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The opinion of the court was delivered by
Johnston, J.:
This action was brought by Michael Roach against the Atchison, Topeka & Santa Eé Railroad Company, to recover for baggage alleged to have been lost and injured while in transit from New York city to Hutchinson, Kansas. A verdict was given in favor of Roach for $227.32, and judgment renderéd'accordingly. The railroad company brings the case here, and' complains of the charge of the court and of the insufficiency of the evidence. The essential facts of the case may be briefly stated: On February 28, 1881, Roach purchased eight coupon tickets for the passage of himself and family.from the city of New York to Hutchinson, Kansas, over the New York, Lake Erie & Western Railroad, Grand Trunk Railway, Michigan Central Railroad, Chicago^ Burlington & Quincy Railroad, Hannibal & St. Joseph Railroad, and Atchison, Topeka & Santa Fé Railroad. The tickets were purchased from one Henry Opperman, who had an office in New York, and who at the same time caused several pieces of baggage to be checked through to Hutchinson, using checks on which the names of the roads mentioned were stamped. As there was more baggage than could be carried on the tickets purchased, Roach was required to and did pay $62.15 for extra baggage, and Opperman gave him duplicates of the checks, which he retained. The defendant in error and his family made the journey over the roads mentioned, and the tickets were honored and accepted for their passage, and the servants of the several companies detached the coupons, or portions of .the ticket that represented the passage-money over the different roads. When the passengers reached Hutchinson application was made for the baggage, and it was found that some of it had been lost, and portions of it badly injured. The testimony tended to show that the baggage was delivered to the first carrier in good condition, but on what road or roads the loss or injury occurred, was not shown. The plaintiff below sought to recover upon two theories: one that Opperman, who sold the tickets, was the agent of the A. T. & S. F. Rid. Co., and that that company undertook to carry the passengers and baggage over the entire route, and that, being the contracting carriel’, it was liable for the loss and injury regardless of where and upon what road it occurred. The other theory is, that the several roads constitute a connected and united line, and that the combination and running arrangements existing among the owners of the roads were such as amounted in effect to a partnership, and therefore the injury and loss was a common liability, and each and all of the companies are liable, no matter upon what part of the line the loss occurred. No recovery can be had upon the first theory, for the reason that the testimony wholly fails to establish that Opperman was the agent of the defendant company. Some of the witnesses for Roach spoke of Opperman as the agent of that company, while others stated that he was the agent of the New York, Lake Erie & Western Railroad Company. It was however developed upon cross-examination, that they had no knowledge of his authority or agency beyond his action in the sale of the tickets and the checking of the baggage. Opperman testified that he was the authorized agent of the New York, Lake Erie & Western Railroad Company, and sold the tickets for, and as the agent of that company, and that he did not represent and was not the agent of the defendant company. There was other testimony to the same effect, and also that when Roach purchased his tickets, the defendant company had no tickets on sale in or about the city of New York. The theory that the defendant company was the original contracting carrier finds no support in the testimony, and no liability arises against the company on that ground. Where then is the' liability? It is contended by the railroad company that the New York, Lake Erie & Western Railroad Company, being the first ear rier, is alone liable. While a railroad' company cannot be compelled to transport to a point beyond its own r 1 1 J hue, L is well settled that it may lawfully contraot to carry persons and property over its own and other lines to a destination beyond its own route; and when such a contract is made, it assumes all the obligations of a carrier over the connecting lines as well as its own. ' In such cases the connecting carriers engaged in completing the carriage are deemed to be agents of the first carrier, for whose negligence and default the contracting carrier becomes liable. (Berg v. A. T. & S. F. Rld. Co., 30 Kas. 561; Lawson’s Contracts of Carriers, §235; Hutchinson on Carriers, §145; Thompson’s Carriers of Passengers, p. 431; 2 Rorer on Railroads, p. 1234.) Of course a railroad company or other common carrier may limit its liability to the loss or injury occurring on its own line, and the understanding or contract between the parties is to be determined from the facts of each case. Some of the courts have held that the mere acceptance of the prbperty marked for transportation .to a place beyond the terminus of the road of the accepting carrier, amounts to an undertaking to carry to the ultimate destination, wherever that may be; and in the absence of any conditions or limitations to the contrary, will make it liable for a loss occurring upon the connecting lines as well as its own; while others hold that in such a ease the-carrier is only bound to safely carry to the end of its own route, and there to deliver to the connecting carrier for the completion of the carriage. (Lawson’s Contracts of Carriers, §§238/239, 240.) But where a railroad company sells a through ticket for a single fare over its own and other, roads, and checks the baggage of the passenger over the entire route, more is implied, it seems to us, than the mere acceptance of the property marked for a destination beyond the terminus of its own line. The sale of a through ticket and the checking of the baggage for the whole distance, is some evidence of an undertaking to carry the passenger and baggage to the end of the journey. The contract need not be an ex press one, but may arise by implication and may be established by circumstances, the same as other contracts. In Wisconsin a passenger purchased a through ticket from the Chicago & Milwaukee Railway Company from Milwaukee to New York city, and at the same time delivered her trunk to that company, and received therefor a through check to New York city. , Upon arrival at New York the trunk was found to have been opened and some of the articles taken therefrom. The supreme court, in ruling upon the effect of the railway company issuing the through ticket and check, stated that—
“The ticket and check given by the Chicago & Milwaukee Railway Company implied a special undertaking by that company to safely transport and carry, or cause to be safely trans-. ported and carried, the plaintiff and her baggage over the roads mentioned in the complaint, from Milwaukee to the city of New York. This we think must in legal contemplation be the nature and extent of the contract entered into and assumed by that company when it sold the plaintiff the through ticket and gave a through check for the trunk, and received the fare for the entire route.” (Candee v. Pennsylvania Rld. Co., 21 Wis. 582; Ill. Cent. Rld. Co. v. Copeland, 24 Ill. 332; Carter v. Peck, 4 Sneed [Tenn.], 203; Railroad v. Weaver, 9 Lea, 38; B. & O. Rld. Co. v. Campbell, 36 Ohio St. 647; same case, 3 Am. & Eng. Rld. Cases, 246; 2 Rorer on Railroads, p. 1001.)
