces a material annoyance, discomfort or injury to the public, it would not amount to a public nuisance. The whole purpose of the act in which the section is found is manifestly to define what acts and omissions shall constitute a public nuisance, and to provide penalties therefor. In construing the statute, the real intent and meaning of the law-makers should prevail over the literal sense, where there is any inconsistency. We cannot say that a mere point of punctuation shall defeat the legislative will, where .the title and the context of the act so clearlyMisclose that the purpose is to prevent and punish public nuisances. Neading the section in that light, and with a view to effectuate that purpose, the phrase, “to the injury of the health, or to the annoyance of the citizens of this state,” must be held to be a qualification of the first clause. If, therefore, any person shall put any part of the carcass of any dead animal into any river, creek, pond, street, alley, lane, lot, field, meadow, or common, to the injury of the health or to the annoyance of the citizens of this state, or any of them, or if the owner of such carcass shall knowingly permit the same to remain in any of the aforesaid places, to the injury or to the annoyance of the citizens of this state, or any of them, he would be guilty of a public offense, and subject to the penalties prescribed in the section; but there is no criminal liability for a nuisance where there is no such result. As the complaint failed to allege that the act of the appellant complained of resulted to the injury of the health, or to the annoyance of any of the citizens of this state, it is insufficient, and the motion to quash should have been sustained.
The judgment of the district court must therefore be reversed, and the cause remanded with directions to sustain the appellant’s motion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action to set aside a tax deed and remove the cloud on plaintiff’s title arising therefrom. The court made a conditional decree, that upon payment by the plaintiff of $201.47 the defendant should be barred from setting up any claim under said tax deed, and that each party should pay half the costs. Plaintiff excepted to this decree, or to so much as required payment of $201.47 and half the costs, but tendered judgment for $70, and now aslrs that the ruling of the district court be modified to that extent. Of course, as a basis for this decree the court found against the regularity and validity of the tax proceedings — found the existence of some substantial defect therein; for no mere irregularity would defeat the deed. Gen. Stat., 1057, § 113. With this ruling we need not trouble ourselves, for the plaintiff cannot and the defendant does not complain of it. The question for us is, what if anything upon the basis of the invalidity of the tax proceedings, ought the plaintiff to pay? And as bearing upon that question the following are the important facts: The tax deed was upon a sale for the nonpayment of the taxes of 1868. The premises in controversy were known as “Lot No. 29, in Block 15,” in Challiss’ addition to city of Atchison. It and the adjacent lot were assessed together, and as one parcel, for both 1868 and 1869. One-half the tax was paid by the owner of the adjacent lot, leaving one-half unpaid, and for which it was sold. It appeared that Lot 29 was 25 feet front, and unimproved and uninclosed, while the adjacent lot was 40 feet front, inclosed, and improved with house, etc. The value of the improved lot was three times that of the lot in question. Subsequent to 1869 the lot was assessed separately, and of those subsequent taxes plaintiff makes no complaint, but tendered judgment therefor in his offer of $70. Of the tax of 1868 and 1869 he complains, and says that by reason of the facts above stated no lien was cast upon the lot, but that the whole tax must be treated as void. On the other hand, the district court held that the unpaid tax on the two lots, being the one-half of the entire tax thereon and interest, should be paid, basing the decision evidently on § 117 of the tax law, (Gen. Stat., 1057,) which provides that if the holder of a tax deed be defeated in. an action for the recovery of the land the successful claimant shall be adjudged to pay the full amount of all taxes paid, with interest and costs.
We think the court erred in its conclusions. The two lots jointly assessed were equal neither in sizé nor value. The owner of the larger and more valuable could not by payment of one-half the tax cast the burden of the remaining half on the other lot. There was nothing in the condition of the two lots to justify this joint assessment. They were not owned by the same person; they were not covered by a single improvement, nor inclosed with the same fence. The one was open and unimproved; the other inclosed and improved. No laches can be imputed to the owner. The joint assessment was through no fault of his. It is the duty of the assessor to make out a eorreot description of each pared of real property — and not the duty of the owner, unless required by the assessor to furnish such description. (Gen. Stat., 1032, § 32.) So that to require the plaintiff to pay one-half the tax on the two lots, is to cast on him an unjustifiable burden, and to make him pay for the mistakes of the assessor. The court therefore erred in requiring the plaintiff to pay the whole of the unpaid tax.
On the other hand, it does not seem to us that the claim of the plaintiff , can be sustained. While a court of equity may assist a party to cast off an inequitable burden from his property, it will not assist him to remove that which is fair and just, or to avoid bearing his due share of . the burdens and expenses of government. Now the plaintiff, claiming that this tax is excessive, seeks to be relieved from it altogether. He would not simply rectify the blunders of the officers, but he would make those blunders the means of his own profit. Because too much is asked, he would not pay that which fairly and justly he ought to pay. This a court of equity will not tolerate. It appears from the unchallenged findings that , the value of the adjacent lot was three times that of the one in controversy. There is no pretense that the joint assessment was excessive, or the tax in-. equitable. Clearly therefore, as taxes are based upon value, the lot in controversy should have paid one-fourth and only one-fourth of the joint tax. (City of Ottawa v. Barney, 10 Kas., 270.) This as we figure it makes the amount of the taxes and interest properly chargeable on this lot at the time of the decree $140.02, and the decree will be modified by reducing the amount required to be paid to that sum.
As to the matter of costs, it does not appear that any tender was made by plaintiff prior to the commencement of the suit, so that it seems to us eminently fair that he pay one-half the costs. The costs of this court also will be divided.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of ejectment brought by Wetherell against Bridget O’Brien, Michael O’Brien, and Michael O’Neil, to eject the defendants from a certain lot or parcel of land in Wetherell’s addition to the town of Osage City. The theory upon which the plaintiff expects to recover is, as we would infer from the record and briefs of counsel, as follows: The plaintiff at one time owned the property in dispute. lie transferred the property by deed to one Theodore L. Reber, upoii the expressed condition that no intoxicating liquors should ever be sold on the premises, and that if Reber, his heirs or assigns, should ever violate this condition the property should be forfeited back to the plaintiff. The defendants hold their entire title and possession (there being two intermediate conveyances however,) solely under Reber. The defendants kept a liquor saloon on said premises, and sold intoxicating liquors thereon. The defendants expect to defeat the plaintiff’s action upon the following grounds, to-wit: First, Wetherell never owned the property in dispute; second, the language used in the deed from Wetherell to Reber, which the plaintiff supposes created an estate merely upon condition, did in fact create an estate absolute, with merely a personal covenant on the part of Reber, not running with the land, that no intoxicating liquors should be sold on the premises; and therefore, as it is not claimed that Reber himself ever violated said covenant, no action of any kind has ever accrued against either Reber, or these defendants, or any one else; fourth, these defendants do not derive their title or possession from Reber.
The findings of the jury were general, and both the findings of the jury and the judgment of the district court were in favor of the plaintiff and against the defendants; and hence we must assume that upon the evidence introduced all the material facts in the case were rightfully found against the defendants, and in favor of the plaintiff, unless there was substantially an entire lack of evidence on some material fact necessary to be proved by the plaintiff in order to enable him to recover. This proposition follows as a necessary result from the numerous decisions upon similar questions promulgated by this court.
The record in this case apparently shows, that the title to the property in controversy originally passed from the United States to John McManus; from John McManus 1° Seyfert, McManus & Co.; from Seyfert, ]y[c]\£anus q0- £0 John M. Wetherell; from Wetherell to Theodore L. Reber; from Reber to John Brinkley; from Brinkley to Michael O’Neil, and from O’Neil to Bridget O’Brien; and that Bridget O’Brien and Michael O’Brien are husband and wife, now in possession of the property, claiming it as their own, and selling intoxicating liquors thereon. The defendants expect to defeat the action of the plaintiff on the ground that the deed from Seyfert, McManus & Co. to Wetherell shows upon its face that Seyfert, McManus & Co. had no power to buy, sell, or hold real estate in Kansas.' That portion of the deed which, the defendants rely on as showing said fact, reads as follows:
“This deed made the 15th day of January 1869 between the corporation of Seyfert, McManus & Co., of the city of Reading, county of Berks and state of Pennsylvania, of the first part, and John M. Wetherell, of the city of Philadelphia and state of Pennsylvania, of the second part, witnesseth: Whereas, by an act of the general assembly of the commonwealth of Pennsylvania, approved the 7th of April 1862, the parties doing business at the Reading Iron-Works in the county of*Berks aforesaid were created a body corporate under the name, style and title of ‘Seyfert, McManus & Co.;’ and whereas by a supplement to said act, «approved the 28th of February 1865, it is provided that in addition to the powers now possessed by Seyfert, McManus & Co., the said corporation shall be capable of purchasing, holding, leasing and improving lands in any of the states or territories of the United States other than Pennsylvania, and to obtain therefrom any and all minerals, and other valuable substances, whether by working or mining, leasing or disposing of privileges to work or mine such lands, or any part thereof, and to erect houses or other buildings, machinery, or works thereon, and to use, lease or work the same, and to dispose of all such lands, mines, works, and the products thereof, by lease, mortgage or sale, in such manner as they may deem proper; and whereas, the said corporation of Seyfert, McManus & Co. are the owners in fee simple of certain lands in the state of Kansas under letters-patent granted by the United States of America, to-wit,” etc.
This deed was executed on the part of Seyfert, McManus & Co. by John McManus, president of the company, and John Schroeder, secretary. Now if this John McManus is the same John McManus who purchased the property from the government, we suppose the title to the property passed from John McManus to John M. Wetherell, whether it passed intermediately through Seyfert, McManus & Co., or directly from John McManus by virtue of the deed he executed for Seyfert, McManus & Co. to Wetherell. But said deed really shows that Seyfert, McManus & Co. were a corporation actually “doing business at the Reading Iron-Works in the county of Berks,” in the state of Pennsylvania, and tends more strongly to show that such corporation had power to buy, hold, and if necessary sell real estate in Kansas than otherwise. That a corporation may be created in one state with power to buy, hold and sell real estate in another state, we suppose will not be questioned. (Hunt v. K. & M. Bridge Co., 11 Kas., 434, 435; State v. Boston &c. Co., 25 Vt., 433, 443; Whitman Mining Co. v. Baker, 3 Nevada, 386; Lumbard v. Aldrich, 8 N. H., 31; Silver Lake Bank v. North, 4 Johns. Ch., 370; Angell & Ames on Corporations, §§161, 162.) But it may be claimed that this particular corporation had no such power, Such power was certainly attempted to be given to said corporation in express terms. Then why did it not possess such power? Simply, as is claimed, because it could not exercise such power in Pennsylvania, the state where it was created. But it is not shown definitely what powers it could exercise in Pennsylvania. It is true, the amendment to its charter did not give it authority to exercise any such power in Pennsylvania, but its original charter may have done so. But even if its original charter did not give it authority to exercise any such power iu Pennsylvania, still that would not necessarily prevent it from exercising such power in another state, it being expressly authorized so to do. A corporation is not always and necessarily confined to the exercise of only such powers in other states which it could properly exercise in its own state. (Land Grant Rly. Co. v. Coffey Co., 6 Kas., 254, and authorities above cited.) The Land Grant Railway and Trust Company mentioned in 6 Kas., 245, et seq., was no corporation. It had no home, no domicile, no place of doing business, no office, no legal existence anywhere; and hence, whatever may be anywhere said of that supposed corporation may not have any application whatever to the corporation of Seyfert, McManus & Co.
But suppose said corporation transcended its powers when it purchased, held, and sold real estate in Kansas: has any person or authority, except the state, any right x J ; ,J “ h> C0mplain> or even to question the validity oí the transaction ? (Genndie v. Northampton Water Co., 7 Penn. St., 233.) But above all others, have the defendants any right to complain or to question the validity of said transaction? They hold their entire title to the property and the possession thereof from and under the plaintiff. They have not the least shadow of title, except such as they have derived from the plaintiff. This is evidently true from the evidence in the case, whether Reb.er ever conveyed his title to the property by deed to Brinkley or not. The deeds from Brinkley to O’Neil, and from O’Neil to Mrs. O’Brien, show it; (see Washb. on Real Prop., Book 3, ch. 2, § 6, paragraphs 24 and 26, and cases there cited;) and other evidence tends to show it; and there is not a particle of evidence that tends to show the contrary. And therefore, as-suming that the deed from the plaintiff to Reber js in terms just such a deed as the plaintiff claims that it is, we think that the defendants are estopped from denying the plaintiff’s title. That is — where the defendants hold their entire title and possession to certain land from and under the plaintiff, and hold the same under the express con dition that no intoxicating liquors shall ever be sold upon the premises, and are to forfeit the premises back to the plaintiff whenever such condition shall be broken, the defendants are estopped, when sued by the plaintiff for the recovery of the premises on the ground of such forfeiture, from denying that the title conveyed to them or to their grantors by the plaintiff, was, when so conveyed, a good title. Upon this principle alone the question now under consideration may be decided against the defendants. While a grantee, or one claiming under him, may in many cases dispute the title attempted to be conveyed by the grantor, yet the principle contained in the proposition just enunciated, we think, has never been questioned; and many authorities go much further in asserting that the grantee, or one in privity with him, cannot dispute the grantor’s title: Bigelow on Estoppel, 414; Williams v. Cash, 27 Georgia, 507, 512; Woolfolk v. Ashley, 2 Metc., (Ky.) 288; Fitch v. Baldwin, 17 Johns., 161; Jackson v. Hotchkiss, 7 Cowen, 401; Root v. Crock, 7 Penn. St., 378; Wedge v. Moore, 6 Cush., 8; Hodges v. Eddy, 38 Vt., 328, 348, 349; Ward v. McIntosh, 12 Ohio St., 231. We might here say, that the deeds from Brinkley to O’Neil, and from O’Neil to Mrs. O’Brien, conveyed the premises “with all the restrictions and reservations in regard to the sale of intoxicating liquors contained in the original deed from John M. Wetherell and wife to Theodore L. Reber and wife.” This quotation is copied from the last-mentioned deed; and the deed from Brinkley to O’Neil contains a clause of the same purport, and couched in nearly the exact language. We might also say, before passing to the next question, that in this state the party in ejectment having the better title may always recover, whatever that title may be, legal or equitable. It is true, a plaintiff must recover upon the strength of his own title; but if his title is better than that of his adversary, he may recover, however weak his title may be. A mere prior possession, with claim of ownership, would probably be sufficient to enable the plaintiff to recover as against a party who had no right to the premises. Now apply this doctrine to the present case. Wetherell, the plaintiff, once had possession, with a claim of ownership. The defendants either hold under, him, or else have no right to the premises at all. They have violated the conditions upon which Wetherell parted with the possession of the premises. Now should they be allowed to question his original ownership of the property?
The next question is, whether the deed from the plaintiff to Reber created merely an estate upon condition, or created an absolute estate with merely a personal cove- ant on the part of Reber not running with the }anc| that no intoxicating liquors should ever be sold on the premises. The deed reads as follows:
“This Indenture, made this seventh day of August in the year of our Lord one thousand eight hundred and seventy, by and between John M. Wetherell and Mary S., his wife, of the city of Philadelphia, in the state of Pennsylvania, parties of the first part, and Theodore L. Reber, of the county of Osage, in the state of Kansas, party of the second part, witnesseth: That the said parties of the first part, for and in consideration of the sum of twenty dollars to said first parties in hand paid by said second party, the receipt whereof is hereby acknowledged, and for the further consideration that the said second party, and his heirs and assigns forever, shall and will well and faithfully observe, keep and perform the following conditions and covenant, to-wit, and it is expressly agreed and covenanted, that the said party of the second part, his heirs and assigns forever, shall never bargain, sell, barter, trade, or exchange any whisky, brandy, wines, or other intoxicating liquors, (beer excepted,) at or upon the premises hereinafter described and hereby conveyed, or any part thereof, or in any house or building that may be erected thereon, nor shall said second party, or his heirs and assigns, ever at any time suffer, allow, or permit any other person or persons so to do — doth by these presents grant, bargain, sell, remise, release, alien, convey and confirm unto the said party of the second part, and to his heirs and assigns forever, all the following described tracts, pieces and parcels of land lying and being situate in WetherelPs Addition to the town of Osage City, in the county of Osage, in the state of Kansas, to-wit, Lots numbered 23 and 24 in block numbered 14, and lot number 31 in block numbered 13, together with all and singular the hereditaments and appurtenances thereto belonging, or in anywise appertaining: To have and to hold the same, and every part thereof, unto the said party of the second part, and his heirs and assigns forever — subject however, and upon the express condition, that the said party of the second part, and his heirs and assigns forever, shall and will well and faithfully perform the covenants and conditions hereinbefore named. And the said John M. Wetherell, and Mary S., his wife, for themselves and their heirs, executors, administrators and assigns, do hereby covenant and agree to and with the said party of the second part, and his heirs and ■ assigns, that the said parties of the first part and their successors will warrant and forever defend the said lands and appurtenances, and every part thereof, unto the said second party, and to his heirs and assigns forever, against the said parties of the first part, and their successors, and against all and every person or persons whomsoever, lawfully claiming or to claim the same, subject however, and upon the express condition, that said party of the second part and his heirs and assigns shall and will well and faithfully keep and perform the conditions, covenants and agreements hereinbefore named. And it is one of the conditions, and a part of the consideration for the sale and conveyance of the lands hereinbefore described forever, that if said second party, or his heirs or assigns, or any person or persons by or with the knowledge, consent, or permission of said second party, or his heirs or assigns, shall at any time fail, neglect, or refuse to faithfully and fully keep, perform and observe the conditions and covenants aforesaid, or any of them, such failure, neglect or refusal shall be taken and held to be a breach of the covenant and condition of this conveyance; and any such breach of any of the conditions, covenants and agreements aforesaid shall work a forfeiture of the lands hereinbefore described to the whole and every part thereof, together with all the appurtenances thereto belonging or in anywise appertaining, and the same, the whole, and every part thereof, shall immediately revert to and become the property of the said parties of the first part, and their successors and assigns forever, as fully and completely as if this conveyance had never been made.
“In testimony whereof the said John M. Wetherell and Mary S. his wife, by John F. Dodds their attorney-in-fact, have caused this conveyance to be made, and set their hands and seals to the same in the said county of Osage on the seventh day of August, 1870.
John M. Wetherell. [Seal]
Mary S. Wetherell. [Seal]
By John F. Dodds, their Atlorney-in-Fact.” [Seal.]
The foregoing deed seems plain to us beyond all question. There can be no doubt as to what was intended by the parties thereto. And while the language thereof clearly shows that it was intended by the parties that Reber should be bound by a personal covenant never to sell or permit to be sold any intoxicating liquors on the premises, yet it still more clearly shows that it was further intended by the parties that the estate in the premises should be conveyed merely upon the condition that neither Reber nor any one holding under him should ever do any act prohibited by said covenant. The deed expressly says that the conveyance is upon condition. The condition is expressly made to reach, not only Reber, but his heirs and assigns. The deed expressly says that if this condition shall ever be broken by the grantee, or his heirs or assigns, the premises shall be forfeited back to the grantor, his heirs or assigns. And of this condition the defendants had ample notice, as the recitals in their own deeds most clearly show. The estate conveyed was clearly an estate upon condition subsequent, and the condition, until broken, runs with the land, beyond all doubt. We do not in this case intend to decide whether a covenant, personal or otherwise, could be created on the part of Reber, the grantee, by a deed which he never signed; (Washb. on Real Property, Book 3, ch. 4, § 2, paragraphs 48, 49;) nor do we intend to decide whether the assigns of Wetherell, the grantor, could take any advantage of the breach of any condition contained in such a deed, (Washb. on Real Property, Book 1, ch. 14, par. 14,) for these questions are not in this case. What we do decide is, that by the language contained in the said deed from Wetherell to Reber a valid condition subsequent was created, upon the continued observance of which by the grantee, and his heirs and assigns, the estate conveyed to them depended; .and that whenever either of them committed a breach of said condition the grantor was at liberty to claim a forfeiture of the estate from them to himself. And as ample authority for this decision, we would refer to the case of Plumb v. Tubbs, 41 N. Y., 442. The case of Harsha v. Reid, 45 N. Y., 417, relied on by the plaintiffs in error, has no application whatever to the case now under consideration. That was a case where a person already the owner of a certain piece of land covenanted with another person for a money consideration that he would not erect a grist-mill on the land. And the covenant in that case had no connection with the sale or conveyance of that land, or of any other land, upon condition or otherwise. In the language of the court deciding the case, “ The covenantees did not derive title from the covenantors, but the covenant was an independent and personal contract made upon and for a money consideration in no way eonneoted with the title.”
These are the only questions necessary to be considered in detail. Bridget O’Brien was the principal defendant in the case, and the question asked her by the plaintiff on the trial was undoubtedly for the purpose of showing that her husband sold the liquors which he did sell with her knowledge and consent; and the question was therefore competent under the language of the deed. The admission of the testimony of the witness Curtis was not sufficiently erroneous and material, if erroneous at all, so as to require a reversal of the judgment of the court below. The sale of the liquors in this case, as in most cases, had to be proved principally by circumstantial evidence; and therefore the plaintiff proved the following circumstances by Curtis, to-wit, that the word “Saloon” was over the awning of the building where it is claimed the liquors were sold, and that the witness frequently saw persons go into the building apparently sober and come out drunk, and that this led him to believe that intoxicating liquors were sold there. If this evidence were wholly thrown out, there would still be ample evidence to sustain the verdict of the jury.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
Upon no theory can this action for damages be maintained. If said judgment upon which the action is founded be considered as creating an estate upon condition in favor of the railway company, and not as creating an obligation in the nature of a covenant, then the action, in whose- soever name it might be brought, should be for the recovery of the strip of land, and not for the recovery of damages. But if we consider such judgment as creating an obligation on the part of the railway company to make said improvements, in the nature of a covenant, then the action is certainly not commenced by the proper person. The judgment, so far as it imposes any obligation upon the railway company, is in its terms purely a personal judgment in favor of Alice Broome, and in favor of her alone. It does not purport to be in favor of her assigns, and the judgment has never been in fact assigned. And the mere sale and conveyance of the land mentioned in the judgment cannot work an assignment of the judgment. If we consider the obligation imposed upon the railway company by the judgment merely in the nature of a covenant, and not in the nature of a condition upon the breach of which the title of the railway company to said strip of land may be forfeited, then such obligation will have no connection whatever with the title to the land, or with the possession thereof, or with any estate therein; nor will anything to be done under such obligation have anything to do with either the title, or the possession, or the estate, or indeed with anything in existence at the time said judgment was rendered, connected in any way with such estate, title or possession. The obligation was simply to create new improvements on the company’s own land, and then to keep these new improvements in repair. It has never been understood that such an obligation would run with the land. (See Spencer’s Case, 1 Smith’s Leading Cases, 115, et seq.) But even if this obligation, when first created by the judgment, was such an obligation as would run with the land, still the obligation was violated, and therefore converted into a mere personal chose in action, not assignable by a mere conveyance of the land, long before Piper obtained any interest in the land. Piper obtained his first interest in said land on July 25th, 1864, (the deed was recorded July 30th,) but all said improvements were to have been made before the first day of May of that year. And Piper did not purchase the south-half of said quarter-section till October 27th, 1865, (the deed was recorded November 25th.) Under this state of the facts Piper could not maintain any action for a breach of the said obligation. (Spencer’s Case, supra; Rawle on Covenants, 4 ed., 318 to 322, and cases there cited.) A covenant when broken becomes a personal chose in action, and never afterwards runs with the land. There is no claim that this judgment-obligation, which is in its terms personal, has any greater power to run with the land than a covenant which is usually made in express terms to the assigns of the covenantee as well as to the covenantee himself.
The judgment of the court below is affirmed.
Kingman, C. J., concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action on a promissory note. The answer denied under oath the execution of the note. Upon the trial the court permitted the plaintiff to read the note in evidence without any proof of its execution, and charged the jury that the onus probandi was on the defend-ant to show that he did not execute it. This was clearly wrong. The plaintiff alleged the execution of the note. By the sworn denial, that execution was put in issue, and on that issue the plaintiff had the affirmative.
We see no error in the admission of the deposition of H. H. Lowrey. The objections of counsel go rather to the effect and weight of the testimony, than to its competency. ° J x J The witness testifies, not to the genuineness of the signature to the paper offered in evidence, but to circumstances tending to show that the defendant did in fact, at the time of the date of the note, execute such a note. This we think was perfectly competent.
The judgment, however, for the errors noticed must be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This, action was brought by defendant in error as material-man and laborer to recover off the plaintiff in error the sum of. $147.50 due and unpaid from the contractor, the defendant in error alleging in his petition as cause of action, that the .plaintiff in error did not take and have recorded within the office of the register of deeds in any of said counties wherein the work was done any bond from the contractors conditioned for the payment of all just debts due to laborers and others. It was heard in the court below on the following agreed statement of facts, signed and filed by the attorneys for both parties:
“For the purpose of this action in all its stages, and in all courts to which it may be carried, we agree that the following may be considered as the facts:
“First: The bond, a copy of which is herewith filed, marked B,’ was taken by the defendant, and was filed by the defendant in the county of Ellsworth, Kansas, at the time as appears by the certificate of the register of deeds of said county on the back thereof, and said bond was a good and sufficient bond for the purposes in the said bond named, and covers all the work of the said contractors Oxelson and Einey, named in said bond, done for the defendant by said Oxelson and Einey, or their employes.
“Second: The amount for which the plaintiff sues is due and unpaid from said contractors Oxelson and Einey, as set out in plaintiff’s petition; that is, the work done by said plaintiff and the amount due therefor has not been paid by said Oxelson and Einey, or by any one else.
“Third: The work was done by the said plaintiff in the months of June, July, August and September 1872, in the counties of Harvey, Eeno, Eice, Pawnee and Ford, and amounts to the sum of $147.50.”
Copy of bond attached, marked “B.”
“Know all men by these presents that we, C. W. Oxelson and John Einey as principals, and H. B. Miller as surety, all householders of the county of:--, and state of Kansas, are held and firmly bound unto the Atchison, Topeka & Santa Fe Railroad Company, a corporation duly organized under a charter granted by the late territory (now state) of Kansas, and doing business in said state, in the sum of five thousand dollars, lawful money of the United States, to be paid unto the Atchison, Topeka & Santa Fe Railroad Company, its successors, representatives, and assigns; to which payment well and truly to be made, we jointly and severally bind ourselves, our heirs, executors, administrators and assigns, firmly by these presents. Sealed with our seals, and dated the 14th of July, 1.872.
“The condition of this obligation is such that, whereas the above named C. W. Oxelson and John Riney have contracted and agreed to and with the said Atchison, Topeka & Santa Fe Railroad Company to construct, complete, and furnish all materials therefor, for said company, the grading and masonry described as follows, to-wit: lying within the limits of sections Nos. 44, 55, 58, and 61: Now therefore, if the said C. W. Oxelson and John Riney shall well and truly carry out and perform all said contract in every and all respects, and shall well and truly pay all laborers, mechanics, and material-men, and all persons who supply said Oxelson and Riney with provisions, goods or materials of any kind, all just debts due or to become due to such persons, or to any person to whom any part of such work is given, or by whom any part thereof is done, and incurred in carrying on such work and contract so as aforesaid agreed to be done and performed by the said C. W. Oxelson and John Riney for the said railroad company, and shall well and truly save, keep, and bear harmless the said railroad company of and from all trouble, damage, costs, suits, judgments and executions arising or to arise ,by reason of the incurring of such debts, and in the premises, then and in that case this obligation to become null and void, otherwise to be and remain in full force, virtue, and effect in law.
Signed, sealed and deliv- ) C. W. Oxelson, (Seal.)
ered in presence of A. > John Riney, (Seal.)
A. Robinson. j H. B. Miller, (Seal.)
“State of Kansas, County of Ellsworth, ss.:
“I, J. F. Dyer, register of deeds of said county, do certify that the above is a true copy of the bond o'f C. W. Oxelson and John Riney to the Atchison, Topeka & Santa Fe Railroad Company, filed in my office September 18th 1872.
“ J. F. Dyer, Register"
The case upon the above agreed statement of facts was tried by the court without the intervention of a jury, and judgment rendered for the defendant in error for the sum of $147.50.
The liability of the plaintiff in error is sought to be enforced under the provisions of an act entitled “An act to protect laborers, mechanics, and others, in construction of railroads,” approved March 1st, 1872, and found on page 286 of the laws of 1872. This law requires a railroad company to take from the person with whom a contract is made a good and sufficient bond, conditioned that such person shall pay all the laborers, mechanics, and material-men, and persons who supply such contractor with provisions or goods of any kind, all just debts due to such persons or to any person to whom any part of such work is given, incurred in carrying on such work; and if any such railroad shall fail to take such bond such railroad company shall be liable to the persons herein mentioned to the full extent of such debts so contracted by the contractor. The law further gives all such persons a right of action on the bond for the full awards of debts against such contractor. There is also a provision that this bond shall be filed in the office of the register of deeds of the county where the work of the contractor shall be. So far as respects this last provision, while it is alleged that the railroad company did not have the bond recorded in the counties in which the work was done, there is a total failure of evidence to sustain the allegation. It was suggested by counsel on the argument, that'these counties were not then organized. It is unnecessary however 'to inquire what effect such a state of facts might have upon the obligation of the company under the statute, for no such excuse is suggested in the evidence. The record presents merely a case of failure of proof. Now in this case a purely statutory liability is sought to be enforced. Independent of the statute there is no law or reason for making the railroad company responsible for the debts of Oxelson & Riney. Hence, a party claiming under this statute must show all facts necessary to bring his case within its terms. If he alleges that the company failed to file its bond in the proper county, and thereby became liable to him, he must show the failure, or the fact will be found against him.
As it is conceded that the bond was good and sufficient, the only question really in the case is, whether the bond complies with the requirements of the statute. It is objected that the bond runs to the company and not to the laborers, mechanics, etc., or to the state; that it is simply a bond of indemnity, and not a bond under the statute. It seems to us that the company is the proper obligee. None is specifically named in the statute, but it says the company shall take a bond. This, in the absence of any express designation to the contrary, sufficiently indicates that it should run to the company. Again, in the second section it is expressly provided that the laborers, mechanics, etc., for whose benefit the bond is required, shall have a right of action on the bond. There would be no need of this section if it was the intention that the bond run to them. Though not named as obligees, they may sue as “persons expressly^ authorized by statute,” and entitled to the benefits of the security.
It is conceded that the bond contains all the conditions of the statute, but it also contains the additional stipulation that the contractors “shall well and truly save, keep and bear harmless the said railroad company of and from all trouble, damage, costs, suits, judgments and executions arising or to arise by reason of the incurring of such debts, and in the premises.” And it is claimed that this addition vitiates the bond. We do not think so. There is nothing in this inconsistent or in conflict with the other conditions; nothing limiting, restricting or in anywise modifying or affecting the obligations assumed by those conditions, so far at least as those dealing with the contractors are concerned. Such an addition does not avoid the instrument. The law does not say that the bond shall contain only such, conditions. It must contain those, and it may contain any others, provided they do not in any manner affect adversely the interests of those parties who are sought to be protected. We think there fore that the bond is valid under the statute, and it being conceded to be good and sufficient, it follows that the court erred in holding the company liable. As the facts are agreed we must not only reverse the judgment, but also remand the case with instructions to enter judgment in favor of the Railroad Company, defendant below. It is understood that the cases of the same plaintiff in error against Vm. Ward, and same against Jas. H. Anderson, involve only the same questions, and are to be decided in the same manner.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This case turns upon the validity of a tax deed. The district court found in favor of its validity. Three principal questions are presented on the record. It is claimed in the first place, that under the pleadings it was error to admit this deed in evidence; in the second place, that the deed was void on its face; and in the third place, that if not void on its face, it was shown to be void by the testimony aliimde. Of these in their order.
I. In reference to the first question the facts are these: The action was brought by plaintiffs below, who are plaintiffs *n error> under § 594 of the code. They alleged that they were the owners and in possession of the premises in controversy, that defendant set up and claimed an estate and interest therein adverse to theirs, but that the same was null and void. The answer first denied specifically the ownership and possession of plaintiffs, then set up a single tax deed, and closed with a plea of the statute of limitations.. The deed set up in the answer was not the one afterward received in evidence and held valid. The latter was a subsequent deed given upon the same sale. The reply, which is very full, was obviously prepared on the supposition that all the tax deeds held by the defendant had' been specifically pleaded. While only one is set up in the answer, the reply frequently speaks of “each of said pretended deeds,” and also alleges, in obvious reference to the deed held valid, “that such last pretended deed is null and void because executed upon the same pretended sale, and for the same pretended consideration, for which the said first described pretended deed was executed.” It is apparent therefore that the plaintiffs were not surprised by the production of this second deed based upon the one sale. Was the deed improperly admitted in evidence? Counsel insjsts that defendant having plead the one deed, was limited in his evidence to that; that he had elected to rest his claims upon the one title, and had tendered an issue thereon. If the answer contained nothing but this single tax deed, there would be force in the argument. But it contains a specific denial of the plaintiffs’ ownership, in language as full and satisfactory as the allegation, of ownership in the petition. It thus tendered an issue upon that question, and upon such issue any evidence was competent which tended to show that the plaintiffs were not the owners. A voluntary conveyance from them, a sheriff’s, or a tax deed, whether running to the defendant or not, was evidence tending to show that the plaintiffs were not the owners, and therefore tending to defeat their right to maintain any action. Of course, if the title ran to some third party, without subsequently passing , , r . ,, , r . ° to the defendant, it would furnish no basis for granting him affirmative relief — it would simply tend to de-feat the plaintiffs’ action. We do not mean to say that proof that plaintiffs’ had no title, would necessarily defeat the action. Their possession, if actual possession is shown, gives them a right to have adverse claims thereto determined. Branner v. Biglow, 8 Kas., 496; Giltenan v. Lemert, 13 Kas., 476. But testimony tending to show that the plaintiffs had no title, as well as that tending to show that they had no possession, is competent; and if they had neither title nor possession they' could maintain no action, even though defendant had no claim to the property. In other words, having no interest themselves, they could not litigate defendant’s claims.
II. A second proposition is, that the deed is void on its face. It recites a sale to the county, and an assignment of the certificate to defendant. It embraces a large number of other tracts of land. The objections to it are thus stated by counsel:
“ It does not, as required in statutory form, state the amount of the bid for each tract, or the sum paid for such assignment, or to whom paid, and is shown to be upon the consideration alone of one year’s tax.”
We think it does state the amount bid for each tract. It gives a table incorporated into the deed, and called schedule “A,” in one column of which is the description of the property, and opposite each tract is placed a certain amount in dollars and cents; and it declares that the “lands above described were severally bid off by the county treasurer of Jackson county for the several sums of money, dollars and cents, respectively placed opposite each respective tract in schedule hereto attached and marked ‘A,’ being the whole amount of taxes, interest and cost then due and remaining unpaid on each several tract of said real property respectively.” In reference to the sum paid for the assignment, and the party to whom it was paid,, the deed reads thus:
“And whereas, the county clerk of said Jackson county, state of Kansas, did, on the 11th of May 1868, in consideration of the several sums of money, dollars and cents, taxes,, interest and costs due respectively on said several tracts of land for the year 1862, paid in to the county treasurer of said county,” etc.
Now this describes the place of payment as required by statute, (Laws of 1866, p. 277, § 74,) and indicates with sufficient precision the amount paid. The amount for which it was struck off to the county being given, as well as the date of such sale, the date of the assignment, the amount of taxes, interest and costs then due, is a mere matter of calculation. It would be no more certain if the calculation had been made and the result stated in figures. It might disclose an error in the calculation, but would such an error vitiate the deed? Bowman v. Cockrill, 6 Kas., 325. It must be remarked, that the statutory form does not include any statement of the amount paid for an assignment, nor indeed does it seem to have been prepared with reference to a sale to the county and a subsequent assignment by it of the sale certificate: Norton v. Friend, 13 Kas., 532; Magill v. Martin, supra, 67. As to the last suggestion, that it appears “to be upon the consideration alone of one year’s tax,” we know of no reason why that is not sufficient consideration. The sale is made for the nonpayment of one year’s tax; and if the owner of the land should see fit to pay the taxes of the subsequent years we do not see how that would invalidate the sale, or prevent a deed. If it did, a land-owner might with perfect safety omit the payment of his taxes every fourth year. We think therefore that the deed was prima faeie valid, and properly received in evidence.
III. The remaining proposition of counsel is, that the deed was shown to be void by evidence aliunde. And under this head it is insisted that the assessment-roll is not as required. Counsel for plaintiffs cite Comp. Laws of 1862, p. 862, § 21, “The assessor shall make a correct list of all the taxable property in his county, to be called a tax-roll.” This, counsel insists, must be a single paper, or book — that a number of fractions for the several cities and townships will not constitute such roll. Here four separate books were produced, indorsed respectively “Assessment-Roll of Jefferson township, 1862,” “Assessment-Roll of the Town of Holton, 1862,” etc. In each was a certificate of the as sessor that such roll contained all the taxable property in such town or township; and it was also in testimony that the county was then divided into the three townships and one town, and that these four books embraced all the taxable property of the county. We fail to see anything in this to1 invalidate the assessment, when the entire county is assessed, and by the proper officer, and a proper authentication made of the assessment of-each township, and all returned to the proper officer. Surely, an omission to fasten these several assessments together into one roll, or book, can have wrought no prejudice to anybody, or in any direction. The assessment was sufficient.
Again, the county clerk was called as a witness and testified that he was unable to find in his office any proofs of the notices required by sections 32, 36, 37, 38, and section 55 of the tax law of 1862: that if any- . „ . , such -were m his office they ought to be m a certain bundle of papers, which he produced; that they were not in such bundle; that he could not say they were not in his office, but that if they were he had never seen them; and that when he first took possession of the office he had sorted over the files and papers, and placed them in proper packages, where they since had been kept, and that he was certain he had placed in the package produced all papers relating to such matters; that before the new court-house was built, and while in the old court-house, some papers had been eaten by rats. He was also asked whether bills had not been presented and paid by the county for the publication of such notices; but the-court sustained an objection to such testimony. The notice required by section 32 is a notice of the amount of the different taxes on each hundred dollars’ valuation, and also-of the day on which the treasurer will attend in each township for the purpose of receiving taxes. This notice is required to be posted at each place of holding elections, and to be published for four weeks in some newspaper having circulation in the county. There is no express direction to any officer to take and preserve any proofs of the publication or posting of this notice. Sections 36, 37 and 38 require a notice of the sale for taxes, which notice is to contain a list-of the property to be sold. Posting and publication are also required of this notice. Affidavits of both such posting and publication are specifically required to be made and preserved. Section 55 provides for a notice of the expiration of the time limited for redemption, which notice is to contain a list of the unredeemed lands and lots, with the amount of taxes and interest calculated to the last day of redemption. Publication or posting is required of this notice, but there is no specific direction to any one to take and preserve proofs thereof. There is however in §47 a general direction to the county treasurer to “file with the county clerk all affidavits, notices and papers in reference to such tax-sale, to be preserved by him.” Upon this two questions arise: First, Was the failure to find these notices in the county clerk’s office proof that they never existed ? If so, was the omission to give these notices fatal to the validity of the sale and deed? We shall rest our decision upon the answer to be given to the first -question. It is probably true, that when notices, affidavits, etc., are directed to be preserved in a given office, a failure to find them there raises a presumption that no such documents ever existed. Hall v. Kellogg, 16 Mich., 135. But this presumption is by no means conclusive. It amounts simply to prima faeie evidence. The deed on the other hand is prima facie evidence that they did exist, and were duly and legally given and made. More than that, the testimony of the clerk as to the destruction of papers, weakens the force of the presumption from his failure to find them. No attempt was made by plaintiffs to introduce other testimony. No examination was made of the treasurer’s office; no inquiry of the party who was treasurer at the time of the sale, or his deputies, or of the party who was then county clerk. None of the publishers of the newspapers. Under these circumstances we cannot say that the court erred in finding upon this question against the plaintiffs.