From the authorities, we conclude that the sale of a through ■ ticket for a single fare by a railroad company to a point on a connecting line, together with the checking of,the baggage through to the destination, is evidence tending to show an undertaking to carry the passenger and baggage the whole distance, and which in the absence of other conditions or limitations and of all other circumstances/will make such carrier liable for faithful performance, and for all loss on connecting lines, the same as on its own. The liability of the first carrier does not necessarily relieve the defendant company from responsibility. Each carrier is liable for the result of its own negli-. gence> anc| although the first carrier may have assumed the responsibility for the transportation to a point be yond its own uoute, any of the subsequent or connecting carriers to whose default it can be traced will be liable to the owner for the loss of his baggage. (Hutchinson on Carriers; §715; Aigen v. Boston & Maine Rld. Co., 132 Mass. 423; Railroad v. Weaver, 9 Lea, 39.)
The defendant company cannot, however, be held liable upon that ground, because there is no evidence that the baggage was injured or lost while in the custody of that company, nor Was it in fact shown upon what part of the route the injury or loss occurred.
The other theory upon which a recovery is sought is, that the several connecting lines over which the baggage was to be carried .should be treated as a continuous and united line, and that the arrangements tirade by the several lines for through traffic was such as to constitute them a partnership. There is a singular lack of testimony in the case, not only respecting the terms of the contract with the passenger, but also in regard to the relations existing among the several carriers. Not a word of testimony was introduced as to the running arrangements between the companies, nor the basis upon which through business was -done. The practice or custom of the companies in the past was not shown, neither was there any proof that ■they had ever cooperated, or had done any through business beytind the transaction in question. It was not even shown what the form of the tickets was, nor what were the stipulations, if any, printed on them. There was in fact no evidence upon which, to predicate a theory of partnership, or that each of the companies was the agent of all the others, except the single transaction of selling the tickets and checking the baggage. It is doubtless true that arrangements are frequently made among railroad companies whose lines connect, for . through traffic, which constitute them partners. Such an arrangement is greatly to the advantage of the companies; the convenience which it affords the public invites business, and swells the traffic of the companies engaged in the joint enterprise. These arrangements among associated lines render it difficult for the passenger or shipper, incase of loss or injury of his property, to ascertain where the, loss occurred; but no such difficulty lies in the way of the railroad companies; they .have the facilities and, can easily trace the property to the company which caused the in j ury or loss. In interpreting the agreements and conduct of associated lines engaged in a through traffic, public policy and the inconvenience mentioned should be considered, and they should be fairly and liberally interpreted towards the patrons of the lines, holding the companies, where it is admissible under the rules of law, to a common liability as partners. ' But such arrangements for through traffic cannot be held to be a partnership, unless there is a community of interest among the companies, and under which each shares the profits and losses of ^ie eiAei'Prise- The mere sale of a through coupon ticket over the connecting lines of several companies, and the checking of the baggage to the end of the , route, does, not show Such a community of interest as would make them partners inter sese, or as to third persons. This question has been directly adjudged. A through ticket was purchased for passage from New York to Washington over three lines of railroad which constituted a through line for the transportation, of passengers and freight, and the passenger purchasing the ticket received a through check for her baggage. It appeared that the fare received for through tickets was accounted for by the company selling the tickets to the 'other lines according to certain established rates, but.there was no division of losses; and it was held in an action against the last carrier, to recover for lost baggage, that the first carrier was liable for losses occurring on its own line, as well as any other connecting line throughout the whole distance, but that the arrangement of the three companies for the sale of through tickets, and the issuance of through checks, while it resembled a, partnership, did not constitute one, nor make any of the connecting carriers liable for a loss not occurring on its own line. (Croft v. B. & O. Rld. Co., 1 McArthur, 492.)
In Hartan v. Eastern Railroad Co., 114 Mass. 44, it was ruled that arrangements between' connecting roads forming a continuous line for the sale of through coupon tickets, which enabled passengers to pass over all the roads without change of cars, did not imply joint interest or joint, liability. In another case, where several carriers whose lines connected made an agreement among themselves to appoint a common agent at each end of a continuous line to sell through tickets and receive fare, it was held that this arrangement did not constitute them partners as to passengers who purchased through tickets, so as to render each of the companies liable for losses occurring on any portion of the line. (Ellsworth v. Tartt, 26 Ala. 733.) A somewhat similar case was decided in New York. There a passenger purchased a through ticket from New York to Montreal over several connecting lines of railroad, owned by several companies. The ticket was a strip of paper divided into coupons, whereof one was to be detached and surrendered to the conductor, of each line ■ on the' route. The passenger, instead of giving'his'valise into the charge of the agent of the company and receiving a check therefor, kept it in his own charge to the. terminus of the line of the first carrier, where he' delivered it to the agent of the connecting line, who' checked it through to another point on the road. It appeared that an arrangement had' been entered into between the various lines from New York to Montreal to connect ’regularly. Tickets were sold in New York for the entire route or intermediate places, under the direction of a general agent, who was paid by the several companies. The rate of fare was different on the different roads, and each company received its own proportion of the whole'fare or passage-money at the close or at the beginning of every month, according to the established rates of fare. It was held that there was nothing in an arrangement like this to constitute the different companies partners for the transportation of passengers or baggage, so as to make one of them liable in common with the others for the loss of the valise. It was decided that “ the arrangement may be beneficial to them as well as to the public, inasmuch as by facilitating travel, it may tend to increase it, but that would not create that joint interest, that community in profit and loss, which is essential to the existence of a partnership.” (Straiton v. New York & New Haven Rld. Co., 2 E. D. Smith, 184; Hot Springs Rld. Co. v. Trippie & Co., 42 Ark. 465; same case, 18 Am. & Eng. Rld. Cas. 562; Aigen v. Boston & Maine Rld. Co., 132 Mass. 423; same case, 6 Am. & Eng. Rld. Cas. 426; Darling v. Boston & Worcester Rld. Co., 11 Allen, 295; Kessler v. Railroad Co., 61 N. Y. 538; Irwin v. Rld. Co., 92 Ill. 103; Insurance Co. v. Rld. Co., 104 U. S. 146; same case, 3 Am. & Eng. Rld. Cas. 260.)
Among the cases relied on by the defendant in error is Hart v. Rld. Co., 4 Selden, 37. In that case the defendant, which was one of three railroad companies owning distinct portions of a continuous road, was held liable for the loss of the bag-? gage of a passenger received at one terminus to be carried over the whole road. The liability was not, however, based alone upon the selling of the ticket and the checking of the baggage. In addition to through tickets, it appeared that under the agreement made each of the railroád companies ran its cars over the whole route, and employed the same agents to sell passage-tickets. Besides these facts, it appeared that the lost baggage had been placed directly in charge of - the servants of the defendant company, and that its loss was due in part to the negligence of that company.
Texas & Pacific Rld. Co. v. Fort, a decision by the commission of appeals of the state of Texas, reported in 9 Am. & Eng. Rld. Cases, 392, is also relied on. There it is held that the delivery of through cheeks upon which were stamped letters indicating the different railways over which the baggage would go, constituted a contract under which the several companies were liable, regardless of th'e line upon which .the loss occurred—a proposition to which we cannot accede. The decision in this case is based upon the ruling in Hart v. Rail road Co., supra, which as we have seen, was determined upon other considerations. The same may also be said respecting Texas & Pacific Railway Co. v. Ferguson, another decision of the commission of appeals of Texas, 9 Am. & Eng. Rld. Cases, 395, as well as Hart v. The Grand Era, 1 Woods C. C. 184.
The only other case relied on is Wolf v. Central Rld. Co., 68 Ga. 653. It was there held that where a passenger with a through ticket over a connecting line checked his baggage at the starting-point through to his destination, and upon arrival there found that it had been injured, he might sue the railroad company which issued the check.or the one delivering the baggage in bad order. Upon the facts in that case the court determined that the company selling the tickets was to be regarded as the agent of the other companies composing the line, and intimated that where a passenger travels over a continuous line on a through ticket, and the baggage is sent on a through check, that any one of the companies may be held liable for spoliation of the baggage, irrespective of the point at which jf actually occurred; and the query is also raised as to whether, they are jointly liable as partners. The writer of the opinion held that by the sale of the tickets and the division of the receipts at periodical settlements, they acted as principals and not as agents, and that by such action they stood substantially in the position of partners in the through business, and were jointly and severally liable as such. The concurrence of the other justices was,' however, placed upon the ground that as the last carrier,- and the one which was ■ sued, received the baggage in apparent good condition, it was presumably liable, and the chief justice stated that this was the exact point decided. It is difficult in many cases to determine whether the arrangements and agreements of connecting carriers are such as to constitute each of them principals, or to place them in the.relation of partners; but neither upon reason nor authority can we hold that the sale of through tickets and the checking of baggage over the connected lines of several companies, without other proof of their relations or the basis upon which the business was done, is sufficient to make them jointly and severally liable as partners.
The instructions of the court not being in accord with the views herein expressed, and the evidence being insufficient to support the verdict, the judgment of the district court must therefore be reversed, and the cause .remanded /or another trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action was instituted by M. V. B. Bennett against the St. Louis & San Francisco Eailway Company, to recover from it the sum of $300 for alleged services as attorney. The action was originally brought before a justice of the peace of Cherokee county, and was subsequently taken upou appeal to the district court of that couuty. The defense was that M. ~V. B. Bennett represented the railway company in the case of Mrs. Brubaker against the company, and that by reason of his negligence and carelessness in matters connected with that case, the company was required to pay $111.80, for which it alleged that Bennett was liable. Upon the uncontradicted evidence in the case, not regarding the set-off or counter-claim of the Railway company, Bennett was entitled to recover for his services the sum of $65. If the set-off or counter-claim of the company had been allowed, the company would have been entitled to judgment for $36.80. The jury rendered a verdict for Bennett for $50, but he remitted $10 of this, and judgment was taken for $40 and costs.
As to the set-off or counter-claim of the railway company, the evidence tended to show that a settlement had been negotiated in the Brubaker case for $250, and a draft for that amount sent by the company to M. V. B. Bennett to deliver to Mrs. Brubaker. Bennett indorsed and delivered the draft to his brother, Pat. Bennett, a member of the firm of Bennett, Lewis & Bennett, who delivered the same to Mrs. Bru baker. The firm of Cowley & Hampton were the attorneys of Mrs. Brubaker, and when they learned that a settlement of the case had been had and that a draft had been received by Bennett to pay Mrs. Brubaker, they attempted to serve upon Bennett a notice of their lien for fees. They claimed $125. Subsequently they brought suit against the company to recover the amount of their lien, but the case was settled for $75 and costs, making $86.80. In addition to this, the railway company paid out $25 for expenses in making the settlement, making a total of $111.80, for which it claimed that Bennett was liable. Upon the trial, the railway company asked the court to instruct the jury that—
“ If they found from the evidence that Cowley & Hampton, or either of them, served a notice [of their lien for fees in the Brubaker case] upon any member of the firm of Bennett, Lewis & Bennett before the money was paid' to Mrs. Brubaker, and a member of the firm upon whom the notice was served had the draft or check in his possession at the time of the service of the notice upon him, the plaintiff could not recover.”