One other point remains, and that, like the last, is not free from difficulty. As heretofore stated, the sale was made to the county, which afterward assigned the sale-certificate to the defendant. The assignment was made in ° pursuance of a contract between the commissioners and defendant, for the sale of a large number of sale-certificates held by the county. The proposition of defendant, which was accepted by the commissioners, was substantially as follows: He proposed to buy all the claims for delinquent taxes “belonging to Jackson county on the following terms: I will pay for all correct and regular descriptions, for all sales for the years 1861,1862,1863,1864, 1865, and 1866, the amount required by law to redeem the same, provided that all claims other than .the above, and to include the sales for 1858, 1859, and 1860, and irregular or defective descriptions since, shall be quitclaimed to me for $100. Payment shall be made as follows, to-wit, $1,000 in hand, $1,000 per month thereafter until the whole is paid.” Payments were to be secured by bills of exchange drawn on and accepted by some responsible banker in Leavenworth. The amount of this purchase was about $14,000, and about one-twentieth of this amount consisted of irregular and defective descriptions, and of sales for years prior to 1861. The sale-certificates in this case were in evidence. They were in all respects, both as to form and amounts, as they would have been if defendant had had no such contract with the county, and was only the purchaser from the treasurer and clerk in the manner provided for in the statute. Upon these facts counsel for plaintiff in error claims, that “defendant’s lump trade with the county commissioners for all they had on hand was neither authorized by law, ñor, tolerable in good policy; that the right to purchase was alone from the treasurer; the commissioners had no authority whatever in the premises.” Defendant on the other hand insists that the contract was good; but if not good, that it can have no effect in this case, because the treasurer and clerk did no more than they were compelled to do, that is, transfer the certificate upon the payment of the amount necessary to redeem. In other words, he insists that the invalidity of the contract can affect only those cases of sales before 1861, and of irregular and defective descriptions which were quitclaimed for $100; for those, and those only, were transferred for less than the amount legally due. It would seem to follow from the decisions already made in this court, and to appear from the provisions of the statute, that this contract between the defendant and the commissioners was ultra vires. The commissioners, it is true, are in a certain sense the general agents of the county. That is, to them is committed the general superintendence and management of the affairs of the county. There are however many limitations upon this general control. One is, that they cannot interfere with duties specifically assigned to a given officer. They may not direct what instruments the register of deeds shall record, what fees he may charge, or what certificates give. They may not control the county attorney in the prosecution of criminal actions. Nor can they give receipts for taxes, or assign sale-certificates. These are duties assigned to particular officers, and the manner of their discharge specifically indicated. Comp. Laws, p. 865, §33; p. 867, §§43, 44; Laws of 1866, p. 274, §§60, 61; p. 277, §§73, 74; Gen. Stat., p. 1045, §§77, 78; p. 1048, §§ 90, 91. “Whenever any person shall pay into the county treasury a sum of money or warrant of the appropriate fund, or county orders equal to the cost of redemption at that time, or any such tract of land or town lot,” is the language of the statute in reference to the assignment of a certificate of sale. Laws of 1866, p. 277, § 74; Gen. Stat., p. 1048, § 91. The statute having thus designated the officers to discharge this duty, and the manner of its discharge, the commissioners have no authority to interfere. They can no more make a valid contract in reference to the matter than they could one with reference to the fees the register of deeds should charge a third party for recording his deeds and mortgages. The State v. Magill, 4 Kas., 415; The State v. MaCrillus, 4 Kas., 260; Clough & Wheat v. Hart, 8 Kas., 487. Though the property which cannot be sold to individ uals at a tax sale is struck off to the county, it does not become thereby like ordinary property of the county, subject to the control of the commissioners. If the purchase was an absolute purchase by the county, with a view of acquiring a perfect title, it would seem to follow that the county should be responsible to the townships, school districts, and the state for their proportion of the taxes upon the property purchased, and that the county should be permitted as a result of its purchase to subsequently obtain a deed. But see to the contrary, Judd v. Driver, 1 Kas., 455; The State v. Gomm’rs of Atchison Go., 1 Kas., 479; The State v. Magill, supra; Guittard Township v. Gomm’rs of Marshall Go., 4 Kas., 389; Sapp v. Morrill, 8 Kas., 677; Tarr v. Haughey, 5 Kas., 626. The contract therefore was ultra vires, and void. Douglass acquired no rights by such contract, nor was the treasurer or clerk justified thereby in disregarding the provisions of the statute. Other parties than the county are interested in the full payment of taxes. City, and township, and school-district, are alike concerned. We do not hold that the contract was against public policy, or good morals. It might be well if authority was given, once in a while, to some county officials to dispose as best they could of all the interest of the county in such back tax sales. But there was no such authority at the time of this contract, and hence it was without warrant of law, and void. But how does this affect the validity of assignment of the sale-certificates in this case ? It seems to us that the result follows, as is claimed by the defendant, that the assignments were good for which full payment was made, and that the others alone are subject to attack. This contract was void. It was as though ncine had been made. It is not pretended that the treasurer and clerk were parties to this contract with defendant; and the authorities cited by counsel, as to the entirety of certain contracts, are not applicable. The assignments the treasurer and clerk executed were the only contracts they entered into. They assigned some certificates, receiving full payment therefor. This was legal, and passed full title to the assignee. Others they assigned, receiving only part of what they should have received. This was illegal. "Whether they rendered themselves liable for the difference between the amount received and that which should have been received, or not, whether the assignments passed a good title or not, whether they can be avoided or not, and whether Douglass would be responsible to the county for the above difference or not, are questions into which it is unnecessary, and would therefore be improper, for us to enter. It is enough in this case that the assignments were for a full and sufficient consideration.
These are all the questions necessary for determination in this case, and there appearing as to them no error in the ruling of the district court, the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
Suit was brought in the court below by defendant in error to compel a conveyance to her from plaintiff in error of two certain specified tracts of land, being part and parcel of the Kickapoo Reservation in Atchison county. The plaintiff below bases her case upon two certificates of purchase issued by the United' States government to the defendant below, of date January 2d 1866, which had passed into plaintiff’s possession, and upon two written instruments written upon the same pieces of paper with said certificates, executed by S. C. Pomeroy, president of and attorney-in-fact for the defendant railroad company, and purporting to have been so executed to plaintiff at the date thereof, August 10th 1866. The plaintiff further averred in her petition, that the defendant obtained a patent from the United States for these tracts of land September 5th 1871; that it obtained the same fraudulently, as against the plaintiff, and with intent to convert said lands to its own use; that she, the plaintiff, had entered into possession of said lands, and made improvements thereon, and praying for a decree for conveyance from defendant. The defendant answered, first, a general denial; second, a specific denial that said certificates and written instruments conferred on plaintiff any right or interest in said tracts of land, and averred that it, the defendant, was the sole owner of the same. This answer was not verified by affidavit. The plaintiff replied by filing a general denial. Trial was had by the court, without a jury. Defendant objected to the introduction of any evidence under the petition, as not stating a cause of action. Objection overruled and exception taken. After plaintiff’s evidence was in, defendant filed a demurrer to the evidence, which was also overruled, and exceptions taken. After the evidence closed, all of which appears in and is made a part of the record here, the court found its conclusions of fact upon the evidence, and its conclusions of law, and rendered judgment that defendant make and execute to plaintiff a deed of the tracts of land named.
On behalf of the plaintiff in error counsel submit in this' court, that the court below erred in overruling defendant’s objection to the introduction of evidence under plaintiff’s petition. This is the principal, and about the only substantial- question in the case. The question really is, whether the petition below states facts sufficient to constitute a cause of action. We think it does. It is not necessary to plead the public laws or treaties of the United States. They will be taken notice of judicially, without pleading or proving them. Hence all the provisions of the Kickapoo treaty of 1862 (13 U. S. Stat. at Large, 623,) will be taken notice of judicially, although some of the provisions thereof may not have been specifically mentioned in the petition. This proposition does not seem to be controverted by counsel on either side. Now it is claimed by counsel for plaintiff in error, that under the provisions of that treaty the railroad company had no title, legal or equitable, to the land in controversy, when the said assignment was made by said Pomeroy as attorney-in-fact for said railway company to the plaintiff below. This we admit, and shall decide the case upon that theory. (Parker v. Winsor, 5 Kas., 362, 373; Douglas Co. v. U. P. Rly. Co., 5 Kas., 615, 621, et seq.; Baker v. Gee, 1 Wallace, 333; Railway Co. v. Prescott, 16 Wallace, 603; U. P. Rld. Co. v. McShane, 2 Central Law Journal, 104; Brisbois v. Sibley, 1 Minn., 230.) Although it was provided in the 5th article of the said treaty, as it was originally drawn, that “such certificates” as those sued on in this case “shall be deemed and held in all courts as evidence of title and possession' in said railroad company,” yet the said words, “title and,” were stricken out of said article before it was ratified, and the words, “the right of,” inserted in their place, by way of amendment, so that said provision now reads, that “such certificates shall be deemed and held in all courts as evidence of the right of possession” only. (13 U. S. Stat., 629.) But although the railroad company had no title to said land at the time said certificates were assigned, yet they had a valid contract with the government under which they had' the exclusive power to obtain title, and this title they could obtain either for themselves or for their assignees ; and at the very time said certificates were assigned the railroad company had the right of possession to said land, to the exclusion of all others. They had a right to assign all their interest in the land, including their right to obtain title, and their right of possession; or in other words, they had a right to make a valid contract for the sale of the land. And such a contract the government would undoubtedly recognize as valid under said treaty. (See articles 5 and 6 of the treaty.) The plaintiff in error seems to claim that said assignments amount only to quitclaim deeds. Now, although they read in some respects like quitclaim deeds, yet in fact they are not deeds at all. They were not intended to perform the office of deeds. They were not intended to convey any present estate or title in or to the land. But they are merely simple contracts, intended to transfer the inchoate interest of the railroad company in and to said land, and to transfer théir right to obtain said title at some future time from the government. They sold their right to have the patent from the government for the land issue to themselves, and required by their agreement that it should issue to Nancy J. Wilcox. The two certificates are alike except as to the description of the land, and the two assignments are also alike with the same exception. Below we give a copy of one of said certificates, with the assignment thereof, which reads as follows:
UNITED STATES OF AMERICA.
No; 700. Department op the Interior,
January 2d, 1866.
• Whereas, it is provided by the fifth article of the Treaty between the United States and the Kickapoo Tribe of Indians, concluded June 28, 1862, as afterwards amended and proclaimed on the 28th day of May, 1863, that after certain portions of the lands belonging to said tribe of Indians shall have been allotted and set apart for the use and benefit of the members of said- tribe, the Atchison and Pike’s Peak Railroad Company shall have the privilege of becoming the purchaser of the remainder of the lands not so set apart and allotted, upon certain conditions therein prescribed; and—
Whereas, the said lands have been allotted and set apart to the members of said tribe, as prescribed by said Treaty, and the said Railroad Company has • elected to become the purchaser of the remainder thereof, and by its President, the Honorable Samuel C. Pomeroy, has executed and delivered to the Secretary of the Interior its bond in the penal sum of three hundred and tenthousand dollars, being double the value of such remainder, or surplus of said lands, estimated at the rate of one dollar and twenty-five cents per acre, conditioned as by the terms and provisions of said Treaty is required, which said Bond has been accepted and approved by the Secretary of the Interior: Now, therefore:
It is hereby-certified, that under and by virtue of the provisions and terms of the said Treaty, as amended, the Atchison and Pike’s Peak Railroad Company has become the purchaser, and is entitled to the possession of 160 acres, being the s. e. J of Section Nineteen, Township Five s., Range Seven teen e. 6th p. m., the same being parcel of the said surplus or remainder of said lands: subject, however, to all the terms and conditions, considerations, and stipulations in said Treaty in that behalf mentioned and set forth.
It is also hereby further certified, that in case the said Atchison and Pike’s Peak Railroad Company shall well and truly do and perform all things required to be done and performed on' its part, in the time and manner prescribed by said Treaty, and shall well and truly pay for said surplus or remainder of said lands, as by said Treaty stipulated, then and in that case the said Atchison and Pike’s Peak Railroad Company, or the assignee hereof, will be entitled to demand and receive from the United States of America a patent in fee simple for the premises above described.
In testimony whereof, I have hereunto set my hand and , -j caused the seal of said Department to be hereunto *- affixed, this second day of January, 1866.
Jas. Harlan, Secretary.
For value received, I, S. C. Pomeroy, President of, and as the duly authorized attorney-in-fact of the Atchison and Pike’s Peak Railroad Company, for said Company, do hereby transfer and assign to Nanay J. Wilcox all the right, title, and interest of the said Atchison and Pike’s Peak Railroad Company to the s. e. of Section Nineteen (19,) Township Five (5) south, Range Seventeen (17) east of 6th p. m., and require the issue of a patent to Nancy J. Wilcox, as assignee of said Company, in accordance with the terms of said certificate.
"Witness my hand and seal this tenth day of August, 1866. Attest: S. C. Pomeroy, President of, [l. s.]
and Attorney-in-fact for the Atchison and Pike’s Peak Railroad Co.
State of New York, County of New York:
On this tenth day of August, 1866, before me, personally came S. C. Pomeroy, President of and Att’y-in-fact for A. &P. P. Railroad Co., to me well known, and acknowledged the foregoing assignment to be his. vokmtary act and deed, and the 'voluntary act and deed^of the said A. & P. P. Railroad, Company. Chas. V. Ware, .
[l. s.] Notary Public, New York City.
It will be noticed that the railroad company agreed to “require the issue of the patent to Nancy J. Wilcox, as assignee of said company, in accordance with the terms of said certifi cate.” This was a valid contract. If not authorized by the treaty in direct terms, it is certainly authorized by it by necessary and unavoidable implication. The assignment was on the same piece of paper as the certificate, and was printed thereon in blank, under the supervision of the Secretary of Interior, which .shows what the opinion of the Secretary of the Interior was. Now as the company did not allow the patent to issue to Mrs. Milcos:, as they agreed, but took the patent to the company, we think the company ought to convey the title to the land to Mrs. Milcox. Under the provisions of said treaty and said certificate and said assignment, we think it should be inferred that the railroad company should have done all that was necessary to be done, so that they could require the patent to be issued to the plaintiff, and the evidence in the case amply shows that this was the understanding of the parties. It is claimed by plaintiff in error that said assignment was made in the name of S. C. Pomeroy, and not in the name of the company. Admitting for the purposes of the case that said assignment was so made, and still it makes no difference. It is not a deed conveying title. It is only a simple contract providing for a conveyance of title. It is not necessary that such a contract be made in the name of the principal. Butler v. Kaulback, 8 Kas., 668, and cases there cited; Welsh v. Usher, 2 Hill’s Ch., (S.C.) 167. This contract however shows who the principal was, and who the agent was. It shows that Pomeroy acted merely as the agent of and for the railroad company.
Me now come to the supposed errors in admitting and excluding evidence. The most of the evidence complained of, which was either admitted or excluded, was wholly immaterial to .the issues in the case, but was of such a character that the action of the court certainly did not tend to prejudice any of the substantial rights of either of the parties. That the defendant was a corporation, as alleged in the petition, was expressly admitted by the pleadings; and that said certificates, said assignments, and said patent, were all duly executed, were impliedly admitted by the pleadings. The plaintiff in error did not put their execution in issue by denying their .execution by a pleading verified by affidavit, and hence the statements of the petition, alleging their due execution, must be taken as true.’ (Code, § 108; Gulf Railroad Co. v. Wilson, 10 Kas., 105, 111, 112; School District v. Carter, 11 Kas., 445.)
Under the pleadings the question asked the witness Wilcox, and nearly all of the deposition of Pomeroy, were wholly immaterial, and neither their admission nor exclusion could have materially affected the case. In those portions of Pomeroy’s deposition, material to the case, and read in evidence, we do not see any question sufficiently leading to require a reversal of the case. We do not think the demurrer to the evidence should have been sustained, for the allegations of the petition were*amply proved. We take no notice of the evidence which was merely immaterial, or which did not tend to prove any issue in the case, and which did not tend to-prejudice the substantial rights of the plaintiff in error. There was some of this kind of evidence introduced. The most of the facts found by the court were facts admitted by the pleadings. Whether the eighth finding of fact was warranted by the testimony outside of the pleadings, or not, is-wholly immaterial. The pleadings impliedly admit the due execution of said certificates and said assignments, and evidence could not properly have been admitted to show that they were not duly executed. It makes but very little difference whether the court below was technically correct in all its conclusions of law or not, provided the pleadings, and'the evidence thereunder, and the facts found from such evidence, sustain the judgment. And we think the pleadings, the evidence thereunder, and the facts found therefrom, amply sustain the judgment, and it is therefore affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question presented to us for our consideration and decision in this case, is, whether the improvements made on government land settled upon and occupied as a homestead under the act of congress of March 20th. 1862, (12 U. S. Stat.’at Large, 392,) are taxable before final proof of settlement and cultivation of the land is made. We must answer this question in the negative. When this state was admitted into the Union it was agreed between the state and the United States that government lands should never be taxed by the state. (See Act of Admission, 12 U. S. Stat. at Large, 127, § 3; sub. 6; Joint Resolution of the Legislature of Kansas, Gen. Stat., 71.) The word “land” meant and means the land with all the improvements thereon. This is the legal signification of the term; it is the common-law definition thereof; and it is undoubtedly just what was meant when said Act of Admission and Joint Resolution were passed. There are a few exceptional cases where “improvements” on land are not considered a part thereof; but this is clearly not one of those cases. There is nothing to show that the state or United States at the time of our admission into the Union considered such improvements personal property. There is no act of congress passed at that time, or before or since, making them personal property. And there is no act-of congress attempting to divest the government of the title to them while the government still owns the land, or to place the title anywhere else except in the government. But even if they were personal property, if they belonged to the‘United States they would not be taxable. (See Act of Admission.) There is no act of congress authorizing any person to remove them from the land. And there is no act of congress authorizing them to be taxed. We therefore think it beyond the power of the state to tax them. Calling them by a different name from what they in fact are, does not give the state any additional authority over them. (See Parker v. Winsor, 5 Kas., 374, 375.)
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
A criminal action brought and pending in Greenwood county, was removed by change of venue to Lyon county. A subpoena duces tecum was then issued and served upon the defendants in this case, Walter Smithers, treasurer of Greenwood county, and S. N. Fancher, county clerk of said Greenwood county, commanding them to appear and produce the books and records of their respective offices at the March Term 1875 of the district court of said Lyon county, for the purpose that said books and papers might be used as evidence in said criminal action. Smithers and Fancher failed to respond to said subpoena. A rule was then issued by the district court of Lyon county, requiring them to appear and show cause why an attachment should not be issued against them as for a contempt of the court. They appeared and showed that they were respectively county treasurer and county clerk of Greenwood county as aforesaid; that they held their offices at Eureka, the county-seat of said Greenwood county; and that Eureka is about fifty miles from Emporia, the county seat of Lyon county, where the district court was held. The court on this showing discharged the rule, and refused to issue any attachment against these defendants, and the state now appeals to this court. The only question that we are asked to decide is, whether the district court had the power to require said officers to remove their books and papers from Eureka, Greenwood county, to Emporia, Lyon county. Perhaps more properly speaking, the question is, whether the district court committed such an error by refusing to grant said attachment as will call for the judicial interposition of this court to reverse the rulings of the district court. And involved in this question are the questions, whether the district court has any discretion in dispensing with this kind of evidence, and in waiving the issue of attachments in this kind of cases, or whether the court must in all cases, where such evidence appears to be relevant and material, require the production of the same, if asked to do so by a party, and grant an attachment against any officer who may fail to respond readily to the process of the court. But passing over all other questions, had the court the power to require the production of said evidence? We hardly think it had. In the first place, ample provision has been made in this state for the use of copies of all public records and documents where the originals themselves might be used, and hence there is no great or overwhelming necessity for obtaining the originals. But independent of this, wé think the statutes show affirmatively that it was not intended that the public records and documents should ever be removed to any great distance from the place where they are required to be usually kept. Section 172 of the act concerning counties and county officers, provides, that all county officers must hold their offices at the county-seat; that they must keep their offices open every day, except Sunday; that “all books and papers required to be in their offices shall be open for the examination of any person ; and if any of said officers shall neglect to comply with the provisions of this section he shall forfeit for each day he so neglects, the sum of five dollars.” (Gen. Stat., 292, § 172.) And § 12 of an act amending the code of civil procedure provides that “no public officer herein named, [and county treasurers and county clerks are named,] or other custodians of public records, shall be compelled to attend any court, officer, or tribunal, sitting more than one mile from his office with any record or records belonging to his office, or in his custody as such officer.” (Laws of 1870, page 174, § 12.) And upon general principles, it would hardly seem consistent with public policy to allow the public records to be hauled about from place to place, all over the state, at the mere whim or fancy of some capricious individual who might suppose he needed them, to use as evidence in some criminal trial, or even on some preliminary examination, unimportant in itself, but swelled by his imagination to prodigious proportions.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was originally commenced by Thomas Casey against the St. Joseph & Denver City Railroad Company before a justice of the peace. An attachment was issued in the case. From the record we learn that on the day set for trial the “Case was called, and parties appeared, and the defendant by its attorneys Messrs. Hawkins & Baldwin filed affidavit and motion to discharge the attachment issued in this case — motion was argued by counsel, and thereupon the said motion was overruled by the court upon the ground that plaintiff did not (in the opinion of the court) have reasonable notice of the filing of the same, as the law contemplates.” Now suppose that reasonable notice of said motion was in fact given, and still there is nothing to show that the motion should have been sustained. What did the motion or the affidavit contain ? And whose affidavit was it? Was it the affidavit of Casey, Hawkins, Baldwin, or some one else? The justice of. the peace rendered judgment in favor of Casey, and against the railroad company for $200.55 and costs, and ordered that the attached property be sold to satisfy said judgment. The railroad company then appealed to the district court. We suppose the appeal bond was an ordinary appeal bond, but we cannot tell, as no copy of the same is given in the record. What then became of the attached property? The record does not show, but we would infer from the briefs of counsel that it was delivered by the officer to the railroad company. This we think was right. Section 52 of the justices act provides that—
“ If the defendant, or other person in his behalf, at any time before judgment, cause an undertaking to be executed to the plaintiff by one or more sureties, resident in the county, to be approved by the justice, in double the amount of the plaintiff’s claim, to be stated in his affidavit, to the effect that the defendant shall perform the judgment of the justice, the attachment in such action shall be discharged, and restitution made of any property taken under it, or the proceeds thereof. Such undertaking shall also discharge the liability of a garnishee in such action, for any property of the defendant in his hands.” (Gen. Stat., 787.)
Section 213 of the civil code is precisely like the foregoing section of the justices act, except the words which we have put in italics are changed as follows: “in” is changed to “on;” “justice” is changed in two places to “court;” and “to be” is changed to “as.” The appeal bond, where the defendant appeals, is in spirit substantially the same as the bond mentioned in’the foregoing sections. Section 121 of the justices act provides that —
“The party appealing shall, within ten days from rendition of the judgment, enter into an undertaking to the adverse party with at least one good and sufficient surety, to be approved by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs, conditioned, jirst, that the appellant will prosecute his appeal to effect, and without unnecessary delay; second, that if judgment be rendered against him on the appeal, he will satisfy such judgment and costs. Such undertaking need not be signed by the appellant.” (Gen. Stat., 800.)
Now as the defendant who appeals gives ample security for the prosecution of his appeal to effect, and for the payment of any judgment that may be rendered against him, it would seem to be hardly necessary that the attachment should continue any longer in force. And as no provision is made by law for the officer who holds the attached property at the time the appeal is taken to turn the property over to some officer of the district court, it would hardly seem that it was intended that the district court should take charge of the attached property. And it can hardly be supposed that after all the proceedings of the justice’s court are taken by appeal to the district court, that any officer of the justice’s court will continue to have possession and control of the attached property. And the appeal bond in spirit and substance certainly answers all the requirements of § 52 of the justices act, and § 213 of the civil code.
It has been held in this court that where a justice has discharged the attachment, and the plaintiff has appealed by filing an ordinary appeal bond, the attachment is not thereby taken to the district court: (Gates v. Sanders, 13 Kas., 411.) The proceedings of the district court with regard to the attachment issued in this case will appear from the following quotations from the record brought this court:
“Be it remembered, that on the call of the above (case) action for trial, defendant called up the motion to discharge attachment made in the court below, and read the said motion and affidavit of IT C. Hawkins as follows:” [Here follows motion and affidavit of Hawhins.'] “No motion was made in this court to discharge attachment. The defendant then read the following notice of filing counter-affidavits[Here follows notice;] “ and tendered and offered to read the affidavits of L. D. Suthill and E. H. Saville filed in said action in this court, which affidavits are in the following words:” [Here folloio affidavits of Suthill and, Saville.] “ But the court refused to hear the affidavits; read and overruled the motion, which order is in the following words and figures:
“(Title, &c.) The motion of said defendant to discharge attachment in' this case being argued by counsel, the court upon due consideration overruled said motion, to which defendant duly excepted. To all of said rulings of the court, in refusing to hear the affidavits read, to discharge, and in disallowing said motion, the defendant then and there duly excepted.”
The parties then proceeded with the trial, and the court at the close of the trial rendered judgment in the following words, to-wit:
“ It is therefore considered, ordered and adjudged by the court here, that the said plaintiff have and recover of and from the said defendant the said sum of $112.20, and interest as aforesaid, and also his costs in and about this suit expended, taxed at $-, and that execution issue therefor. To all of which the defendant then and there excepted.”
It is not stated in the record why the district court refused to hear said affidavits read, nor why the court overruled said motion to discharge said attachment. But we ° would infer from the briefs of counsel, that the same was so done because the court considered the attachment discharged by the appeal bond. If this was the view of the court below, we think the court below was right. When the railroad company gave the appeal bond we think the company became entitled to the immediate custody of the attached property, and we presume from the briefs of counsel that it immediately obtained .such custody. The district court did not make any order with reference to said attached property. This we think was right.
But it is claimed by the railroad company that the attachment was wrongfully obtained; that costs accrued thereon, and that judgment has been wrongfully rendered against the company for such costs. This in fact is the only ruling of' the court below of which the plaintiff now complains as substantial error. Now, in our opinion the entire judgment of the justice of the peace was wholly vacated by the appeal, and trial and judgment in the district court. The attachment was also discharged by the appeal. The question of damages for the wrongful suing out of the attachment cann'ot be heard in this case. And hence the question of who shall pay the costs which have accrued on the attachment, is the only question left having any connection with the attachment proceedings which could have been heard by the district court in this case. And this question we think should have been submitted to the district court, if any ruling were desired upon the question. Nothing that transpired either in the justice’s court or the district court would have precluded the defendant from submitting the question to the district court. But the defendant did not submit the question to that court in any proper mode. A motion made in the justice’s court to discharge the attachment, and “called up” in the district court, where no such motion could rightfully be entertained, can hardly be construed to be a motion made in the district court to tax costs; and especially not as the motion was “called up” in the district court before the trial in that court was commenced. And although the court below rendered judgment against the defendant for the costs of the plaintiff in general, yet it does not seem that any costs — those on the attachment, or others —have ever yet been taxed. Except for the affidavits of Hawkins, Suthill and Saville, it would appear from the record that the costs of the attachment should be taxed against the defendant below. And as these affidavits were merely read, or offered to be read on a motion which the district court could not rightfully entertain, we think the affidavits can hardly be considered as in the case. If the defendant had offered to read them upon a motion to tax the costs of the attachment against the plaintiff, the plaintiff would probably have opposed them with counter affidavits.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This case and the one just decided (of this same title,) arose out of the same transactions; and the facts of the two cases, up to the amendment of the original petition in the court below separating, that case from this and filing a new petition for each case, are identical. Both cases are founded upon or at least connected with a certain judgment of the district court of Leavenworth county, rendered December 24th 1863. At the time said judgment was rendered Alice Broome owned the N.E.-J of section 36, in township No. 9, of range No. 22, in Leavenworth county. At the same time the defendant in this case, the Railway Company, had possession of a strip of said land, one hundred feet wide, running through said quarter-section, which it was grading, and intending to use for railroad purposes; and the proceeding in which said judgment was rendered was a proceeding instituted by the railway company for the purpose of obtaining the title to said strip of land for railroad purposes under the power of eminent domain, and was pending in said district court when said judgment was rendered. The judgment in said proceeding was finally rendered by the consent of both parties, and was in substance as follows: The railway company was invested with the title in fee to said strip of land upon condition that it pay for the same to Alice Broome $400, and make certain improvements thereon, and afterwards keep said improvements in repair. All these things were to be done by the railway company before the first day of May 1864. The railway company immediately paid said $400, but they have failed up to this time to make said improvements, although they have been operating their road over said strip for several years. This action, since its separation from the other action, has been for the recovery of said strip of land. The other action, since its separation from this, has been for the recovery of damages for the failure of the railway company to make said improvements. The verdict of the jury and the judgment of the court below in this case was for the defendant, and the plaintiff Piper now brings the case to this court.
The first question raised in this case by the plaintiff is, that the original judgment out of which these two cases originated is void for want of jurisdiction in the court rendering such judgment to render the same. This question has already been before this court, and decided adversely to the plaintiff, and we do not now choose to again consider the same. (U. P. Rly. Co. v. McCarty, 8 Kas., 125.) The question was there decided in a case involving the validity of a judgment almost precisely like the judgment in question in this case, and which was rendered at the same time that this judgment was rendered, and by the same court, under the same laws, and in the same proceeding. And the case just decided of this title, (ante, p. 568,) was prosecuted by the plaintiff, and was decided by this court, upon the assumed validity of said judgment. And we shall now'follow those cases without further consideration or investigation.
The next question is, whether the plaintiff may recover in this action notwithstanding the assumed validity of said judgment. It will be noticed that it is not Alice Broome who prosecutes the action, but it is Gilbert U. Piper. Then, where does Piper get his authority for prosecuting the action ? Simply from the following facts: On March 26th 1864 Alice Broome sold and conveyed said quarter-section of land to David F. Laughlin. On July 25th 1864 Laughlin sold and conveyed the north-half thereof to Piper; and on October 27th 1865 Laughlin sold and conveyed the other half of the same to Piper. Now are these facts sufficient to authorize Piper to prosecute this action, or indeed to prosecute any action against the railway company? We think not. The judgment itself, so far as it attempts to impose any obligation upon the railway company, is in favor of Alice Broome alone. It does not purport to be in favor of her assigns, and it has never been in fact assigned to any one. And the mere sale and conveyance of the land mentioned in the judgment cannot work an assignment of the judgment. In the other action, the plaintiff claimed that said judgment created an obligation resting upon the railway company, in the nature of a covenant running with the land, to make such improvements; and in that action it was necessary for the plaintiff to so claim, for under no other theory could he maintain that action. But in this action he substantially claims, that the estate, vested by the judgment in the railway company for said strip of land, was merely an estate upon condition, liable to be forfeited back to Alice Broome, or to her assigns, upon any failure of such condition. And it is as necessary for him to so claim in this action as it was to make the other claim in the other action, for if the estate conveyed were an estate absolute, and the plaintiff had nothing but a mere judgment, or a mere covenant for the erection of said improvements, and no right to claim a forfeiture of the land for condition broken, his only remedy for a failure to make the improvements would be an action for damages, and not an action for the recovery of the land, as in this case. We agree with the plaintiff that the estate conveyed by said judgment was an estate upon condition. But as • the estate was by the very terms of the judgment to be immediately vested in the railway company, the condition was .subsequent and not precedent. And the right to demand a forfeiture of the estate for condition broken was vested in Alice Broome alone, and not in her assigns. The judgment in legal effect, we think, vested the whole of the estate in said strip of land immediately in the railway company, subject however to be forfeited back to Alice Broome, at her election, upon condition that the railway company did not fulfill the obligations imposed upon it by the judgment. (See Nicoll v. N. Y. & Erie Rld. Co., 12 N. Y., 121; S. C. 12 Barb., 461.) The railway company failed to fulfill said obligations, but Alice Broome has never elected to demand a forfeiture of said estate. Indeed, it would almost seem from the authorities that by selling and conveying all her interest in the land before the condition was broken she waived the fulfillment of the condition, or at least waived the forfeiture. (Underhill v. Saratoga & Washington Rld. Co., 20 Barb., 455; Rice v. Boston Rld. Co., 12 Allen, 142; Hooper v. Cummings, 45 Me., 359.) But however this may be, Piper obtained no right to demand a fulfillment of the conditions, or to demand a forfeiture of the estate. (See authorities above cited, and Ludlow v. N. Y. & Harlem Rld. Co., 12 Barb., 440.) The right of a person who has created an estate upon condition, to demand a forfeiture of the estate for condition broken, is not assignable. (Washburn on Real Prop., ch. 14, paragraph 14, and the numerous cases there cited.) And certainly not assignable by an ordinary deed of conveyance. In the present case, when Alice Broome parted with her interest in said land there had been no breach of said condition. But before Piper obtained any interest in the land the breach of the condition (if there ever has been any such breach) had become complete. The failure to make said improvements occurred while Laughlin owned the land. When Alice Broome conveyed said land to Laughlin she had no estate in said strip of land, and no present power of obtaining any such estate. Her right at that time was merely a possible future contingent interest. (See Nicoll v. N. Y. & Erie Rld. Co., supra.) The present and existing estate and interest in said strip of land was at that time wholly in the railway company. Therefore, as Alice Broome had no present and existing estate in said strip of land when she conveyed said quarter-section to Laughlin, she of course conveyed no interest in the strip to Laughlin, and, as we have before seen, the personal right of demanding a forfeiture does not pass by a deed of conveyance of the land. A party who has no estate cannot convey an estate. But even if she had conveyed'some interest in said strip to Laughlin, still Piper has hardly obtained it. The supposed breach of the condition occurred while Laughlin owned said quarter-section, and therefore even if the right to demand a forfeiture for condition broken was assigned to Laughlin, still the right became personal to him, and he has never exercised it. Even after condition broken the title to the property does not as a rule of law pass to the person entitled to receive the same until such person in some proper way demands a forfeiture of the property. (1 Washburn on Real Property, ch. 14, paragraph 13.) Now Laughlin never demanded a forfeiture of the property by entry, suit, or otherwise. After Laughlin sold the north-half of said quarter-section to Piper, and while Piper owned one-half of the same and Laughlin the other, could one of them have demanded a forfeiture as to that portion of the strip running through his own eighty-acre tract, and both of them have allowed the railway company to retain the strip through the other eighty-acre tract? Could they divide up the forfeiture? Or could one against the will of the other have demanded a forfeiture? The fact is, neither of them ever had any right to demand a forfeiture.
The judgment of the court below is affirmed.
Kingman, C. J., concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by
Kingman, C. J.:
This is a contest by original proceedings in this court as to who is entitled to the office of district judge of the sixth judicial district. The plaintiff claims by virtue of an executive appointment; the defendant by virtue of an election in November 1874. The sole question presented in the case is this: Did a vacancy exist in the office more than thirty days before the last general election? If such vacancy did exist more than thirty days before such election, then it is conceded by plaintiff that the defendant was rightfully elected and is entitled to retain possession of the office. On the other hand, if such vacancy did not exist more than thirty days before the election, then there could be no lawful election, and the appointment of the plaintiff entitles him to the office. (Sec. 11, art. 3, Constitution.) M. V. Voss was elected judge of said district at the November election 1871, and continued to hold the office until the 12th day of May 1874, and as is claimed by plaintiff until his death on the 21st day of October 1874. The defendant claims that in May 1874 the office became vacant by reason of the removal of the incumbent from the state. There is no doubt that if he did so remove, with a fixed determination to remain away from the state, that such a removal of itself constituted a vacancy. Judge Voss had been in feeble health for two years or more, and a portion of the time was absent from the state, and sometimes was unable to perform the duties of the office when at home. In May 1874 he finally left this state, and on the 21st of October died in California. Thus all the difficulty that arises in the case is, to know with what intent he left the state — whether with a purpose of returning or not. On this point there was much testimony which it is not our purpose to repeat. A very considerable part of it was what was said by Voss about the time, of his departure, and after he was gone; and these statements were so contradictory that the mind would become perplexed by their consideration. To some he said he never would come back. To others he said he would be back in November. Sometimes he said he was done with official action; to others he said he would be back and hold the court in November if his health would permit. These statements, so conflicting, cannot be reconciled. They may readily be explained, and they are by the testimony of his brother, and this is the substance of the explanation: He testifies that his brother when he left never intended to return to reside, but his purpose was to find a climate that would agree with his health, and there remain, but as he was poor, and needed his salary, he would say, and instructed his brother to say, that he would return in the fall and hold the November term of the court, thus holding out the idea that he intended to return, so that no step would be taken to fill the vacancy and deprive him of his salary. With this explanation it is not difficult to weigh and value those expressions of Judge Voss which indicated his purpose to return. They were made with an object other than to show his real intentions. With the morality of this course we have nothing to do. Our object is to. ascertain his intentions so far as we can do so from his own declarations and his acts. It may be asked, why he was not consistent in his declarations that he would return. This may be answered by stating that in most of the instances where he spoke otherwise, save to his relatives, who might be relied on to keep silence, there was some motive to induce a statement of his intentions, or something in his relations to the witness that would naturally lead him to trust him to keep silence. The plaintiff’s explanation of these contradictory statements is, that Voss sometimes felt certain that he would not live to return, and at those times would make the statements that he never would return here, or “never expected to return.” There is some reason in the suggestion, and it is entitled to consideration ; but it does not explain many of the statements, such for instance as those made to the companion of his journey of his purposes in life when he found a climate favorable to his health, and those declarations made to his father and brother. Again, there is no testimony that these declarations, were made while he was in a desponding mood. We must assume that, as a fact, without proof; and were there no other possible explanation, might be compelled to- do so; but cannot in the face of the full and satisfactory explanation offered by the testimony of his brother and of his father. Judge Voss left his district and the state in May 1874, never to return. So far as we can judge from the testimony in this case, it was his intention when he left never to return to the state to reside. The removal, with such an intention, of itself created a vacancy in the office, and such vacancy having existed for more than thirty days before the election, the defendant was rightfully elected to the office, and is entitled to hold it.,
This conclusion renders it unnecessary to discuss another point raised by the defendant, and on which no opinion is expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
This was an action to recover for professional services rendered by C. B. Mason for plaintiff in error, in a certain case, which had passed by assignment to the defendant in error. The answer was a general denial. The issues were tried by a jury, and resulted in a verdict for plaintiff. The reversal of the judgment entered upon this verdict is sought upon two grounds only. The first' is the admission in evidence of the deposition of Wilson Shannon, Esq. It is as follows:
“My age is 70, and my residence is in the city of Lawrence, state of Kansas, and my profession is that of an attorney and counselor-at-law. I was engaged as one of the attorneys in the case of James Wind, et al., vs. the Ottawa University, et al., in the district court in and for the county of Franklin, (case No. 804,) oh the part of the plaintiff. C. B. Mason, A. W. Benson, H. P. Welsh, J. W. Deford, and S. O. Thacher appeared as attorneys for The Ottawa University. I am acquainted with the services rendered by C. B. Mason in said case, and taking into consideration the amount in controversy, and the legal questions involved, and the general importance of the case, and the labor performed, I should consider $1,000 a fair and reasonable fee for the services of the said Mason. And further this deponent saith not.”
The grounds on which this deposition was objected to are thus stated by plaintiff in error:
“It was incompetent and immaterial, because, first, said Shannon does not state that he was acquainted with the value of lawyers’ professional services in Franklin county, at the time the services referred to in said deposition were rendered; second, because, although the witness Shannon states that he is ‘acquainted with the services rendered by C. B. Mason, in said case,’ he does not specify what those services were, it -being controverted by the defendant’s answer that said Mason rendered any services therein; .third, because said Shannon states, that he ‘should consider $1,000 a fair and reasonable fee for the services of the said Mason,’ ‘taking into consideration the amount in controversy, and the legal questions involved, and the general importance of the case, and the labor performed;’ whereas the witness should only have taken into consideration the actual labor and services performed, and should have given his' opinion thereupon as to the reasonable value of such labor ánd services, at the time and place at which they were done and performed.”
We think the objections are not well taken. It will be observed that the objections were to the deposition as a whole. Now whether any services were rendered by Mason, was one of the issues in the case, and in so far as the deposition speaks of rendering the services in the case for which the action was brought, the same was clearly admissible, and is not touchéd by the objections offered thereto, even if they are sound. Where a part of a deposition is clearly competent and admissible, and the objection is made to it as an entirety, is the court bound to separate the objectionable from the unobjectionable part, unaided by the suggestion of counsel as to the part that he desires stricken out ? If so, then a grave duty is imposed upon the court, for upon the presentation of a deposition the party against whom it is to be read has but to object, and the court must read all of it, to strike out but a single paragraph. We need not decide this question here. We hardly think it needs deciding. The deposition was properly read, because the witness testifies directly to facts in knowledge. He was in the case in which Mason’s services were rendered, knew what those services were, and then testifies what they were worth. We do not understand that he testified as an expert. His long practice as an attorney and counselor-at-law may be inferred from his age, and from such long practice of his profession he would be qualified to state the value of services rendered under his own eye, and necessarily subjected to his careful scrutiny from his position as opposing counsel. If there are any doubts about this conclusion they will vanish when it is known that the record is silent as to what other evidence was received, and for anything the record shows there may have been abundant evidence given of the great experience and high standing in his profession of the .venerable witness. It is claimed that the premises on which the witness based his estimate of the value of the services rendered are erroneous — that he had no right to consider “the amount in controversy, and the legal questions involved, and the general importance of the case,” in making his judgment of the value of the services. But we think these were all proper and important elements in determining the value of the services. We know that an attorney is bound to fidelity to his client as much when the amount is one dollar, as when it is a million. His obligation is not changed. But it is in the knowledge of every professional man, that when great interests are confided to his care he is expected to use the utmost diligence in the preparation of the case. He is not expected to, nor does he limit his services by the rule of ordinary care and skill that governs him in an ordinary case. So in Duncan v. Yancy’s Ex’rs, 1 McCord, 149, the court held that the great value of the property in contest, and the doubtful nature of the right to be tried, were proper and important elements in determining the value of the services.