The court refused to give this instruction, but charged the jury, among other things, in effect as follows:
“If you find from the evidence in this case that the plaintiff in this action was employed by the railroad company to look after the case of Mrs. Brubaker v. The Company, and that the same was subsequently compromised, and that he had a draft for Mrs. Brubaker for the purpose of carrying out the terms of the settlement, and that Messrs. Cowley & Hampton, who represented the plaintiff in the action so compromised, notified the plaintiff in this action of their lien upon the money or draft in his hands, it was his duty to protect, or use ordinary care and prudence to protect, the company from any loss; and if in the absence of such care and prudence he permitted the money to be turned over or paid to Mrs. Brubaker, and thereby the company has sustained loss in any sum, then such company will be entitled to recover of the plaintiff in this 1 action a sum as will compensate it, or make it whole therefor. If the plaintiff in this case paid over the draft or check sent .him to settle the case of Mrs. Brubaker before he had actual notice of the claim or lien of her attorneys, Messrs. Cowley & Hampton, he is not chargeable with negligence in making such payment; but if he had notice of the claim of Messrs. Cowley & Hampton before he paid said draft to Mrs. Brubaker, then it was his duty to use reasonable care, prudence and skill in protecting his client from loss, damage or injury on account thereof.”
Notice of attomey’s lien. There was some evidence upon the trial that the firm of Bennett, Lewis & Bennett, of which firm M. "V. B. Bennett was a partner, represented the railway company in the case of Mrs. Brubaker against that company; but the jury specially found, as a fact, that the firm of Bennett, Lewis & Bennett did not represent the company, nor have anything to do with the ease of Mrs. Brubaker against the railway company. Therefore, if there was any error in the refusal to give the instruction prayed for, this finding is conclusive that such error was in no respect prejudicial to the interests of the company complaining. (Luke v. Johnnycake, 9 Kas. 511; Woodman v. Davis, 32 id. 344.) If M. Y. B. Bennett only acted for the railway company in the case with Mrs. Brubaker in receiving and turning over to her the draft given in settlement of her claim, and the firm of which he is a partner had nothing to do with the case, (and so the jury find,) then a notice of the lien from Messrs. Cowley & Hampton to the other members'of the firm of Bennett, Lewis & Bennett woupj n0£ affect M. V. B. Bennett, or make it negligent for him to deliver to Mrs. Brubaker her draft. M. V. B. Bennett cannot be charged with negligence in delivering the draft, through his brother, to Mrs. - Brubaker, unless he had actual notice of the lien of Messrs. Cowley & Hampton before the draft reached Mrs. Brubaker. Counsel comment upon the letter dated September 20, 1882, purporting to be from M. Y. B. Bennett to John O’Day, Esq., general attorney of the-St. Louis & San Francisco Railway Company, as showing that the firm of Bennett, Lewis & Bennett represented the railway company in the case of Mrs. Brubaker against that company. Mr. Bennett explains this letter by stating that although it purported to-be signed by himself, it was written’ by Mr. Lewis, of the firm of Beuuett, Lewis & Bennett, and that in some matters it was incorrect. The railway company has no right to complain that the judgment was rendered for $40 only, when upon the evidence and findings of the jury, Bennett should have had judgment for $65. If the jury had found that the firm of Bennett, Lewis & Bennett had anything to do with the case of Mrs. Brubaker against the railway company, then, upon the other findings, the company would be entitled to judgment; but the finding upon this point is against the railway company, and although perhaps the preponderance of the evidence is with the company, there seems to be in the record sufficient evidence to sustain the finding.
The judgment of the district court must therefore be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by M. E. Barker in the district court of Chase county, against W. E. Critzer, to compel the specific performance of an alleged contract for the sale and conveyance of certain real estate. The de fendant demurred to the plaintiff's petition, upon the ground that it did not state facts sufficient to constitute a cause of action, which demurrer was sustained by the court below. The plaintiff brings the case to this court.
It is alleged in the plaintiff's petition in the court below, that on May 2, 1884, and afterward, the defendant was the owner of the undivided ten-fourteenths of the land in question, and that the other four-fourteenths belonged to two minor heirs; that the plaintiff, through his agent, A. N. Hanna, purchased from the defendant and his agent, Charles S. Cross, the land in question, and that the contract of purchase and sale is embodied in the following exhibits, to wit:
EXHIBIT A.
Oeeioe oe St. Louis & Empobia Railboad Company.
(General Offices, Emporia, Kansas.)
H. C. Cross, President. W. B. Critzer, Chief Engineer.
Pleasanton, Kansas, 5—2, 1884.
A. N. Hanna, Emporia, Kansas—Dear Sir: I have not had time to see you, and will not have time to go to look at the place; so I will say that if you will give me four hundred dollars in cash, I will give you a clear title to the land.
Respectfully, W. E. Critzer.
exhibit B.
Oeeioe oe St. Louis <& Empobia Raieboad Company.
(General Offices, Emporia, Kansas.)
H. C. Ceoss, President. W. E. Ceitzee, Chief Engineer.
Pleasanton, Kansas, 6—17, 1884.
A. N. Hanna, Emporia, Kansas—Dear Sir: Yours of the thirteenth at hand, and in reply will say: I am ten-fourteenths owner of said heirs’ interest, and will get heirs' interest through probate court at once; providing you make deposit of one hundred dollars to guarantee the expense of probating, subject to receiving a clear title to the land. I do my business at Emporia, with the First National Bank, who will attend to the matter for me without expense to me. I will make deed to my interest and send to First National at once, providing you accept in this way, as I do not want to put any more money in it for the heirs. I have paid for what interest I have in it at the rate of four hundred dollars for the eighty.