The other error alleged is, the striking out from the deposition of S. O. Thacher, Esq., this paragraph: “ I settled for my services in that case with the Ottawa University, receiving $100 in full satisfaction thereof. This was all I asked, and while I think it was a moderate fee, it was a reasonable one.” He had already stated that he had been engaged in the case with Mason and others from the beginning of the case to its termination, but he does not say that' he knew what services were rendered by Mason, but thinks no steps were taken in -the main cause without consulting him, though some hearings were had at chambers when he was not present. The paragraph was rightly stricken out. The value of Mason’s services were in issue, not those of the witness. The excluded testimony did not show the opinion of the witness as to the value of Mason’s services in the case. We might infer perhaps that what was a fair value for one attorney’s services in a case would be some criterion of the value of another attorney’s in the same case; but that would depend much, on the nature of the services rendered by each. If they were of equal ability and standing, one might be entitled to much the larger fee because of the labor and care in preparing the case, in the search for and procuring evidence, and in manifold ways, well known to the profession. So that what would be a reasonable fee for one would be wholly inadequate for the other. The paragraph stricken out would have likely misled the jury, on this account. It is proper to say, that no part of the evidence is preserved in the record,save the two depositions referred to.
The judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The question in this case arises on the ruling of the district court sustaining demurrers to the third defense in the answer of Cannon and wife, the plaintiffs in error. The petition was an ordinary petition on a note and mortgage, alleging the execution of the note and mortgage to C. &VG. Cooper & Co., and an indorsement to plaintiff before maturity. The third defense in the answer alleged substantially that at the time of the execution of the note defendant N. B. Cannon executed a chattel mortgage on a portable sawmill situate in the same county as the land as additional security therefor, the filing of the mortgage, and that the same was “still held and owned by C. & G. Cooper & Co.” It also alleged that subsequently thereto Cannon sold and delivered said mill to George W. Spencer and Theodore Kreipe, who still have the possession thereof in the same county; that as part consideration therefor said purchasers agreed to pay this note; that thereafter said Spencer and Theodore Kreipe “made an arrangement with plaintiff to purchase the said note and foreclose the said mortgage for the benefit of the said Spencer and Kreipe;” that the plaintiff knew of the purchase of the mill by Spencer and Theodore Kreipe, and of their agreement to pay this note therefor. There was a prayer that said Spencer and Theodore Kreipe might be made parties, and brought into court, and that on decree the saw-mill be first sold to satisfy the note. To this defense plaintiff below, Conrad Kreipe, demurred. Spencer and Theodore Kreipe were made parties, and they also filed a demurrer to this third defense, in Cannon’s answer. Both demurrers were sustained. Was there error in this? The most that can be gathered from this defense is, that it alleges the existence of two securities, or funds, for the payment of this debt, with an equity in favor of the exhaustion of the other before touching the land; secondly, that it alleges a contract, for a valid consideration, by Spencer ’and Theodore Kreipe to pay this debt; and possibly a third matter, that plaintiff was not the real party in interest. So far as this last matter is concerned, if it were fully and distinctly stated, the error in sustaining a demurrer to it would have been immaterial, for the second defense, which was unchallenged by demurrer, contained the same allegation, and it was a matter inquired into on the trial. So far as the allegation of a contract by Spencer and Theodore Kreipe to pay this debt is concerned, though it might disclose a contract for the benefit of plaintiff, and which he could enforce if he desired, yet it cast no .obligation upon him to sue upon or pay any attention to it; nor did it release or affect the security of the mortgage on the land, or the primary liability of Cannon for the debt. There remains therefore only the first of the matters suggested. It is unquestionably true, that equity will ofttimes interfere to direct the order in which two funds or securities for the same indebtedness shall be exhausted; as for instance, where a mortgagor having mortgaged for the same debt several tracts, thereafter sells some of them without any stipulation as to the debt, equity will direct a sale in the inverse order of the alienation. So, where a portion of mortgaged premises is sold, and the purchaser as part of the consideration assumes the payment of the mortgage-debt, equity may direct the sale of the portion purchased before that unsold is offered. Yet in these cases it is necessary that it clearly appear that the rights and interests of third parties will in no manner be trenched upon or prejudiced by such order. But the allegation here is, that this chattel-mortgage was still held and owned by C. & G. Cooper & Co., not that it was held and owned by plaintiff, or by Spencer and Theodore Kreipe, in whose interest and for whose benefit plaintiff was charged to be acting. Now while the indorsement of a note carries with it ordinarily all the sureties therefor, yet this is not necessarily so, and may be changed by stipulation: Noyes v. White, 9 Kas., 640. Thus, Cooper & Co. may have held other indebtedness for which both the real estate and the chattel-mortgage were securities, and on the sale of the note to plaintiff may have given him the real-estate mortgage as security therefor and kept the chattel-mortgage to secure the unsold indebtedness. Or, if they held but the one note, they may have by express agreement withheld the chattel-mortgage from plaintiff. Whatever may have been the reason, the allegation is clear that Cooper .& Co. still held and owned it, and equally clear that plaintiff had purchased for himself or Spencer and Theodore Kreipe the note and mortgage sued upon. And it does not appear that the order asked would not trench upon the rights of Cooper & Co., but on the contrary it does appear that whatever rights and interests they had, and by the allegations they had some, would be materially affected thereby, in fact might be entirely destroyed. Hence it was not error to refuse to order the sale' of the saw-mill first, and the demurrer was properly sustained.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by defendant in error to foreclose a mortgage. An answer was filed two days after time. It set up certain payments on the note. Thirteen days after the filing of the answer, the plaintiff, having first obtained the written consent of the defendants’ attorney thereto, filed a reply. During the then pending term judgment was taken by the plaintiff as by default, and without any motion or other effort to' rid the files of the answer and reply, or either of them. A motion was duly made to set aside this judgment and reinstate the case for trial upon the pleadings, but the motion was overruled. It is insisted by counsel for defendant in error that the record is incorrect, and fails to state the truth. This may be unfortunate for him; but we must take the record as it is, and upon that dispose of the case. And upon that record we think the court erred in treating the case as in default. While the answer (filéd as it was out of time,) was improperly filed, and should upon motion have been stricken therefrom, yet when the plaintiff elects to file a reply thereto, and particularly when he applies to and obtains from the defendant’s counsel written consent therefor, he waives the irregularity in the filing, and consents that the case may be tried upon the issues raised by the pleadings, including the answer. Luke v. Johnnycake, 9 Kas., 518; Osgood v. Haverty, McCahon’s Rep., 182. The error was material, for it prevented a trial of the allegation of partial payments.
The judgment must be reversed, and the case remanded for another trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action on a note and mortgage. The petition alleged that the Ottawa University executed a note and mortgage to one Washington Libby; that the latter duly assigned the same to plaintiff; that the note was unpaid, and that the other defendants John T. and Jane K. Jones claimed some interest in the mortgaged premises, and prayed a decree of foreclosure and sale. The University answered, pleading usury in the note, which upon its face drew twenty per cent, interest, and admitting the answers of its co-defendants. The other defendants filed separate answers, admitting the execution of the note and mortgage, and the assignment thereof to plaintiff, but alleging subsequent conveyances to themselves from the University of the mortgaged premises, and pleading usury; and further, that without the knowledge or consent of either of the defendants, and without any rightful authority, the plaintiff had subsequently to his purchase of the note and mortgage entered into possession of the mortgaged premises, and received the rents and profits thereof, which they asked might be applied in payment of the principal of the note. To these answers the plaintiff filed a general denial. Upon these pleadings the trial was had. The defendants called the plaintiff, who admitted taking possession of the property, upon which were two houses, one of which he occupied himself and the other rented. He testified to making some repairs, and some permanent improvements. He also testified upon cross-examination to a conversation with Mr. Atkinson, the managing officer, of the University, prior to taking possession, and in relation thereto, as follows:
“Went to see Mr. Atkinson about buying tbe property. He had before that time offered it to me for sale. Mr. Atkinson said if I bought the property he would see that I got possession. Told him that I wanted possession immediately. Atkinson said he could give possession at any time. Told him that Zimmerman was in possession under a lease, until next spring; and that he would have to be paid something to go out. Atkinson said that Z. had not got it for any certain time, but went and hunted up the lease, and found that Zimmerman did have a lease for it until spring. Atkinsbn then said, ‘I think I can make an arrangement; if you buy the property, you shall have possession-anyway.’ This was all that was said about possession, and was before I purchased the note from Washington Libby. I last saw the lease of Zimmerman in Mr. Atkinson’s office at the University building. ‘Zimmerman went out of the property, and I immediately went into possession. This was two weeks after the conversation with Atkinson.”
No other testimony was given as to the manner of acquiring possession. He had prior thereto been asked if he had had any conversation with Atkinson about the purchase of the property, but an objection had been sustained to this question. Upon the whole testimony the note calling for twenty per cent, interest was held usurious, and only the principal collectible. Cook as mortgagee in possession was charged with the rents and profits, and allowed for the repairs, but not for the permanent improvements'placed upon the premises for his own convenience.
After the case had once been closed, Cook moved for leave to open the case to enable him to introduce two tax deeds under which he claimed title, but the motion was overruled. He also moved for leave to open the case to offer some title papers to part of the premises, but this motion was also overruled. No application was at any time made for leave to amend the pleadings, though the intimation is given by counsel in his brief that if the judgment be reversed the case would not be tried again upon the same pleadings. We have given the case careful attention, and are constrained to say that we find nothing to justify a reversal of the judgment. So far as the applications to open the case are concerned, such matters are largely within the discretion of the trial tribunal, and an abuse of that discretion should appear before a reversal will be ordered. In this case the trial was had before a referee. The petition was filed in January 1870. On December 13th 1870 the case was referred, and the report of the referee filed August 2d 1872. The trial commenced November 1st 1871, and the applications for leave to open the case were made May 7th and July 13th 1872. Where a case has been protracted, as this was, for such a length of time, there should be very urgent reasons presented to justify the opening of the case for additional testimony. No showing was made when the tax deeds were sought to be introduced; and the only reason offered on the other application was, that plaintiff supposed his title papers were already in evidence, and that the counsel employed in the commencement of the action had not been present at any of the hearings before the referee. We should hardly think the ruling of the referee was other than correct upon this application, if the testimony had been competent and of vital importance. The absence of counsel, when a party is represented by one so able and competent as the learned gentleman who did conduct the trial, is rarely sufficient to justify the opening of a case after the evidence is in, and the findings announced. But this testimony was clearly incompetent under the pleadings. The plaintiff sued as mortgagee; he made no claim of title, but sought by a decree of foreclosure. and sale to divest the defendants of the title he conceded to be in them or some of them. Under such pleadings he could not show title in .himself, whether derived from tax deeds or otherwise. On both grounds therefore the rulings would have to be sustained. For the reason last above given there was no error in ruling out the question asked as to conversations about the purchase of the property. No question is made as to the ruling upon the matter of usury. None could be. Nor can there be any question as to the ruling, charging the mortgagee in possession with the rents and profits, allowing him for repairs, and disallowing for all permanent improvements placed upon the premises merely for his own convenience. Woodward v. Phillips, 14 Gray, 132; Muckles v. Dillage, 17 N. Y., 80; McCarron v. Cassidy, 18 Ark., 34; 1 Hilliard on Mortgage, 460, § 22; 2 Dan. Ch., 1239.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The question in- this case was raised on demurrer, and the substantial facts are these: One James R. Herd had in his lifetime a claim against the defendant for services' performed in the location of a land-certificate. After his death, the claim not having been paid, the administrator de bonis non of his estate, by order of the probate court, sold and assigned it to this plaintiff. In reference to this sale and assignment two propositions are asserted by counsel: First, that the probate court had no power to order, and the administrator none to make, such a sale or assignment; and second, that if the power existed it was not so exercised as to accomplish a valid transfer. In reference to the first proposition, we think the court had the power to order the sale of such a claim. At common law the full legal title to the personal estate of a decedent was vested in his administrator, and such administrator could dispose of it, passing a good title as freely and fully as the decedent himself could in his lifetime. His indorsement transferred the title to negotiable paper: Reddick v. Moon, 65 N. Car., 382; Thomas v. Reister, 3 Ind., 369; Hamrick v. Craven, 39 Ind., 241. In Dayton on Surrogates, at page 259, it is said: “But generally speaking an executor or administrator in his own lifetime may dispose of and alien the assets of the testator. He has absolute power over them for that purpose, and they cannot be followed by the creditors of the deceased.” See also same volume, pages 307 and 310; Williams on Exec’rs, 562; Anderson, Adm’r, v. Gregg, 44 Miss., 170; Booyer v. Hodes, 45 Miss., 78; Harth v. Haddle stone, 2 Bay, 321. The provisions of our statutes, and similar ones in other states, prescribing the manner and conditions of sale are to be regarded rather as restrictions upon this otherwise absolute power than as original grants of power. The administrator, who, independent of such provisions- could sell when he pleased, and upon such terms as suited him, responsible to the creditors and heirs only for reasonable fidelity in his trust, must now proceed in accordance with the regulations of the statute. Whatever an ministrator can do without an order, the court has power to order him to do. He has power, and it is his duty, to seh at public sale the personal property; and ^g £erm? “personal property,” which, according to its ordinary significance, as well as its statutory definition, (Gen. Stat., p. 999, clause 9th,) includes such a claim as the one in question, is expressly'' in the section requiring him to sell, made to .include such a claim. “The whole of the personal property belonging to the estate which is liable to the payment of debts and is assets in his hands to be administered,” is the language used; (Executors Act, § 69.) It is true, bonds, notes, bills and accounts are not ordinarily sold, and in most cases ought not to be. They are regarded as personal property, in a sort of intermediate condition between goods and chattels, and money, the standard of value; as it were, the former in process of reduction to the latter. Hence, the interests of the estate are generally promoted by the collection rather than the sale of such property. But nevertheless they are personal property, and as , . . , __ - „ , such subject to sale. JNor does §63, cited by counsel, remove this power of sale. The purpose of that section is to enable the administrator to obtain proper credit for doubtful claims without subjecting the estate to expense. It permits the court to authorize the administrator to compromise certain doubtful claims, or file them in court for the benefit of such heirs, devisees or creditors as will sue for them, and declares that such order of the court shall be a sufficient voucher. Granting authority to com promise, does not take away the power to. sell. In regard to the second question we do not think it is fairly before us. We think the allegations of the petition are sufficient as against a demurrer. It alleges that the administrator was duly authorized to sell, by an order of the probate court; that in pursuance thereof he sold, and with the approval of such court executed and delivered a written assignment of'such claim. The order of the court and the assignment are attached to the pleading. The first, after showing that a petition therefor had been filed, orders the administrator to sell “at private sale for cash in hand, and for the highest and best sum in his opinion obtainable for the same.” The second is simply an assignment of the claim, declaring that it was made in pursuance of the order of the probate court. The order does not direct the administrator to sell for not less than three-fourths the appraised value, and the assignment does not show for what sum the sale was made, nor that it was for not less than three-fourths of such value. But we think it is unnecessary that this should appear either in the order or the assignment. The statute reads, “The probate court may order the executor or administrator to dispose of said personal property at private sale, at not less than three-fourths of its appraised value.” (Gen. Stat., p. 446, § 71.) The statute fixes the lowest limit at which personal property may be sold at private sale, viz., three-fourths the appraised value. It authorizes the court to fix a higher limit. In ordering a private sale it may require four-fifths, or even the entire appraised value, or more. If the order is silent, the law fixes the limit; for this section must be understood, not as specifying the language of the order, and leaving all discretion as to the amount above the statutory limit to the administrator, but rather as limiting the power of the court, and presbribing the amount below which the court may not order a sale. Here the order is silent. In the absence of any showing to the contrary we must presume that both court and administrator kept within the requirements of the law, and that the sale was made for not less than three-fourths the appraised value. If it should hereafter appear that no appraisement was made, or that the sale was for less than three-fourths of the appraised value, it will be time enough then to consider the effect of such omission.
The judgment of the district court will be reversed, and the case remanded with instructions to overrule the demurrer.
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The opinion of the court was delivered by
West, J.:
The state on relation of the attorney-general and the court of industrial relations brings this action in mandamus to compel the defendant to cease collecting a 50-cent service charge for each gas meter used by its customers. The claim is that this charge is made in addition to the legal rate of 80 cents a thousand cubic feet and that no permit to make such charge has been applied for, or granted by the public utilities commission. The defendant insists that the 80-cent rate was enjoined by the Federal court and that, hence, it has a right to put in and collect its own charge until some other rate has been established.
The plaintiff says in its brief:
“It appears from the allegations and pleadings herein that the issue involved relates entirely to a question of fact, namely; Was the Citizens Light, Heat & Power Company a party to the proceedings in which the Federal court entered its decree on December 24, 1920?” (This date should he January 17, 1921.)
The plaintiff contends that the defendant was not a party to the supplemental proceedings in which such decree was entered. The defendant insists that it was a party to these proceedings. An answer to this question necessarily disposes of the case.
By stipulation the cause is submitted on the petition and answer. From the latter it appears that on December 10,1915, the public utilities commission made an order fixing a 28-cent rate. This was in the case against the receiver of the Kansas Natural Gas Company and this defendant with numerous others. Afterwards John M. Landon, receiver for the Kansas Natural Gas Company, on its behalf and. on behalf of all the other companies, brought an action in the United States District Court for the district of Kansas for the purpose of enjoining this 28-cent rate, and the court on June 3, 1916, issued an interlocutory decree enjoining the defendants therein, including this defendant, from putting such rate into effect. (London v. Public Utilities Commission, 234 Fed. 152.) The decree expressly enjoined the public utilities commission, the attorney-general and all the other parties to that suit. . This was case No. 136-N. On July 5,1917, on final hearing, the Fed eral court issued its decree in No. 136-N permanently enjoining all the parties, including this defendant. (Landon v. Public Utilities Commission, 242 Fed. 658.) This decree also perpetually enjoined the public utilities commission and “all other parties to this suit, ... or other parties hereto seeking 'the same relief as plaintiff.” This decree expressly reserved jurisdiction “over the parties to the suit and over the other issues involved therein until further order is made in reference thereto.” (p. 690.)
On August 13, 1917, the court entered a further decree enjoining the commission and their successors and all other parties to the proceedings “from interfering with the plaintiff or any of said distributing companies (which included the defendant herein) in establishing and maintaining such rates” as that court might thereafter approve. (Landon v. Public Utilities Commission of Kansas, 245 Fed. 950.) This decree contained this language:
“And the defendant distributing companies are permanently enjoined from enforcing the said supply contracts or rates fixed or referred to therein against plaintiff; and from interfering with plaintiff in establishing and maintaining such rates as this court has approved or may hereafter approve for consumers of natural gas in Kansas and Missouri.”
On March 17, 1919, the Federal supreme court in its opinion in Public Utilities Comm. v. Landon, 249 U. S. 236, sustained the jurisdiction of the commission over the rates charged to consumers, but denied the right of the receiver to maintain the suit below and for reasons therein expressed ordered the bills below dismissed. On April 28, 1919, on petition for rehearing and intervening applications of distributing companies, the court modified this decree and ordered the case retried on the intervening bills of the distributing companies and remanded the case to the district court “with directions to hear it anew and determine all the issues involved, including those arising on the several bills, cross bills, and answers in the nature of cross bills, . . .” On April 20 and 21, 1920, the' cause came on for retrial and the court upon consideration of the amended and supplemental pleadings filed, and “all of the evidence that had been introduced on the entire gas proceeding, including that before the enlarged court, and the record before the Commission, and full case on confiscation for the Citizens Light, Heat & Power Company; . . .” on August 7,1920, delivered its opinion (Landon v. Court of Industrial Relations, 269 Fed. 411) finding that “the rates authorized under the 60-cent rate order of this court, and adopted under injunctive compulsion of this court by the distributing companies in Kansas and Missouri, as well as the rates which the 60-cent rate order superseded . . . , and the rates authorized under the 80-cent rate order of this court, superseding the 60-cent schedule, were all of them noncompensatory, both to the receiver and to the several distributing companies, both in Kansas and Missouri; no one of said rates affording a fair return upon the property used and useful in furnishing and distributing said gas” (pp. 421, 422), and reserved jurisdiction for the purpose of entering final decree in favor of all parties to the suit, including the defendant herein.
It further appears that before the entry of the final decree in the case the court of industrial relations entered an order on August 18, 1920, that “the rates now in effect are approved and found to be reasonable, just and fair and the application of the distributing companies 'for permission to alter, change or increase said rates is hereby denied.” On December 24, 1920, the court entered its decree permanently enjoining the defendant herein and other distributing companies from maintaining the rates ordered by the court of industrial relations. The decree- expressly covered certain named defendants and “all other parties to this suit, and all of the agents, attorneys, servants and employees of each and all of them, are permanently enjoined and prohibited from putting into force or maintaining in effect, or attempting to put in force and maintain in effect by legal proceedings or otherwise, against L. G. Treleaven, as Receiver of the Consumers Light, Heat & Power Company, The Wyandotte County Gas Company, or other parties hereto, seeking the same relief as plaintiffs,” the rates complained of. The court retained jurisdiction of the cause—
“And of the parties hereto for the further administration of the estate of the Kansas Natural Gas Company and for the further purpose of a decision of and decree upon the issues raised by the supplemental pleadings of the several distributing companies filed against the Court of Industrial Relations of Kansas challenging its order dated August 18, 1920, and for the purpose of making such further orders as may be necessary for enforcing this decree and to protect the rights of the parties hereto.”
On December 24, 1920, after considering the evidence heard on the entire case, the Federal court filed an opinion on such supplemental hearing in which it said:
“When closely analyzed, • the controversies involved are found to be simply a new phase of one of the controversies involved from the first suit 136-N — a new phase arising subsequent to the commencement of that suit, but during the pendency thereof. In view of the foregoing facts, I am of opinion that the jurisdiction of this court has been properly invoked in the above-entitled suit. . . . My conclusion on the present applications is that that portion of the order of August 18, 1920, of the Court of Industrial Relations which denies the application of the distributing companies to increase the present rate, and fixes the present 80-eent rate as reasonable, just, and fair is unreasonable and confiscatory, and the enforcement of the same should be enjoined.” (Landon v. Court of Industrial Relations, 269 Fed. 433, 436, 446.)
On January 17, 1921, the court filed its decree running in favor of all the distributing companies, including the defendant herein to the effect that the order of August 18, 1920, was unreasonable and confiscatory. This decree is in No. 136-N expressly naming The Citizens Light, Heat & Power Company as one of the defendants’ This .decree is that the order of the court of industrial relations of August 18, 1920, which fixed the 80-cent rate as a maximum rate “to be charged by the distributing companies to consumers and denies the applications of said distributing companies for permission to change, amend, alter or increase their rates for gas supplied to consumers, is, as respects those provisions, unreasonable, and is also confiscatory of the properties of said distributing companies used and useful in the service of the public. And said order, as respects those provisions, and those only, is set aside, and said court of industrial relations, its members, officers, and their successors in office and all other parties to this suit, be, and the same are permanently enjoined from enforcing said order as respects said provisions.”
The foregoing quotations conclusively show that the Citizens Light, Heat & Power Company was a party to the proceedings in which the Federal court entered its decree on January 17, 1921.
The question by stipulation submitted for our consideration, therefore, requires an answer in favor of the defendant. ■
It should be observed that mandamus is not ordinarily a proper remedy to compel a corporation to cease doing some - given thing. Injunction (of which we have no original jurisdiction) would be the natural kind of action although quo warranto might under certain conditions be invoked.
The writ is denied. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for an accounting between plaintiff and defendants in an alleged partnership of a newspaper and printing plant at Quinter.
The plaintiff’s petition alleged that on June 30, 1910, the plaintiff, Livingston, and the defendants, Lewis and Knaus, entered into a partnership agreement by the terms of which they were jointly to purchase a newspaper, the Gove County Advocate, and operate the newspaper plant as partners; that on that date they purchased the newspaper and plant by a bill of sale from the owner, William Field. The consideration was $3,841.97 and a copy of the bill of sale was attached to plaintiff’s petition. Plaintiff alleged that he contributed $2,380.40 to the enterprise and that defendant Knaus contributed about $1,000; that the defendant Lewis was to manage and conduct the newspaper plant for himself and his partners; that there had never been an accounting between the partners; and that Lewis had uniformly applied to his own use the moneys received in operating the property.
Defendant Knaus filed a separate answer setting up various matters, and he, too, prayed for an accounting.
Defendant Lewis answered with a general denial; he also pleaded sundry matters, and alleged that he had been the holder of a second mortgage on the newspaper property given by William Field and that he had forclosed that mortgage and had bought the property at the sale under the second mortgage foreclosure.
Neither of the answers was verified. But the plaintiff did not demur to the unverified answer of defendant Lewis. He filed a reply thereto, reiterating charges of the conversion of the partnership property by Lewis to cheat and defraud the plaintiff, and repeated the prayer of his petition.
When the case came on for trial, the court ruled that “the issues pertaining to the matter of partnership should first be determined.”
Plaintiff objected “for the reason that there was no issue touching the partnership, such issue being admitted on the face of the pleadings.”
The trial court then proceeded to hear the evidence. At its conclusion an informal finding was made:
“By the Court: This is rather a peculiar case. These three men got some money invested in a printing office, and from the record, I think none of them wanted it. They combined. I would hardly call it a partnership. They associated to keep the plant alive until it could be sold. I don’t feel that there was a partnership that could bind the others for a dollar. They associated themselves, it is true, in trying to protect the debt, yet I don’t figure that there was a partnership.”'
Judgment was accordingly entered—
“That no partnership exists or ever has existed and for the defendants and against the plaintiff. Wherefore it is by the court considered, ordered and adjudged that the defendants recover their costs.”
The plaintiff appeals, insisting on the application and enforcement of the code provision:
“In all actions, allegations ... of the existence of a . . . partnership . , . shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney.” (Civ. Code, § 110.)
The particular point would have been perfectly good if the plaintiff had stood upon it. (Reed v. Arnold, 10 Kan. 102; Walker v. Fleming, 37 Kan. 171, 177, 14 Pac. 470; Hayes v. Insurance Co., 98 Kan. 584, 158 Pac. 1107; Hill v. Republic County, 99 Kan. 49, 160 Pac. 987; 31 Cyc. 529.) But plaintiff did not stand on this point. He filed his reply, and presented his evidence in support of his allegations touching the existence of the partnership. His objection at the trial “that there was no issue touching the partnership, such- issue being admitted on the face of the pleadings,” was not very illuminating to a trial judge who perhaps had no time to guess for himself just what was the trouble with Lewis’s answer.
In Emery v. Bennett, 97 Kan. 490,155 Pac. 1075, it was said:
“The principal error assigned is in the admission of evidence, because the defendant’s answer was not verified as required by the new code. (Civ. Code, §110; Rose v. Boyer, 92 Kan. 892, 141 Pac. 1006; Read v. Dodsworth, 95 Kan. 117, 147 Pac. 799.) This assignment would be good, but appellant filed a reply which joined issue on the pleaded defense. Evidence pro and con was received concerning it, and the appellant asked, and to some extent obtained, instructions covering the defense pleaded. Counsel for the appellant never did point out to the trial court frankly and specifically the defect in defendant’s answer, which was the want of verification. . . . We do not think that counsel are warranted in permitting even ‘an unfriendly court’ to commit error by overruling an objection which they fail to make sufficiently precise for the trial judge to understand and rule on intelligently. Can there be any doubt, if the objection had been timely and clearly made, that the court and opposing counsel would have seen it, and that leave would have been asked and granted to permit the answer to be verified?” (pp. 491, 492. See, also, Blair v. McQuary, 100 Kan. 203, 206, 162 Pac. 1173, 164 Pac. 262.)
However, the question of the existence of a partnership was not the only nor the most important matter involved in this lawsuit. What the plaintiff wanted was not the mere gratification of a judicial assent to his abstract contention that he and the defendants were partners in a business enterprise. He wanted an accounting and settlement of the business. If it was not an ordinary partnership, it was some sort of a joint adventure which entitled the plaintiff to an accounting. According to the trial court’s findings, which we accept as correct, these litigants invested some money in a printing office. They combined. They associated to keep the plant alive until it could be sold. They associated themselves for certain purposes. These findings of the court were deduced from the evidence touching the business relationship of the litigants. That business relationship, not arising to the dignity of a true partnership, impliedly did consist of a joint adventure. (Saunders v. McDonough, et al., 191 Ala. 119, syl. ¶ 3.)
In Goss v. Lanin, 170 Iowa, 57, 61, it was said:
“Although courts in modern times do not treat a joint venture as identical with a partnership, it is so similar in its nature and in the contractual relationships created by such adventure that the rights as between themselves are governed practically by the same rules that govern partnerships. As some of the courts hold, while a partnership is ordinarily formed for the transaction of general business of a particular kind, a joint adventure, as a rule, relates to the single transaction, although it may comprehend a business to be continued for a period of years.”
(Lumber Co. v. Marshall, ante, p. 172, 197 Pac. 861.)
Plaintiff put a considerable sum of money into the adventure. He and defendants also paid off a first mortgage on the property. Presumably the property has produced some income. Doubtless, too, there are expenses properly chargeable to the business. There must have been some agreement, some understanding, express or implied, between these coadventurers touching their business relationship, how the adventure should be conducted, how terminated, how settlement should be made, etc. These and like pertinent matters must be considered in an accounting. The fact, if true, that one of the defendants held a second mortgage on the property and that he foreclosed that mortgage will not preclude his coadventurers from their right to an accounting. They were joint owners, substantially tenants in common, of the property; they were also subrogated to the rights of the holder of the first chattel mortgage, and probably their rights under the first mortgage which they paid take precedence of the rights of their coadventurer who also claimed under a second mortgage. We are discussing these matters, on the assumption that the pleadings and evidence touching these matters are true, only to illustrate the necessity and justice of an accounting — but with no purpose to foreclose further inquiry into all the facts. So far as this record discloses, an accounting should be had between the litigants.
See discussion of the general subject of joint adventures in 15 R. C. L. 500, and 23 Cyc. 453.
It therefore appears that the judgment for defendants must be set aside, and the cause remanded for further proceedings.
Reversed and remanded. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of murder in the first degree, and appeals.
On the evening of March 18, 1919, as C. P. Jehu was preparing to close his grocery store in Kansas City, Kan., George Becker rushed in at the front door, flourishing a revolver, and said, “Stick them up, boys; no fooling; we mean business.” Several persons were in the store, and Becker’s command was obeyed by all except Jehu. Jehu had just taken money from the cash register and put it in a sack, which he placed in his sweater pocket. Becker went toward him, and as he retreated to the rear of the store, Becker shot him twice. While Becker was moving toward Jehu, the defendant entered the store, flourishing a revolver. He covered the persons who had their hands up, searched a man standing by the stove near the center of the store, and then went to the place where Jehu was lying. Meanwhile, Becker returned to the cash register. There was evidence the defendant struck Jehu, who was still alive, on the head with a revolver, and took the sack of money from Jehu’s pocket. Becker asked the defendant if he had the money, and .the defendant said yes. The two then backed out of the store, went up the street, and entered a waiting automobile. The defense was that, when the killing occurred, the defendant was at work at 614 Independence avenue, Kansas City, Mo., where he was regularly employed. There was evidence no marks were found on Jehu’s head, and there were some slight discrepancies in the evidence relating to some of the details of the event. There was, however, ample evidence to identify the defendant as Becker’s companion, and the state’s evidence left no room for any doubt about the material facts of the robbery and homicide.
The information charged a malicious, willful, deliberate, premeditated killing by Becker and the defendant, without stating the murder was done in perpetration of robbery, and it is said proof of killing in perpetration of robbery did not correspond to the allegations of the information.
The sections of the statute relating to the crime of murder follow:
“Every murder which shall be committed by means of poison or by lying in wait, or by any kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of an attempt to perpetrate any arson, rape, robbery, burglary, or other felony, shall be deemed murder in the first degree.
“Every murder which shall be committed purposely and maliciously, but without deliberation and premeditation, shall be deemed jnurder in the second degree.
“Persons convicted of murder in the first degree shall be punished by confinement and hard labor in the penitentiary of the state of Kansas for life. Those convicted of murder in the second degree shall be punished by confinement and hard labor for not less than ten years.’' (Gen. Stat. 1915, §§ 3367, 3368, 3369.)
On numerous occasions this court has adverted to the fact that the statute does not define murder, and that the basis of the legislation is murder at common law. For purpose of punishment murder is divided into two degrees, depending on presence or absence of deliberation and premeditation. Every murder committed by any kind of willful, deliberate and premeditated killing, is murder in the first degree. Use of poison, lying in wait, and killing in perpetrating or attempting to perpetrate arson, rape, robbery, burglary, or other felony, are statutory equivalents for the deliberation and premeditation essential to murder in the first degree. All other murders are murders in the second degree..
The code of criminal procedure requires an information to be definite and certain respecting the crime charged, and requires a statement of the facts constituting the offense. There is no substantial dispute in the authorities that, under a crimes act of the character described, these requirements are satisfied by pleading murder in the first degree in the common form. Deliberation and premeditation are ultimate facts. When alleged they denote murder in the first degree, and they may be established by proof of murder committed in perpetrating a felony, without pleading the particulars. Cases are collated in 10 Encyc. PL & Pr. 150, note 5; 2 Supp. Encyc. Pl. & Pr. 636; 21 Cyc. 870, notes 82 and 84; 63 L. R. A. 393, note. Later cases discussing the principle are: State v. Barrington, 198 Mo. 23; People v. Friedman, 205 N. Y. 161; People v. Patini, 208 N. Y. 176; Holmes v. State, 6 Okla. Crim. 541; Turner et al. v. State, 8 Okla. Crim. 11; State v. Farnam, 82 Ore. 211.
In the case of The State v. Keleher, 74 Kan. 631, 87 Pac. 738, it was said:
“Proof that a homicide was committed in the perpetration of a felony is held tantamount to the premeditation and deliberation which otherwise would he necessary to constitute murder in the first degree.” .(p. 635.)
The defendant says the information did not charge a conspiracy between the defendant and any one else to rob or kill Jehu, and without such a pleading the defendant could not be convicted of murder on evidence showing Becker did the killing. It was not necessary to plead conspiracy in terms. (The State v. Mullins, 95 Kan. 280, syl. ¶ 2, 147 Pac. 828; 16 C. J. 647, § 1284.) All participants in a crime are equally guilty, without regard to the extent of their participation. It was sufficient to charge directly those concerned with the crime, and if, in execution of a common purpose to rob, one of them did the killing, the other would be guilty of murder.
The defendant was a witness in his own behalf. He came to Kansas City, Mo., from Denver, Colo., on the last day of December, 1918, and worked at 614 Independence avenue until he was arrested in April, 1919. The place was a cigar store, with tables for card playing, and the defendant had charge of cigar, sandwich, and candy cases, He said he was twenty years old at the time of the trial, and his name was Mack Roselli, but he had always gone under the name of Mack Ross. He came to Kansas City with Carl West. West was arrested in February, 1919, for beating to insensibility and then robbing a man named Peterfreund, in Kansas City, Kan., and was lodged in jail in that city. The defendant visited him while he was in jail. George Casey was implicated in the Peterfreund robbery, and the defendant was with Casey when the latter was arrested. Casey’s sister and Casey’s “girl” told the defendant he had better get away, and Luke Maturi advised him to leave, but he did not go. The defendant was arrested in Missouri, and was identified in the show-up room in the Kansas City, Mo., police station. The defendant testified that a police officer, who was present at the time, said of him, “This is Mike Roselli, known as Cokey Mike, all over, to the police, and he is wanted in Kansas.” The defendant had a friend, Ross Bonuri, who was implicated in the Peterfreund robbery. The two were in the Missouri police station together, and were brought to Kansas at the same time. When first brought to Kansas the defendant was held in the Kansas City police station. While there an officer inquired if he knew Becker. The defendant denied acquaintance with Becker, and the officér then said, “Don’t you know him, he killed a man in St. Louis and one here in Kansas City.”
On cross-examination the defendant was asked if he.did not, while in Denver, sell cocaine, procured by acting as a fence, and if he did not acquire the cognomen of Cokey Mike from that fact: He was asked if he had not been convicted of robbery in Colorado and confined in a reformatory there, if he had not been paroled, and if he did not break his parole. T,o all these questions negative answers were returned. The defendant’s alibi rested on his own and other testimony that he worked every day from 5:30 p. m. until midnight at 614 Independence avenue. He met Casey, Bonuri, and others implicated in the Peterfreund robbery and other crimes, at that place. Searching inquiry was made respecting his association ;with these criminals, and questions were asked indicating that the place was their rendezvous. The defendant did not admit knowledge of the Peterfreund robbery, on the night it occurred. He did admit that those who committed the crime set out from 614 Independence avenue, and afterwards all came in together, “one night.” ' He denied knowledge of the fact that Becker had killed and robbed a druggist and was in the penitentiary. He said Mabel Trimble was “a girl” of his. He was asked if she were not the wife of another man, and he said he did not know. He was then asked if he did not solicit her to go on the street as a streetwalker and obtain money for him. The record does not disclose an answer to the question.
Objection was made to the greater part of the cross-examination which has beeh outlined. The defendant introduced the subject of names by which he was known, and cross-examination in respect to that matter was proper. The other subjects were all proper subjects of cross-examination. The defendant’s own criminal record, if he had one, and his relation to a gang of criminals of the beating, killing, robbing type, who frequented his place of business, were open to inquiry. If the imputations respecting the Trimble woman, were true— and the questions regarding the matter were evidently propounded in good faith — the defendant was too despicable to be worthy of belief. The purpose of the cross-examination was to discredit the defendant’s testimony by discrediting him. To that end he might be required to give answers which would degrade and disgrace him, although not pertaining to the robbery and homicide for which he was on trial, and although pertaining to the commission of other crimes. This rule of criminal evidence was carefully considered in the case of The State v. Pfefferle, 36 Kan. 90,12 Pac. 406, and has been applied in a long line of subsequent cases, extending to that of The State v. Bowers, 108 Kan. 161, 194 Pac. 650. The defendant relies on such cases as The State v. Boyland, 24 Kan. 186; The State v. Kirby, 62 Kan. 436, 63 Pac. 752; and The State v. Wheeler, 89 Kan. 160, 130 Pac. 656. In the Boyland case, the prosecuting witness testified to shameful words and deeds of the ■ defendants, said and done several days after the alleged offense. In the Kirby, case, the defendant’s wife was cross-examined in reference to other and distinct offenses committed by the defendant, not by the witness. In the Wheeler case, the state as a part of its case in chief produced evidence tending to prove offenses by persons with whom it was not shown the defendant had associated or conspired. Cases such as these have no application whatever to cross-examination of a defendant who offers himself as a witness.
In the course of the defendant’s cross-examination some questions were propounded which were not warranted by the rule just discussed. They were not of sufficient importance to be harmful. The county attorney, however, transgressed the limits of propriety in offering, and the court committed error in receiving, evidence on the part of the state in rebuttal, relating to the reputation of the place referred to as 614 Independence avenue. The purpose was to smirch the character of the defendant with the bad character of the place where he worked. The state was bound by the defendant’s answers, given on cross-examination, unléss and until he placed his character in issue. He did not place his character in issue, and the state had no right to make a general attack on it. The judgment would be reversed because of this error, if it were not for the fact the evidence did not aid the state’s case. The place was frequented chiefly by Italians. “The boys” played cards there. Although the reputation of the place was not very good, it was not any worse than many others in the city, and the place had never been raided. Some of the perpetrators of the Peterfreund robbery were arrested there. This being the substance of the evidence, it cannot be said the error resulted in substantial prejudice to the defendant’s rights.
Complaint is made that the court refused an instruction to the jury on the subject of conspiracy. The jury was properly instructed according to the theory of the information which has been approved.
In the instruction given relating to the defendant’s responsibility for killing done by Becker, the court said in effect that if, in execution of a common intent and purpose of the defendant and Becker to rob Jehu, Becker killed Jehu, the defendant would be guilty of murder in the first degree if, when tested by human experience, a natural and probable result of the robbery would be the taking of human life. Complaint is made because the court used the expression “when tested by human experience.” It is said the jury were not told to use knowledge and experience they possessed in common with mankind, but were invited to resort to the abstract thing, “human experience.” The complaint is hypercritical. The meaning of the instruction was the same as though the expression had been omitted. If the expression had been omitted, the instruction would have been in the common form, when probable outcome of a felonious enterprise is to be considered. Robbery is a crime of violence used or threatened. It is a matter of common knowledge, derived from human experience, that a display of personal violence to accomplish robbery normally tends to the taking of life, and under the evidence in this case the jury could make no mistake about it.