Let me hear from you at once, so I can answer any other parties who wish to buy. Respectfully,
'W. E. Critzer.
EXHIBIT C.
First National Bank oe Emporia, Kansas.—Deposited for account of A. N. Hanna, 6—26,1884, currency $50, being deposit to apply upon purchose of north half northwest quarter 34—20—9, Chase county. If Critzer furnishes good and sufficient warranty deed# in thirty days, said Hanna is to pay the remaining three hundred and fifty dollars inside thirty days from this date. If Hanna does not so pay, then this money to be forfeited to Critzer. If Critzer does not furnish said deed in thirty days, then this fifty dollars returned.— A. N. Hanna.
Dup. Cross.
Title to be passed upon by J. J. Buck, at Hanna’s expense. JDup. Cross.
EXHIBIT D.
Office of St. Louis & Empobia Raieboad Company.
(General Offices, Emporia, Kansas.)
H. C. Ckoss, President. W. E. Cbitzeb, Chief Engineer.
Lawrence, Kansas, 7—6, 1884.
A. N. Hanna, Emporia, Kansas—Dear Sir: Have just yesterday got the probate court to work on land. It appointed guardian, and will now take say until the twentieth to get everything clear and deed to you.
Hope the delay will not cause you any inconvenience, but I could not get it done sooner. Respectfully,
W. E. Critzer.
• It is alleged in the plaintiff’s petition that the Cross who signed exhibit C is Charles S. Cross, cashier of the First National Bank of Emporia, Kansas, and that he so signed the same as the agent of the defendant, Critzer, and that the fifty dollars paid to Cross, or rather deposited in the First National Bank of Emporia, Kansas, has never been returned to Hanna or to the plaintiff. It is also alleged in the plaintiff’s petition that after the letter designated as “Exhibit B” was written, such proceedings were had in the probate court that the four-fourteenths’ interest in the real estate in question, which belonged to the minor heirs aforesaid, was sold, and that the guardian of such minor heirs executed a deed for such interest to the defendant, Critzer; that the defendant, Critzer, has never executed any deed for the land in question to either Hanna or to the plaintiff, and refuses to do so, and the object of this present action is to compel him to execute such a deed to the plaintiff.
Can he be compelled to do so ? The propositions contained in exhibits A and B were never accepted by the plaintiff or by Hanna, and therefore they need not be considered in the case further than as explanatory of what followed, and if any contract was entered into between the parties it must be found embodied in the transaction had between A. N. Hanna and Charles S. Cross,' as shown by exhibit C. The defendant, Critzer, claims that this does not show any contract between himself and the plaintiff, Barker, and that even if it does, still that it shows only a contract of a purely optional character. The defendant claims that all the parties knew that he did not own the entire interest in the real estate in question, and that the obtaining of the four-fourteenths outstanding interest was at least problematical; and the parties knowing this, it was not intended that they should bind themselves absolutely or conclusively, but great latitude was given; and as to Critzer, the contract was made entirely optional. Critzer might nev'er be able to get this four-fourteenths outstanding interest. The probate court, for instance, might not consider it to the interest of the minor heirs to have the same sold; and if it was sold, then Critzer would stand only an equal chance to purchase it with all others who might wish to purchase it. And further, the sale might not take place in time to enable Critzer to procure title and transfer the same to Hanna or the plaintiff within thirty days; and the contract was that if the transaction was not closed up within thirty days there should be no transfer of title. If Hanna failed to perform in thirty days, he forfeited the fifty dollars, and the contract was at an end; or if Critzer failed to perform within thirty days by failing to tender a deed within that time, then the contract was at an end without any forfeiture and the fifty dollars were to be returned to Hanna.
The contract itself contemplated that the deed might not be furnished within the thirty days, and provided that if it should not be so furnished then that the fifty dollars depos ted by Hanna in the First National Bank should be returned to him. The deed was not so furnished, and evidently Hanna’s remedy, or the plaintiff’s remedy if the plaintiff stands in the place of Hanna, is to sue for fifty dollars and not to bring an action in the nature of specific performance to compel the conveyance of the real estate in question. Probably, however, there will be no necessity to sue for the fifty dollars, as the bank, or Cross, or the defendant, will in all probability pay it whenever the plaintiff is ready to receive it. Optional and unilateral contracts will be found discussed in chapter 6 of Waterman on the Specific Performance of Contracts; and especially see §§196 and 200. We think the contract in the present case was optional, at least so far as Critzer is concerned, and therefore that the plaintiff’s present action cannot b'e maintained.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the. court was delivered by .
Valentine, J;:
This was an action-brought by George-A. Morris before a justice, of .the peace of Wyandotte -county, against H.. S. Ingraham,-for work, and - labor in - cutting- and binding wheat. Judgment was rendered in favor of -the plaintiff and against the defendant,-and the defendant.appealed to the district court,-where 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-defendant for $54.50. The defendant brings the case to this court.. - •
. The plaintiff in error, defendant-below,- alleges-two-pr-ineipal grounds for reversal of the judgment of the court below: First, that the plaintiff below did not prove the cause of action which he set forth in his bill of particulars; second, that he did not prove any cause of action. The plaintiff alleged in his bill of particulars, among other things, as follows:
“That sometime in the month'of April, 1884, plaintiff contracted with the defendant to cut and bind wheat for the defendant, for which the defendant was to pay. the plaintiff at the rate of $1.50 per acre; that 'in pursuance to said agreement plaintiff cut and bound 38 acres, amounting to $57, which defendant refused to pay.”
The evidence on the trial showed that the defendant had about 56-g- acres of wheat, in three separate pieces; that the1 plaintiff cut and bound two of 'such pieces, or 36 acres, and did not cut or bind the other piece, which contained about twenty acres. The plaintiff in error, defendant below, now claims that the plaintiff alleged in his bill of particulars in effect that he agreed to cut and bind all the defendant’s wheat, while his proof introduced on the trial showed that he agreed to cut and bind just twenty acres of such wheat, and no more, and therefore he claims that there was a variance between the plaintiff’s allegations and his proof, and therefore that he cannot recover. We perceive no such variance. The plaintiff did not allege that he agreed-to cut and bind defendant’s wheat, but simply alleged that he “contracted with the defendant to cut and bind wheat for defendant,” without alleging any amount; and the evidence not only proved that the plaintiff agreed “to cut and bind wheat for the defendant,” but also proved that he did in fact cut and bind the same. The allegation that the “plaintiff contracted with the defendant to cut and bind wheat for the defendant,” is not an allegation that the plaintiff contracted to cut and bind all the wheat which the defendant owned. In our opinion, there is clearly no variance between the plaintiff’s allegations and his proof.
The plaintiff in error, defendant below, further claims that the plaintiff'below did not prove any cause of action; and this claim is founded upon the theoi’V that the plaintiff agreed to cut and bind all the defendant’s wheat, but failed to do so. The question as to what the plaintiff agreed to do is a question of fact, which was submitted to the jury upon the evidence, and the jury found against the defendant and in favor of the plaintiff, and the court below sustained the ver¿[j^ 0f the jury. And while the evidence was conflicting and contradictory, and possibly the preponderance thereof in favor of the defendant, yet we think there was sufficient evidence to sustain the verdict of the jury, and hence their verdict must be sustained. The plaintiff himself testified that he did not agree to cut and bind all the defendant’s wheat; that he refused to make any such agreement; and refused particularly to agree to cut and bind the twenty-acre piece. Indeed, he testified that he did not agree to cut and bind more than twenty acres, but that he did in fact cut and bind 3 6-3- acres.
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.:
The foundation of the plaintiff’s action is a pretended sale to him of the horses hi controversy, at a public auction. The defendant, Samuel Newman, was employed by the executors of the estate of Samuel Horner, deceased, as an auctioneer to sell the property of the estate. Before the day set for the public auction, the plaintiff entered into a secret agreement with the defendant to attend the sale, and there purchase the horses in question for the defendant. In persuance of the agreement the plaintiff attended the sale, and without any notice to those interested in the estate, or to the bystanders, of his purpose, he bid in the property for the auctioneer, but in his own name. The horses having come into the possession of the defendant, the plaintiff now asks the court to assist him in reclaiming them.
The whole transaction between these parties contravenes public policy and is clearly illegal, and the general rule is that an action founded upon an illegal transaction, where the parties are in pari delicto, cannot be maintained. In all such cases the courts refuse to assist the parties to carry out or to reap the fruits of the illegal transaction, but will leave them in the condition in which they were found. In applying this principle, the supreme court of the United States has said :
“The law leaves the parties to such a contract as it found them. If either has sustained a loss by the bad faith of a particeps ariminis, it is but a just infliction for premeditated and deeply-practiced fraud, which, when detected, deprives him of anticipated profits, and subjects him to unexpected losses. • Fie must not expect that a judicial tribunal will degrade itself by the exertion of its powers by shifting the loss from the one to the other, or equalize the benefits or burdens which may have resulted by the violation of every principle of morals and of laws.” (Bartle v. Coleman, 4 Pet. 184.)
Here, both of the parties before the court were directly concerned in the transaction. Together they secretly conspired to and did commit a wrong against others. The transaction tainted with illegality was voluntarily entered into and consum mated by them. There was no constraint upon the plaintiff . compelling him to carry out the unlawful purpose, nor does any fact appear which affords him any excuse for his misconduct, or that would bring him within any of the exceptions to the rule that has been stated. He concedes that the transaction was illegal, but to escape the penalty which the law justly imposes upon a guilty participant, he says that the property was bid in in his own name, and paid, for with his own funds, and he claims that his right of action is based on these facts rather than on the illegal transaction, and that he can make out his cause of action without the aid' of that transaction. It is claimed that the true test for determining his right of recovery is by considering whether he can establish his case without the necessity of having recourse to the illegal transaction, and if so, he must prevail. ■ This test is applied for the only purpose of determining whether the parties before the court are in pari delicto, in which case they are remediless. (Broom’s Legal Maxims, 645; Holt v. Green, 73 Pa. St. 198; Wait’s Actions and Defenses, 64.) There is little necessity or room for the application of this test where the plaintiff and defendant are so obviously in equal fault as we have seen the parties are in this case. But if the test proposed is applicable, it will not avail the plaintiff. The only interest or right of possession which he has in the property is derived from the sale, which is confessedly illegal; To establish his case, he must show that he purchased the property at that sale, and he thereby brings the illegal transaction into the case. Both parties claim under that sale — the plaintiff because he bid in the property in his own name, and the defendant because it was bid in for him and not for the plaintiff. Neither of them can come into court with clean hands and ask anything under the fraudulent and illegal transaction. If the possession of the property was changed and the defendant were in court seeking to obtain possession of it, he would be refused assistance, although from the findings it appears that the property was purchased solely for him. He is in no better position than the plaintiff, and would be entitled to no greater consideration. It has been said that—
“The objection that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed, but is founded on general principles of policy which the defendant has the advantage of, contrary to the rule of justice as between him and the plaintiff— by accident, if I may so say. The principle of public policy is this: Ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If from the plaintiff’s own stating, or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes, not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So, if the plaintiff and defendant were to change sides, and the defendant were to bring his action against the plaintiff, the latter would then have the advantage of it, for where both are equally in fault, potior est conditio deféndentis.” (Holman v. Johnson, 1 Cowp. 343.)
As the plaintiff’s right of action grows out of and rests solely upon the illegal transaction, and as he is equally culpable with the defendant, he must fail. The judgment of the district court is right and just, and will be affirmed.