Complaint is made that the court refused to instruct the jury with reference to murder in the second degree. There'was no evidence on which to base such an instruction. The defendant was either present and participated in the robbery, or he was at 614 Independence avenue in Kansas City, Mo. If in Missouri, he was entitled to a verdict of acquittal. If in Jehu’s store, he was engaged in perpetrating the robbery in which the murder was committed, and that deliberation and premeditation which must be utterly absent in second-degree murder was incontestably present. It is true that generally a charge of murder in the first degree in the common form will include a charge of murder in the second degree, and the court must instruct the jury on all matters of law necessary for its information in returning a verdict; but the court is not required to instruct with reference to a lesser degree unless there be evidence warranting a reasonable inference of guilt in that degree. In this instance there was no opportunity for even capricious acceptance and rejection of evidence by the jury in such a way as to leave a residuum on which to predicate murder in the second degree. Every person in Jehu’s store who survived the robbery gave an account of it which made the defendant guilty of murder in the first degree, and the court was not authorized to license the jury to indulge in speculation leading to a conclusion not justified by the evidence..
An argument is made relating to proof of guilt of a principal in the first degree, before a principal in the second degree may be convicted, based on the following statutes:
“Every person who shall be a principal in the second degree in the commission of any felony, or who shall be an accessory to any murder or other felony before the fact, shall upon conviction be adjudged guilty of the offense in the same degree and be punished in the same manner as herein prescribed with respect to the principal in the first degree.
“Any person who counsels, aids of abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal.” (Gen. Stat. 1915, §§ 3332, 8029.)
The purpose of these statutes was to get rid of the subtle common-law distinctions between principals in the first and second degrees and accessories, and to permit trial and punishment of participants in a crime independently of each other. (The State v. Bogue, 52 Kan. 79, 34 Pac. 410.) It was not necessary that Becker be tried and convicted before the defendant could be placed on trial, and in the defendant’s trial order of proof was not important.
It is argued that because the defendant was charged jointly with Becker, he was entitled to be tried jointly with Becker, unless he chose to demand a separate trial. The statute gives the court control over the subject, unless a separate trial be demanded, in which event the defendant requiring it shall be granted a separate trial. (Gen. Stat. 1915, § 8139.) An article of clothing worn by Jehu when he was shot was properly introduced in evidence. Instructions relating to malice and to deliberation and premeditation did not confuse the two subjects. A misstatement in argument by the county attorney of the penitentiary of which West was an inmate was not a serious matter. The county attorney’s characterization of 614 Independence avenue and of its habitués had a basis in the evidence, and the jury was able to distinguish between fact and argumentative extravagance. The defendant and Becker used an automobile in departing from the scene of their crime, and the county attorney’s comments on use of high-powered motor cars by assassins rushing out from 614 Independence avenue, bad a relation to the case, though somewhat “high-powered.”
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This action was to dissolve a partnership, and for an accounting between the partners, and it also involved the question of a liability of the partnership in certain business transactions with one of their number.
In 1915 the plaintiff, J. P. Farney, and the four defendants, Hauser, Ricks, Rathgeber and McBrayer, formed a, partnership for the purpose of conducting a grain elevator business at Kiowa. The capital invested by the partners was $5,300, of which the plaintiff contributed $1,500. Hauser was chosen as president and general manager and Ricks as secretary and treasurer, and the partnership business was placed in their charge. They purchased an elevator, and hired a manager, one Hagenmaster, to conduct it.
Under an agreement with Hagenmaster, the plaintiff placed some ten thousand bushels of wheat in the elevator to be stored, cleaned and loaded on railway cars, at 2% cents per bushel. This wheat was to be loaded on cars "when plaintiff chose to have that done, and in May, 1916, some 1,378 bushels of plaintiff’s wheat was thus loaded out of the elevator. In February, 1917, plaintiff directed Hagenmaster to load the balance of the wheat, but this was not done, for the reason, as it was afterwards developed, that Hagenmaster had in some way made away with most of plaintiff’s wheat; and on March 4, 1917, the elevator burned. Plaintiff took charge of the more or less damaged wheat found in the ruins of the elevator and sold it. Plaintiff then started an investigation as to the disposition of the remainder of his wheat, but this was interrupted by another fire which burned the elevator office and books of the partnership. Hagenmaster, the manager, was arrested for the crime of burning the eleVator but he died before trial. The partnership collected some insurance on the elevator and sold some other assets for cash. It also held a policy of insurance for $2,000 on the contents of the elevator, whether “their own or held by them in trust or on commission, or sold but not delivered if assured is legally liable, all while contained in above described buildings.” The partnership officers did not include in their claim and proofs of loss to the insurance company any item for the loss of plaintiff’s wheat, and settled with the insurance company for $969, and at the same time,gave a bond indemnifying the insurance company against any liability for the loss of plaintiff’s wheat.
The assets of the company were apportioned and distributed among the partners other than the plaintiff.
The plaintiff’s petition narrated the pertinent facts, and defendants joined issues. The cause was tried before an advisory jury which answered many special questions which, with a minor exception, were adopted by the trial court. The trial court made an accounting which by computation showed that the partnership was indebted to plaintiff in the sum of $11,436.59; that the net assets of the firm were $4,524.82; that each of the parties, plaintiff and defendants, must stand his respective proportionate share of the net losses and liabilities; and that the plaintiff should have judgment against his defendant parties for their respective shares of the amount due him as an individual patron or customer of the partnership. The court also held the partnership liable to plaintiff for the sum which should have been collected from the insurance company for the burning of plaintiff’s wheat. While the computations are somewhat complex the defendants do not complain of the mathematics involved in the judgment.
Defendants assign error on the ruling of the trial court that plaintiff was entitled to judgment against his partners on account of the wheat misappropriated by the partnership’s manager, Hagenmaster, less the proportionate share thereof which he himself must bear as a partner in the business. They contend that Hagenmaster was the agent of all the partners and that there should be no contribution between them for his tort. Such a view fails to take note of plaintiff’s additional relationship to the partnership, that of customer as well as partner. For the torts of Hagenmaster, as for all the losses of the firm, the plaintiff, like all the other partners, must bear his proportionate share; but as a customer of the partnership he is entitled to his due just as any outsider patronizing the firm would be. Hagenmaster made away with $11,436.59 worth of plaintiff’s wheat which had been placed in the elevator under a valid contract. The partnership therefore owes plaintiff that sum. But being a partner to the extent of $1,500, and the total capital of the firm being $5,300, plaintiff, as partner, must bear his proportionate share of the liability, 15/53’s of $11,436.59. The other partners must likewise bear- their share of this liability according to their respective interests in the partnership. Of course, the mode by which a partner m'ay enforce his claim as creditor is not by an ordinary lawsuit,- but by an accounting and dissolution.
There w’as nothing illegal, or at variance with the theory of a partnership, for plaintiff to deal with it as an ordinary customer. It would be absurd to hold that in this commercial age, when partnerships are: so common, that a man could not buy from, sell to, trade with, or patronize a business partnership as any other person might do, and with the same rights and liabilities, merely because he had a partner’s interest in the firm business. If the partnership gets into financial difficulties with third parties, a partner who is a creditor of the firm may have his claim postponed until third parties are satisfied. But for nearly all practipal purposes a partnership may be considered as a business equity. (20 R. C. L. 804.) It has its own capital, its own assets and liabilities, its own business activities, and it has a commercial life and credit of its own, virtually if not technically independent of the members comprising it.
In 30 Cyc. 455, it is said:
“It is quite common for partners to buy property from the firm, or to rent or sell property to the firm, to lend it money or to borrow from it, and in many other ways, to deal with it as though it were an artificial person. While such transactions are not considered as creating strictly legal obligations, between the partner on the'one side and the firm on the other, courts of equity have always enforced such obligations and, under thé reformed procedure both in England and in this country, they are enforceable in appropriate actions.”
But even if the tortious act of Hagenmaster, the agent, be considered as a tort of the partnership, yet the partners would be tort-feasors in law only. None of the partners was willfully culpable; none of them was guilty of actual delinquency or moral turpitude; and in such cases proportional contribution between them for the loss or damage occasioned by the tort of their unfaithful servant is perfectly allowable. Nor is there any reason in law or logic why the rule should be otherwise. The reason why ordinary tort-feasors are refused judicial aid to enforce contribution between them is because the state does not establish and maintain courts to adjudicate between rogues or rascals who have willfully placed themselves beyond the pale of the law, nor to conduct inquiries as to their relative guilt.
In Bailey v. Bussing, 28 Conn. 455, several partners operated a stage line. One of their number was in charge of the stage coach and through his negligence a passenger was injured. He sued the partnership, and one of their number paid the judgment. The latter then sued another partner for contribution. The defendant claimed that, as partners, they were both wrongdoers and therefore that between them there could be no contribution. It whs held that the partner who paid was entitled to contribution. The chief value of the case lies in the discussion, from which we quote:
“The defendant insists that that judgment was rendered in an action of tort, and that in that class of cases there is to he no contribution among wrong doers; the maxim of law being, as he claims, that among tort feasors there is no contribution. To meet this objection, the plaintiffs offered evidence, and we think with entire propriety, to prove that, while the maxim might be true as a general rule, the case on trial belonged to a class of cases to which it had no application, for that here there was no personal wrong, not even negligence in a culpable sense, on the part of Turner, and that he had been found guilty only by implication, or legal inference from a supposed relation to Bussing, the actual wrong doer, through whose neglect the other two defendants had been subjected by the jury. ...
“What then is this case? And what is the true doctrine of the law as to contribution, or, as it may be, full indemnity, where there has been no illegal act or conduct on the part of him who seeks for a contribution? ...
“The reason assigned in the books for denying contribution among trespassers, is, that no right of action can be based on a violation of law, that is, where the act is known to be such or is apparently of that character. A guilty trespasser it is said cannot be allowed to appeal to the law for an indemnity, for he has placed himself without its pale by contemning it, and must ask in vain for its interposition in his belief. . . If we do not find these circumstances, but perceive only a liability in the eye of the law, growing out of a mere relation to the perpetrator of the wrong, the maxim of law that there is no contribution among wrongdoers is not to be applied. Indeed we think this maxim too much broken in upon at this day to be called with propriety a rule of law, so many are the exceptions to it, as in the cases of master and servant, principal and agent, partners, joint operators, carriers and the like. ... In Wooley v. Batte, before Justice Parke, 2 Car. & P., 417, one stage proprietor had been sued alone in ease for an injury to a passenger through the neglect of the coachman, and, having paid the damages, he brought assumpsit for a contribution, and recovered on the ground that in him.there was no personal fault. ... In Story on Partnership, § 220, the learned commentator says, speaking of the maxim that there is no contribution among wrongdoers, ‘but the rule is to be understood according to its true, sense and meaning, which is where the tort is a known, meditated wrong, and not where the party is acting under the supposition of the innocence and propriety of the act, and the tort is one by construction or inference of law. In the latter case, although not in the former, there may be and properly is a contribution allowed by law for such payments and expenses between the constructive wrongdoers, whether partners or not.’ The cases are all brought together in Chitty on Contracts, 502.” (pp. 457, 458, 459, 460.)
In Horbach’s Administrators v. Elder, 18 Pa. St. 33, five partners operated a stage line between Chambersburg and Pittsburgh. A careless employee overturned the stage coach and three passengers were injured. Damage suits were filed against the partners but only two of them, Horbach and McCall, were served with process. Judgment being entered for plaintiffs, the two partners served with process satisfied the judgments. One of these, Horbach, died, and his administrator brought suit against another of the partners, Elder, for contribution. One defense was that no contribution could be enforced as between tort-feasors. This contention was overruled, and it was held that Elder should stand his proportionate share of the liability incurred by the tort of the servant of the partnership, and judgment was accordingly entered for plaintiff.
In Lindley on Partnership, 8th ed., 440, it is said:
“There is a saying that there is no contribution amongst wrong-doers; but this doctrine is certainly inapplicable to partners in the general form in which it is enunciated. It is-true that if a partnership is itself illegal, no member of it can, in respect of any transaction tainted with the illegality which infects the firm, obtain relief against any other member; but there is no authority for saying that if one of the mem-bers of a firm sustains a loss owing to some illegal act not attributable to him, but nevertheless imputable to the firm, such loss must be borne entirely by him, and that he is not entitled to contribution in respect thereof from the other partners.”
(See, also, 6 R. C. L. 1054, 1056.)
From the foregoing it will be seen that whether plaintiff’s claim against the partnership be viewed as a breach of contract, or as a claim arising from a tort attributable to the partnership because perpetrated by the servant of the partnership (the partners being legally though not culpably liable therefor) contribution was proper and the error assigned thereon cannot be sustained.
' Again it is urged that even if plaintiff was entitled to contribution, his claim was unliquidated, and therefore it could not be adjudicated in an accounting between the partners, nor otherwise in equity. Cases from jurisdictions where distinctions in procedure in common-law actions and in suits in equity are still maintained are cited to support this contention. We doubt not that such-is the law in those jurisdictions, but it is not so in Kansas. Here all distinctions between actions at law and suits in equity are abolished; and, whenever practicable, all matters legal or equitable, whether liquidated or merely capable of ascertainment, may and should be tried and adjudicated in one action. (Civ. Code, §§ 10, 90.) In Kremer v. Kremer, 76 Kan. 134, 137, 90 Pac. 998, it was said:
“Under the common-law procedure it must be conceded that the final adjudication of an action resulted in one judgment, which was an entirety, and on appeal it stood or fell as a whole. Under the code system provision is made for joining parties and for uniting causes of action which the common-law procedure would not have permitted; also, for the rendition of judgments for and against the plaintiff in one action, and for some of the plaintiffs joined and against others; also, for and against defendants joined. In short, one adjudication may embrace several judgments-. (Code, §§ 36, 37, 41-43, 83, 396, and others.)”
It is next contended that the evidence did not support the finding of the jury touching the amount of plaintiff’s wheat misappropriated by Hagenmaster. It was proved that plaintiff placed 10,591 bushels of wheat in the elevator; that 1,378 bushels of this amount was loaded out on a railway car, that the partnership only had 530 bushels of its own in the elevator at the time it burned; that 2,642 bushels of damaged wheat was taken from the ruins, and that, according to competent opinion evidence, not more than from three to twenty per cent of wheat stored in an elevator is commonly consumed when an elevator burns. The jury were liberal; they determined that twenty-five per cent of plaintiff’s wheat was consumed in the elevator, and upon these bases, and upon all the relevant circumstances they concluded that Hagenmaster must have misappropriated 5,461 bushels. This evidence and the calculations made therefrom fully justified the finding.
There was an issue of fact touching the condition of the wheat. Defendants said the wheat was infested with weevils, and that an elevator fire will consume a much greater portion of weevily wheat than it will of sound wheat. There was evidence on both sides of the question as to the presence of weevils in the plaintiff’s wheat. The jury settled that matter:
“Question 17. To what extent, if any, did you find that the plaintiff’s wheat, at the time of the fire, had been damaged by weevil? Answer: No damage.”
But it is said that this finding was greatly against the weight of the evidence, and that as this is an equity case we should decide this question of fact for ourselves. Unless the evidence is documentary (Mathewson v. Campbell, 91 Kan. 625 627, 138 Pac. 637), or by deposition (Record v. Ellis, 97 Kan. 754, 760, 156 Pac. 712), that is not done and cannot be done by this court, whether the case be one at law or in equity. (Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057.)
Defendants’ final contention' is that they should not be charged with their failure to collect insurance on plaintiff’s wheat. They do not appear to question the general rule that where a warehouseman takes out a policy of insurance to protect his own interest in property and that held in trust by him, or concerning which he may have a liability, it is his duty to claim and collect such insurance not only for a fire loss on his own property but also for the loss sustained by the owner of the property intrusted or bailed to him. Such, of course, is the general rule (Home Ins. Co. v. Balt. Warehouse Co., 93 U. S. 527, 23 L. Ed. 868, and Rose’s notes thereto at page 442 et seq.) And it is also settled that the failure of the warehouseman to collect such insurance renders him personally liable' therefor to his customer or bailee. (Southern Cold Storage, etc., Co. v. A. F. Dechman & Co., [Tex. Civ. App. 1903] 73 S. W. 545; Johnston v. Charles Abresch Co., 123 Wis. 130. See, also, 27 R. C. L. 955-958.) But defendants resist the al lowance made by the trial court for their failure to collect the insurance for plaintiff-, not by taking issue with the rule just stated, but merely on the same general ground urged by them against the imposition of any liability for the loss of any part of plaintiff’s grain — that the partnership was not liable to plaintiff; but that matter is already disposed of in this opinion and needs no further discussion.
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The opinion of the court was delivered by
Dawson, J.:
This wasi an action between certain members of a family of two brothers and seven sisters and their spouses to determine what interest, if any, some of them had in fifty acres of land which they inherited from a deceased brother who died intestate. .
This brother, John J. McCullough, single, died in July, 1903, seized of fifty acres of Morris county land, a half interest in an incumbered residence in Herington, and a half interest in a run-down telephone plant at Herington. He also had an insurance policy-for $1,000 which was of questionable validity but which eventually was collected. His debts amounted to $1,400.
Shortly after John’s funeral, his two brothers, Robert and William (W. A.), and theiif three married sisters and four single sisters, all of age, held a meeting in Herington in which they'agreed that William and the four unmarried sisters should take over all of the dead brother’s property and pay his debts and carry on the télephone plant, and that William should serve as administrator. To that end an instrument in writing was executed by Robert and the three married sisters conveying to William and the four unmarried sisters all the interest of the grantors in John’s property. The grant was absolute and unconditional unless a qualification thereof was contained in the concluding lines of the instrument, to wit:
“It is further agreed that all the property and interest hereby sold and .assigned is to be used in paying the debts and carrying on the telephone plant. We also recommend W. A. McCullough for administrator of the estate of John J. McCullough.”
Pursuant to this arrangement, W. A. McCullough and his four sisters, the grantees, entered into possession of fifty acres of land in dispute in 1903, and have exclusively occupied it as part of a farm belonging to them. On. it they have erected a house and barn and other improvements to the value of $7,000. William, as administrator, settled John’s estate under supervision of the probate court and was duly discharged. All of John’s debts were paid. William and his four unmarried sisters conducted the telephone plant for more than a year without other compensation than what they might hope for by increasing its value through improving its physical condition, improving its service, and raising the telephone rates. In these efforts they succeeded, and áfterwards they sold and disposed of the telephone plant at a profit which they divided among themselves.
In 1910, one of the unmarried sisters died, testate, bequeathing all her property to William and the surviving unmarried sisters; and in 1919, some sixteen years after the family compact of 1903, William and these three sisters brought suit against the grantors of the instrument of 1903 to quiet their title to the fifty acres in dispute. Issues were joined, and the trial court made a finding—
“That the defendants have some interest in said property, and denies the prayer of the plaintiffs to quiet their title to said land.
“It is therefore ordered and adjudged that said cause be and the same is hereby dismissed, at the cost of the plaintiffs.”
Later a new action was begun by William and his three unmarried sisters who were the grantees of the instrument of 1903 against Robert and his wife, and against the three married sisters and their husbands, setting up their title to the property, narrating the death of John, the family compact of 1903 and setting up the instrument executed pursuant thereto, the death of the sister in 1910 and plaintiffs’ succession to her estate, and praying for a determination of their exclusive ownership and for partition between plaintiffs, and for the quieting of their title against Robert and the married sisters and their spouses.
Issues were joined, and on the evidence presented the trial court gave judgment for plaintiffs.
Defendants appeal, urging that the instrument of 1903 created an express trust or that the facts warranted the finding of an implied trust, and that the defendants who are the spouses of the grantors of the instrument of 1903 and who' never signed that instrument cannot be barred of their in terest in the property. They also rely to some extent upon the finding in their favor in the original suit which was dismissed.
Touching the finding in the original action, it should be noted that it was a finding of fact upon which no final judgment was entered. The action was' dismissed. The finding was no more than an expression of the trial court’s opinion at the time — an opinion which in the -present case, upon a later, more extended and formal hearing, was abandoned by the trial court. There being no judgment on the original finding of fact, and, indeed the finding was too indefinite upon which to found a judgment, the matter was not res judicata when the present action was begun. (Auld v. Smith, 23 Kan. 65; Smith v. Auld, 31 Kan. 262, 1 Pac. 626; Mitchell v. Insley, 33 Kan. 654, 7 Pac. 201.)
Doubtless in the first case the defendants might have pressed their advantage and had their interest ascertained and a judgment entered in their‘behalf while the court was disposed to uphold their view of the facts. But they not only acquiesced in the dismissal of the original action, but in the present action their pleadings show that they still considered the facts to be in issue and did not plead the former finding of the court nor any former adjudication. Manifestly they evinced a design to have the cause heard and determined without regard to the earlier inconclusive proceedings.
Passing to the contention that the instrument of 1903 created a trust either express or implied, the court is not impressed with the argument that the concluding lines of the instrument, quoted above, show an intention on the part of the grantors to create a trust. The instrument is a conveyance, complete and unqualified in its terms, of all the interest of the defendants in the real and personal estate of their dead brother. The instrument recites the receipt of “a valuable consideration” for the property conveyed to- the plaintiff grantees. But if it were considered that this instrument does import a trust that the property was to be used to pay the debts and conduct the telephone plant, the trust was faithfully executed, and the consideration for its faithful execution by the grantees (or trustees) was the absoluté conveyance of the grantor’s interest in the estate. The debts were paid and the telephone property was conducted until it could be and was rehabilitated and sold. It cannot be inferred that the grantees were never to part with the telephone property. The terms of the instrument were not that the property was given in trust until the trust (if there was a trust) could be accomplished, but the grant was of “all our right, title and interest of every kind and nature ... to have and to hold forever,” etc. It was not an express trust, nor did the compact and instrument import a return of any part of the property to the grantors.
A determination of the question whether the instrument and the pertinent facts warranted a finding of an implied trust requires an examination of the evidence. There.was no pleading nor proof of fraud or mutual mistake in the execution of the instrument. One of the defendants (Mrs. McNicol) did testify that she did not understand that by the written instrument she had deeded her interest absolutely to the grantees, and Robert testified that he received no consideration therefor, yet the evidence 'for the plaintiffs clearly showed that the meeting of the family was held on the initiative of Robert, and that the family compact was largely undertaken at his suggestion. Robert said that he would not take hold of the telephone plant and did not want to be responsible for - the dead brother’s debts. At that time, in 1903, not only was the telephone plant in bad condition and unprofitable, but this 50 acres of land now in dispute was not worth much money— $15 to $30 per aere. The estate of John was regularly settled under the supervision of the probate court, and the sale of the telephone plant was duly accounted for as part of that estate. The testimony of William narrated that between the grantors and grantees it was agreed that if the latter would assume the debts of John’s estate the grantors would deed all their interest to the grantees.
“Q. Then I understand you and Margaret McCullough, Nannie and Amanda agreed to pay the debts of the estate as a consideration of this conveyance? A. We did.
“Q. For what consideration? A. That we were to pay the debts.
“Q. Did you pay them? A. We did.
“At the time of my brother’s death the condition of the telephone plant was very poor, construction was not sufficient for a plant of that size and. we had- to get cable and new telephone lines; had to practically rebuild it. I did that after the deed was made to us and raised the rates 25 per cent. At the time my. brother died we talked about the solvency of the estate, and the indebtedness was quite enormous and it looked like a bad proposition to pay it out under the conditions. My brother said he didn’t think it would pay out under the conditions at that time, and that he would not take hold of it and become responsible for the debts. The grantees in the deed formed a company and worked together to take care of the debts of the estate, which arrangement has continued until this time, and the defendants (appellants) have never asserted any rights or claimed any interest in the property before this suit was filed.”
This evidence precludes any. fair, inference of an implied trust. It was a fair and square bargain for.better or worse; if the grantees could make John’s. estate pay out with a profit to themselves, well and good; but if they could not, they should settle the debts of the estate and free the grantors of ail responsibility therefor.
Coming now to the interest of the spouses of the grantors: Their interest is that inchoate right of a -spouse in the real property which a husband or wife has owned and conveyed at some time during the existence of the marriage relation, and where the spouse has not joined in a conveyance of the property, and where the property has not been required for .the payment of debts. The spouses of the grantors did not join in the instrument of conveyance of this 50 acres of land. The grantees have been in open, exclusive, adverse possession of the 50 acres for over fifteen years. Since there was no trust either express or implied, that fact would bar the grantors— even if there was no conveyance .of any sort from anybody. The grantees have used the. property as their own, have paid the taxes, and have made lasting and valuable improvements of the property, all with knowledge of or notice to the defendant grantors. Those facts would go far to estop the grantors and their spouses from asserting any claim to the property even if the fifteen years’ statute of limitations had not fully run. Do these facts and circumstances create any bar or estoppel against the spouses of the grantors? It has been held that when a wife who held title to real property conveyed it without her husband joining in the deed, the inchoate right of the husband who was apprised of the facts and knew that the grantee was claiming to hold adversely and exclusively, was effectually barred in fifteen years. {Jen kins v. Dewey, 49 Kan. 49, 30 Pac. 114.) The same question is discussed at length in Poole v. French, 83 Kan. 281, 111 Pac. 488, and it was held (Syl. ¶[¶ 2, 6, 8) that the statute of limitations began to run against a spouse who had not joined in her husband’s conveyance of realty other than the homestead as soon as the husband made the conveyance and the grantee took possession of the property. Perhaps something like notice to such spouse should be added to that to make a complete statement of the correct rule. Here the grantees took possession in 1903 and took up the burden of paying John’s debts; they recorded their instrument of conveyance; they paid the taxes; they made valuable improvements on the property; they occupied adversely and exclusively for nearly seventeen years before either the grantors or their spouses, all of whom apparently had knowledge of the facts, or notice putting them on the duty of inquiry, asserted any claim to the property; and under such circumstances the trial court properly held that the spouses of the grantors were barred, and such conclusion was justified under the principles of estoppel (McCullough v. Finley, 69 Kan. 705, 77 Pac. 696) as well as under the statute of limitations.
Defendants argue that the instrument of 1903 was not a deed, but we hold otherwise. It was in text and in effect a deed, and under the evidence it was so intended. Moreover, the long adverse possession and other facts narrated above rendered the nature of the instrument immaterial, and, indeed, rendered the existence of the instrument itself immaterial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The Chicago, Rock Island & Pacific Railway Company appeals from a judgment in favor of plaintiff for damages for the death of her son, Keith Helm, which it is claimed resulted from the gross and wanton negligence of the employees of the railway company.
Keith Helm, twenty-two years old, was traveling with the Busse Carnival Company and conducted what is known as a “doll-rack” concession. The accident resulting in his death occurred at Cuba, a small station about ten miles east of Belle-ville. The regular train consisted of a combination mail and baggage car attached to the engine, an ordinary baggage car, a smoking car, a chair car and a Pullman sleeping car. The regular equipment constituted a solid vestibule train; the smoker, chair car and sleeper were vestibuled, but the mail and baggage cars were “blind”; that is, there was neither step nor platform at the ends of these cars. Attached to the regular train at the rear of the Pullman were two cars owned by the carnival company which carried the eighteen people comprising the personnel of the company. These cars are referred to as the “show cars,” one being a diner and the other a sleeper.' Neither was vestibuled.
The train left Belleville about 10:40 p. m. on September 1, and arrived at Cuba about 11 o’clock, where it stopped for a moment or two, long enough to take on three passengers and baggage and mail. The train started and had gained a speed of about fifteen miles an hour when the station agent discovered a man clinging to the handrails of a closed vestibule with his feet on the lower step. The man was seen to jump or fall to the platform, lose his balance and roll with his feet under the wheels of the train. Mr. Hoover, the station agent, was the only eyewitness to the accident and was called by the plaintiff as a witness. The substance of his testimony is that there were five lights in the station building which shone out on the platform; the engine stopped seventy-five feet east of the station ; the show cars were west of the depot about 130 feet; there was nothing unusual in connection with the movement of the train, in its approach, its stop or its departure; the smoker stopped next the station, and ahead of the smoker were the baggage and mail cars; after the witness had placed the mail on the train he came back in a westerly direction toward the station and saw the lantern of the conductor and the porter at their usual places; as the train was leaving and had gained a speed of about fifteen miles, the witness saw a man clinging to one of the cars with his feet upon the step, holding to the handrails.
“Q. Was he holding on the handrails? A. Yes, sir.
“Q. Was his feet on the steps? A. Yes, sir.”
The witness testified that he tried to catch the man to keep him from going under the train as he stepped off, and that the man was whirling.
“Q. How long did he whirl on his feet or try to get his footing before . he went under the train? A. He whirled for a distance of about 8 or 10 feet; . . . with the train going east.
“Q. And you tried to catch him? A. He was falling as he went by me.
“Q. And then he went under the wheels? A. Yes, sir.”
He was asked as to what car ran over the young man and answered, “I rather think it was the Pullman.” He was asked to describe to the jury how the man was clinging to the side of the car when he first saw him, and his actions until after the train had passed over him. He answered:
“As the train was leaving the station I saw some young fellow standing on the steps and holding to the hand rods on the steps of the car door in the vestibule and the door was closed, I saw that he was going by the depot in the light and as the train gained speed and as he came nearer to me, he dropped or stepped off and lost his balance and fell—
“Q. Go ahead. • A. He stepped off backwards and lost his balance and fell, and whirled and fell down and rolled under the wheels.
“Q. About what car and at which of the vestibules was this young toan hanging? A. I believe to the vestibule door on the front end of the Pullman, I am not positive.
“Q. As a matter of fact was it not the rear of the day coach next to the Pullman? A. It was between the two cars, I am not real positive just which one of the two it was.
“Q. But it was one of the two, was it? A. It was one of the two.
“Q. This young man then was not at the back end of the Pullman was he Mr. Hoover? A. No, sir.
“Q. Did you see anybody in the vestibule as the train passed by, that Is, the vestibule of the car to which this young man was clinging? A. No, sir.
“Q. Did you see anybody around there? A. No, sir.
“Q. Did you see or hear any door as the young man approached from a distance of 30 or 40 feet back? A. No, sir.
“Q. Was the door closed when you first saw him? A. Yes, sir.'
“Q. Was there any door opening closed at the moment the young man stepped off of the car? A. No, sir.”
He was asked the following question:
“Q. Did you make any outcry as the train was passing along? A. Yes, sir.
“Q. What did you say? A. I said, ‘My God man, look out.’ ”
The train was making the usual roaring noise as it went by the station. Young Helm was taken to a hospital at Belleville where his wounds were dressed. He died within five hours after the accident. He made statements shortly before his death which were admitted in evidence under the theory that they were dying declarations in conformity with the rule declared in Thurston v. Fritz, 91 Kan. 468, 138 Pac. 625, and Vassar v. Swift & Co., 106 Kan. 836, 189 Pac. 943. Three physicians who were present testified that the young man stated several times, “I am done for.” The recollection of the physicians as to his statements varied in some particulars. Doctor Dittemore testified in substance that when Doctor Welch asked the young man how it happened, he said that he went forward, to get either some water or some food for one of the party who was sick and “when he went to get back on the train, the door was shut in his face.”
“Q. Did he say what became of him when the door was shut in his face? A. I don’t recollect.”
Doctor Mumford testified in substance that when asked by Doctor Welch how the accident happened the young man said he went through the train to get some fruit for a sick boy and “they would not allow him to go back through the Pullman and he got off and when he went to get on, why they closed the door on him.”
Doctor Welch testified:
“After.he had stated, I am done for, I asked him, where do you reside? He said his people lived at Omaha and I took down the proper number of his mother’s address and where a telegram or letter would reach her. Then the next question I asked him, I says, how did you come to get hurt, and he said that he went to get on the train at the vestibule and the porter slammed the door in his face and he fell off. I said, how did you come to be there, how did you come to be up in front there; and the next statement was that he went up there to get some fruit or some water for some showman on the train that was sick. Then I asked him why didn’t you go through the train, and he said that they would not let him go back through the sleeper, I believe, or something like that; then I said, why wouldn’t they let you do that, and he said the door was closed or locked or something, and then I said, how did you come to be off, or why did you get off the train, or something like that, and I don’t remember now just what I said, but he said he got off and the train started and he intended catching it back quite a ways but he was afraid the train would be moving too fast and he grabbed hold the first place he could to try to get on.”
Dorothy McBride testified that she and Clara Foley, members of the carnival company, and Keith Helm were riding together on the front platform of the show car next to the rear vestibule of the Pullman. Ás the train approached Cuba, Helm said he was going after some fruit for a man that was sick, and he went on ahead through the train. She saw him enter the Pullman and she never saw him after that. She heard a door slam after the train had started; it was on the side of the car next to the station. The noise caused by the closing of the door was loud; it was heard above the roar of the train. When witness heard the door close the train employee opened the door again; when the door opened the second time witness heard groans and cries; they were loud, as if someone were in pain, and seemed to come from under the wheels. Witness was standing on the bottom step and was facing the show car and had turned and was looking up in the direction of the railway employee. She looked down as she heard the sounds and saw a white object under the wheels. She was then passing by the station. After she heard the sounds she went into the coach and learned that some of the other people had heard the cries and were talking about them. Witness thought some accident had occurred. After closing the door the second time the man in uniform talked to all of them generally and stated that most likely Helm had been left at Cuba; he had been missed at the time by the people in the carnival car, and they were looking through the train for him. After hearing the groans and after seeing the white object under the wheels the witness told the man in the uniform that she had séen something under the wheels. In answer to the question, “What did he do then or say?” the witness testified: “Well, he looked as if he knew something that he didn’t want us to know, or something of that sort.” The latter testimony was admitted over the objection of the defendant. The same witness testified on cross-examination that she had often heard vestibules opened and closed, and that there was nothing unusual or different from any other closing of a vestibule door, and that the train was running pretty fast and was picking up speed as it was leaving the station where the noise and groans were heard under the car.
Clara Foley testified that the vestibule door was closed as “we were starting to pull out of Cuba”; just after passing a man who was standing on the platform the door was opened again and closed; she did not see anybody at that time hanging or clinging to the side of the Pullman door.
The defendant’s evidence showed that in the vestibule cars in question the top of the steps was covered by the vestibule, but there is a place at the bottom where one can stand and hold to the handrails at the side, and that all vestibule cars are alike in this respect.
The allegation of negligence in the petition is that while Keith Helm was rightfully a passenger on the train, he was with force ejected therefrom by the employees of the defendant while the train was in motion; that either while being wrongfully ejected from the train or while trying to get back on the train immediately after such ejection, “this plaintiff is now unable to state exactly,” one of the servants of defendant “willfully and with the intent to injure the said Keith E. Helm, and without any reason therefor shut the door of the passenger coach in his face and forcibly threw him from the steps of the said train” when he “was trying to enter the coach, and he was thereby precipitated underneath the train,” and that his ejection from the train “was done by the said agents . . . wantonly and in utter disregard of his rights and knowing that there was great danger” of his being seriously injured or killed by being thus ej ected from the train while it was in motion.
To avoid the negligence of Helm in attempting to board the train while it was in motion, plaintiff alleged and attempted to establish gross negligence or wantonness on the part of the trainmen. It was the duty of the employees to close the doors of the vestibule as the train started, and the mere fact that the door was slammed shut in the face of Helm would not, of itself, show negligence, nor would the fact that it was closed with a loud noise indicate negligence. Vestibule doors are usually closed with a slam and with noise. The testimony of the plaintiff’s witnesses show that there was nothing unusual in the manner in which the vestibules were closed on this occasion. Ordinarily the train employees would have no reason to expect that after the train had started a passenger would attempt to board the train. Plaintiff was obliged to produce proof which would justify the jury in finding that the employee who closed the vestibule door knew that someone was trying to enter the train at that place. It is not clear just where the deceased left the train. It is known that he was up in the smoker at the head of the train, where he purchased some fruit. The trainmen testified that none of the doors were locked during the stop at Cuba, and that no employee interfered with or prevented Helm or any other passenger from going through- the Pullman or through the train. Assuming, however, that some door was locked which prevented Helm from going back through the train, that would not justify his getting off the train and risking his life in the manner in which he did. There is no- evidence, however, to show that the person who closed the door saw or knew that Helm was attempting to get on the train: The accident occurred in the nighttime, and the only eyewitness testified that when the train had attained a speed of about fifteen miles an hour he saw Helm standing on the steps of the vestibule holding to the handrails, and that he was in this position for a distance of thirty or forty feet west of where the witness stood, and that the vestibule door was closed during all the time that the witness saw him. In our opinion, no facts shown in the evidence justified a finding that the employee who closed the vestibule door knew that anyone was trying to enter the train at that place.
Wanton or gross negligence could be imputed to the defendant only by conjecture, or by piling inference upon inference and presumption upon presumption. In the case of Hart v. Railroad Co., 80 Kan. 699, 102 Pac. 1101, it was said that it was necessary for the plaintiffs to establish prima facie that the defendant was guilty of negligence which caused the death of their son. The only act of negligence charged in that case was that the door of a vestibule was open. In the opinion it was said:
“But the testimony is absolutely silent as to when, where or how that door was opened. It has been urged that hut two agencies can be supposed to he responsible for this — the negligent conduct of the defendant’s employees, and the-deceased himself.” (p. 701.)
The plaintiffs in that case attempted to rely first upon the presumption that the deceased was not negligent, because he did not want to commit suicide, and then, upon this presumption, to base another to the effect that it must have been the negligence of the defendant’s employees. In the opinion it was said:
“This, of course, is mere conjecture, and only serves to show the extent to which speculation may run, where there are no facts by which it is guided or limited.” (p. 701.)
In Rodgers v. Railway Co., 97 Kan. 318, 154 Pac. 1027, a passenger in some unknown manner-met with an accident, resulting in his death; his body was found near a water tank with' his legs severed below the knees. Judgment was rendered for the defendant, which on appeal was affirmed. After reviewing earlier cases, it was said in the opinion: .
“We may give full force to the presumption of care on the part of Rodgers, but this presumption furnishes no basis for inferring negligence on the part of the defendant. Until proof to the contrary is introduced, the defendant is entitled to the presumption that it was exercising care and performing its duty toward the deceased. (Looney v. Metropolitan Railroad Co., 200 U. S. 480, 26 Sup. Ct. Rep. 303, 50 L. Ed. 564.) Inference of negligence may be based on circumstances, but the circumstances must be drawn from premises that are reasonably certain and point clearly to the negligence asserted. In this respect the testimony of the plaintiff fails. As was said in Railroad Co. v. Aderhold, 58 Kan. 293, 49 Pac. 83: ‘The accident may be accounted for in several ways, and other and more plausible theories of the collision may be suggested; but liability cannot be fixed on a bare guess, nor can a verdict rest on mere conjecture. (p. 298.) ’ ” (p. 324.)
To the same general effect see O’Keefe v. Street Railway Co., 93 Kan. 262, 144 Pac. 214; Willis v. Skinner, 94 Kan. 621, 624, 147 Pac. 60.
We cannot agree with counsel for plaintiff that one of the important controversies in this case is whether some employees of defendant refused to permit Helm to return through the train. If that were established as a fact it would not warrant the presumption of even ordinary negligence on the part of the flagman or the porter in closing the vestibules when the train started. Plaintiff would still fail in the absence of testimony tending to show that the employees who closed the door of the vestibule knew or should have known the dangerous situation in which Helm was placed, or proof showing that it was the duty of the employee who saw Helm leave the train to prevent it from starting until he was again safely on the train. It is said that the court tried the case upon this theory. It is not the theory upon which the petition was drawn. The specific charge of negligence in the petition is that Helm was either wrongfully ejected from the train or while trying to get back on the train after such ejection, an employee of defendant willfully and with the intention of injuring him, and without any reason therefor, shut the door of the vestibule in his face and forcibly threw him from the steps of the train; that the ejection of Helm was done by the employees of the defendant wantonly and knowing that there was great danger of his being seriously injured or killed. The specific negligence charged must be established by evidence. (Byland v. Powder Co., 93 Kan. 288, 144 Pac. 251; Gamble v. Oil Co., 100 Kan. 74, 163 Pac. 627.)
' It is, of course, a fair presumption that if some door was locked which prevented Helm from returning through the train, it was locked by someone in authority as plaintiff argues, but plaintiff cannot upon this presumption base another presumption that the employee who locked the door or who prevented Helm from passing back through the train knew that Helm afterwards left the train and was attempting to reach the rear of the train while it was starting.
It is argued in plaintiff’s brief that because the porter testified that no one was seeking to get on at the chair car when he closed the vestibule “therefore it is a fair inference, if not a conclusive inference, that it was at the rear of the Pullman” that Helm was seeking to get on, and it is further said that this follows as a natural inference because Helm’s deathbed statement was positive “that he went to get on the train at the vestibule and the porter slammed the door in his face and he fell off.” But there was only one train porter and it was he who opened and closed the vestibule of the chair car. The other vestibule was closed by the flagman whose duty it was to stand at the rear of the Pullman to protect the rear of the train and open and close the vestibule there. Besides, the testimony of the flagman was just as positive that there was nobody attempting to get on at his vestibule when he closed it which he did when 100 feet west of the station. There can be no dispute over the fact that the rear of the Pullman stopped at least that far west of the station ; nor can there be any dispute over the fact that the porter and the flagman closed the doors just as the train started. The flagman testified that when he looked out the second time he was past all the lights of the station. Moreover, the plaintiff’s argument ignores Helm’s statement to Dr. Welch that he saw there would be no chance for him to get on at the rear and he attempted to grab the first place that he could.
But the negligence charged was not the failure of defendant’s employees to hold the train until Helm could get safely on at the rear. It was alleged that the door of the vestibule was willfully and wantonly closed by an employee who knew that Helm was on the steps and trying to enter the train. It must be held that there was an entire failure of evidence showing gross negligence or wantonness on the part of any employee of the defendant as charged in the petition, and that it was error to refuse to sustain the motion for a directed verdict. We deem it unnecessary to pass upon other claims of error with respect to the admission of testimony.
OPINION DENYING MOTIONS TO DISMISS AND FOR REHEARING.
SYLLABUS BY THE COURT.
1. Motion to Dismiss Appeal — Want of Jurisdiction — Motion for Rehearing — Judicial Notice of Acts of Congress and Proclamations of President — Waiver—Estoppel—Substitution. On February 27, 1920, a judgment was rendered against Walker D. Hines, director-general of railroads, for damages. On February 28, an act of congress was approved terminating Federal control of railroads to take effect on March 1, 1920, with a provision that pending causes of action against the director-general should not abate by reason of such termination but might be prosecuted to final judgment, substituting an agent to be designated by the president within thirty days after the passage of the act. On the 11th day of March, 1920, the president by proclamation designated Walker D. Hines, director-general of railroads, as such agent. The appeal from the judgment was not perfected until April 27, 1920, and was taken in the name of Walker D. Hines, as director-general and not as agent. On May 14, 1920, the resignation of. Walker D. Hines, as director-general and as agent, was accepted to take effect on May 18, and the president by proclamation appointed John Barton Payne director-general of railroads and as such agent. After a judgment in this court overruling the judgment in the lower court and ordering judgment in favor of the defendant, the plaintiff filed a motion to dismiss the appeal on the ground that this court had no jurisdiction of the appeal. Held:
(а) The courts take judicial notice of the acts of congress and of the proclamations of the president, and if attention had been called to thei change in the designation of the defendant the court would have made formal orders of substitution.
(б) The court having inherent jurisdiction of the subject matter of the controversy, jurisdiction of the parties may always be waived, and it is too late for the plaintiff after- entering her appearance and contesting the appeal on its merits to question the court’s jurisdiction.
The judgment is reversed and the cause remanded with directions to enter judgment for the defendant.
(c) Coupled with the motion to dismiss is a motion for rehearing, which fact of itself precludes plaintiff from raising the question of jurisdiction, and in the furtherance of justice the court directs that an order of substitution be made.
The opinion of the court was delivered by
Porter, J.:
Since the decision in this case was handed down reversing a judgment in plaintiff’s favor and ordering judgment for the defendant, the plaintiff has filed a motion to dismiss the appeal on the ground that this court never acquired jurisdiction of the case and that.all proceedings here áre void.
The accident out of which this lawsuit grew occurred on September 1, 1919, whén Walker D. Hines was the director-general of railroads. The motion for a new trial was overruled and judgment was rendered in plaintiff’s favor on the 27th day of February, 1920, one day prior to the act of February 28, 1920, providing that Federal control of railroads should terminate on the 1st day of March, 1920. The notice of appeal was not served and filed until April 27, 1920, and it was served in the name of Walker D. Hines, as director-general of railroads.
Section 206 (a) of the act of February 28 contained a provision that actions of this character arising out of the.possession, use or operation, by the president, of the railroads might be brought against an agent designated by the president for' such purpose, which agent the president should designate within thirty days after the passage of the act. (U. S. Stat., 66th Cong., p. 461.)
Section 206 (d) of the same act reads:
“Actions, suits, proceedings, and reparation claims, of the character above described pending-at the termination of Federal control shall not abate by reason of such termination, but may be prosecuted to final judgment', substituting the agent designated by the president under subdivision (a).” (Id. p. 462.)
On the 11th day of March, 1920, the president issued his proclamation designating Walker D. Hines, director-general of railroads, and his successor in office, as such agent. Walker D. Hines tendered his resignation as director-general of railroads, and as agent, to become effective May 18,1920, which was duly accepted by the president. On. May 14, 1920, the president issued two proclamations, one appointing John Barton Payne director-general of railroads, and another appointing John Barton Payne, director-general of railroads, as the agent provided for in section 208 (a) of the act of February 28.
It is the plaintiff’s contention that on April 27, when the appeal was perfected, Walker D. Hines was no longer acting as director-general of railroads, and that the appeal should have been taken in his name as agent instead of as director-general, and further, it is contended that when his resignation as director-general took effect on May 18, 1920, the name of John Barton Payne, director-general of railroads, as agent, should have been substituted in this court for that of Walker D. Hines.
There are several reasons why the motion cannot be sustained. It is doubtless true that before serving the notice of appeal, an order of substitution should have been procured in the lower court, describing the defendant as Walker D. Hines, director-general of railroads, and agent. But, the courts of this state take judicial notice of the acts of congress (Dana v. Hurst, 86 Kan. 947, 949, 122 Pac. 1041), and of the proclamations of the president (Jenkins v. Collard, 145 U. S. 546, 36 L. Ed. 812) ; and if the attention of this court had been called to the change in the designation of the defendant.by the proclamations of the president, the court would have made a formal order of substitution, and later, if attention had been called to the proclamation of May 14, another formal order would have been made substituting John Barton Payne, director-general of railroads, as agent. The plaintiff, however, is estopped to urge the question of jurisdiction. Under the constitution this court has inherent jurisdiction of the subject matter of appeals from the district court, and where a court has inherent jurisdiction of the subject matter of a controversy, jurisdiction of parties may always be waived. It is too late for the plaintiff, after entering her appearance and contesting the appeal on its merits, to question the jurisdiction of this court to render a decision against her. It has been settled that a person who proceeds in a suit, and takes an order or decree therein without revivor, is estopped to object for want of revivor. (M’Neil v. M’Neil, 170 Fed. 289, 291.) The plaintiff is in the position of asking the court for a decree affirming the judgment without calling the court’s attention to the want of substitution of parties, and after being defeated on the merits, is precluded from raising the objection. A different rule, of course, would obtain in the case of a defective jurisdiction over the subject matter. As said in Rago v. Veneziano, 155 Ill. App. 557, 559:
“The infirmity pointed out rests in irregularity of procedure. No objection being made to such irregularity, it is waived.” (p. 559.)
It is not claimed, nor could it be claimed, that on the trial of the merits the plaintiff suffered the slightest prejudice by-reason of the failure to technically describe the office of the defendant. The civil code, section 141, declares that “any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party must be disregarded.” And section 140 provides:
“The court or judge may, before or after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, . . . when such amendment does not change substantially the claim or defense.”
Coupled with the motion to dismiss is a motion for a rehearing. The plaintiff has again placed herself in a position which alone would preclude her from questioning the jurisdiction of the court to make an order of substitution or any other order in the furtherance of justice. It has been held that where judgment is entered against defendants over whom the court has no jurisdiction, and they afterwards voluntarily request the court to open the judgment with permission to plead, and the request is granted and pleadings are filed, the parties are before the court for all purposes. (Aherne v. Investment Co., 82 Kan. 435, 108 Pac. 842.) In Woodhouse v. Land & Cattle Co., 91 Kan. 823, 139 Pac. 356, it was held that procuring ,.a stay of execution precludes a defendant from afterwards challenging the judgment as void for defective service of process. In a case where judgment was taken against minors on default, and eight years after the youngest had reached majority, the heirs moved to vacate the judgment because they had not been legally served, and also because the petition did not state a cause of action, it was held that the last ground of the motion constituted a general appearance and cured any defective service of summons. (Barnett v. Insurance Co., 78 Kan. 630, 97 Pac. 962.)
In Gundlach v. Chicago & N. W. Ry. Co., (Wis.) 179 N. W. 577, there was a judgment against the director-general for in juries sustained while the railroad was under Federal control. On motion the mandate was amended with directions to substitute John Barton Payne, agent designated by the president under the transportation act of 1920,. as sole defendant, and to render judgment against the substituted defendant.
The motion for rehearing presents the same questions urged in the original briefs and at the oral argument and which were fully considered at the former hearing. The motion to dismiss and the motion for rehearing are denied, and, in the furtherance of justice, an order of substitution is directed. The mandate will therefore read as follows: Judgment reversed and the cause remanded with directions to substitute “John Barton Payne, agent designated by the president under the transportation act of 1920,” as sole defendant, and to enter judgment in favor of the defendant for costs. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff is seeking to recover compensation under the workmen’s compensation law. • Compensation for future incapacity was denied him in the district court. An arbitrator had been appointed who awarded the plaintiff compensation in the sum of $10.65 per week from November 20, 1918, to October 25,. 1919, aggregating $515.26, less $15, making due $500.26 at the time of the arbitration and awarded as compensation thereafter $10.65 a week in weekly payments for the full period of eight years.
The arbitrator found that" William J. Strong sustained an injury which produced a hernia that totally incapacitated him from work; that the hernia could probably be cured by a surgical operation; that at the time of the hearing before the arbitrator, the defendant tendered to the plaintiff an operation, and offered to pay all necessary expenses, including hospital bills and surgeon’s fees, with the privilege of the plaintiff’s selecting his own surgeon to perform the operation; that the offer was refused; that probably one operation out of al thousand for such hernias as the plaintiff was suffering fromj would result fatally; and that about twelve per cent of th^ operations for like hernias would not result in a cure. The arbitrator found as a matter of law that the plaintiff was not required to undergo a surgical operation, and that his refusal to be operated on at the expense of the defendant furnished no reason or justification for the termination of compensation.
On December 5, 1919, the defendant paid into the office of the clerk of the district court the sum of money awarded and found due at the time of the arbitration, and on that day filed a petition to review the award. The- plaintiff afterward filed an application to enforce the award. These proceedings were consolidated and tried together, and by stipulation they were heard on the evidence that had been submitted to the arbitrator. The court made findings of fact and conclusions of law as follows:
“The plaintiff received an injury on the 13th day of November, 1918, which injury arose out of and in the course of his employment with defendant, and that said plaintiff is entitled to compensation to be paid by defendant.
“That the injury to plaintiff as proved to be a recurrence of a right inguinal hernia.; that the cause of said hernia was, originally, congenital, but the disability from which plaintiff now suffers was produced by the accident which occurred while plaintiff was moving iron for defendant as alleged by plaintiff.
“That said hernia has incapacitated .plaintiff for work. The evidence is not clear, but the court finds that the temporary total disability of plaintiff resulting from said accident and injury was not to exceed live (5) weeks from November 13, 1918, and that such temporary total disability has been followed by partial disability, which partial disability"( will be permanent unless removed by surgical operation. \
“The court finds that defendant has offered and still offers plaintiff a surgical operation, by surgeon of his own choosing, and to defray all expenses thereof. That plaintiff refuses said operation and that his refusal is unreasonable; that the operation would not be attended with danger to plaintiff’s life, but would, in all probability result in a complete removal of present disability, as well as the congenital weakness which induced hernia.
“That the chances for recovery áre so fair and the danger so slight that an ordinary person would readily submit to the operation.
“That plaintiff’s average weekly wage prior to the accident was $17.75; that he was and is entitled to 60 per cent thereof for four weeks.
“That plaintiff during his partial disability has been- able to earn the sum of $5.25 per week (approximately thirty per cent of prior wages), and is therefore entitled to recover sixty per cent of $12.50 or $7.50 per week during partial disability.
“That six months would be a reasonable time in which plaintiff should submit to and recover from the effects of a surgical operation.
“That plaintiff was and is entitled to compensation for four (4) weeks, in the year 1918, to compensation for 53 weeks in the year 1919, and to 22 weeks in 1920, to May 26th, 1920, together with six per cent interest.
“The court concludes, as to matters of law:
“That plaintiff is entitled to judgment against defendant for temporary total disability to date for $42.60; for partial disability to date, 75 weeks at $7.50 per week $552.50; in the aggregate lump sum of $595.10. Also interest on amounts from respective dates when due, in the sum of $-.
“That the plaintiff should endeavor to effect a cure of his condition by submitting to the operation as tendered by defendant and, in case of his failure so to do, his compensation shall cease at the end of 25 weeks, after May 26, 1920, and during said 25 weeks, beginning June' 2, 1920, defendant shall pay plaintiff compensation in the sum of $7.50 per week, in weekly installments.
“Should plaintiff accept the tendered operation, defendant shall pay in addition to the operation expenses, compensation weekly in the sum of $10.60 per week during the time the operation renders plaintiff totally incapacitated, and $7.50 per week for the remainder of the said 25 weeks, after June 2, 1920.
“In case the operation proves successful, the compensation, shall cease with’ said 25 weeks; but if plaintiff’s disability is not thereby removed, compensation should then become due and payable at the rate of $7.50 per week for the remainder of the period of eight years as provided by law, either in a lump • sum or in payments as the court may determine, and jurisdiction should be retained for the purpose of determining the length of time the operation results in total incapacity, whether or not the plaintiff is restored by the operation, and compensation ceases; if not, whether compensation shall thereafter be paid per week or in a lump sum and any other matters necessary for determination; such jurisdiction to be exercised upon motion of either party upon proper notice.
“That the defendant is not estopped from maintaining this proceeding.”
Judgment was rendered accordingly, and from that judgment the plaintiff appeals.
The plaintiff gave the following as his reasons for refusing to have the operation performed:
“I think I am too old. I am 54 years of age. That is one reason, another is that -I do not think I could stand it' under my present age and condition. A man has to be perfectly healthy to undergo an operation and have it successful. I am not in condition because I was jammed through here (indicating). By jammed through here, I mean my ribs was pulled away from my breast bone and my spine is numb. That happened when I was thrown into the car. Another reason that I do not want to submit to an operation is that there is a chance of a man not living. I heard Dr. Stemen testify and say there was a chance of losing.”
The principal question presented is, Did the court have power to reduce the amount of compensation that should be paid to the plaintiff if he refused to submit to an operation ?
The principle which the defendant seeks to have applied has been recognized in actions to recover damages for personal injuries. (Note to Donovan v. New Orleans R. & L. Co., in 48 L. R. A., n. s., 110-113; Note, 12 N. C. C. A. 591; 6 Thompson’s Commentaries on the Law of Negligence, § 7210.) This rule was applied in this state in Brewing Co. v. Duncan, 6 Kan. App. 178, 57 Pac. 310, where that court said:
“The next allegation of error is that the court withdrew from the jury all evidence as to the probable result of a surgical operation. This we think was error, as the probabilities of a cure of the disability would to some extent affect the amount of damages. This should have been allowed to go to the jury and be weighed by them in assessing the amount of the recovery, as should also the probable-expense attending such an operation. This is not in mitigation of damages, but is a. proper method of showing the actual damages sustained. If the plaintiff could be' certainly cured by an operation that was safe and inexpensive, the injury would surely be less serious than one for which there was no hope'; and to the degree that the certainty, safety, and inexpensiveness of a cure could be assured, in such a degree would the actual damages-decrease.” (p. 181.)
The present proceeding is not an equity case, but two of the oldest principles in equity jurisprudence are that, “He who seeks equity must do equity” (21 C. J. 172), and “He who comes into equity must come with clean hands.” (21 C. J. 180.) This is but another way of saying that he must do right who seeks to compel another to do right.
In a “Digest of Workmen’s Compensation Laws in the United States and Territories, with Annotations, sixth edition, revised to December 1, 1919,” published by the Workmen’s Compensation Publicity Bureau, is found a tabulated resumé of the statutory provisions contained in the workmen’s compensation acts- of the several states of the American Union. This digest shows that in the following states the workmen’s .compensation laws provide for the reduction, suspension, or rejection of compensation for the unreasonable refusal of an injured employee to accept medical treatment, or to submit to a surgical operation, or for persisting in unsanitary practices which retard recovery: Alabama, California, Idaho, Illinois, Indiana, Mississippi, Nebraska, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Porto Rico, Tennessee, Texas, Virginia, and Wyoming. Why were these provisions placed in the workmen’s compensation laws of these states? There is but one answer, and that is because their legislatures thought that the principles there enacted into law were right.
In England and Scotland it is held that if an injured employee unreasonably refuses to submit to an operation he is not entitled to compensation. (Donnelly v. Baird & Co., Ltd., 1 B. W. C. C. 95; Warncken v. Richard Moreland & Son, Ltd., 2 B. W. C. C. 850; Paddington Borough Council v. Stack, 2 B. W. C. C. 402; Wheeler, Ridley & Co. v. Dawson, 5 B. W. C. C. 645; O’Neill v. John Brown & Co., Ltd., 6 B. W. C. C. 428; Walsh v. Locke & Co. (Newland), Ltd., 7 B. W. C. C. 117; Dolan & Son v. Ward, 8 B. W. C. C. 514; Wright v. Sneyd Collieries, Ltd., 8 B. W. C. C. 537.)
In Donnelly v. Baird & Co., Ltd., 1 B. W. C. C. 95, the Lord Justice-Clerk used the following language:
“I hold it to be the duty of an injured workman to submit to such treatment, medical or surgical, as involves no serious risk or suffering, such an operation as a man of ordinarily manly character would undergo for his own good, in a case' where no question of compensation due by another existed.” (p. 100.)
Lord M’Laren said:
“I can see no general principle except this, that if the operation is not attended with danger to life or health, or extraordinary suffering, and if according to the best medical or surgical opinion the operation offers a reasonable prospect of restoration or relief from the incapacity from which the workman is suffering, then he must either submit to the operation or release his employers from the obligation to maintain him.” (p. 102.)
A workman’s compensation case in which an injured employee claimed compensation for hernia, is Schiller v. Baltimore & O. R. Co., 112 Atl. 272, decided December, 1920, where the supreme court of Maryland said:
“It was vigorously contended by appellant that one should not, as a condition precedent to continued compensation during disability, be required to submit to an operation the result of which might be fatal even if such result is so unlikely as to make the danger practically negligible. To support this contention he has cited but three authorities, all being New Jersey cases: Newbaker v. New York, Susq. & W. R. R. Co., 38 N. J. Law, 175; McNally v. Railroad Co., 87 N. J. Law, 455, 95 Atl. 122; Feldman v. Braunstein, 87 N. J. Law, 20, 93 Atl. 679.
“The overwhelming weight of authority is opposed to this view, holding that a man cannot continue to receive compensation and at the same time refuse to submit to proper medical or surgical treatment such as an ordinarily reasonable man would submit to in like circumstances.” (p. 276.)
In another hernia case arising under the workman’s compensation law of Michigan (O’Brien v. Albert A. Albrecht Co., 206 Mich. 101) the supreme court of that state used the following language:
“The physician of the company and the one of plaintiff’s selection both advised an operation for the hernia. Such operation is not attended with danger to life or health, and it appears to be undisputed that it affords the only reasonable prospect of restoration of plaintiff’s capacity to labor at his trade, that of a carpenter. Without it he may be able to labor at such light occupation as the condition of his feet and ankles will permit, but he cannot do heavy lifting as his trade of carpenter requires. During all the time he has refused and still persists in his refusal to submit to the operation advised by his own physician as well as the one in the employ of defendant. Plaintiff is an intelligent man, and whether such refusal is due to a defect of moral courage or not we are unable to say. The board did not find that his refusal was due to any ignorance.or misunderstanding on his part and no such finding would be justified on this record. . . .
“We appreciate the timidity with which the average person contemplates an operation, minor as well as major. But we also appreciate that in thousands of cases, operations, many of them of but minor degree, have restored incapacitated men to the army of wage earners, and put them in position to discharge their duty to their dependents, themselves and to society. We are impressed that under the undisputed evidence in the case it was the plaintiff’s duty to accept the tendered operation. His unequivocal refusal to follow the advice and judgment of both physicians with reference to the operation relieved defendants from further activities in that direction, and, for the time being at least, absolved them from liability.” (p.-104.)
The same principle was followed by the supreme court of Wisconsin in Lesh v. Illinois Steel Co., 163 Wis. 124, where that court said:
“Where, as in this case, the applicant under the Workmen’s Compensation Act unreasonably refuses to undergo a safe and simple surgical operation which is fairly certain to result in a removal of the disability and is not attended with serious risk or pain and is such as an ordinarily prudent and courageous person would submit to for his own benefit and comfort, no question of compensation being involved, the disability which the claimant suffers thereafter, a reasonable time being allowed for recovery, is not proximately caused by the accident, but is the direct result of such unreasonable refusal.
“No question of compelling the applicant to submit to an operation is involved. The question is: Shall society recompense a workman for a disability caused by his unreasonable refusal to adopt such means to effect a recovery as an ordinarily prudent person would use under like circumstances and which would result in the removal of the disability within the rule as stated above? It is true that the compensation awarded under the terms of the act is not damages in the technical sense, and that the rules relating thereto are not to be applied in cases arising under this act, and cases have been cited simply for the purpose of showing that damages accruing as a direct result of the claimant’s unreasonable refusal to submit to reasonable medical and surgical treatment, where the results are fairly certain, were not even in tort cases held to be proximately caused by the accident.
“The proposition that an applicant, under the provisions of this humane law, may create, continue, or even increase his disability by his willful,, unreasonable,- and.negligent conduct, claim..compensation -from his employer for his disability so caused, and thereby cast the burden of his wrongful act upon society in general, is not only utterly repugnant to all principles of law, but is abhorrent to that sense of justice common to all mankind.” (p. 131.)
Neither Maryland, nor Michigan, nor Wisconsin has any-statute authorizing the refusal, reduction, or suspension of compensation to an injured workman who refuses to submit to an'operation. A number of annotators have cited cases on this question. (6 N. C. C. A. 890, note-on Hernia and Varicocele under Workmen’s Compensation Acts; 6 N. C. C. A. 675; 10 N. C. C. A. 185; 15 N. C. C. A. 79; 18 N. C. C. A. 669; L. R. A. 1916 A, 387; Ann. Cas. 1915 D/482; 6 A. L. R. 1260.) The last note, however, is on “duty of injured employee to submit to operation or to take other measures to restore earning capacity.” Cases might be cited from states having statutory restrictions on the right of an injured employee to recover compensation where he refuses to submit to an operation ; but it is thought that the reasoning in those cases, while broad enough to include the present discussion, may have been based upon the statutory provisions and would therefore not be very persuasive in this state where there is no such statute.
Why should the plaintiff permit an operation to be performed? It might not result in his improvement; it would be painful; it is remotely possible that it might result in his death. Many if not most of the ordinary activities of men are painful in a sense; the man who works hard all day until his muscles cry for rest, and the man who goes into the field when the temperature is from ninety to one hundred and five and works under the direct rays of the sun, endure sensations that are as unpleasant and many times are as unbearable as pain. They are pain, but of a kind different from that caused by wounded flesh.
Danger to life is everywhere, at all times; it cannot be escaped by any one. The most trifling accident to the person or the smallest scratch on the skin may result in death. The locomotive engineer and his fireman, when they climb into the cab of their engine and start on their trip, constantly face dangers' that may, and often do, result in their death; the miner who goes into the earth, to take therefrom ore or mineral, faces death every day. These men are not deterred by danger, although they know that injury or death is liable to come at any time. They go because that is their field of labor, and it is their duty to go.
One of the greatest blessings that God has given to men is the ability to work, to work with hand and head and heart. Work produces happiness; refusal to work produces misery. Whatever of happiness there is in the world is the result of hard work. Whatever has been, attained by man has been, done by hard work, and the greatest achievements have been produced by the greatest efforts. In art, literature, science, and in all industrial enterprises, the greatest achievements have been accomplished by the hardest labor. The last ounce of energy of which the person laboring was capable of putting forth has been what has produced the desired result. It is a man’s duty to himself, to his family, to society, and to God— to work, to work hard, to work with all his might, to accomplish in his lifetime all that it is possible for him to accomplish, to keep his mind and body in such a condition as will enable him to do his best, and to avoid everything that will detract from any of his powers or prevent him from accomplishing- his utmost. If misfortune overtakes him in any way, and that misfortune detracts from his ability and renders him less able to work, mentally or physically, and the effect of the misfortune can be removed, it is his duty to do the thing that will restored him, even if there is pain and danger. There is no law to compel a man to perform any of these duties, but nevertheless they-exist.
The state goes to great expense to fit its people for work, to protect them in their work, and to secure to them the result of their labor. Then if a man who receives these favors from the state will not work, he at least is not a good citizen.
The plaintiff has been injured. The injury can be remedied, and he can be restored to his former condition. It is his duty to do whatever is necessary to restore him. If he refuses to perform that duty, he should not ask the state nor any person to [.assist him in that refusal. He cannot be compelled to undergo an operation, but he can be told that if he refuses he shall not receive compensation for that which he voluntarily continues.
The reasonableness of the refusal of an injured employee to submit to an operation has been considered in most if not all the cases where he has been denied compensation on account of such refusal. • That reasonableness has been disposed of in those cases as a question of fact. It is a question of fact that must be determined by the trier of facts, and when he has determined it, and his conclusion is supported by evidence, that conclusion is binding on this court the same as the determination of any other question of fact. In the present case the district court tried the fact of the reasonableness of the refusal of the plaintiff to permit an operation. The court in substance found that the plaintiff’s refusal was unreasonable.
The plaintiff argues that “there was no testimony to support the court’s finding and judgment that the appellant was not totally incapacitated.” The finding was not made as thus indicated, but in substance it amounted to that. The plaintiff testified:
“I have not been able to do any work of any kind since I had the accident, except I did a little work on a neighbor’s automobile. I did no lifting and it took me two weeks to get it done, and I was paid ten ($10.00) dollars. I helped to make a fence. I stapled the wire; I did none of the heavy work; I was paid five ($5.00) dollars for that. That is all of the work I have been able to do and all I have earned since the accident. I cannot do manual labor because I am injured through my shoulders and arms, and the rupture I cannot get a truss to hold it up and keep it up properly. Have not been able to. When I try to work I do not have the strength I had before, and I suffer pain.”
One physician testified, “I think he could do light work without any trouble and without any danger of increasing these hernias.” Another physician testified, “I think this man could do light work very nicely with the aid of a truss and without danger.” That evidence was sufficient to support the finding of partial disability after the period of total disability expired, and to support the finding that the plaintiff was able to earn $5.25 a week, “approximately thirty per cent of prior wages.”
The plaintiff contends that the defendant is estopped to question the correctness of the award by reason of its having paid the $500.26, the amount found due by the arbitrator at the time the award was made. The statute, section 16 of chapter 226 of the Laws of 1917, under which this proceeding was instituted, in part reads, “At any time before the final payment has been made under or pursuant to any award or modification thereof agreed upon by the parties, it may be reviewed by the judge of the district court having jurisdiction.” This statute provides for a review of the award after payments have been made under it. The defendant is not estopped to question the correctness of the award.
The plaintiff challenges the power of the court to review the award of the arbitrator on the ground that the statute provides for such review for the following reasons only:
“That the award has been obtained by fraud or undue influence or that the committee or arbitrator making the award acted without authority or was guilty óf serious misconduct or that the award is grossly excessive or grossly inadequate, or that the incapacity or disability of the workman has increased or diminished.” (Laws 1917, ch. 226, § 16.)
The plaintiff cites Roper v. Hammer, 106 Kan. 374, 187 Pac. 858. That case does not control here for the reason that the statute authorizes a review of the award where the amount given is grossly excessive. In its petition to review the award, the defendant alleged, “that since the tender of said operation and its refusal by claimant, the defendant says all payments directed to be. made thereafter for total disability are grossly excessive, and the award of sums after the refusal of the tender is without authority on the part of the arbitrator.” Compensation for total disability, $10.65 a week, was awarded. The court found that there was no total disability, but that there was partial disability, and that the plaintiff was entitled to recover $7.50 a week during partial disability. This amounted to a finding that the award of the arbitrator was grossly excessive, and brought the proceeding within the statute authorizing a review of the award by the district court. ■
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The appeal is from an order sustaining a demurrer to the petition.
The action was one to recover the consideration paid for the assignment of an oil and gas lease on the ground of misrepresentations as to the character of the lease. The lease was executed in 1915 by Ole Errickson and wife, as lessors, and granted to H. D. Hoover all the oil, gas and minerals found in and under the premises, together with the right to enter thereon for the purpose of drilling, and the right to erect and maintain machinery and structures to develop and remove such minerals. In January, 1918, the defendant, who had taken an assignment of the lease from Hoover, sold and assigned the lease to the plaintiffs. The assignment was in the usual form. It acknowledged the consideration, recited that the undersigned was the present owner of the lease and all rights thereunder, and that he sold, assigned and conveyed his interest in the lease subject to the terms therein, together with the leasehold, to the plaintiffs, covenanting for himself, his heirs, successors and representatives, “that he has good right and authority to sell and convey the same and that all rentals and royalties due and payable thereunder have been duly paid.”
The particular averments of the petition upon which the case turns are these: As consideration for the assignment of the lease the plaintiffs paid to the defendant the sum of $1,600; at the time of the bargain for the purchase of the lease, defendant represented to them that it was a valid and subsisting lease and was a good commercial lease, and told them that no abstract was needed to show that the lease was as represented; subsequently plaintiffs learned that the Erricksons, the lessors, owned merely a life estate in the premises; defendant knew that the Erricksons were without authority to execute and deliver a lease conveying any interest in the oil or gas in or under the lands, and knew that the plaintiffs were not, by the assignment, obtaining a good, valid and subsisting commercial lease, and that by virtue of the lease, they would acquire no authority to enter upon the land for the purpose of exploring or operating for oil, gas or minerals.
The defendant argues that the written lease merged all oral negotiations and contracts on the subject prior to and contemporaneous with its delivery; that the substance of the contract between himself and plaintiffs was that he had good right and authority to sell and convey the lease, and that all rentals and royalties due thereunder had been paid; that there was no express covenant in his assignment that the Erricksons had the right and authority to execute the lease; that all the defendant sold, and all plaintiffs purchased, was the defendant’s interest in the lease; that, in effect, the assignment is a quitclaim deed. It is insisted, too, that the petition is defective because it is silent as to whether the records of Greenwood county, where the lease was recorded, would show the existence of only a life tenancy in the Erricksons.
We think the defendant misconceives the nature of the action. Plaintiffs do not sue on the written contract, but upon an oral agreement to sell them a good, valid, subsisting, commercial lease; and they charge that defendant, well knowing the' facts with reference to the defective title of the Erricksons, misrepresented the facts, and that plaintiffs did not get the kind of a lease he agreed to sell. them.
It is settled in this state that, a lease conveying the oil, gas and minerals found in and under lands, together with the right to enter upon the land and remove the same, is a conveyance of a part of the realty. (Zinc Co. v. Freeman, 68 Kan. 691, 75 Pac. 995, and cases cited in the opinion.) In Marshall v. Mellon et al., 179 Pa. St. 371, it was held that a tenant for life has no right to operate for oil or gas or to make an oil or gas lease unless operations were commenced before the life estate accrued.
In Carpenter v. Wright, 52 Kan. 221, 34 Pac. 798, there was a fraudulent representation that a tract of land was free and clear of incumbrance. The purchaser relied upon the representations and was thereby induced to purchase the land when in fact it was subject to a valid mortgage. It was held that although the injured party might have discovered the incumbrance by a search of the public records, an action might be maintained to recover for the damages sustained by reason of the fraudulent representations.
The plaintiffs can maintain the action without tendering a return of the lease. See Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682, holding that a formal tender of a deed is not a condition precedent to the right to maintain such an action. To the same effect is Business Blocks Co. v. Gregory, 102 Kan. 33, 169 Pac. 191.
The petition stated a cause of action, and the judgment will be reversed and the cause remanded with directions to overrule the demurrer. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment against it under the workmen’s compensation act for an injury to the plaintiff while in the employ of the defendant. Before the action was commenced the defendant refused to arbitrate the amount of compensation that should be paid to the plaintiff. When the action was called for trial the defendant offered to waive a jury, but this was refused by the plaintiff. A jury was called, the evidence was introduced, and at the close thereof the court did not instruct the jury nor submit to it the questions at issue for a general verdict, although requested so to do by the defendant. The court submitted special questions, which together with the answers thereto were as follows:
“1. Was the plaintiff totally disabled from work by reason of said injury? Answer: Yes.
“2. If you answer question 1 in the affirmative, then state whether said total disability from work will be permanent. Answer: No.
“3. If you answer question 2 in the negative, then state how many weeks plaintiff had been totally disabled from work since receiving said injury? Answer: 44 weeks.
“4. If the plaintiff will be totally disabled from work by reason of said injury in the future, state how many weeks he will be so disabled. Answer: 20 weeks.
“5. If you answer question 2 in the negative, state (a.) whether plaintiff has been partially incapacitated since his total incapacity from labor ceased and (6) will he be in the future partially incapacitated from labor by reason of said injury? Answer: (a) yes; (6) yes.
“6. If you answer question 5 in the affirmative, then state (a) how many weeks after said total incapacity ceased plaintiff was, and (b) will be partially incapacitated from labor. Answer: (a) . . . ; (&) 62 weeks.
“7. If you answer question 5 in the affirmative, then state how much the plaintiff has been able to earn during his partial incapacity from labor? Answer: Will depend on work plaintiff is able to obtain.”
The plaintiff’s motion for judgment on-the answers to the special questions was sustained. The judgment recites that—
“The motion of the plaintiff for judgment on the answers to the special questions submitted should and ought to be and is hereby sustained, and that plaintiff be given judgment against the defendant as and for total disability in the amount of eleven dollars sixty cents ($11.60) per week for a period of 63 weeks, making a total sum due the plaintiff for total disability .in the amount of seven hundred thirty dollars eighty cents ($730.80); also that- the plaintiff be given judgment as and for partial disability in the amount of six dollars ($6) per week for a period of sixty-two (62) weeks, making a sum due for partial disability in the amount of three hundred seventy-two dollars ($372), making a sum total for total and partial disability in the amount of eleven hundred two dollars and eighty cents ($1,102.80).”
The defendant contends that it was error to refuse to instruct the jury and to refuse to require from it a general verdict. The constitutionality of workmen’s compensation laws has been attacked on the ground that they deprived the parties of the right to trial by jury, and the laws have been upheld against those attacks. (Kiser’s Workmen’s Compensation Acts, Corpus Juris Treatise, 26; Bradbury’s Workman’s Compensation, 3d ed., p. 1011; 1 Honnold on Workmen’s Compensation, § 14, and note 57.) Our statute provides that the matters in dispute may be tried by a jury. Section 20, chapter 226 of the Laws of 1917, an act providing for compensation for persons injured in certain industries, in part reads: “In every such action the right to trial by jury shall be deemed waived and the case tried by the court without a jury, unless either party shall within ten days after issues are joined demand a jury trial.” It does not appear that either party demanded a jury within ten days after the issues were joined. The failure of the defendant to comply with section 20 of chapter 226 of the Session Laws of 19Í7 waived its right to a trial by jury and rendered the action triable by the court. Section 279 of the code of civil procedure reads:
“Issues of fact arising in actions for the recovery of money or of specific real or personal property shall be tried by a jury, unless a jury trial is waived or a reference be ordered as hereinafter provided. All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by a jury or referred as provided in this code.”
After the parties had failed to demand a jury at the time provided by law, the court could call to its assistance a jury to pass on disputed questions of fact. The court adopted the findings of the jury, but could have set them aside and could have made findings of its own. This entire practice has been so well established in this state in actions not triable by a jury that it is useless to cite authorities.
The argument of the defendant is that when the jury was impaneled, it was incumbent on the court to instruct the jury and to have it return a general verdict. This argument loses' sight of the fact that the right of trial by jury had been waived, and the jury was called not to try the action but to inform the court concerning certain questions of fact therein. The court acted within its powers, and no error was committed in refusing to instruct the jury nor in refusing to require the jury to return a general verdict.
There was no evidence to show what the plaintiff would be able to earn during his period of partial disability after the period of total disability has expired. The defendant argues that it was error to render judgment for $372 for partial disability. In response, the plaintiff contends that this question is disposed of by Stefan v. Elevator Co., 106 Kan. 369, 187 Pac. 861, where the court said:
“How compensation provided for in paragraph 19 shall be computed is .a question of some difficulty. The earnings before and after injury referred to are evidently average weekly wages, computable in the usual way; but no maximum and minimum limit is affixed. In one sense that which is referred to in the introductory paragraph of division ‘c’ as ‘the following schedule,’ ends with paragraph 18. Paragraph 22, however is as much a part of the schedule as paragraph 10 or paragraph 16; so that, to the extent necessary, all the numbered paragraphs may be said to constitute the schedule. Major paragraphs 1 and 2 of section 3 fix maximum and minimum amounts of compensation. Major paragraph 3 discloses a distinct purpose to fix a weekly wage basis with a maximum and minimum limit for the computation of compensation in all cases, unless paragraph 19 of division ‘c’ be an exception. It will not be assumed the policy was abandoned) in paragraph 19, and the court is of the opinion the provision contained in the introductory paragraph of division ‘e’ — ‘the compensation to be in no case less than $6 per week nor more than $12 per week’ — applies to the disability covered by paragraph 19. Without' proof that 60 per cent of the difference between earnings before and after injury would equal or exceed $6 per week, the plaintiff is entitled to the minimum for the period of eight years less one week, on account of permanent partial disability found by the jury to exist, independently of the disability resulting from injury to the eye.” (p. 373.)
The particular statutes involved in this discussion should be examined. Paragraph 19 of section 3 of chapter 226 of the Laws of 1917, in part reads:
“Provided, however, in case of partial disability not covered by schedule the workman shall receive during such period of partial disability not exceeding (8) eight years, 60 per cent of the difference between the amount he was earning prior to said injury as in this act provided and the amount he is able to earn after such injury.”
Division “c” of the first unnumbered paragraph of section 3 of the act reads:
“Where _disability, partial in character but permanent in quality, results from the injury, the injured workman shall be entitled to the compensation provided in paragraph 1 of this section, but shall not be entitled to any other or further compensation for or during the first week following the injury. Thereafter, compensation in a lump sum shall be paid as provided in the following schedule, the average weekly wages to be computed as provided in section 4 of this act, and the compensation to be in no case less than $6 per week nor more than $12 per week.”
The Stefan case does not control for the reason that the disability there was partial and permanent, and minimum compensation was fixed by statute; while here after the period of total disability has expired, the disability will be partial and temporary, and compensation is not fixed in amount. In the Stefan case it was held that compensation for permanent partial disability should be paid under division “c” of the third section of the workmen’s compensation act of 1917, and that no evidence- need be introduced to prove what the injured party would be able to earn in the future. In the present case there is no permanent disability, there is temporary disability for which the statute does not undertake to fix the amount of compensation except by saying that it shall be “60 per cent of the difference between the amount he [the injured workman] was earning prior to said injury as in this act provided and the amount he is able to earn after such injury.” The reason for naming, in the statute, a minimum rate of six dollars a week compensation for partial, permanent disability might well have induced the legislature to have fixed a minimum compensation for partial, temporary disability; but that has not been done. The entire period of total disability and a portion of that of partial disability have expired. The wages that the plaintiff has been able to earn since the period of total disability has expired and that he will be able to earn during the remainder of the period of partial disability must be established by evidence. The compensation that he shall receive will then become a matter of calculation. This compels further proceedings by the trial court, but does not affect the judgment that has been rendered for total disability, $730.80.
The plaintiff argues that the burden was on the defendant to establish the amount that the plaintiff will be able to earn during his period of partial disability. This argument is not good for the reason that judgment cannot be rendered in favor of the plaintiff until he proves his cause of action. To do that he must prove his employment, his injury, the wages that he was earning before, and the wages that he has earned and will be able to earn after the expiration of the period of total disability. Without evidence on all these propositions, judgment for compensation for the period of partial disability cannot be rendered in his favor for the reason that he does not bring himself within the statute. The plaintiff must prove the wages that he has earned and will be able to earn during the time he is under partial disability, or there will be no basis from which to calculate the amount of his compensation.