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The opinion of the court was delivered by
Johnston, J.:
Charles S. Radcliff, as sheriff of Saline county, seized a stock of millinery as the property of the Misses Maxey, under an attachment issued at the instance of one of their creditors. Porter S. Eoberts, who claimed to have purchased the goods about a week before the seizure, brought this action to recover the possession of the goods, and failing in his action, he comes to this court alleging error in the proceedings in the district court.
Numerous assignments of error were made, but only two of them are now insisted upon. The first is, that the verdict is not sustained by sufficient evidence and is contrary to law. The only controversy between the parties was in respect to the good faith and validity of the sale. It appears that the Misses Maxey, who had been engaged for some time in the millinery business at Salina, became financially embarrassed, and unable to meet the claims o'f their creditors. The plaintiff, who was a brother-in-law to the Misses Maxey, and a resident, of Council Grove, learning of their embarrassed condition, went to Salina on January 22,1883, for the alleged purpose of assisting them. Upon arriving there, he learned that they had been notified by a creditor who had an over-due claim of more than $700, that they must raise $200 on that day, and $50 a week thereafter until the debt was paid, or legal proceedings would be immediately taken to collect the claim. On the morning of that day the plaintiff, who was a lawyer aiid real-estate agent, purchased the stock of millinery Avithout taking an invoice thereof. Although the vendors and vendee both claimed and testified that it was a bona fide sale, there are many circumstances connected with and surrounding the transaction which afford ground for suspicion, and from which the jury might well infer- not only that it was made with intent to hinder and delay creditors in the collection of their claims, but to defraud them as well. In addition to the circumstance that the purchase was made without the taking of an inventory by one unacquainted with the business or with the Amlue of such goods, the plaintiff admits that he agreed to pay for them only fifty per cent, of the cost-price, which was but fifty per cent, of the indebtedness against the goods. .Then, instead of paying cash for the goods, he gave negotiable, unsecured and non-interest-bearing notes, of equal amounts, due in six, twelve, and eighteen months respectively. By this transfer all the property of the insolvent debtors was withdrawn from the reach of their creditors, and this, 'with the long and unusual credit that was given, of necessity had the effect to hinder and delay their creditors.
The law presumes that the parties intend the usual and necessary consequences of their acts, and the jury could infer from the terms agreed on and methods employed, that the sale was -made with the intent to hinder and delay creditors. But they were not left to inferences alone. It was admitted by the Maxeys that the transfer was hurriedly made, on account of á notice that the principal creditors-were about to begin an attachment proceeding; and for the purpose of preventing •them from appropriating the goods in-payment of their claims. Roberts had knowledge that this was their purpose, and aided them in accomplishing it. It is true that Roberts and the Maxeys testified that the transfer was made in the interest of the- creditors, so that all might share in the property and be treated alike, and with the intention that the entire indebtedness should be finally paid; but their declarations and conduct cannot be easily reconciled.' Even if the Maxeys had an honest intention to pay the creditors in the end, they had no right to interpose obstacles to legal process, or to purposely dispose of their property in such a way as would hinder the creditors in the enforcement of their claims. The creditors are entitled to have the property of the debtor appropriated without delay to the payment of their claims, and a transfer made by the debtor where the intention or the necessary effect is to delay creditors, cannot be upheld. Here both vendors and vendee practically confess that their' purpose in transferring the property was to delay the principal creditors in enforcing their claims; and this intent is of itself sufficient to avoid the transaction.
Another circumstance which tends to throw suspicion upon the transaction is, that the Maxeys continued in the possession and control of the property after the same as before the alleged sale. They claim to have been employed by Roberts as sales women. Eoberts did not intend to remove to Salina, nor to abandon his occupation as a lawyer and real-estate agent at Council Grove, and give personal attention to the millinery business at Salina. He returned home oh the same day on which the purchase was made, without moving the goods, changing the sign, or giving any notice to the public that there had been a change of proprietorship, leaving to manage the new business of which he was unacquainted the same persons who had failed and become insolvent when managing and carrying on the same business for themselves. In § 3 of the statute of frauds, it is provided that —
“Every sale or conveyance of personal property unaccompanied by an actual and continued change of possession, shall be deemed to be void as against the purchasers without notice, and existing or subsequent' creditors, until it is shown that such sale was made in good faith, and upon sufficient consideration.”
This rule, and the fact that no change of possession was made, places the burden of showing the transfer to be a bona fide one upon Eoberts, and in this the jury may have found that he failed. A careful perusal of the testimony satisfies us that it is not only sufficient to sustain the verdict when assailed in this court, but that it abundantly justified the jury in the verdict which was rendered.
We have examined the instruction criticised by the plaintiff in error, and find nothing in it misleading, or which could have in any way prejudiced his interests.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
On March 12th, 1872, an election was held in Neosho county for the relocation of the county-seat of that county. No place received a majority of all the votes cast, but the towns of Erie and Osage Mission were the two towns which received the greatest number of votes. On March 26th a second election was held for the relocation of said county-seat, at which election the towns of Erie and Osage Mission were voted for, The returns of the election were duly canvassed by the board of county commissioners, and it was determined by them that 'the town of Erie had received a majority of all the votes cast at said election, and that said town of Erie had thereby become the county-seat of said county. Thomas PI. Butler, a friend of the town of Osage Mission, felt aggrieved at the decision of the board of county commissioners, and commenced an action in the district court of said county, under ch. 79 of the laws of 1871, to contest said election. He commenced his action under § 5 of said act, against Geo. W. McMillen, county clerk of said county, to perpetually enjoin said county clerk from moving his office from the town of Osage Mission to the town of Erie. The action was prosecuted and defended in good faith, and finally determined by the district court in favor of the defendant and in favor of the town of Erie. (The case was afterward brought to this court, -and is reported in 13 Kas., 385.) The case was determined at the July Term of the district court in 1873. Immediately after said case was determined the present case was commenced. It seems that the plaintiff in this action, A. B. Stoddart, who is also a friend of the town of Osage Mission, also felt aggrieved at the decision of the board of county commissioners in declaring the town of Erie to have received a majority of all the votes cast at said election, and in declaring said town of Erie to be the county-seat. He therefore also commenced an action under said § 5 of the act of 1871 for the purpose of contesting said election. He made E. J. Vanlaningham, register of deeds, the defendant, and prayed for a perpetual injunction to restrain said defendant from moving his said office from the town of Osage Mission to the town of Erie. He .also asked for a temporary injunction to restrain said Vanlaningham from moving his said office until said action could be finally heard and determined. The court below required notice to be given to the defendant of the application for said temporary injunction. Notice was so given, and the application was heard by the judge of the district court at chambers on affidavits and other evidence on August 5th and 6th, 1873. At the time of hearing, the defendant had not yet answered the petition of the plaintiff. The judge refused to grant said temporary injunction, and the plaintiff now brings the question here for review.