The judgment for $730.80 for total disability is affirmed. The judgment for $372 for partial disability is reversed, and the cause is remanded to the district court with directions to ascertain the wages that the plaintiff has earned and will be able to earn during his period of partial disability and render judgment in his favor, in addition to the judgment for $730.80, for sixty per cent of the difference between the amount that he has earned and will be able to earn at the proved rates of wages and what he was earning prior to the injury. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff brought this action to recover on an insurance policy for the death of her husband. Charles Walter Howard, a Rock Island special officer, boarded an incoming Rock Island passenger train as it approached Herington. The deceased lived at Herington at a place directly west of where such trains stopped for a Missouri Pacific crossing, and on the evening in question when this train stopped there the deceased picked up his suitcase and started to alight, when he was accosted by Howard who followed him and demanded the suitcase, which Guffey refused to give him. Guffey’s father testified that his son was a boiler maker for the Rock Island and lived due west of the crossing and the roundhouse; that in going from his house to his work he crossed to the roundhouse from where he lived; that on the day of the tragedy he had been to Kansas City; and that the train was due between eleven and twelve o’clock. The plaintiff testified that her husband had been working for the Rock Island for about eleven years, and lived about two and one-half blocks due west from the shops; that there was a path which he usually walked in; that the vestibules were always open when the trains reached the crossing. Howard, himself, testified that on the evening in question when Guffey started to get off the train he told him they were not yet at the depot. He followed him—
“To get the suitcase, or see what was in the suitcase was what I was after. . . . Well, I told him to stop, I wanted his suitcase, and he said no, and I told him I was an officer, and he was under arrest. He kept on running, and I kept up with him and struck him on the head with a rubber club. He then whirled and grabbed me. I got away, and seeing that I could not take him I started back away myself, and he grabbed me the second time and commenced choking me. I then reached for my gun seeing that I could not do anything else as he had me fainting then, and giving away, and in fear of my own life I put my gun against his stomach and poked him with it thinking perhaps that he would realize what it was and turn me loose. But instead he kept on choking me. I then pulled the trigger.
“Q. On the 16th day of March, 1918, what if any Federal, state, county, or city office did you hold? A. Rock Island special officer.
“Q. What office, if any besides Rock Island special officer, did you hold at that time? A. None.'
“Q. Did you have any warrant for the arrest of John Guffey? A. No, sir.
“Q. Did you know John Guffey at the time you saw him on the train about to get off? A. No, sir.
’ “Q. Did you know where he lived or where he worked? A. No, sir.
“Q. I wish you would state just all that you said, and all that he said at the time he was attempting to get off the train as you have stated. A. Well, when I first got on the train to ride down to the eating house, he was about to get off, and I told him that was not the station, and he said he wanted to get off at the crossing. And I said Oh and got back out of his way, and he picked up the suitcase, and I seen it was heavy, and being trained by other officers how to tell booze, I asked him to let me see the suitcase, and he said no, and started to run. I then took after •him telling him I was an officer, and he was under arrest. . . .
“Q. You have stated that you were a special officer of the Rock Island Railroad Company. I wish you would state what your duties were as such officer. A. To guard company property. Mr. Douglas the day special officer at that time told me that he was instructed by the chief of special service to instruct me and to watch all company property, and to watch the bootleggers — people bringing in booze.”
The policy sued on provided among other things that—
“This policy does not cover any loss ... if the injury causing it results from the intentional act of the insured, or any other persons, excepting however assaults committed • upon the insured for the sole purpose of burglary or robbery.”
The court sustained a demurrer to the plaintiff’s evidence, and from this ruling the appeal is taken.
The special agent testified that after the shot he went to the yard office with the suitcase and called a doctor, and told the yard crew to get a switch engine and take the wounded man to the station. “I then called up the city police and gave myself up.” On cross-examination he testified:
“I was after the booze, yes, but the watch and money I knew nothing whatever about.
“Q. And what was your purpose in getting the booze, or attempting to get it? A. I was told to watch for people with booze, or bootleggers by the man left to instruct me, and was acting according to instructions.”
He also testified that at the time of the shot he was unable to speak, and acted in self-defense, and acted as he did because he considered himself in great danger.
The father testified that the deceased had a bruise' on his forehead, a large bruise, and the top of his head had been struck, and the blood was working out of his ears. Over the objection of the plaintiff the special agent was allowed to testify that he afterwards learned that the suitcase contained “whisky — that is booze, different kinds of drink, all liquor.”
It is argued by the plaintiff that the assault showed the elements of taking property by force from the person of the deceased, putting him in fear, acting against his will, overcoming peaceable possession; that it was not the property of the taker; that he was not an officer and did not have a warrant for the arrest of the deceased. On the other hand it is argued that the killing was brought about by the deceased himself who assaulted the special agent after he had retired from his first attack; that he walked some ten steps back to him. It is urged that there was no intent to rob and no felonious intent on Howard’s part because—
“The officer certainly thought he had a right to take this contraband liquor. He wanted to turn it over to the authorities. That he had or had not the legal right to arrest the man having it in his possession is beside the question. He thought he had and so did Guffey. The entire case vindicates the good faith of Howard in seeking to take this liquor into his possession. His intent was to get the liquor and turn it over to the authorities. He had no intention feloniously to take or deprive Guffey of his possession. The entire testimony in the ease negatives conclusively any felonious intent.”
The plaintiff was compelled to put Howard on the stand as there was no other eyewitness to the tragedy, but of course, being her witness his testimony cannot be considered as that of an adverse witness. Had he been called by the defense it would doubtless have been a question for the jury whether his version of the affair was .the true one or one made in view of his own interest and possible danger of criminal prosecution. But, while a party is not always and to all intents bound by all that his witness may say on the stand, usually he is not permitted to impeach him, and so this evidence as to Howard’s intent must be viewed as credible. (The State v. Keefe, 54 Kan. 197, 201, 38 Pac. 302; Johnston v. Marriage, 74 Kan. 208, 86 Pac. 416, 87 Pac. 74; Note, 21 L. R. A. 418.)
Robbery is larceny committed by violence to the person of one put in fear. (The State v. Segermond, 40 Kan. 107, 19 Pac. 370.) The statute provides:
“Every person who shall be convicted of feloniously taking the property of another from his person or in his presence, and against his will, by violence to his person or by putting him in fear of some immediate injury to his person, shall be adj'udged guilty of robbery in the first degree.” (Gen. Stat. 1915, § 3443.)
Three ingredients are essential: The use of force and violence, the taking from a person of another money or other personal property, and an intent to rob or steal. (Matthews v. The State, 4 Ohio St. 539; 7 Words and Phrases, 6258.) It has been held that robbery embraces the same elements as simple larceny. (Houston v. Commonwealth, 87 Va. 257.) Our statute defines larceny as the felonious stealing, taking or carrying away of personal property. (Laws of 1920, ch. 38; Gen. Stat. 1915, § 3450.) “Felonious” means that felonious intent which has been defined as an intent to deprive the owner not only temporarily but permanently of his property, without color of right or excuse for the act, and to convert it to the taker’s use without the consent of the owner. (In re Mutchler, Petitioner, 55 Kan. 164, 40 Pac. 283; The State v. Shepherd, 63 Kan. 545, 66 Pac. 236; 52 L. R. A., n. s., 1014, note.)
“In robbery, as in larceny, it is essential that the taking of the goods be animo furandi, and unless the taking be with a felonious intent it is not robbery.” (23 E. C. L. 1149.)
Of course, there can be no robbery under the statute without an intent permanently to deprive the owner of the property and to convert it to the taker’s use, and there is no construction which can reasonably be put upon Howard’s testimony which would support the theory that he intended thus to take any of Guffey’s property and appropriate it to his own use.
It is quite plain that, clothed with a little brief authority which he greatly exaggerated, he intended to take the liquor which he thought was in Guffey’s suitcase and use it for the purpose of prosecuting him. Tragic and needless as the killing was, it would be a distortion of testimony and a wresting of language to conclude that Howard acted with intent to rob Guffey.
We conclude, therefore, and hold that the demurrer to the. plaintiff’s evidence was rightly sustained, and that ruling is affirmed. | [
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The opinion of the court was delivered by
West, J.:
This is an appeal from an order extending to a junior creditor the time for redemption from fifteen months to eighteen months. '
In May, 1912, Fred Hurst was the owner of the quarter section of land involved and gave a mortgage to Meyer and Meyer for $900. Thereafter he sold the quarter to his son, B. C. Hurst, and took a mortgage for $2,000 as part of the purchase price. Afterwards, B. C. Hurst sold to J. N. Alexander, and on the 20th day of July, 1918, Meyer and Meyer began foreclosure proceedings, personal service being, had on all the defendants. In September, 1918, judgment was rendered for the plaintiffs and on the 28th day of January, 1919, the land was sold to H. W. Meyer for $1,571.09. During the pendency of the action B. C. Hurst claims on behalf of his father, Fred Hurst, that he was told by certain attorneys including the attorney for the plaintiff that he had eighteen months in which to redeem, and did not learn to the contrary until about, four weeks before the expiration of the eighteen months, when Fred Hurst made application for an extension of time. Notice was served on all parties interested, and upon hearing, the judg-e at chambers made an order extending the time to July 29, 1920, and redemption was made by paying to the clerk $1,764.84. J. N. Alexander, the fee owner, appeals from this order.
The testimony indicates that Hurst acted in good faith and was simply mistaken as to the time allowed him by the statute to redeem, and was misled by what the attorneys told him. It is claimed that the order of extension was erroneous and beyond the jurisdiction of the court for the reason that the statutory period cannot be extended or enlarged except by the legislature, and authorities are cited in support of this contention. The statute provides that after the expiration of fifteen months from the day of sale, the creditors can no longer redeem from each other, but the defendant owner may still redeem at any time before the end of the eighteen months. (Gen. Stat. 1915, § 7388.)
The defendant, Hurst, urges that as he acted' in good faith and was misled and mistaken in a matter of law the court rightfully exercised its equitable power to grant him the relief sought.
The statute taken literally affords no remedy, and it remains to be determined whether or not its literal significance is to be followed. In two instances this court has substantially held that the letter of the statute must be followed. Stewart v. Park College, 68 Kan. 465, 75 Pac. 491, presented this situation : The plaintiff alleged that frequently before the expira tion of the eighteen months he went to the place of business of the board of trustees of the mortgage holder to redeem, notifying them beforehand that he was coming to make such redemption, but failed to find them; that after the redemption period had expired the sheriff executed and delivered to them a deed to the property and the plaintiff prayed to be allowed to pay into court the full amount with interest, costs and taxes due and that a convéyance be granted upon such payment. The court said:
“The right to redeem and the mode of redemption of real estate, after sale by the sheriff upon execution, special or general, or order of sale, are fixed by statute. . . . Plaintiff in this case did not comply with the statutory provisions and; in fact, made no effort to do so. We have carefully examined the averments of plaintiff’s petition and find therein no grounds for equitable relief, as claimed.” (p. 467.)
In Sigler v. Phares, 105 Kan. 116, 181 Pac. 628, four months after the sale, a judgment was rendered in favor of the second mortgagee. Eleven months after the sale the owner of the fee made redemption. Two months later the second mortgagee tried to redeem and his effort was held ineffectual. In the opinion the court said :
“Under exceptional circumstances, upon equitable considerations the right of redemption has sometimes been extended somewhat beyond the bare letter of the statute. We do not regard the situation here presented as of such a character as to justify judicial interference with the ordinary operation of the law.” (p. 121.)
In several cases involving quite different circumstances extensions of time have been approved, (Neef v. Harrell, 82 Kan. 554, 109 Pac. 188; Quinton v. Adams, 87 Kan. 112, 123 Pac. 740; Piatt v. Flaherty, 96 Kan. 42, 149 Pac. 734; Loomis v. Supply Co., 99 Kan. 279, 161 Pac. 627, citing Wakefield v. Rotherham et al., 67 Iowa, 444; Norris v. Evans, 102 Kan. 583, 171 Pac. 606; Thresher Co. v. Judd, 104 Kan. 757, 180 Pac. 763.)
But the statute is not merely directory. It specifies the time-within which redemption may be made, and, save in cases of clear grounds for equitable interference, its terms must be followed. The situation arising here is not one which within the spirit of the foregoing authorities calls for such interference.'
“As courts do not favor forfeitures, but do favor redemptions, they will accord time to parties to effect a redemption where there is some substantial reason for such indulgence and where its refusal would work hardship or injustice, but not where the grounds alleged are merely frivolous or technical or where greater injury would be done to the mortgagee.” (27 Cyc. 1817.)
(Filed November 12, 1921.)
“The right must also be exercised within the time allowed by the statute, or it will be lost; and the court usually has no authority to extend the time, even where the owner has been prevented from redeeming by physical or mental disability, minority, ignorance of the facts, or the like.” (16 R. C. L. 141.)
The old, old maxim that the law favors the vigilant and not the somnolent still holds good. A homespun version is the other saying that the Lord helps him who helps himself. It all means that he who is vigilant in business is more likely to prosper than he who gets up too late in the morning. One who has a mortgage to look after cannot with impunity depend on hearsay or legal guesses to find out when to redeem from a foreclosure sale. Reasonable care dictates that he act with that liveliness which recognizes that the purchaser who has invested his money has rights to be respected, for here as elsewhere bona fide investors are ordinarily entitled to the benefit of their bargains.
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The opinion of the court was delivered by
West, J.:
In its motion to rehear or modify the judgment affirmed in our former opinion (108 Kan. 739), the defendant sets forth that under the’ statute the plaintiff was not entitled in any quarter to more than $600 salary and $300 clerk hire under the schedule, but that' attached to her petition was an itemized account showing that she had actually received $1,299.92 in excess of the sum of these quarterly amounts.
The petition alleged that the plaintiff received and paid over “fees greatly in excess of the amount paid to this plaintiff ... as salary and clerk hire, an itemized account” of which was attached.
The answer contained the statement that the itemized account showed the amount of salary paid to the register of deeds “and the amount of clerk hire allowed and paid to the clerks for clerk hire in the office of said register of deeds.”
Of course, it makes a difference whether this money was paid to the plaintiff or to the clerks employed in her office, and if the claim now insisted on is correct a deduction from the amount of the judgment should be made.
The cause. is therefore remanded for the purpose of considering and déciding this one question and for such judgment as such further consideration may warrant. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of burglary and larceny, and appeals.
The charging parts of the information read as follows: .
“. . . did then and there unlawfully, wrongfully, willfully, feloniously and burglariously break and enter in the nighttime a store building in the city of Neodesha, Wilson county, Kansas, occupied and used by The Durnil Dry Goods Company as a retail store, where were kept and offered for sale goods, wares and merchandise, with intent to take, steal and carry away therefrom goods, wares and merchandise belonging to the said The Durnil Dry Goods Company, . . .
“. . . did then and there unlawfully, wrongfully and feloniously take, steal and carry away from a store building situated in the city of Neodesha, Wilson county, Kansas, and occupied by The Durnil Dry Goods Company as a retail store, goods, wares and merchandise . . .
“. •. . all being of the goods, wares, merchandise and chattels of the said The Durnil Dry Goods Company . . .”
A motion to quash the information, on the sole ground it did not state facts sufficient to constitute a public offense, was made and overruled. It is contended the court erred in overruling the motion, because ownership of the building burglarized was not stated, and because the nature of the organization or association called The Durnil Dry Goods Company was not stated.
The statutes defining the crimes charged read as follows:
“Every person who shall be convicted of breaking and entering in the nighttime . . . any . . . store, ... in which there shall be at the time some human being, or any goods, wares, or merchandise, or other valuable thing kept or deposited; . .' . with the intent to steal or commit any felony therein, shall on conviction be adjudged guilty of burglary in the second degree.
“If any person in committing burglary shall also commit a larceny, he may be prosecuted for both offenses in the same count, or in separate counts of the same indictment; and on conviction of such burglary and larceny, shall be punished by confinement and hard labor, in addition to the punishment hereinbefore prescribed for the burglary, not exceeding five years.” (Gen. Stat. 1915, §§ 3436, 3440.)
An information may be defective because some element of the crime attempted to be charged is omitted. Pleading to such an information and going to trial upon it waive nothing. Should a verdict of guilty be returned, judgment may be arrested on motion of the defendant, or on the court’s own motion, because the information did not state facts sufficient to constitute a public offense. An information may be defective for lack of details which are not of the substance of the offense, hut which good pleading requires should be stated. Such defects may be waived, and they are waived, unless the information be challenged in due time by a motion to quash which points out the particular insufficiencies. In this instance, every element of the crimes defined by the statutes appears in the information, and the motion to quash, which specified no defect except failure to state a public offense, was properly overruled.
The defendant very earnestly insists that, under the authorities, including decisions of this court, the information was fatally defective because ownership of the store was not stated. In the case of The State v. Fockler, 22 Kan. 542, the store burglarized was described in the information as follows:
“A certain store situated on the north end of lot number five, in block number seventeen (17), in Witherell’s addition to the town (now the city) of Osage City, in the county and state aforesaid.” (p. 542.)
In the opinion it was said:
‘'We think the name of the owner of the ‘store’ should have been stated in the information. We think the authorities are uniform in holding that in burglary the name of the owner of the building must be given in the charge, if known, and if not known, then that fact must be set out.” (p. 543.)
In framing the syllabus, however, the court was much more reserved. The syllabus reads:
“A criminal information, which charges the commission of burglary by the breaking and entering into a certain store building in the nighttime with intent to steal, but which does not state or show who the owner of the building was, or whether it was owned or possessed by any person or not, is not sufficient.”
An examination of the decided cases will disclose that the word “owner” does not of necessity mean owner at all. Generally the term refers'to occupancy or possession at the time of the burglary, and it may apply to one who has wrongful pos session as against the owner. If ownership be unknown, it need not be stated; if it be-in several, it is enough to name one (Gen. Stat. 1915, § 8020) ; arid so far as legal title is concerned, a man may be guilty of burglarizing his own house. What, then, is the basis of the requirement, said to be imperative ' in a multitude of decisions, that ownership of the building burglarized must be stated in the indictment or information ?
■A full account of the law of burglary has not yet been written. Pollock and Maitland were unable to trace its genesis (2 Hist. Eng. Law, 493), and Holdsworth leaves the course of its development incompletely sketched (3 Hist. Eng. Law, 292). When Britton wrote, burglary was beginning to be something different from the ancient hamsoken, or housebreaking :
“Let inquiry also be made of burglars. Such we hold to be all those who feloniously in time of peace break churches, or the houses of others, or the walls or gates of our cities or boroughs. Infants under age, and poor people-, who through hunger enter the house for victuals under the value of twelve pence, are excepted; as are also idiots and madmen, and others, who are incapable of felony; and, those, who enter into any tenement of seisin in respect of some right which they think they have, are not held to be burglars. The punishment of such felons is death.” (Book 1, ch. 11, Nichols’ Translation, p. 36.)
When Coke wrote, common-law burglary was practically limited to mghttime depredations on mansion houses:
“A burglar (or the person that committeth burglary), is by the common law a felon, that in the night breaketh and entreth into a mansion-house of another, of intent to kill some reasonable creature, or to commit some other felony within the same, whether his felonious intent be executed or not.
“The word in the indictment or appeal, is noctanter,
“The indictment saith, Domus mansionalis, a mansion or dwelling-house.” (3 Inst. 63, 64.)
The approximate time when the word “noctanter” became indispensable to an indictment for burglary has not been ascertained. The disposition to restrict burglary to mansion houses led Coke to explain burglary of a church by saying 'a church is the mansion house of Almighty God.
Hale quotes Spelman’s definition of burglary, which recognized breaking of churches and gat.es and walls of towns, and quotes Coke’s definition, but confines his text to what may be regarded as a mansion house (1 Hist. P. C., 549, 556). This phase of the development of the law of burglary is described by Hawkins as follows:
“It seems to be the current opinion at this day, that it can be committed only in a dwelling-house; and that the indictment for it must necessarily allege the fact in domo mansionali.”
“And Sir Edward Coke seems to say, that the breaking a church, &c., is therefore burglary, because the church is the mansion house of God. But I can find nothing in the more ancient authors to countenance this nicety; for the general tenor of the old books seems to be, that burglary may be committed in breaking houses, or churches, or the walls or gates of a town. — And Staundforde and Anderson mention precedents of indictments of burglary in domo without adding mansionali. However, the constant course of late precedents and opinions makes it certainly very ■'angerous, if not an incurable fault, to omit the word mansionalis in an indictment of burglary in a house; and therefore without question, it ought always to be inserted where the truth of the case will bear it. But surely it cannot be necessary or proper to have any such-word in an indictment of burglary in a church, which, by all the books above cited, seems to be taken as a distinct burglary from that in a house.” (Hawkins’ P. C., book 1, ch. 17, §§ 16, 17.)
As Coke indicated, it was not necessary that the felonious intent accompanying breaking and entering be accomplished, and the essence of the crime consisted in violating the security of, the habitation. When statutes made invasion of places other than dwelling houses, burglary, the essence of the crime consisted in violating the security of the occupancy or possession.
Side by side with the substantive law of burglary, and perhaps to an extent dominating it, grew the system of pleading. In this field the legal mind refined with luxuriant subtlety, and some doctrines, including that of certainty, assumed such extravagant importance that they are astonishing to the practical intelligence of to-day. Expansion of the notion of certainty in criminal pleading is apparent in the following quotation from- Hawkins :
“It seems to be taken as a ground in many books, that regularly the persons offended, as well as the defendant, ought to be certainly described in every indictment.” (P. C., book 2, ch. 25, § 71.)
Hawkins’ authorities, except the case from Croke, are not immediately available. Crystallization of rule is indicated by the decision in that ease:
“a third exception. Because the indictment is, ‘quod felonice furatus fuit quandam peoiam panni linei eujusdam Antho. Nixon praed’ draper, ad valentiam,’ &c., and doth not say, de bonis & catallis eujusdam Anthonii Nixon, as the common form of the precedents are; and therefore ill; for an indictment ought to be certain to every intent, without any intendment to the contrary; and here it may be that this piece of linen was not the goods and chattels of Anthony Nixon, at the time of his taking of them, but by him let out, or delivered, or pledged to another: and it ought to have been shown whose bona & chatalla they were; and it ought not to vary from all other precedents. — And the COURT held it to be a material exception, for the reasons aforesaid: and for that cause the indictment was discharged by the whole Court.” (Long’s Case, 1 Croke, 489, 490.)
Chitty cites many authorities in support of the rule that, when the name of the person injured is known, it is fatal to omit the name from thé indictment (1 Cr. Law, 213), and the rule extended to indictments for burglary. Thus East says:
“It is necessary to ascertain to whom the mansion belongs, and to state that with accuracy in the indictment. And here it is to be lamented that the same rule does not prevail in this case as in arson, which is considered as an offense against the actual possessor by whatever title he may hold the possession. But in burglary the rule is much more complex; the ownership being neither referable altogether to the legal title, nor to the possession, but partaking sometimes of one sometimes of the other, as well as of both.” (2 Cr. Law, 499.)
Now in order that a mansion house should be such, it was essential that somebody should bear to it the relation indicated by the flexible term “owner,” and it was essential to burglary that such owner be some one other than the person making the hostile incursion. Definition of the crime, however, stopped with saying the dwelling house “of another.” While ownership was in a sense an ingredient of the cifense, it was always sufficient that- it be vested in any one except the intruder. It was never material that the owner be any particular person or have any specific name or addition. Except for the tyranny of the rule of pleading, burglary under the statute of this state would be made out in an information in the terms of the information in the Fockler case (The State v. Fockler, 22 Kan. 542), or in an information which merely charged that the locus in quo was owned by a person other than the defendant. The purpose of the rule of pleading requiring the name of the person offended to be stated, was merely identification, albeit identification “certain to every intent.” The result is, the requirement that the name of the person injured by burglary be stated, in order fully to apprise the defendant of the accusation against him, is one thing, while the requirement that the name of the person injured be stated, not as a descriptive circumstance, but as a substantive part of the offense itself, is quite another thing; and the court holds an information for burglary may be sufficient as against a motion to quash on the ground no' offense is stated, although the name of the known owner of the building burglarized be not disclosed. ■
The statute makes it burglary to break and enter a store in which goods are kept. In the present case it was alleged the breaking and entering were done unlawfully, wrongfully, feloniously and burglariously. That was sufficient to apprise the defendant the store did not belong to him. It was alleged the building was occupied and used by The Durnil Dry Goods Company, as a retail store, where goods, wares and merchandise were kept for sale. The crime being one against security of possession, the criterion of ownership for the purpose of pleading burglary is not legal title, but occupancy or possession. (9 C. J. 1044.) The person injured is the one who occupies the store by keeping goods there. The code of criminal procedure requires that an information state the facts in plain and concise language (Gen. Stat. 1915, § 8017), and the plain statement of the facts in the information under consideration fully identified the “owner” of the store.
It is said the description of the owner of the store and goods was bad, because the word “company” was used without designating its character. In the case of The State v. Suppe, 60 Kan. 566, 57 Pac. 106, the syllabus reads as follows:
“An information alleged that the defendant knowingly and feloniously received into his possession personal property which had been stolen from the Carterville Mercantile Company, without averring whether said company was a corporation, joint-stock company, or partnership. Held, that the court erred in overruling a motion to quash the information.”
The opinion expounded the doctrine that a defendant should be apprised of the exact charge against him, to enable him to prepare his defense, and to protect him from further prose cution.' It was said a statement of the ownership of property is essential to such exactness, and because the Carterville Mercantile Company, although bearing a name appropriate to corporate existence, might be a partnership, and title might be in the individual partners, the information did not state a public offense. The conclusion that the information did not state a public offense at all, was unsound, for reasons which have been indicated. . A conclusion that the information was defective for want of certainty in describing the owner, would be justified by all the authorities which have perpetuated the medievalism of the common-law system of criminal jurisprudence. The writer does not join in recognition of the supremacy of those authorities, and the court declines to extend their reasoning to burglary and to larceny committed in connection with burglary.
The Suppe case was decided in 1899. In the year 1900, in a case involving a bond given by “The Boyden Abstract Company,” the court delivered itself as follows: .
“It purports upon its face to be the bond of a corporation. The decisions are uniformly to the effect that institutions with names of a character like unto that of the concern in question will be understood to be corporations, in the absence of contrary knowledge. The name, ‘The Thomas Harrow Company,’ fairly imports a corporation. (Seymour & Son v. The Thomas Harrow Co., 81 Ala. 250, 1 South. 45.) The name, ‘The Muskingum Manufacturing Company,’ implies a corporation. (Harris v. The Muskingum Manufacturing Company, 4 Blackf. [Ind.] 267.) The name, ‘The Cicero Hygiene Draining Company,’ denotes a corporation. (Cicero Hygiene Draining Company v. Craighead, 28 Ind. 274.) So, also, does the name, ‘The Indianapolis Sun Company.’ (The Indianapolis Sun Co. v. Horrell, 53 Ind. 527.)” (Allen v. Hopkins, 62 Kan. 175, 187, 61 Pac. 750.)
Therefore the name, “The Durnil Dry Goods Company,” imported an incorporated body. The defendant was authorized to frame his defense accordingly, and the record would have protected him from subsequent prosecution accordingly. The weight of authority is that, in charging burglary of corporate property, it is not necessary to alleged incorporation (Note; 12 Ann. Cas. 683),- and the same rule should apply to larceny committed in connection with burglary.
There is another view. One of the most common applications of the word “company” is to an association of persons for business purposes. Usually companies are either corporations or partnerships. If the association be incorporated, the corporate entity will hold title to its property. If the association be a partnership, the partners will hold title. The partners will necessarily be those and only those who compose the'named company, and their individual names are in fact of no more practical consequence to a defendant charged with burglary than the names of incorporators would be. The precise state of the legal title to the property is not a matter of concern to him. Naming the owner in the information serves no purpose except to identify the property, and whatever the composition of The Durnil Dry Goods Company, that .purpose was sufficiently accomplished, under any rational conception of the administration of justice, by naming it as owner.
The Durnil Dry Goods Company was a corporation. Evidence of the fact was not disputed, and ownership of the store and goods was not disputed. The proceedings at the trial disclosed that the asserted imperfection in the information did not embarrass the defendant with respect to the merits of the case, and no substantial right of the defendant was in fact prejudiced. Therefore, the judgment may not be reversed because the information was not quashed. (Gen. Stat. 1915, §§ 8024, 8215.)
The defendant requested an instruction concerning the individual responsibility of each juror in determining what the verdict should be, and none was given. The cause of The State v. Witt, 34 Kan.. 488, 8 Pac. 769, is relied on as establishing the principle that such an instruction must be given in a criminal case if requested. The offense charged in the Witt case was capital, the proof was wholly circumstantial, and the decision was predicated on those facts. In this instance, burglary and larceny were proved beyond controversy. The defendant’s connection with the crimes was proved directly by the testimony of his confederates, who were abundantly corroborated, and by proof of incriminating statements and conduct of the defendant himself. Therefore, need for the monitory instruction is not apparent. The defendant polled the jury, after the verdict was returned, and each juror signified that the verdict was his verdict and that he was satisfied with it. Polling the jury served no purpose except to test the genuineness of each juror’s concurrence in the verdict. Under these circumstances, failure to give the instruction did not constitute prejudicial error.
The court gave the following instruction :
“That there was a burglary committed in violation of the statute above quoted on the night of the 25th of September, 1919, at the store of The Durnil Dry Goods Company at Neodesha, Wilson county, Kansas, has been established by the evidence in this cause beyond dispute. So that the only issue for your consideration is whether or not the defendant, George Toliver, participated in said burglary in such manner as to be guilty as a principal in said burglary.”
The defendant argues that he placed the commission of burglary in issue by his plea of not guilty, and the issue of fact thus raised could not be taken from the jury and determined by the court. The case of The State v. Jackson, 42 Kan. 384, 22 Pac. 427, is cited in support of the argument. The syllabus reads as follows:
“In a criminal prosecution, where it is necessary for the maintenance of the action that a certain fact should be shown, and such fact is disputed by "the defendant, both by his plea of not guilty and during the trial by his evidence, and evidence is introduced with reference to such fact, but the evidence introduced does not clearly, unquestionably, directly and conclusively prove the fact, it is error for the trial court to take the question with reference to such fact away from the jury and to decide it itself.”
In this instance the defendant did not dispute burglary, except by his plea, and the evidence introduced directly and conclusively proved the .crime. It was proved directly by the burglars themselves, and their testimony was corroborated, not merely by circumstances, but by other convincing evidence. The sole fact controverted at the trial was whether or not the defendant had guilty connection with the active participants, and the instruction given was doubtless prompted by the following language, found in the opinion in the cited case:
“In criminal cases it is never competent for the court to take a question of fact away from the jury and to decide it itself. Of course a necessary fact may in some cases not be a question of fact, for the fact itself might be admitted by the parties, or it might not be disputed, and the entire and uncontradicted evidence in the case might clearly, unquestionably, conclusively and directly prove the same. In such a case there might not be any question of fact to be decided . . .” (p.386.)
Since no ingenuity, or even perversity of mind, could find a basis for disputing burglary, it was not error to give the instruction.
There is nothing else of importance in the case. A captured .telégram to the defendant from one of his confederates, and testimony relating to it, were properly received in evidence. The corporate character of the dry goods company was properly proved. Ownership of the building and goods, and the value of the goods, were sufficiently established. The testimony of the defendant’s accomplices relating to his participation in the burglary and larceny was well corroborated. A requested instruction appropriate to a case depending on circumstantial evidence was inapt. Objections to various instructions given are without substantial merit. The verdict was sustained by the evidence, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This action was commenced to set aside a warranty deed, to declare a will void, and to partition real property. On the trial, defendant Fred Hinshaw moved for judgment on the pleadings, the statement of counsel, and the evidence introduced by the plaintiff and the codefendants of Fred Hinshaw, and asked that judgment be entered quieting his title to the land. The motion was allowed, and judgment was so rendered. The plaintiff and some of the codefendants of Fred Hinshaw appeal.
On and prior to June 10, 1890, Andrew Hinshaw owned the quarter section of land in controversy, one hundred and fifty-three acres, and on that day, joined with his wife, Sarah Ann Hinshaw, in a general-warranty deed conveying the land to her. That deed was recorded August 20, 1891. In 1896, Sarah Ann Hinshaw executed her will, by which she bequeathed to defendant Fred Hinshaw the entire quarter section, subject, however, to certain conditions which are wholly immaterial. The will was signed by Andrew Hinshaw also. On April 13, 1900, Sarah Ann Hinshaw and her husband, Andrew Hinshaw, executed and delivered a general-warranty deed conveying to Fred Hinshaw one hundred acres off the east side of the property. That deed was recorded September 30, 1905. A copy of each deed was attached to the petition, and the will was introduced in evidence. Andrew Hinshaw died November 11, 1911, and Sarah Ann Hinshaw died April 9,1917.
The appellants contend that when the deed to Sarah Ann Hinshaw was executed a trust agreement was reduced to writing and was signed by her and by Andrew Hinshaw. A copy of the trust agreement was not attached to the petition, and the agreement itself was not introduced in evidence. There was oral evidence which tended to show that there was such an agreement. The plaintiff testified that he saw his father and mother sign it, and there is that in the evidence which tends to show that the plaintiff'took the agreement and kept it, but he testified that he had hunted every place for it and was unable to find it. He testified that the land was to be held in trust, be kept intact, be used by the parents during their lifetime, and on their death was to descend in equal shares to all the living heirs. Another witness testified that he wrote the deed to Sarah Ann Hinshaw; that at the same time he wrote an agreement restricting the operation of the deed; that he took the acknowledgments to both instruments; and that the agreement provided that Sarah Ann Hinshaw should not dispose of the property so as to place it beyond the reach of the children. There was other evidence which tended to show that there was such an agreement.
The court in passing on the motion of Fred Hinshaw said:
“There is a claim here of a trust agreement entered into between the parties at the time this deed was made, thirty years ago. The deed is a straight, unconditional warranty deed. So far as anything appears it was absolute in every particular and the evidence of any trust agreement that it is claimed overthrew this deed should, T think, be very clear, to the mind ’of the court in all its particulars.
“It seems, according to the evidence, that this trust agreement was mislaid or lost and never has been found. We are deprived of that instrument and its contents, whatever they were.
“On April 13th, 1900, a deed was executed by Sarah Ann Hinshaw, mother of plaintiff and defendants in this case, conveying a hundred acres of this land to Fred Hinshaw. This was recorded in 1905 and all the parties had notice in 1905 that the mother had conveyed this land to the defendant, Fred Hinshaw, by a warranty deed. After that time no steps were taken to enforce this trust agreement during the lifetime of Andrew Hinshaw and his wife, Sarah Ann Hinshaw, who undoubtedly knew all about this transaction. A cause of action on account of the violation of that claimed trust agreement arose immediately upon the conveyance of that land and an action could have been commenced at that time to impress the land with the trust that it is claimed it was conveyed under.
“It seems to me that the plaintiff has been guilty of such- laches, in not beginning this suit in the lifetime of his parents, when this action could have been brought and when their testimony was available, that the court is justified in finding that the plaintiff and the co-defendants, for whose benefit this trust is claimed, ought not to-be,here in court claiming this property. If the suit had been brought in due time the court would have had the benefit, not only of the trust agreement, and could have determined the matter to an absolute certainty. That this court cannot do.
“Having reached this conclusion and with this view of the case, I can see no other course to follow than to-give judgment as prayed for to the defendant, Fred Hinshaw, including the quieting of the title.”
This action was commenced in 1919. Fred Hinshaw, in his answer, pleaded laches and the statute of limitations. The appellants, to avoid these matters, argue that no cause of action accrued until after the death .of Sarah Ann Hinshaw. If there was a trust agreement, the deed of Sarah Ann Hinshaw and Andrew Hinshaw to Fred Hinshaw and the will of Sarah Ann Hinshaw were made in violation of the trust and in repudiation thereof. Whatever interest the trust agreement gave to the appellants vested in them.at the time it was made and did not depend on any subsequent contingency. They had the right to bring an action to set aside the deed and enforce the trust immediately after the deed was executed. This action was not commenced until nineteen years had elapsed, and almost fifteen years after the deed had been recorded. Because of the loss of the trust agreement and because of the time that had transpired since its execution, it was difficult to ascertain its terms. These things justified the court in finding the appellants guilty of laches and in refusing to give them relief. In Reihl v. Likowski, 33 Kan. 515, 6 Pac. 886, this language was used:
“Equity requires that suitors should be prompt and diligent in the pursuit of the'r rights, and where there has been great delay in suing to enforce a trust, courts sometimes hold a party to have waived his rights under the trust; but so long as the trust is treated by both parties as subsisting, the right of recovery of the cestid que trust cannot be defeated by mere delay.” (Syl. ¶ 4.)
The burden of proof was on the appellants. Their evidence did not satisfy the court concerning the terms of the trust agreement. The presumption is that the deeds recited all the facts connected with the transactions in which they were made, and this court cannot say that the presumption was overcome.
The case was submitted for judgment on the evidence of the appellants, and the court found that they were guilty of laches and determined that their evidence did not establish a right of action.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On February 6, 1914, H. H. Gordon and his wife executed to H. E. Wilcox an oil and gas lease which was to remain in force for three years and as long thereafter as oil or gas should be produced. It contained a provision that if a -well were not commenced within ninety days the lessee should pay at the rate of $2 per acre per annum, payable quarterly in advance, until the royalties should exceed the rentals. Wilcox executed to J. W. Stanford an assignment of a half interest in the lease on March 5, 1914, and on June 13, 1914, an assignment of the remainder, the assignments being duly recorded. No well was ever begun nor was any rent ever paid. On May 3, 1918, Gordon and his wife brought action for the rent against Wilcox and Stanford. Stanford pleaded and offered to show that Wilcox had executed the assignments to him merely as security for an indebtedness owing to a bank of which he was the cashier, and that he had never taken possession or operated thereunder. The trial court held that these facts would constitute no defense and directed a verdict for the plaintiffs. Stanford appeals.
The assignee of an ordinary lease of real estate as a general rule is liable for the rent (16 R. C. L. 851), and by the weight of authority this liability attaches upon his acceptance of the assignment, whether or not he has taken possession, although there are cases to the contrary. (24 Cyc. 1180; 16 R. C. L. 854; Notes, 52 L. R. A., n. s., 981, Ann. Cas. 1916 E, 80L) The mortgagee of a leasehold is said to be liable for rent in juris-, dictions where a mortgage transfers the whole legal estate, and not liable in jurisdictions where the mortgage is regarded as a mere security. (24 Cyc. 1181.) It has been held that the mortgagee of the leasehold or assignee of the lease by way of security is liable for rent only where he takes possession. (2 Underhill on Landlord and Tenant, § 653; Thomas on Mortgages, 3d ed., § 165.)
The rules with respect to the liability of the assignee of a mining lease are doubtless much the same as in the case of an ordinary lease. (27 Cyc. 702.) The assignee is ordinarily liable for rent (1 Thornton on the Law of Oil and Gas, 3d ed., §§ 230-233) and by the weight of authority his liability does not. depend upon his taking possession, particularly in the case of an oil and gas lease (Id. § 236). In- a lease such as that here involved, where the lessee pays a money rent in lieu of beginning development, what he gets for his money is largely the present control of the property — the power to cause it to be developed or to withhold it from development. He who takes an assignment thereof even by way of security, although he may have no right to possession and no power to influence the operation of the lease, does in a way share in the control exerted by his assignor. Without his consent there could be no surrender of the lease while the assignment was in force, and by virtue of his relation to the matter he, in a sense, exercises dominion over the property. Whatever may be the rule in other situations we think that here the assignee, although he held the assignment merely as security for the debt which was owing to the bank of which he was cashier, was liable for the rent.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
- This is a companion case to The Goodyear Tire & Rubber Company v. The Hanover State Bank et al., which has just been decided. (Ante p.772.) It grows out of the same bank failure and involves a similar question. Here John Kesl and his two brothers, doing business at Cuba, Kan., under the name of Kesl Brothérs, received in the course of business three checks drawn upon the Hanover State Bank by William Doebele (doing business as the Standard Produce Company) for $487.20, $6.84 and $612.90. These checks were deposited by Kesl Brothers in, a bank at Cuba, which forwarded them for collection to a. bank at St. Joseph, which forwarded them for collection to a bank at Kansas City, which sent them to the Hanover State Bank with directions to collect and remit. One of the checks was received by the Hanover State Bank on May 12,1920, and the other two the next day, when all of them were charged to Doebele’s account, and drafts covering the amount, drawn against an Atchison bank in which the Hanover bank had funds, were sent to the Kansas City bank. On May 17, before these drafts- could be collected in due course of business, the Hanover State Bank was closed, possession being taken by Dugald Spence, a deputy bank commissioner, who was afterwards appointed receiver. At the time the checks were presented Doebele had a checking account for more than their aggregate, although he was indebted to the bank in a larger sum upon a note. The bank had cash on hand in excess of the amount of the checks at all times, besides considerable sight exchange. Kesl Brothers brought this action against the bank and its receiver, asking to be paid in full out of the assets on the ground of their claim being a preferred one on the trust-fund theory. They were given judgment in accordance with their prayer and the receiver appeals.
In line with the reasoning in the Goodyear Tire & Rubber Company case the court concludes that the transaction concerning the collection of the checks belonging to the plaintiffs had the same effect as though the Hanover State Bank, in its capacity as agent for- the plaintiffs, had presented the checks to itself in its capacity as drawee for payment, received for them the actual money for which they called, and then with this money bought the drafts which were issued and started on the way to the plaintiffs by the channel through which the checks had come; that the situation is the same in substance as though the drafts had been bought and paid for with money of the plaintiffs procured in any other way, the circumstance that it had been withdrawn from the bank on Doebele’s check for this purpose not affecting the legal rights of the parties.
This view requires the holding that the plaintiffs are entitled to payment in full out of the* assets in the hands of the receiver, assuming of course, as seems to be conceded, that there are not enough similar claims to exhaust the fund and require a prorating.
The receiver however contends that the plaintiffs should not-recover because they deposited the checks in the Cuba bank as cash items and not for collection. The pass book in which the deposits were entered contained this notation: “For drafts and checks credited or taken as collection, this bank acts only as agent, and assumes no liability on them, nor on drafts received in payment of them.” The plaintiffs interpret the quoted words as' though they read: “For drafts and checks credited as cash or taken as collection, this bank acts only as agent.” The defendants interpret them as though they read: “For drafts and checks credited as collection or taken as collection, this bank acts only as agent.” The plaintiffs’ interpretation seems at least as plausible as that of the defendants, but the matter does not appear to be important. Each succeeding bank in the series through which the checks reached the Hanover bank received them for collection. If the Cuba bank became and remains the owner of the checks then technically it and not the plaintiffs has a preferred claim against the receiver. Nothing has been suggested to indicate that it makes any difference to the defendants whether the claim is asserted by the plaintiffs or the Cuba bank. The plaintiffs are the ultimate parties in interest in any event, since even if they deposited the checks as cash they would be answerable to the Cuba bank, if through no fault of its own it did not receive the amount they called for. The agreed statement seems to indicate a practice to treat deposits of like character as made for collection. Moreover the petition alleged that the checks were deposited with the Cuba bank for collection, which may be regarded as an inferential allegation of the bank’s agency for the plaintiffs. Such agency was not denied under oath. We see nothing substantial in the contention regarding the character of the deposit — at least nothing to require a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
During the year 1917-’18 Nelle Barrett held the office of register of deeds in Montgomery county. After the expiration of her term she brought this action against the county to recover one-half the excess fees of the office, under the provisions of chapter 193 of the Session Laws of 1917. The court gave judgment in her favor in the sum of $1,896.30, but deducted from her half of the excess fees the sum of $1,245.50 which had been paid for additional clerk hire. Claiming that this ruling of the court was erroneous, she brings the case here for review.
The case was submitted to the trial court substantially upon an agreed statement of facts. The amount plaintiff was entitled to recover depends upon the construction of certain language in the last clause of section 1 of the act of 1917. The language was construed in Voris v. Cowley County, 103 Kan. 876, 176 Pac. 976. The provision is in substance that whenever the fees collected by the register of deeds and paid over to the county treasurer for any quarter exceed the amount of salary and clerk hire paid to him for the quarter, he shall receive “as clerk hire in addition to the clerk hire heretofore provided an amount equal to one-half of sueh excess.” In the opinion in the Voris case this language was held to be “quite ambiguous,” but because of the “evident general policy of the section taken as a whole, to grade the personal compensation of the officer, not alone by the actual labor he performs, but also by the extent of responsibility he assumes, as measured by the volume of business transacted — a policy the fairness of which is obvious,” the court held the language to mean that where the fees collected in any one quarter exceed the quarterly salary and the amount allowed as clerk hire, the officer is to receive for his own benefit one-half of the excess, “the phrase ‘as clerk hire’ meaning in the nature of clerk hire, or in lieu of clerk hire, implying merely that if an additional clerk is employed he must be paid by the register.” (p. 879.)
The opinion then proceeds:
“This interpretation having been placed upon the words directly in dispute, the final clause of the section supplements it by providing that while one-half of the excess fees shall in any event inure to the personal benefit of the register, the commissioners may in their discretion allow any part of the remainder which they see fit to be used for the employment of additional clerical help.” (p. 879.)
In the present case the minutes of the board of county commissioners establish beyond question that the board exercised its discretion and employed additional clerks who were paid the sum of $1,245.50 on verified bills presented by them to the county clerk, the bills being allowed by the commissioners and paid by the county. It is true, as the appellant argues, that if the salaries for additional clerical help were to be paid by the register, there would be no reason why the commissioners should limit her in the number of additional clerks to be employed and the amount of their salaries.
The main contention of appellee is that an official may not present a claim for part of the salary due, making no claim for the balance until after the term of office has expired, and then maintain an action against the county for the balance. The contention is that by attempting to do this the appellant was splitting her cause of action. The amount of appellant’s salary each month was fixed by the statute, while any claim she might have for excess fees was contingent upon the amount collected in excess of her salary and clerk hire in each quarter. Her claim for salary and that for excess fees were not one single cause of action. Her right to excess fees was in no sense involved in the settlement at the end of each month.
Another contention of the appellee is that appellant is not entitled to recover because the act of 1917 was amended by chapter 198 of the Laws of 1919 by the provision that—
“If any register of deeds has collected fees allowed as clerk hire under the present law, such amount shall be deducted from any salary claimed under this act, and a cause of action shall accrue to the county for the recovery of such fees if the officer is out of office.”
Before the passage of the act of 1919, the appellant’s term of office had expired. When the services were performed,.she had a vested right to one-half the excess fees as provided by the act then in force, and, without attempting to construe the purpose of the legislature in the amendment of 1919, it is sufficient to say that the amendment cannot be given a retroactive effect so as to deprive the appellant of her vested rights.
The appellant was entitled to one-half of the excess fees and it was error to deduct from her claim the $1,245.50 which the county paid for clerical help employed by the commissioners. The judgment is reversed with directions to proceed accordingly. | [
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The opinion of the court was delivered by
Mason, J.:
May C. Haymaker, a widow, was the owner of a quarter section of farm land, subject to a mortgage of $2,800. She had a talk with Charles E. Alford, who had been occupy ing it as a tenant, with regard to its sale to him. Her version is that an oral agreement was reached that he was to have it for $6,500, he assuming the payment of the mortgage in addition to paying her that amount. His version is that the agreement was that he was to pay $6,500, less the amount of the mortgage, which he was to assume. The next day Alford, accompanied by Byrd H. Clark, a real-estate agent, called upon her at a place where she was employed as a nurse and a written contract was executed by Alford and Mrs. Haymaker by the terms of which he was to receive a deed upon paying her $3,700 and assuming the mortgage. Five days later she brought this action against Alford, Clark also being made a defendant, asking for the cancellation of the written contract on the ground that she had signed it with the understanding induced by Alford that it provided for the payment to her of $6,500, the provision that she was to receive but $3,700 being due to a mistake of Clark, the scrivener, or made by design with the purpose of defrauding her. The defendants answered, each denying generally the allegations of the petition, and Alford adding that the written contract was entered into by the plaintiff with full knowledge of its contents. On a trial judgment was rendered in favor of the plaintiff, and the defendants appeal.
The defendants contend that the issue involved was one of fiaud, and that the plaintiff should have been denied relief-because there was a total failure to prove fraud. The petition alleges actual fraud, but if the plaintiff showed that she signed the written contract under a mistake as to its contents brought about by such means that equity should relieve her from liability thereunder, there would be no such variance as to preclude her recovery, even if the conduct of the defendants was not proved to amount to intentional, active fraud. Conduct of one of-the parties justifying the rescission or reformation of a contract by reason of its having been signed by the other under a mistake of fact is not always characterized as actual fraud. Thus it has been said:
“Where the party’s error as to the contents of his signed document is known to the second party, the first party may, of course, by the general principle {ante, § 2413), insist upon the terms as supposed by him, because these are identical with those which he appeared to the second party to be intending to utter. In other words, the actual and therefore the reasonable consequence of his volition to express himself in certain terms was precisely what the second party understood to be that expression. 1. The ordinary instance is that of fraudulent misrepresentations of the document’s terms by'the second party; ... 2. Where the first party's error is merely known to the second party, without fraudulent means by the latter, the result is still the same, for the latter cannot claim that the first party’s expressed words were reasonably so accepted by him; the only difference ought to be that in this case the first party should be satisfied with having the document reformed, while in the case of fraud he ought to be entitled to repudiate the entire transaction, by way of penalty upon the trickster. 3. Where the first party’s error was not Icnoivn to the second party, but was induced by the latter’s own corn-duct, here also the first party may not be bound; for in such case it may well be that the terms actually expressed did not come to be expressed as the natural consequence of the first party’s volition, but were due rather to the second party’s own conduct. In that event the latter is not entitled to charge the former with them; . . .” (4 Wigmore on Evidence, § 2416.)
Of one of tbe situations referred to this court has said:
“Furthermore, if indeed the forty acres was to be reserved for the full duration of the lease, and the defendant noticed the mistake of the scrivener at the time the lease was executed, and if he purposely or thoughtlessly kept silent about it, the want of mutuality in the matter of the mistake would not stay the hand of a court of equity to correct the writing, as the attitude of defendant in such case would be treated as a constructive fraud on his part.” (Atkinson v. Darling, 107 Kan. 229, 231, 191 Pac. 486.)
Likewise the term constructive fraud seems appropriate where the mistake of one of the parties is brought about by the conduct of the other, where a deliberate fraudulent intent is not estabh'shed. The phrase to be used in describing the conditions that warrant rescission on account of the mistake of one party known to or induced by the other is not of vital importance.
There was evidence tending to show these facts: In the original talk between Mrs. Haymaker and Alford it was agreed that she was to receive $6,500. The contract was signed while she was the sole nurse in charge of a patient who was seriously ill, requiring her attendance at the bedside practically all the time. She was called from this service to sign the contract, which the defendants told her conformed to the oral agreement. She signed it in that belief without reading it, having confidence in both defendants, Alford being an old acquaintance and personal friend. She had had but little business experience. She told Clark she was to receive $6,500 cash, the mortgage to be assumed by Alford. Clark undertook to read to her the written contract but did not read the clause stating that she was to receive but $3,700. This evidence was sufficient to sustain a finding of actual fraud. It also gave room to hold the contract voidable even without that finding, upon the ground that the plaintiff signed the contract under a misunderstanding as to its provisions brought about in such a way that she was not concluded by it, whether the element that relieves her is described as constructive fraud or excusable error.
The defendants further contend that the judgment was contrary to the special findings made by the court, particularly on the ground that they showed affirmatively that no fraud had been practiced upon the plaintiff. The findings recited these facts, about which there had been no dispute:
The written contract was supposed to have been drawn and executed in duplicate. The two copies, however, were not identical in terms. They were made by Clark, who filled in the blanks in typewritten forms which he carried with him. In these forms the recital of the agreement to sell, for an amount to be named, real estate to be described, was followed by the words: “First party agrees to execute warranty deed to the above premises free and clear of all incumbrances whatsoever.” The blank for the agreed price in dollars was filled in in both copies with the figures 6,500, and in each the land was properly described. In the copy left with the plaintiff, however, but not in the other one, the words above quoted were followed by this insertion: “Except mortgage in the sum of $2,800, and interest from March 1, 1919.” (The court found that this part of the written contract left with the plaintiff stated her understanding as to the consideration, while the corresponding part of the other copy stated the understanding of the defendants in that regard.) A subsequent clause in both copies was filled in so as to read: “Payments are to be made as follows: $100 cash in hand which is hereby acknowledged by first party, and assume present-mortgage of $2,800 and interest at 6% from March 1st, 1919, and to pay the balance in cash of $3,600 on or before 90 days, making a total of $6,500.”
The court found that at the time the plaintiff signed the contract she did not understand the clause just stated or the effect it- had on the consideration as provided in the earlier paragraphs already described, and that this clause was not as she understood the oral agreement to be.
The court’s findings that the first part of the copy of the written contract left with the plaintiff stated her understanding as to the consideration, while the corresponding part of the other copy stated the defendants’ understanding in that regard, are interpreted by the defendants as referring to the understanding of the respective parties concerning the effect of the oral agreement. From this the defendants argue that as they were found to have understood the effect of the writing to be the same as that of the oral agreement they were acquitted of bad faith or any attempt to deceive the plaintiff or take advantage of her. We interpret the findings referred to as meaning that the first part of the plaintiff’s copy stated her understanding of the effect of the written contract and the corresponding part of the other copy stated the defendants’ understanding thereof, and under this interpretation the argument fails.
Alford testified that in the first talk with the plaintiff she suggested to him the price of $42.50 an acre. The court obviously discredited this testimony outright, for a price named on that basis cut off the opportunity for a misunderstanding, growing out of the existence of the mortgage.
Another finding read:
“That the defendants told the plaintiff that the written contracts dated June-7th, were the same as oral agreement of June 1st, which was not true, because of the difference in the written contracts it could not be true, and neither of said contracts were as the plaintiff understood them to be.”
The defendants interpret this as meaning that the only reason the court believed the defendants to have spoken falsely when they said the written contracts were the same as the oral agreement was that such statement could not have been true inasmuch as the two copies of the written contract differed. The defendants argue that the court’s conclusion was necessarily unsound because the two copies of the written contract in spite of verbal differences were of the same legal effect. Again we disagree with the defendants’ interpretation of the finding. The court did not say that the statement made by the defendants was untrue because the two copies were not alike, but that the statement was not true, and because of the difference in the writings it could not be true. The sentence introduced by the word “because” is complete in itself. We need not pass upon its correctness, because if inaccurate it does not vitiate the rest of the finding. The provision of the copy of the written contract left with the plaintiff, that in consideration of $6,500 she was to execute a deed to the property clear of incumbrance excepting a mortgage for $2,800, standing by itself would indicate that she was to receive $6,500 for her equity. The subsequent provision that the' buyer was to pay $3,700 and assume the mortgage for $2,800, “making a total of $6,500,” by reason of its greater definiteness might control, but the earlier recital was of importance because of its tendency to lead the plaintiff to understand that the written contract meant that $6,500 was to be paid to her.
Another finding read:
“The plaintiff understood by the oral contract that she was to receive $6,500.00 for her property and defendant to assume the mortgage of $2,-800.00, and never intended to sell her farm to the defendant for $6,500.00 and pay the mortgage of $2,800.00 out of that, while defendant claims that he understood he was to get the farm for the total sum of $6,500.00, as provided for in his written contract.”
The defendants interpret this as deciding that Alford understood the oral agreement to provide for the payment of but $3,700 in addition to assuming the mortgage. This interpretation fails to take account of the language used by the court, which is that the plaintiff understood by the oral contract that she was to receive $6,500, while the defendant (Alford) “claims” that he understood she was to get but $3,700.
The defendants assert that in another finding the. court went outside of the pleadings and of the theory upon which the evidence had been introduced, and thereby committed error. This finding read:
“These written contracts above referred to are so different in their terms regarding the consideration that in fact and in equity the minds of the .parties to this action never came together. They really never agreed to the same thing, and no enforcing contract was made between them for the sale of the land. Their minds never met on the amount of consideration.”
If the statement that the parties never agreed to the same thing is taken to mean that even in the preliminary conversation there was no agreement as to price the finding is not outside the pleadings or evidence. The plaintiff pleaded and testified that the oral agreement was that she should receive $6,500 for her interest in the land. The defendant Alford testified that the oral agreement was that he was to pay but $3,700 besides assuming the mortgage. Although the parties agreed that an oral contract had been made and differed only as to its terms, it would obviously be competent for the court to find that no contract had resulted from the oral negotiations because one understood the matter one way and the other the other. However, we read the finding as referring to the written contracts and as meaning that no valid contract resulted from the writings because while the defendants understood that on their face they called for a payment to the plaintiff of but $3,700, she supposed they provided for her getting $6,500, and was led to that understanding by circumstances (one of which'was the difference in the language of the two copies) such that she was not precluded from questioning the effect of the writing, and therefore there was no meeting of the minds in legal contemplation as there was none in fact.
After the findings had been read the defendants asked a finding upon the question of fraud as alleged in the petition, and also findings as to the source of Clark’s information at the time he wrote the contract, and upon which he prepared it. The court refused to make any additional finding and this refusal is complained of. For reasons that have already been sufficiently indicated we think the findings made by the court required the judgment that was rendered, because they involved a decision that the plaintiff had signed the contract under a mistake as to its contents induced by the conduct of the de-' fendants. They clearly imply that her omission to read it before signing and her error as to its provisions were due to Alford’s statement that it was in accordance with the oral agreement, aided by the circumstances under which it was presented to her. If the facts found compel the judgment that is rendered, a reversal is not required by the omission to make further findings. (McCandless v. Kelsey, 16 Kan. 557.) If it were established that the defendants did not deliberately and purposely defraud the plaintiff this would not change the result. “If one of the parties does anything that influences the other party to enter into the transaction, through a mistake as to the true facts, the conduct of this party, whatever the spirit that may have actuated it, will not stand the scrutiny of the chancellor.” (Story’s Eq. Jur., 14th ed., § 168.) In view of these considerations we do not regard the court’s refusal' to pass upon that phase of the matter (for that is what the ruling amounted to) as prejudicial error.. Nor do we see that it was important that findings should have been made as to the source of Clark’s information upon which he prepared the written contract. He testified that he asked the plaintiff what consideration was to be placed in the contract and she told him she was to get $6,500, Alford to assume the mortgage and pay her the difference. He also testified that Alford and Alford’s mother had already told him the substance of the deal, although Alford’s testimony was that he had not done so. The plaintiff testified that she told Clark that she was to get $6,500 cash and the $2,800 was to be assumed by Alford. A finding that Clark received his information from Alford and the plaintiff, or from Alford’s mother and the plaintiff, which would have been as favorable for the defendants as their own evidence would justify, would not have affected the result.
Complaint is made of the admission of evidence of the value of the farm. The court found that it was worth at least $8,000. We consider the evidence competent as having some bearing upon the probability of the plaintiff having agreed to sell it for $6,500. .
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Per curiam:
In this, an original action in mandamus, the plaintiff seeks to compel the state board of administration and the state auditor to deliver to the plaintiff certain warrants signed and registered for a part of the contract price for the construction of a building at the state normal in Emporia, and seeks to compel the state treasurer to pay the warrants after their delivery. An alternative writ has been issued, and an answer has been filed to which the plaintiff demurs.
The brief of the plaintiff gives a correct and concise statement of the issues made by the alternative writ, and the answer thereto, and that statement, which is as follows, is adopted by the court :
“The alternative writ charges that plaintiff was awarded the contract for the erection of the Plumb Memorial Building, for the State Normal School; that it performed the work as contracted, and was paid all the contract price, except a balance of $5,472.28; that June 30, 1917, the then state architect and superintendent of building construction and the then State Board of Administration, in writing approved the work and the vouchers therefor; the then state auditor issued warrants for the said balance due, and the then -state treasurer countersigned and registered the same; but that the said auditor and Board of Administration, and their successors since then, have refused to deliver said warrants to plaintiff; wherefore, it has been unable to secure payment of the sum due.
“The answer admits all the allegations in the writ, except as to the due completion of the work, and in defense thereto, says, that plaintiff did not properly perform some of the work under the contract (specifying it); that on plaintiff’s attention being called to the defective work, it agreed to rectify it, but has never done so; that the legislative appropriation for the contractor’s payment was to lapse and did lapse after June 30, 1917; that in order to save the appropriated fund for plaintiff’s benefit, the final estimates, and vouchers were on July 10, 1917, approved and- warrants drawn and countersigned and registered, as plaintiff alleges; that these papers were antedated June 30, 1917, but that on the later date, it was orally agreed between plaintiff and defendants, and orally ordered by the defendants that said warrants should be withheld from delivery until plaintiff had made good the defective work. There is no allegation in the answer of any character of fraud or misrepresentation on plaintiff’s part or mistake on defendant’s part.”
The argument to support the demurrer is that the answer alleges facts which if established must be proved by parol evidence that will contradict the record of the board of administration, of the state auditor, and of the state treasurer. It is contended that such evidence is inadmissible and that therefore the answer, which states no facts which can be proved in defense to the alternative writ, is insufficient. The answer alleges facts which if true should defeat the plaintiff’s right to .have delivered to it the warrants that have been signed. If the warrants should not be delivered, mandamus should not issue to compel their delivery. Mandamus is a discretionary writ (Railway Co. v. City of Liberal, 108 Kan. 836, 196 Pac. 1067), and should not issue to compel the delivery of warrants to the plaintiff when it has not performed the service for which it was to receive them.
There is much difficulty in holding that evidence to contradict the record may be introduced by the defendants. The record they made is at least prima facie correct, and there is ample authority holding that they cannot contradict it. (22 C. J. 1083, and subsequent pages.) That record is very similar to the record of a board of county commissioners in a road proceeding. If such, a board should establish a road, allow damages, and direct warrants to be issued, and the warrants are issued, signed and registered, but the clerk should refuse to deliver them, in an action, to compel their delivery, the board of county commissioners would not be permitted to say that the road was not established, that damages were not allowed, nor that warrants were not directed to be issued. The same principle must apply to the records made by the board of administration, by the auditor and by the treasurer.
While these officers probably cannot dispute any statement contained in the record made by them, the state is not concluded by that record if it does not recite the facts. The state, on the relation of the attorney-general, in this or in an action commenced for that purpose, may question the correctness of the record, and may procure a judgment preventing the delivery of the warrants if the facts alleged in the answer are true. The court therefore suggests that the state on the relation of the attorney-general intervene in this action and file such pleadings as1 may be necessary to enable the court to determine the truth of the matters alleged in the answer filed by the defendants.' When that is done the answer now filed and the demurrer thereto will become immaterial, and it will be unnecessary for the court to,say that the demurrer should or should not be sustained. | [
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The opinion of the court was delivered by
West, J.:
In 1906 the defendant Rawlings Gatewood gave the plaintiff, a resident of Oregon, three promissory notes for $6,617, bearing interest at ten per cent. Each note contained a provision that in case of suit to collect it the maker promised “to pay such sum as the court may adjudge reasonable as attorney’s fee in said suit or action.” The notes were made payable in Oregon.
Nelson Case, in 1907, brought suit on these notes in Labette county, taking judgment for $7,774.65 with interest at ten per cent. The summons was indorsed with the amount sued for and costs of suit “and $661.70 as attorney’s fee for collection”; and below the clerk’s signature this indorsement was made: “Nelson Case, Oswego, attorney for plaintiff.” The defendant was personally served. In 1908, the plaintiff made proof of his allegations, and the court found generally in favor of the plaintiff and rendered judgment for $7,774.65, with ten per .cent interest and costs and an attorney’s fee of $300, which it directed to be taxed as part of the costs in the case. Mr. Case appeared as sole attorney for the plaintiff and was never discharged as such attorney and has never received any compensation for his services. In May, 1919, the plaintiff, for $900, assigned this judgment to Sophia Gatewood, the defendant’s wife, who had execution issued and sale made and bought in the property for $4,500. She paid in cash only the amount of the court costs, the printer’s fee, fee for notice of sale, and the sheriff’s fees, amounting in all to $61.91, retaining the balance of the $4,500 to be applied as a credit on the judgment. On June 8, 1919, Mr. Case filed a motion for an order to direct the proper officer to pay him the attorney fee allowed by the court. May 4, 1920, he filed another motion to require the purchaser at sheriff’s sale to pay into court the amount of the'attorney’s -fee for his use, and in default of such payment the sale to be set aside. On May 28, 1920, Sophia Gatewood, the purchaser, moved for confirmation. June 11,1920, Mr. Case combined his two motions into one which he then filed, asking that the sale be not confirmed until the purchaser paid into court a sufficient sum to pay him the attorney fee, and asking, further, that the court require the sheriff to collect and pay into court the amount of such fee for his use, and that otherwise the sale be not confirmed. The three motions were presented at the same time and argued and taken under advisement. Afterwards, the combined motion of Mr. Case was overruled and the motion for confirmation sustained, and from these orders this appeal is taken.
Mr. Case contends that the attorney fee contract was made for his benefit, was one which he can enforce, and that the judgment for such fee, or the fee so allowed by the judgment, belongs to him. He argues that the common law recognizes two classes of attorney’s liens, the retaining and the charging; that his lien partakes of the nature of both; and that the statu tory lien, which is of later origin, does not supplant or impair the common-law remedy, but is an additional and supplemental remedy. He argues that his lien so far as considered a charging lien is an equitable right to the fee and costs due him for services and that he is regarded as an equitable assignee of the judgment, based on the principle that the plaintiff should not be allowed to appropriate the whole of the judgment without paying for the services of his attorney in obtaining it. He argues, further, that the assignment should not destroy his right to his remedy, and contends that the assignee took subject to the lien of the attorney through whose services the judgment was secured.
The defendant contends that the judgment was not in favor of Mr. Case, but of his client; that the assignment had the effect of ending his employment as attorney in the matter, and that Mr. Case is not a party to this litigation; and further, that he has not complied with the Kansas statute by serving notice of his lien as required.
Of course, strictly speaking, the judgment was in favor of the plaintiff, and not the plaintiff’s attorney, although that part now in controversy was expressly termed an attorney’s fee in the journal entry, and the summons in' the action asked for an attorney’s fee.
Whether the assignment ended the matter and whether Mr. Case has a right to be considered a party need not now be determined.
The effect of our statute prohibiting a contract o.r judgment thereon for attorney’s fee embodied in a note or similar instrument is not invoked by either party and will, therefore, not be considered.
The serious and controlling question in the case is whether the right to the fee and lien can be invoked without having complied with our statute. This statute (Gen. Stat. 1915, § 484) provides that—
“An attorney has a lien for a general balance of compensation upon any papers of his client which have come into his possession in the course of his professional employment, upon money in his hands belonging to his client, and upon money due to his client and in the hands of the adverse party, in any matter, action or proceeding in which the attorney was employed, from the time of giving notice of the lien to the party; . .
Section 485 provides that—
“Where any judgment has or may be collected or paid to the clerk of any court rendering the same, on execution or otherwise, upon which an attorney’s lien is claimed, the court in which such judgment was or is rendered may in term-time, or the judge of said court at chambers, without formal pleadings on application of any party interested, determine the amount due on said attorney’s lien, if any, and make an order for the distribution of said moneys according to the respective rights of the parties.”
It would seem by the language of section 484 that the legislature must have intended to cover both kinds of common-law liens, the retaining and charging. Of course, an attorney cannot be required to deliver possession of his client’s papers or money which have come into his hands in the course of his employment until the client settles with him for his fees. But that matter is not involved here, this being an affirmative action on the part of the attorney to enforce what might be called his charging- lien.
The retaining lien is said to be an attorney’s right to retain possession of all papers and money of his client coming into his hands professionally until a general balance due him for services is paid. This is said to have been recognized from earliest times. "It is of common-law origin, and the statutes providing for it, and for its enforcement are merely declaratory of the common-law rule.” (6 C. J. 766, § 363.)
The special or charging lien is said to be an equitable right to have the fees and costs due the lawyer for his services in an action secured to him out of the judgment therein—
“The attorney, to the extent of such services, being regarded as an equitable assignee of the judgment. It is based on the natural equity that the plaintiff should not be allowed to appropriate the whole of a judgment in his favor without paying thereout for the services of his attorney in obtaining such judgment.” (6 C. J. 766, § 364.)
“A retaining lien is complete and effective without notice to any one. On the other hand, as a general rule, a charging lien is not perfected until notice thereof has been given to the obligor against whom it is asserted, unless such person has knowledge of the claim, or has notice of fa.cts sufficient to put a prudent person upon inquiry.” (6 C. J. 772, § 370. See, also, 2 R. C. L. 1063, §§ 150-154, and 1069, § 159.)
Whether the statute should be considered merely as providing a remedy to enforce a common-law right or as superseding such right seems to be settled in favor of the latter view. In their brief in K. P. Rly. Co. v. Thacher, 17 Kan. 92, Thacher & Stephens said: “At common law also, and independent of the statutes, we insist that the action should be maintained.” (p. 97.) But the court said: “It is unnecessary to inquire whether this would have been the rule independent of statute.” (p. 101.) In Holmes v. Waymire, 73 Kan. 104, 84 Pac. 558, it was said:
“This section is a substitute for, and may be said to be a substantial enactment of, the common law upon the subject of attorneys’ liens.” (p. 105.)
The Indiana supreme court in Alderman v. Nelson et al., 111 Ind. 255, considering a similar enactment, said:
“The statute gives the lien, and to secure it, the statutory provisions must be pursued with reasonable strictness and accuracy. ... It is not necessary to inquire whether an attorney had a lien on his client’s judgment at common law, for the statute covers the entire subject and creates the lien, and that is the only one that can be enforced. . . . The statute is now the only source from which the lien is derived, and it can only exist as the statute creates it.” (pp. 257-259.)
The Washington supreme court in Humptulips Driving Co. v. Cross, 65 Wash. 636, said:
“The cases necessarily proceed upon the assumption that the- right of an attorney’s lien in this state rests upon the statute, and that there is no common law or equitable right of lien.” (p. 638.)
The Alderman case, supra, was quoted from, with approval.
Thornton on Attorneys at Law states that charging liens are usually regulated by statute, (p. 970, § 572.)
“In most jurisdictions the attorney’s charging lien is provided for and regulated by legislation; and, of course, where this is true, the statutory provisions must govern.” {Id., p. 979, § 582.)
We hold, therefore, that for a charging lien an attorney must look to the statute.
In his brief, Mr. Case suggests that the payee had actual notice of the lien provided for by the notes themselves, and was also personally served with a summons which not only stated the claim for the attorney’s fee, but gave the name and address of the attorney prosecuting the suit. In Cobbey v. Dorland, 50 Neb. 373, there was an indorsement on the summons that, if the defendant failed to appear and answer, the plaintiff would “take judgment for $800 together with interest at 7 per cent . . . and attorney fees and costs of suit.” (p. 375.) The indorsement was signed by the clerk by his deputy. The court said this had none of the requisites of a notice of a claim of lien; it did not refer to the attorney, or his fees, was not signed by himself or for him, and did not purport to emanate from him. In Smith & Baylies v. The C., R. I. & P. R. Co., 56 Iowa, 720, notice of a claim for attorney’s lien was indorsed by the plaintiff’s attorney on the original notice served upon the defendant. The court said:
“The statute simply requires the notice to he in writing. In this respect the notice given conformed to- the statute. It was not a part of the original notice, but was written in a blank space between the¡ parts of the original notice. If it had been written upon the margin, below the original notice, and properly signed, we think no question could be properly raised as to its sufficiency.” (p. 721.)
“The object of the notice is to protect the judgment debtor, and any notice which serves that purpose will be held sufficient. All that is required is that the notice shall contain a general statement of the ¡amount claimed, and of the services for which rendered. The notice must be clear and explicit that a lien is claimed and that payment to the attorney Will be required.” (6 C. J. 774, § 375.)
The trouble with the indorsement on this summons is that it was not a notice that the attorney claimed a lien. At most it indicated a desire to have an attorney fee allowed, only this and nothing more. Counsel cites Greek v. McDaniel, 68 Neb. 569; Cones v. Brooks, 60 Neb. 698; Whitecotton v. Railroad, 250 Mo. 624; Barthell v. Railway Co., 138 Iowa, 688; Northrup v. Hayward, 102 Minn. 807. In the first case, it was held that the petition of intervention was of itself sufficient notice of the lien so long as it did not appear that the judgment debtor had previously paid the judgment. In Cones v. Brooks, the statute was construed as not to require written notice. In the White-cotton case no notice in writing was served, but the court said the defendant did have the notice implied by the bringing of the suit and service of summons, under a certain section of the Missouri statute. In the Barthell case a notice of the attorney’s lien was embodied in the original notice of the action, but it claimed a lien for legal services rendered and to be rendered, the language being:
“You are further notified that the undersigned attorneys claim an attorney’s lien of fifty per cent upon the amount due or to- become due for legal services rendered and to be rendered.” (p. 689.) *
In the Northrup case it was held that the Iowa statute did not require a written notice. These authorities, therefore, do not support the contention that the notice was sufficient, and we have been unable to find those which do. It must be held, therefore, that this notice required by the attorney’s lien act was not given in this case, and the claim therefor cannot be sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
James and Sarah Bradley were husband and wife and resided at Arkansas City. The wife owned two residence lots in Arkansas City, two pieces of city property in Missouri, and some household goods. The husband was the owner of a small parcel of land in’ Reynolds county, Missouri. They entered into a written agreement for the division of their property, each party thereafter to separately own, use and dispose of his or her property as though the marriage relation had never existed. The reasons for making the agreement were stated in a preamble as follows:
“Witnesseth, that whereas, said parties are husband and wife and are both aged and infirm and in ill health and unable to properly care for each other and it being deemed advisable for said husband to go to the home of a son by a former marriage, there to make his home and have care and atténtion necessary, and said wife feeling that she being unable to be of assistance in taking care of said husband and be of care and expense to said son,.it is hereby agreed by and between said husband and wife that said husband may go to the home of said son for the purposes and reasons above set forth, said wife to remain where she elects.
“Now therefore, it is agreed by and between the parties hereto that it shall be lawful for said parties to live apart as above stated, free from the marital control of each other, the same as if unmarried, and without any interference on the part of each party hereto.”
There was a provision by which the wife agreed to accept in full of all demands for her support the sum of five dollars per month for the period of fourteen months, payable quarterly, at the time her husband’s pension was due. Shortly after the execution of the contract and the separation of the parties the wife, while visiting in Missouri, died leaving a will which devised all her property to the appellees. Claiming that as the surviving husband he was entitled under the law to an undivided one-half of the real estate, James Bradley brought this action to partition the property in Cowley county. He died while the action was pending and it was revived in the name of his heirs. The devisees under the will of Mrs. Bradley filed an answer setting up the written contract, and.alleging that the husband had no interest in the real estate, and that his heirs acquired none. A demurrer to the answer was overruled and the heirs of James Bradley appeal.
The appellants’ contention is that the contract is void because it is contrary to public policy. It is argued that inasmuch as an absolute divorce will not be granted upon the consent or agreement of the parties, there is equally as strong a reason for holding that the agreement in question which, it is insisted is equivalent to a limited divorce, should not be recognized, and further, that the contract is void because there is an entire lack of such consideration as will be recognized by the courts. The argument is based upon the proposition that a husband and wife cannot be permitted to live in a state of separation unless there is some failure on the part of one or both in the performance of duties, in the fulfillment of which, it is said, society has an interest. The appellants concede that postnuptial contracts are valid where they do not contravene public policy but insist that in previous decisions the court has laid down the rule that agreements for the division of property based upon separation between husband and wife can only be upheld when the relations between the parties are such as to make a separation inevitable, because the conduct of one is such as to render separation necessary for the health and happiness of the other. The principal case cited in support of this contention is King v. Mollohan, 61 Kan. 683, 60 Pac. 731, which, it is said in appellants’ brief, is the very foundation of their claim.
In that case a contract for the division of property was made in contemplation of an immediate separation and with an unexpressed purpose that a divorce should at once be obtained. But even in that situation it was held that because the separation was simultaneous with the execution of the contract the latter was not to be regarded as intended to break the marriage relations at some future time. The appellants, however, stress a statement in the opinion to the effect that:
“An understanding that the separation, which was inevitable, and immediate and legal in itself, should thereafter receive the sanction of the court and effect a dissolution of the marriage relation, cannot be regarded as collusive or fraudulent or violative of public policy.” (p. 690.)
But in using this-language the court spoke with reference to the facts of the particular case, and was not attempting to lay down a hard and fast rule applicable to all such contracts, nor to limit or define the circumstances or conditions which might be sufficient to render valid a contract of this character between husband and wife.
The appellants’ argument is based upon the narrowest construction possible to be given to the word “inevitable” as used in the opinion in the Mollohan case. The word is often employed in the sense of absolute certainty or of something as sure to happen as death. On the other hand, it is often used in a different sense. Soule’s Dictionary of English Synonyms gives as synonymous words, “unavoidable, necessary, not to be escaped, that must be suffered.”
In the celebrated case of McCullough v. State of Maryland, 17 U. S. 316, counsel for the state insisted upon placing upon the word “necessary” a narrow construction as it appears in the provision of the Federal constitution that congress shall have power “to make all laws which shall be necessary and proper to carry into execution” the powers of the government. The contention was that the word “necessary” should be construed as limiting the right of congress to pass laws for carrying into effect the granted powers, to such as are indispensable, and without which the power of congress would be nugatory. In answering this contention, Chief Justice John Marshall said:
“Is it true, that this is the sense in which the word ‘necessary’ is always used? Does it always import an absolute physical necessity, so strong, that one thing, to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. Such is the' character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense. . . . It is essential to just construction, that many words.which import something excessive, should be understood in a more mitigated sense — in that sense which common usage justifies. The word ‘necessary’ is of this description. It has not a fixed character peculiar to itself. It admits of all degree's of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed, by these several phrases.” (pp. 412, 413.)
So in the Mollohan case the court in speaking of the separation of the husband and wife being inevitable did not use the word “inevitable” as something bound to happen at all events, but as highly probable. Of course, it is always possible, even in extreme cases, that disagreements and quarrels between husband and wife will be adjusted; and the court spoke of the separation as inevitable — not in the sense of being absolutely sure to happen, but in the sense that, from all the circumstances, the parties understood that a separation was bound to occur.
The contract' between James Bradley and his wife rests upon sufficient consideration, and we are unable to discover that it contains any provisions contrary to public policy. Here were two old infirm persons, husband and wife, each of whom had been married before. They realized that they could no longer continue to live together in comfort, not because of domestic strife, but because of their infirmities and circumstances. In order that the husband in his sickness might have proper attention they deemed it best to separate, the husband going to the home of his son where his wants would be cared for, and the wife would be thereby relieved of the -burden of attempting to look after him. The husband possessed some property to which the wife was willing to forego her interest, in consideration of the right to retain for her sole use her own property. Under all the circumstances we think the contract was one which courts should not hesitate to uphold.
But for another reason the appellants cannot maintain their action for partition. It was said in King v. Mollohan, supra, upon which appellants place so much reliance:
“In our view, the separation agreement does not violate public policy; but if for some reason it did, the fact that the husband had accepted the benefits of an agreement which fairly and equitably divided the property, and which was fully executed, would preclude him from setting it aside or recovering property disposed of under its provisions.” (p. 694.)
The appellants, who claim under James Bradley, occupy no better position. The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is-an original proceeding in mandamus to compel the Wolff Packing Company, hereinafter named the defendant, to put in effect a scale of wages to be paid by it to its employees and to establish hours of labor as ordered by the court of industrial relations, hereinafter named the plaintiff. The defendant answers, and presents a number of questions of law in addition to those of fact. The plaintiff requests that the questions of law be disposed of in advance of the final hearing.
The defendant is operating a packing house in the city of Topeka. On March 21 and May 2, 1921, the plaintiff made orders and afterward served them on the defendant fixing wages to be paid and hours of labor to be observed by it in operating its business. The defendant refused to obey those orders. The questions of law, at the direction of the court, have been briefed and argued, and will be disposed of at this time. This is authorized by section 278 of the code of civil procedure., It may be considered that the. plaintiff has demurred to that part of the defendant’s answer which presents questions of law.
The defendant contends that the court of industrial relations “cannot sue in its own name,” and argues that the statute creating the court does not authorize it to so prosecute actions in this court. Section 12 of the industrial court act in part reads:
“In case of the failure or refusal of either party to said controversy to obey and be governed by the order of said Court of Industrial Relations, then and in that event said court is hereby authorized to bring proper proceedings in the supreme court of the state of Kansas to compel compliance with said order.”
Section 27 of the code of civil procedure in part reads:
“A person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted.”
• Section 265 of the code of civil procedure provides that:
“An injunction may be granted to enjoin the illegal levy of any tax, . . . and any number of persons whose property is or may be affected by a tax or assessment so levied’ . . . may unite in the petition filed to obtain such injunction.”
Under the last statute the parties named may not only file the petition but may prosecute the action to final completion. Section 419 of the code of civil procedure provides for an action by the personal representative of a deceased person for his wrongful death, and section 420 provides that if the party whose death has been caused is a resident of this state, and no personal representative has been appointed, the action may be brought by the widow, or, where there is no widow, by the next of kin of such deceased. Under this section actions for wrongful death are constantly commenced and prosecuted to final judgment by the widows or the children of the deceased persons.
Section 8446 of the General Statutes of 1915, a part of the law establishing the board of railroad commissioners, in part reads:
“In case any railroad company, or any such officer, agent, employee, or person, sháll violate or shall refuse or fail to obey any such order lawfully made by said board of railroad commissioners, any person ag grieved thereby may institute and prosecute mandamus proceedings in the supreme court, in the name of the state on the relation of such person, to compel compliance with and obedience to such order; and in any case where in the opinion of the board of railroad .commissioners the interest of the public requires it, such board shall require such proceeding to be brought, and such proceeding shall then be brought by the attorney-general in the name of the state.” (Laws 1901, ch. 286, § 38.)
Section 8447 in part reads:
“Whenever a proceeding brought in the supreme court under section 38 of this act by the attorney for the board, or the attorney-general, upon the direction of the board of railroad commissioners,” etc. (Laws 1901, ch. 286, § 39, as amended by Laws 1907, ch. 268, § 8.)
Under these statutes it was held that:
“The attorney for the board of railroad commissioners is the proper officer to bring an action in the name of the state to compel compliance with an order of the board.” (The State, ex rel, v Railroad Companies, 85 Kan. 649, syl. ¶ 1, 118 Pac. 872.)
Section 8367 of the General Statutes of 1915 reads:
“The commission may compel compliance with the provisions of this act and compel compliance with the orders of the commission by proceeding in mandamus, injunction or other appropriate civil remedies, or by appropriate criminal proceedings in any court of competent jurisdiction.” (Laws 1911, ch. 238, § 39.)
In City of Emporia v. Telephone Co., 90 Kan. 118, 133 Pac. 858, this court said:
“Section 39 empowers the utilities commission to compel compliance with its orders by proceedings in mandamus, injunction or other appropriate civil or criminal remedies.” (p. 127.)
The State, ex rel., v. Gas Co., 88 Kan. 165, 127 Pac. 639, was an action brought under the public utilities law by the state on the relation of the attorney for the public utilities commission, and no question was raised about the authority of the attorney to so prosecute the action.
The industrial court law is a remedial statute and should be liberally construed to promote its object.- (Gen. Stat. 1915, § 11829; Lumber Co. v. Douglas, 89 Kan. 308, 316, 131 Pac. 563.) A liberal construction is that the statute gives to the court authority to prosecute in its own name actions of this character. The statute expressly authorizes the court of industrial relations to bring proper proceedings to compel compliance with its orders. Mandamus is a proper proceeding, and the court can bring it. The industrial court is not directly in terested in the result of this action; the state is the party that is interested, but the state has authorized the court to bring the action. This is at least one of the ways in which it may be brought.
The defendant contends that the purpose of this action cannot be accomplished by proceedings in mandamus, as the action is brought to compel the payment of definite wages to certain employees, and those employees have a right to bring actions against the defendant to recover judgments for wages legally due them. The argument is unsound for the reason that the action is not brought for the purpose named. It is brought to compel the defendant to obey an order of the court of industrial relations fixing a scale of wages and establishing hours of labor to be observed by the defendant in its business. Under the law directing that actions shall be brought by the real party in interest, unless otherwise specifically authorized by statute, the plaintiff cannot by an action in mandamus compel the defendant to pay any wages that may be due under the schedule •ordered to be put in effect; such an action must be prosecuted by the workman to whom the wages are due. The present action is analogous to one brought by competent authority to compel a public service corporation to put in effect rates ordered by a proper, controlling body. The public service corporation can be compelled, in an action in mandamus, to put into effect such rates: Damages sustained by reason of the refusal of the public service corporation to obey the order of the controlling body can be recovered only in an action brought by the party injured.
Another contention of the defendant is that the nature of proceedings under section 12 of the industrial court act is legislative and not judicial. This contention is based on that provision of this section which gives to those who are governed by it the right to commence proceedings “to compel said court of industrial relations to make and enter a just, reasonable and lawful order in the premises.” It is argued that whether or not a legislative regulation is just'and reasonable is not a judicial question.
The statute does not require the supreme court to say what are just, reasonable or lawful wages, and then direct the industrial court to issue an order putting those wages into effect. If the latter court should refuse to make any order on a proper application, then this provision of the statute will operate, and the party complaining can, by prosecuting a proper proceeding in the supreme court, compel the industrial court to make an order which when made would be subject to judicial investigation in a proper action the same as any other order made by that court.
One difficulty with this contention of the defendant is that no one is complaining of the refusal of the industrial court to put in effect a schedule of wages just and reasonable or otherwise, but the defendant is resisting a schedule ordered by the court of industrial relations, an altogether different question, one that is not involved in the position now taken by the defendant nor in the answer filed by it. For this reason the defendant cannot now avail itself of the objection, even if it were good. (City of Kansas City v. Railway Co., 59 Kan. 427, 53 Pac. 468; The State v. Smiley, 65 Kan. 240, 69 Pac, 199; The State v. Jack, 69 Kan. 387, 398, 76 Pac. 911; Brown v. Gilpin, 75 Kan. 773, 90 Pac. 267; The State v. Railway Co., 76 Kan. 467, 490, 92 Pac. 606; The State v. Railway Co., 96 Kan. 609, 612, 152 Pac. 777; 8 Cyc. 787; 12 C. J. 760; Hatch v. Reardon, 204 U. S. 152, 160.)
The defendant insists that the orders of the industrial court are not effective until approved by the supreme court. This is based on a statement made by this court in The State, ex rel., v. Howat, 109 Kan. 376, as follows:
“Resort to this court was authorized in terms which afford opportunity for the determination of issues upon the court’s independent judgment, both with respect to the law and the facts. (Ohio Valley Co. v. Ben Avon Borough, 253 U. S. 287.) The appellate jurisdiction of this court not being available because the court of industrial relations is a nonjudicial body, its constitutional jurisdiction in mandamus was utilized. This jurisdiction is precisely the same as that of any court of general jurisdiction in mandamus, that is to say, is plenary, may be exercised to control the action of inferior tribunals (Bishop v. Fischer, 94 Kan. 105, 145 Pac. 890; In re Pettit, 84 Kan. 637, 114 Pac. 1071), and comprehends the power of superintending control to the full extent of which the writ of mandamus is capable.” (p. 392.)
The defendant says, “this ruling leads to the conclusion that it is contemplated by the act that this court is to pass upon the facts and render judgment as to the reasonableness and justness of the orders.” The conclusion reached by the defendant is not warranted by the language quoted, and the industrial court law does not contain any such provision. An order of the industrial court takes effect in the manner prescribed by law, and does not require the approval of the supreme court.
It is argued that the court of industrial relations can not exercise the extraordinary power of regulating wages to be paid by employers except.in cases of emergency, and it is urged that no emergency is alleged. Section 7 of chapter 29 of the Laws of 1920 provides that:
“In case of a controversy arising between employers and workers, . . . engaged in any of said industries, . . . if it shall appear to said Court of Industrial Relations that said controversy may endanger the continuity or efficiency of service of any of said industries, . . . authority and jurisdiction are hereby granted to said Court of Industrial Relations, upon its own initiative, ... to investigate said controversy, and to make such temporary findings and orders as- may be necessary to preserve the public peace, ... to settle and adjust all such controversies by such findings and orders as provided in this act. It is further made the duty of said Court of Industrial Relations, upon complaint of either party to such controversy, ... if it shall be made to appear to said court that the parties are unable to agree and that such controversy may endanger the continuity or efficiency of service of any of said industries, ... to proceed and investigate and determine said controversy in the same manner as though upon its. own initiative.”
In the present action the petition alleges that complaint in writing was made by certain persons, authorized by section 7 of the industrial court act to make such complaint, a copy of which is attached to and is made a part of the petition filed in this action. That complaint alleged that a controversy had arisen between the defendant and its employees engaged in the operation of the defendant’s packing business, and “that said controversy has endangered and is continuing to endanger the continuous operation and efficiency of service of said packing plant, and does affect and will affect the manufacture and production of the commodities necessary for human food within the state of Kansas and within the vicinity where said packing plant is now operating, and will and does endanger the orderly operation of said packing plant.” The petition sufficiently alleges that an emergency had arisen which justified the industrial court in taking cognizance of the complaint.
The defendant contends that the industrial court law and the orders sought to be enforced in this action violate the four teenth amendment of the constitution of the United States in that the law and the orders made thereunder deprive the defendant of its liberty and property without due process of law, and deny to it the equal protection of the laws. To support this contention the defendant argues that employees cannot be governed by the orders of the industrial court; that the wages of the defendant’s employees are not affected with a public interest so as to subject such wages to regulation by the state; that the law and orders made by the industrial court deprive the defendant and its employees of the freedom of contract concerning wages; and that the classification of the businesses to which the law applies is arbitrary and unjust. These matters will be discussed in the order named.
The statute must be construed so as to uphold its validity, if possible. (Comm’rs of Cherokee Co. v. The State, ex rel., 36 Kan. 337, 13 Pac. 558; In re Burnette, 73 Kan. 609, 85 Pac. 575; Young v. Regents of State University, 87 Kan. 239, 124 Pac. 150; The State, ex rel., v. City of Lawrence, 98 Kan. 808, 811, 160 Pac. 217.) “The principle is universal that legislation, whether by Congress or by a state, must be taken to be valid, unless the contrary is made clearly to appear.” (Reid v. Colorado, 187 U. S. 137, 153.)
The basis of the contention that the defendant’s employees cannot be governed by the industrial court is that those employees cannot be compelled to work for the wages fixed, while the defendant is compelled-to operate its plant and to pay those wages. Section 17 of the act provides:
“That nothing in this act shall be construed as restricting the right of any individual employee engaged in the operation of any such industry, employment, public utility, or common carrier to quit his employment at any time, but it shall be unlawful for any such individual employee or other person to conspire with other persons to quit their employment or to induce other persons to quit their employment for the purpose of hindering, delaying, interfering with, or suspending: the operation of any of the industries, employments, public utilities, or common carriers governed by the provisions of this act, or for any person to engage in what is known as ‘picketing,’ or to intimidate by threats, abuse, or in any other manner, any person or persons with intent to induce such person or persons to quit such employment, or for the purpose of deterring or preventing any other person or persons from accepting employment or from remaining in the employ of any of the industries, employments, public utilities, or common carriers governed by the provisions of this act.”
It must be noted that this provision of the act takes from employees some of that which has been heretofore considered their legal right. Let us look now to the restrictions placed on the employer. Section 6 of the act reads:
“It is hereby declared and determined to be necessary for the public peace, health and general welfare of the people of this state that the industries, employments, public utilities and common carriers herein specified shall be operated with reasonable continuity and efficiency in order that the people of this state may live in peace and security, and be supplied with the necessaries of life. No person, firm, corporation, or associat'on of persons shall in any manner or to any extent, wilfully hinder, delay, limit or suspend such continuous and efficient operation for the purpose of evading the purpose and intent of the provisions of this act; nor shall any person, firm, corporation, or association of persons do any act or neglect or refuse to perform any duty herein enjoined with the intent to hinder, delay, limit or suspend such continuous and efficient operation as aforesaid, except under the terms and conditions provided by this act.”
Part of section 16 reads:
“It shall be unlawful for any person, firm, or corporation engaged in the operation of any such industry, employment, utility, or common carrier wilfully to limit or cease operations for the purpose of limiting production or transportation or to affect prices, for the purpose of avoiding any of the provisions of this act; but any person, firm or corporation so engaged may apply to said court of industrial relations for authority to limit or cease operations, stating the reasons therefor, and said court of industrial relations shall hear said application promptly, and if said application shall be found to be in good faith and meritorious, authority to limit or cease operations shall be granted by order of said court.”
Part of section 17 reads:
“It shall be unlawful for any person, firm, or corporation, . . . engaged in any of such industries, employments, utilities or common carriers to do any act forbidden, or to fail or refuse to perform any act or duty enjoined by the provisions of this act, for the purpose or with the intent to hinder, delay, limit, or suspend the operation of any of the industries, employments, utilities or common carriers herein specified or indicated, or to delay, limit, or suspend the production or transportation of the products of such industries, or employments, or the service of such utilities or common carriers.”
Section 20 in part reads:
“In case of the suspension, limitation or cessation of the operation of any of the industries, employments, public utilities or common carriers affected by this act, contrary to the provisions hereof, or to the orders of said court made hereunder, if it shall appear to said court that such suspension, limitation, or cessation shall seriously affect the public welfare by endangering the public peace, or threatening the public health, then said court is hereby authorized, empowered and directed to take proper proceedings in any court of competent jurisdiction of this state to take over, control, direct and operate said industry, employment, public utility or common carrier during such emergency.”
An analysis of these statutes reveals that the defendant is restricted from doing certain things with the intention of violating the lav/, or in other words is restricted from doing those things prohibited by the law. But the defendant is not, by the law, compelled to operate its plant at a loss, nor is it prohibited from changing its business, nor from quitting the business, if it desires to-do either of these things in good faith, not intending thereby to violate any provision of the act. The language of the act will bear this construction; it will uphold the validity of the act, and not deprive the defendant of any constitutional right that has been urged by it.
The law governing public service corporations is somewhat closely analogous to the law now under consideration. The United States supreme court has held that a railroad may be compelled by mandamus to perform those duties that are required by law. (Northern Pacific Railroad v. Dustin, 142 U. S. 492; Union Pacific R. R. Co. v. Hall et al., 91 U. S. 343; Covington Stock-Yards Co. v. Keith, 139 U. S. 128.) In City of Potwin Place v. Topeka Rly. Co., 51 Kan. 609, 33 Pac. 309, the supreme court of Kansas said:
“The performance of the duties which a street railway company owes to the public to operate its lines in accordance with the provisions of a city ordinance under which its road was constructed may be enforced by mandamus.” (Syl. ¶ 1.)
In The State, ex rel., v. D. C. M. & T. Rly. Co., 53 Kan. 377, 36 Pac. 747, the following language was used:
“The roadbed and superstructure of a railroad built under a charter obtained in accordance with the laws of this state are charged, not only in the hands of the original corporation, but of purchasers as well, with the burden of the company’s charter obligations, and cannot be diverted from the purpose to which it was devoted, nor relieved from this burden without the consent of the state, duly expressed by the legislature or other competent authority.” (Syl.)
In City of Topeka v. Water Co., 58 Kan. 349, 49 Pac. 79, this court held that—
“Mandamus may be employed to compel a water company to extend its mains in a city, where under the contract between the city and the company it is the duty of the company to make such extension.” (Syl. ¶ 2. See, also, Railroad Co. v. Nyce, 61 Kan. 394, 407, 59 Pac. 1040.)
In The State, ex rel., v. Postal Telegraph Co., 96 Kan. 298, 150 Pac. 544, this court said:
“Where a telegraph company maintained a telegraph station for a number of years at an average deficit of $134.33 per annum it should have applied to the public utilities commission to discontinue it, and it was unlawful to close the station and quit business thereat until such permission was granted.” (Syl. ¶ 3.)
Those were public utilities cases, in each of which a franchise had been granted either by the state or a municipal corporation, and a contract had been entered into, either express or implied, that the public utility would perform the service named. It is now well settled that the services performed by public service corporations are affected with the public interest, but the time was when that principle was earnestly denied. These cases might lead to the conclusion that a public service corporation is compelled to perform its duties even at a loss, but that principle is denied in a number of cases, one of which is Brooks-Scanlon Co. v. R. R. Comm., 251 U. S. 396, where the supreme court of the United States said:
“A common carrier cannot, under the Fourteenth Amendment, be compelled by a State to continue operation of its railroad at a loss.” (Syl. ¶1.)
This rule is followed in Bullock v. R. R. Comm, of Florida, 254 U. S. 513. In the Brooks-Scanlon Co. case it was said that “a carrier cannot be compelled to carry on even a branch of business at a loss, much less the whole business of carriage.” (p. 399.) A note on this subject is found in 11 A. L. R. 252, appended to a case, Lyon & Hoag v. Railroad Commission, 190 Pac. 795, where the supreme court of California held that, the state had no power to compel the continued operation of a public utility at a loss. The authorities lead to this conclusion, that public utilities can be compelled to operate, but not at a loss. Control of public service corporations is justified by the fact that they are affected with a public interest. The defendant is operating a packing plant. It is not a public service corporation, but the legislature has declared that its business is affected with a public interest, and for that reason has assumed to exercise control over it. For a recital of the facts justifying that declaration, The State, ex rel., v. Howat, 109 Kan. 376, is referred to.
If the defendant is conducting a business that is affected with a public interest, it ought to be subject to legislative control the same as if it were conducting a waterworks system, an electric light plant, or a railroad. When the defendant’s business became affected with a public interest, the public had the right to say something about the manner in which it should be conducted. The legislature has undertaken to do so, has provided for the regulation of that business, and has placed certain prohibitions on the manned in which it shall be conducted; but the legislature has not said that the defendant cannot under any circumstances cease to operate its packing plant if it desires so to do. The permission that must be obtained from the industrial court by the defendant is not permission to do those things which it may rightfully do under the law, but is permission without which the defendant, in doing other things, would be violating the law. In The State, ex rel., v. Howat, 109 Kan. 376, the court said:
“Limiting production and withdrawing from production are expressly-permitted, for any purpose which does not 'contemplate circumvention of the law.” (p. 414.)
The defendant argues that the compensation paid to its employees for services rendered is not affected with a public interest, but does not argue that the defendant’s business is not affected with a public interest. In response to the defendant’s argument we begin by quoting from Munn v. Illinois, 94 U. S. 113, where the supreme court of the United States said:
“This brings us to inquire as to the principles upon which this power of regulation rests, in order that we may determine what is within and what without its operative effect. Looking, then, to the common law, from whence came the right which the Constitution protects, we find that when private property is ‘affected with a public interest, it ceases to be juris privati only.’ This was said by Lord Chief Justice Hale more than two hundred years ago, in his treatise De Portibus Maris, 1 Harg. Law Tracts, 78, and has been accepted without objection as an essential element in the law of property ever since. Property does become clothed with a public interest when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created. He may withdraw his grant by discon tinuing the use; but, so long as he maintains the use, he must submit to the control.” (p. 125.)
This principle has been followed so many "times in so many states that a review of the legislation and of the decisions arising thereunder • would be a herculean and useless task. A résumé of the decisions following this principle is found in 9 Rose’s Notes, Rev. ed., 519-542. But the question argued is not that the business of the defendant is not affected with a 'public interest, but is that the wages of the defendant’s employees are not affected with a public interest. The state may control the rates to be charged by those who are engaged in a business affected with a public interest. Wages is one of the largest factors that go to make up the expense of conducting a business and must be considered in determining what the rate shall be. In many instances wages cannot be increased unless rates or charges are increased, and in many instances rates or charges cannot be decreased unless wages are decreased. In all business enterprises affected with a publ'c interest rates or charges and wages are so bound together that they cannot be separated. Rates cannot be completely controlled unless wages are controlled, and wages cannot be controlled unless' charges are controlled.
The compensation paid to workingmen for their labor is the most fruitful cause of industrial unrest and of the conditions produced thereby. The state is not powerless to regulate the wages to be paid for labor in those enterprises without the continuance of which the people must suffer. Hours of labor have been the subject of legislative action, and a number of laws fixing hours of labor have been upheld. In Barbier v. Connolly, 113 U. S. 27, and Soon Hing v. Crowley, 113 U. S. 703, an ordinance of the city of San Francisco fixing the hours between which washing and ironing must be done in public laundries was upheld. In Holden v. Hardy, 169 U. S. 366, the supreme court approved a law of the state of Utah fixing eight hours as the period of employment for men working in underground mines, smelters and other institutions for the reduction or refining of ores or metals. The principle that was followed in Holden v. Hardy was followed in Matter of Application of Martin, 157 Cal. 51, 57; State v. Cantwell, 179 Mo. 245; State v. Livingston Concrete, etc., Mfg. Co., 34 Mont. 570; Ex Parte Boyce, 27 Nev. 299; Ex Parte Kair, 28 Nev. 127; id., 28 Nev. 425.
A law prohibiting those engaged in manufacturing or repairing to work their employees more than ten hours per day except in cases of emergency, or where necessity requires it, was upheld in State v. Lumber Co., 102 Miss. 802, and 103 Miss. 263. The court of appeals of New York held that the legislature had power to enact a law making it unlawful for a railroad employee in charge of a block-signal tower to be on duty more than eight hours in twenty-four, in People v. Erie Railroad Co., 198 N. Y. 369. A law fixing a day’s work for conductors, gripmen and motormen on street railways at ten hours, to be performed within twelve consecutive hours, was declared valid in an opinion to the governor by the supreme court of Rhode Island, in 24 R. I. 603.
Numerous laws fixing and regulating the hours of labor for women have been held valid under the police powers of the states. (Muller v. Oregon, 208 U. S. 412; Riley v. Massachusetts, 232 U. S. 671; Matter of Application of Miller, 162 Cal. 687; Ritchie & Co. v. Wayman, 244 Ill. 509; The People v. Elerding, 254 Ill. 579; Commonwealth v. Hamilton Manufacturing Co., 120 Mass. 383; Commonwealth v. Riley, 210 Mass. 387; Withey v. Bloem, 163 Mich. 419; Wenham v. State, 65 Neb. 394; People v. Charles Schweinler Press, 214 N. Y. 395; Commonwealth v. Beatty, 15 Pa. Super. Ct. 5; State v. Buchanan, 29 Wash. 602; State v. Somerville, 67 Wash. 638.)
In Muller v. Oregon, supra, one of the headnotes reads:
“As healthy mothers are essential to vigorous offspring, the physical well-being of woman is an object of public interest. The regulation of her hours of labor falls within the police power of the State, and a statute directed exclusively to such regulation does not conflict with the due process or equal protection clauses of the Fourteenth Amendment.” (Syl. ¶3.)
In Atkins v. Kansas, 191 U. S. 207, a law fixing eight hours as a day’s work for all laborers employed by or on behalf of the state or any of its municipalities, was upheld. Similar laws have been upheld in The People v. City of Chicago, 256 Ill. 558; Sweeten v. State, 122 Md. 634; People, ex rel. W. E. & C. Co., v. Metz, 193 N. Y. 148; Byars v. State, 2 Okla. Cr. 481; Ex Parte Steiner, 68 Ore. 218.
Laws establishing minimum wages for women have been passed in a number of states, and have been upheld by courts. (State v. Crowe, 130 Ark. 272; Williams v. Evans, 139 Minn. 32; Stettler v. O’Hara, 69 Ore. 519; Simpson v. O’Hara, 70 Ore. 261; Larsen v. Rice, 100 Wash. 642.) Appeals in Stettler v. O’Hara and Simpson v. O’Hara were affirmed by the United States supreme court, equally divided. (243 U. S. 629.) A very able opinion on this question is by the court of appeals of the District of Columbia. (The Children’s Hospital v. Adkins, recently decided.) There an act of congress fixing a minimum wage for women and minors was held valid.
Laws fixing minimum wages and hours of labor for women are justified on moral and physical grounds; laws fixing wages for men may be justified on similar, although not the same, grounds. Sex is a proper basis for classification of the subjects of this kind of legislation, but it does not answer constitutional objections. The dangers to a man while working should be reduced to a minimum; the conditions under which he labors, so far as possible, should be conducive to health and comfort. Intensive work of either mind or body, or both, should not be continued beyond his powers. A laboring man with a family, for honest work, should receive wages sufficient to enable him to feed, clothe and shelter his family, and educate his children. If the wages received by him are not sufficient to do these things, he becomes discontented, and the evil consequences .that flow from such discontent may follow. The state should, it does, have power to protect laboring men to the same extent that it protects working women.
Before the law the rights of men and women ought to be equal; they are equal. If a man has an absolute right under all conditions to contract for the wages that he shall receive, a woman ought to and does have the same right. If the state under its police power can interfere with that right on the part of a woman it ought to be, and is, able to interfere with that right on the part of a man. The state is as much interested in the protection of the one as it is in the protection of the other. A statute may very properly be enacted for the protection of women, but that would not in any way weaken the constitutional right to object to it on any valid ground.
In Lochner v. New York, 198 U. S. 45, the supreme court said:
“Section 110 of the labor law of the state of New York, providing that no employees shall be required or permitted to work in bakeries more than sixty hours in a week, or ten hours a day, is not a legitimate exercise of the police power of the state, but an unreasonable, unnecessary and arbitrary interference with the right and liberty of the individual to contract, in relation to labor, and as such it is in conflict with and void under the Federal constitution.” (Syl. ¶ 4.)
That case seems not to have been overruled, but what appears to this court to be a contrary rule was declared in Wilson v. New, 243 U. S. 332. In 1916 a general strike of railroad employees in the United States was threatened. To avoid that strike congress passed the Adamson law, which fixed eight hours as a day’s work, and fixed the wages that should be paid at not less than the then standard per day and a pro rata wage for overtime. That law was .upheld in Wilson v. New, supra, where the court declared that congress had authority to pass the law under the commerce clause of the constitution. If under the commerce clause of the Federal constitution congress can regulate wages and hours of labor of those working on railroads, the state, under the police power, should be able to regulate the wages and hours of labor of those working in a packing plant operating wholly within the .state. The powers of congress under the commerce clause of the constitution are no greater than the authority of the state under the police power. Congress is controlled by the fifth amendment to the constitution, which provides that no person shall be deprived of life, liberty or property without due process of law, while the state is bound by the fourteenth amendment, which provides that no state shall deprive any person of life, liberty or property without due process of law. Congress in its entire field of legislation must be obedient to the fifth amendment the same as the states in their field of legislation must be obedient to the fourteenth amendment to the Federal constitution. In Wilson v. New, 243 U. S. 332, one basis for upholding the Adamson law as expressed in the syllabus was as follows:
“In an emergency arising from a nation-wide dispute over wages between railroad companies and their train operatives, in which a general strike, commercial paralysis and grave loss and suffering overhang the country because the disputants are unable to agree, Congress has power to prescribe a standard of minimum wages, not confiscatory in its effects but obligatory on both parties, to be in force for a reasonable time, in order that the calamity may be averted and that opportunity may be afforded the contending parties to agree- upon and substitute a standard of their own.” (Syl. ¶ 4.)
Legislation to meet emergencies arising in the state similar to those arising in the nation ought to be upheld for reasons the sáme or similar to those given in Wilson v. New. The duty of the Federal government to protect from suffering the people of the nation is no more binding than that of the government of the state to protect its people from suffering. If the Adamson law was compelled by an emergency, the Kansas industrial court law was likewise compelled by an emergency. The purpose of the latter law is to meet such emergencies as will prevent a suspension or interference with the operation of the several-kinds of business named in that law. This purpose is revealed by the entire acL Section 9 of the act might bear a contrary interpretation, but in The State, ex rel., v. Howat, 109 Kan. 376, concerning section 9 this court said:
“Section 9 does not authorize a general revision of labor contracts. In congruity with other sections, it does no more than provide that contracts shall not thwart achievement of the public purposes of the statute. No contract may be modified except in an action or proceeding properly before the court, that is, an action or proceed'ng relating to a controversy. If, in dealing with the emergency created by a controversy, the court encounters a contract which would hamper the making of a necessary order, the contract may be treated as any other element of the situation. No contract is to be regarded as unfair, unjust, „or unreasonable, that is not an impediment to settlement of a controversy, and orders respecting contracts of the obstructive character are merely ancillary to determination of the controversy. The power exere'sed in making such orders is the same power which takes entire, charge of a mine and operates it during an emergency.” (p. 415.)
A part of the subject that has just been discussed and inseparably connected with it is the defendant’s contention that the law deprives employers and employees of the freedom of contract concerning wages. Practically every law regulating the conduct of men restricts their freedom of action, and practically every law regulating business affected with a public interest restricts the freedom of contract. Every law that has been passed regulating wages or the hours of labor has been a law restricting the freedom of contract. A large number of these have been upheld, and they must continue to be upheld if the state is to perform its governmental functions and prevent violence caused by controversies between employers and employees over these questions. If the state can make regulations for the government of a business affected with a public interest, it ought to be able to extend that regulation to the wages paid to the employees of that business. The flow of food supply .from producer to consumer should not be stopped by conditions produced by industrial unrest arising out of wage problems. If that flow is'threatened and the state under its police power can remove the danger, that-should be done. That and that alone the Kansas industrial court law attempts to do.
The statute separates those engaged in the business of manufacturing or preparation of food products, manufacturing of clothing and wearing apparel, the mining and production of fuel, and transportation of food products, clothing and fuel, and public utilities, from those engaged in all other kinds of business within the state. • The defendant says that this classification of the subject matter of legislation is arbitrary and unjust. This is an old field of legal debate; it has been before the court, both state and Federal, on a large number of occasions. The rules declared by the courts may be summarized as follows: the fourteenth amendment to the constitution of the United States does not require state statutes to operate indiscriminately, but does admit’of the classification of the subject matter of legislation; the constitution does not prohibit special legislation merely as such; a state law may be limited in its operation as to persons but must be uniform for all in like circumstances within the sphere of operation of the statute; rigid equality is not required; the legislature is permitted a wide discretion, but the classification must be reasonable and not arbitrary nor hostile. (4 Enc. U. S. Supreme Court Reports, 358-367; 6 R. C. L. 397, 403; 12 C. J. 1128-1138.) The successful operation of the four classes of business named, one of which includes packing houses, is necessary for the peace, comfort and welfare, and particularly of the health, of the people. These industries are subject to interruption on account of conditions now existing. Those engaged in these industries constantly work in the presence of danger. Long hours of continuous employment will render them less able to avoid those dangers because of the weariness that overtakes anyone who for a long period of time continuously works at any one thing. Constant employment at the same task for long hours day after day will render the worker both physically and mentally less able to perform his labor. Protection to the workman in these industries demands that his daily hours of labor be not so extended as to prematurely exhaust his powers.
The legislature had power to enact the industrial court law, and to make it apply to the classes of business named therein, without including any other class.
The demurrer of the plaintiff to that part of the answer of the defendant presenting questions of law is sustained. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for specific performance of an alleged agreement to sell a tract of land, and for damages for the breach thereof if the equitable relief prayed for could not be granted.
The defendant, D. M. McCarthy, a resident of Jewell county, owned a quarter section of land in Cheyenne county. Some time in 1917 he employed an attorney in Cheyenne county to quiet his title. He also listed the land with this attorney for sale, but upon what terms the record does not disclose. On September 14, 1917, this attorney wrote to McCarthy:
■ “I am now in position where I believe I can sell the land which you and I went to look at so as to give you $550.00 net and in addition I will stand the expense and attorney fee of quieting the title in your name. It may be, however, that you will only realize $150.00 cash when the deal is closed' and carry back a mortgage of $400.00 on the land. This will give you the $550.00 without incurring the expense of quieting the title. I am of the opinion that but very little money will be advanced until the title is quieted, and then I think the whole transaction can be closed and your money and mortgage remitted to you. If this proposition is acceptable to you, you should at once write me and send me all the papers which you have in connection with this land, so that I may start the quiet title action in your name and enter into a contract with my prospective purchaser.”
■The record does not show that this letter was answered, but on October 3 defendant wrote to his attorney:
“As per our conversation over the phone to-day, I inclose herewith my check in the sum of $16.15 together with quit claim deed from Minnie E. Phillips running in favor of myself conveying the southwest quarter of section eight (8), town one (1), range thirty-eight (38) West, Cheyenne county, Kansas, dated July 28th, 1917. Fifteen dollars of the above check is sent in lieu of cost bond to commence suit to quiet title to the above land, and $1.15 to pay recording fee of deed. I understand' you desire to start suit immediately, and if you will kindly send me copy of the petition and all the proceedings for my office files and a complete record of this transaction it will be greatly appreciated.
“Now cencerning a sale of this property will say, I will accept $550.00 cash and execute quit claim deed, purchaser to pay attorney fees, and the cost of suit to quiet title, as per the terms of your letter of September 14th, 1917, with the exception that I would want to make this a cash deal, and would not care to take a mortgage back on the land for $400.00. This offer" of course is for immediate acceptance only, as I regard it a bargain offer, and that the purchaser will thereby secure a good deal. . . .
“If your prospective purchaser decides to buy, I would . . . prefer to have title quieted in himself'. I will be glad to hear from you as to what action is eventually taken, with copy of the pleadings in the event suit is commenced.”
On October 11 McCarthy’s attorney wrote to his client:
“I herewith hand you full copies of all papers in your quiet title action to the SW)4 8-1-38. I filed this case this week and we will now be able to obtain judgment in the December term.
“I have written my party informing him that you desire the purchase price of this land in cash, and that the offer is only open for a few days. I will expect to hear from him within a week or so, and if I can close I will endeavor to sign him in a contract providing for the payment as soon as the title can be quieted and judgment obtained, abstract can be extended, examined and approved. Now in this respect permit me to say that I think that it would be much better for you and better for the purchaser to have this title quieted in your name as we have started it, then after judgment is obtained that you give a warranty deed as by this method the time for opening up the judgment would be limited to six months rather than three years, as provided by section 6974 Gen. Stat. of Kansas for 1915. I think when you study this matter over that you will agree with me that this is the best and most logical thing to do.”
Without further correspondence or further authority, the attorney sold the land on October 15, 1917, to the plaintiff, C. G. Artz, and gave him a bond for a warranty deed to be delivered on or before December 15, 1917, reciting as consideration and terms:
“Eight hundred dollars, to be paid as follows: $400.00 cash in hand the receipt of which is hereby acknowledged and the balance of $.400,00 on or before the 15th day of December, 1917, said party of the first part [McCarthy] on or before said date to furnish said party of the second part an abstract showing a marketable title to said real estate, free and clear of incumbrance, . . . Taxes for the year 1917 and all prior taxes to be paid by party of the first part.”
McCarthy declined to be bound by this contract, and a few months later sold the .land to his codefendant, Florence L. Judy. Thereupon- Artz brought this action to compel a conveyance by McCarthy, or for damages in lieu thereof.
All these matters, including copies of the correspondence, and other less significant details, were set out in the pleadings. Defendants raised objections to the jurisdiction and to the cause or causes of action, most of which were overruled by the court. Defendants then answered and filed a cross-petition in ejectment and to quiet title. The matters raised by the pleadings were reconsidered by the trial judge, and it appears that he had some misgiving touching his earlier rulings on defendants’ objections to the jurisdiction and to the plaintiff’s pleadings, so he announced that if defendants would dismiss their cross-petition and strike out part of their answer he would give them judgment on the pleadings. Defendants complied with the court’s suggestion, and judgment in their favor was entered accordingly.
Plaintiff appeals.
Plaintiff contends that the agent’s authority to sell the land was never revoked. Neither the extent of the agent’s preliminary authority nor the original terms of sale prescribed by the owner are disclosed in the record, but from the later correspondence it is perfectly clear that before the sale of the land to the plaintiff, the defendant owner had prescribed the precise terms which he would then accept — $550 cash for a quitclaim deed, and this offer, with other conditions, was “for immediate acceptance only.”
The agent closed a contract with plaintiff on terms he had no authority to make; and, indeed, it is not shown that he had authority from the defendant owner to execute any sort of written contract in his behalf. (Brown v. Gilpin, 75 Kan. 773, 90 Pac. 267; Wiggam v. Shouse, 105 Kan. 637, 185 Pac. 896.) The written contract upon which plaintiff relies was of the sort to which the principal could not be bound by the act of his agent unless the agent’s authority had been by power of attorney or similar instrument in writing. (Gen. Stat. 1915, §§ 4888, 4889; Brown v. Gilpin, supra; Adams v. Carlton, 77 Kan. 546, 95 Pac. 390; Smith v. Schriver, 91 Kan. 582, 138 Pac. 584.)
It is therefore obvious that no valid contract between plaintiff and the defendant owner existed, and specific performance was properly denied. And plaintiff’s alternative cause of action — for damages for the breach of the contract if relief in equity weré denied — was likewise bound to fall, when there was no valid contract to be breached.
The record also .shows that on December 18, 1917, the defendant’s agent sent his principal a check and draft for $550 and a quitclaim deed to be executed, presumably in disregard of the written contract which he, the agent, had made with plaintiff; but that could not be construed as an “immediate acceptance” of defendant’s offer made in his letter of October 3. Furthermore this action was founded on the unauthorized written contract of December 15, not on an “immediate acceptance” of the offer of October 3.
The record contains no' error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
A preliminary question is presented in the motion filed by the defendant to dismiss this case, upon the ground that the petition in error was not filed within’ six months after the rendition of the judgment of divorce obtained by Alice Haverty against John V. Haverty. (Laws of 1881, ch. 126, § 1.) It appears from the record that the divorce was granted June 28, 1883. This action to vacate that judgment for fraud was commenced December 21, 1883, and the judgment rendered therein on June 25,1884. The petition in error was filed on May 4, 1885—less than one year after the rendition of the judgment sought to be reviewed. This is not k proceeding to modify or reverse, by any order or judgment of this court, the decree of divorce, but the proceeding is one brought here to reverse the judgment of June 25. If that judgment, however, be vacated upon the ground that the decision of the trial court is not supported by the evidence, it will have the ultimate effect of setting aside the divorce. Section 1, of said chapter 126, provides, among other things:
“No proceeding for reversing or vacating the judgment or decree divorcing said parties shall be commenced unless within six months after the rendition of said judgment or decree, and during said six months and the pendency of said proceeding for reversing or vacating said judgmént or decree, it shall be unlawful for either of said parties to marry, and any person so marrying shall be deemed guilty of bigamy: Provided, Such decree shall be final; and no proceedings in error to the supreme court shall be allowed or taken unless a notice of an intention to prosecute such proceedings in error be given in open court and noted on the journal of the court, within three days after the entry of the decree or judgment, and the petition in error and transcript be filed in the supreme court within three months after the rendition of such judgment or decree.”
This action for vacating the decree divorcing the parties was commenced within six months after the rendition of that decree. No proceedings, in error were ever brought to the supreme court for reversing or . x ® vacating the decree of divorce, and no such petition in error is now pending. Therefore the motion to dismiss must be overruled. (Laws of 1881, ch. 126, §2; Civil Code, §§ 568-575.)
An attorney owes to his client-not only all the industry and application of which he is capable, but also, unshaken fidelity. He must be loyal in act and spirit to his client’s interests. His loyalty should be unquestioned, above suspicion, and beyond reproach. An attorney not guilty of misconduct or fraud- will be protected, when he acts to the best of his skill and knowledge, and of course is not answerable for every error or mistake. He is legally responsible to bis client only for the want of ordinary care and ordinary skill; but he must conduct himself with honor and integrity. ' While the relation of attorney and client continues, the courts will carefully and zealously scrutinize the dealings and contracts between them, and guard the client’s rights againsfevery attempt by the attorney to secure an advantage to himself at the expense of the client. The client will also be relieved from any undue consequences resulting from the dealings between the attorney and himself, whenever the good,faith of the contract does not clearly appear. An attorney, therefore, when acting for his client, is bound to the most scrupulous good faith. If he corruptly sells out his client’s interest to the other side, a judgment thus obtained will be set aside, if proper proceedings are instituted. An attorney, as an officer of the court, holds a position with many privileges, and it is the solemn duty of the court to supervise the conduct of its officers and to discountenance every malpractice and abuse. The conduct of an attorney, when brought before the court for inquiry and consideration, ought to be scrutinized with the same exacting and rigid impartiality as if the question were between mere strangers to the bar. Perhaps every act should be more scrupulously weighed.
With this statement of recognized principles, we proceed to an examination of the evidence produced upon the trial. We think this evidence shows that the attorney of John V. Haverty entered into arrangements with the attorney of Alice Haverty about the time of the trial of her divorce case of such a character as to interfere with his exclusive devotion to the trust confided to him by his client. If Alice Haverty, through her attorney, prior to the trial of the divorce case, was guilty of so influencing the attorney of John V. Haverty as to obtain an undue and an unfair advantage, and thereon the judgment was thus obtained, such judgment ought to be annulled. As was said by Mr. Justice Miller, in United States v. Throckmorton, 98 U. S. 61:
“Where the unsuccessful party has been prevented from exhibiting fully his case by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently and without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interests to the other side—these and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree and open the case for a new and fair hearing.” (See also Laithe v. McDonald, 7 Kas. 254:)
If we rely upon the evidence of the attorney of Alice Haverty, it appears that $100 was paid to the attorney of her husband upon the agreement that she should take judgment in her favor and that the attorney would make no defense in the case for the husband, who was absent. This evidence is also supported by the clerk of the court, who testified that the attorney of Mr. Haverty “ agreed with the attorney for Alice Haverty that if he would pay him $100, he would make no objection to his taking a decree.” This clearly brings the case within the rule that “where the attorney regularly employed corruptly sells out his client’s interests to the other side, the judgment will be set aside.” If, however’, we look to the attorney of Mr. Haverty for an explanation of the evidence of Col. Burris concerning the payment of the $100, we find this payment was made for the direct benefit of such attorney. It was applied to his own fees in the divorce case, to a livery bill in his hands for collection, and to a note on which he was surety. Haverty never received any part of the $100. His attorney made no application for a continuance, and although present in the court at the trial, did not cross-examine either of the witnesses. Perhaps if he had made a searching cross-examination he might have succeeded in defeating the divorce, although his client was absent. With his consent, the decree of divorce recites that $100 was paid by Alice Haverty as alimony. The attorney states that the $100 was paid in con sideration of certain improvements made by Mr. Haverty upon the place owned by his wife. Considering the evidence of this attorney, his failure to cross-examine the witnesses, the judgment rendered, we cannot say that such attorney acted in good faith towards his client. After his arrangement with Col. Burris, it was his interest that Mrs. Haverty should obtain her divorce. Thereby he realized $100. That interest was such, we think, as betrayed his judgment and endangered his fidelity. He certainly acted under a clear misapprehension of his professional duty. To such conduct we cannot give the sanction of this court. The practice of attorneys would be very impure and often fraudulent, if we permitted things of this sort to be done. Upon the evidence produced, the judgment of the trial court should have been for the annulment of the decree of divorce.
The judgment of the district court will be reversed, and the cause remanded for a new trial in accordance with the views herein expressed. .
All the Justices concurring. | [
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