Did the judge of the court below err? We think not. On an application for a temporary injunction, when notice of the same has been required to be given to the defendant, and notice has been so given, the de- , ° ' fendant may, on the hearing of the application, and even before answer filed, introduce any legal evidence that -would tend to show that the injunction should not be granted. He is not confined to evidence that merely tends to disprove the allegations of the plaintiff’s petition. Indeed, it has been held that a party applying for- a temporary injunction has no right to withhold or omit facts important for the court to know in granting the injunction. (Joyce on Injunctions, 1263 to 1266, 1306; High on Injunctions, §§ 990, 991.) It seems everywhere to be held that the granting or refusing of a temporary or preliminary injunction rests largely in the sound judicial discretion of the court or judge to whom the application is made. (Hilliard on Injunctions, page 15, § 17.) And it would seem in England, that “in granting an injunction the court is bound to consider the amount of injury which may be thereby inflicted on strangers to the suit, and third parties.” (1 Joyce on Injunctions, 497.) In the case of the N. Y. Printing and Dyeing Establishment v. Fitch, 1 Paige Ch., 98, Chancellor Walworth uses the following language: “There are many cases in which the complainant may be entitled to a perpetual injunction on the hearing, when it would be manifestly improper to grant an injunction in limine. The final injunction is in many cases matter of strict right, and granted as a necessary consequence of-the decree made in the cause. On the contrary, the preliminary injunction before answer is a matter resting altogether in the discretion of the court, and ought not to be. granted unless the injury is pressing, and the delay dangerous.” And injunctions are often allowed to prevent a multiplicity of suits. In this case it would seem that the plaintiff is in favor of a multiplicity of suits, and wants the court to assist him therein by allowing a temporary injunction. JNow, arter -¿he main and substantial question m tins case, the question whether Osage Mission or Erie is the county-seat of Neosho county, has been twice decided against the plaintiff, once by the canvassing board and once by the district court after a full and fair trial in an action litigated in good faith by both sides, we think it would be at least an abuse of judicial discretion for the court or judge to allow a temporary injunction to restrain a county officer from moving his office to the place so declared to be the county-seat, merely for the purpose of keeping the office at the old county-seat while the plaintiff should again litigate the question as to which place is the county-seat. The minor issues in the case of Butler v. McMillen were in some respects different from the minor issues in the present case, but still the main issue was the same in both cases.
The order of the judge of the court below, refusing to grant said temporary injunction, is affirmed.'
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
The defendant in error brought his action against the plaintiff in error for damages caused by setting fire to and burning and destroying several acres of young timber, the property of the defendant in error, and obtained a verdict. There was no allegation of negligence or carelessness on the part of the corporation or its agents; neither is there any testimony tending to show negligence. The testimony is, that there was no fire -before the train arrived at a ■certain place, but just after it passed the fire was observed in-the prairie-grass near the track, and it spread till it reached the land of Davidson, and burned his young timber. In the entire absence of allegation or proof of negligence there could be no recovery at common law. (K. P. Rly. v. Butts, 7 Kas., 308.) This seems to be conceded by the counsel for defendant in error, who relies on § 2 of ch. 118, Gem Stat., page 1122, as authorizing a recovery in this case. Does this statute by its terms cover the case presented? The company was in the performance of its duty, pursuing its lawful avocation, using its property, so far as is shown, with care and prudence; and for aught that appears, either in allegation or proof, its engine was of the most approved construction, furnished with all the appliances and safeguards possible to be used to prevent the escape of sparks and cinders. The fire then must be considered as the result of unavoidable accident. If the corporation is liable it is an insurer of other people’s property not'under its control. It must use its road. That is what it was created for. It has an absolute right to use it, as it is its own property; and in such use it cannot be responsible for the injury unless made so by statute, and we do not think it is made so by the statute referred to. The object of the law was to prevent those prairie fires so disastrous in this state, and make those who set the prairies on fire, whether on his own land or that of another, responsible for all damages done thereby, and such are the terms of the act. The first section punishes criminally a person who shall wantonly and willfully set on fire the woods, prairies, etc. This section contemplates some direct act done, wantonly and willfully. The second section uses the same terms, except that the words “wantonly and willfully” are omitted; but the direct act is as much to be done in the- second as in. the first. It must be a direct “setting on fire,” not the result of accident that can not be avoided. If a tornado were to destroy a man’s house, and the fire he had safely kindled in his stove should be scattered so as to fire the prairies, the unfortunate owner of the house could not be held as having set the prairies on fire. Yet he kindled the fire that, finally did the injury. So in this case. The corporation kindled the fire in the furnace, and as far as the pleadings and the evidence shows it escaped by unavoidable accident that no care or skill could have prevented. We are clear that the statute does not cover such a case, either in its terms or in the objects sought to be accomplished by it.
The judgment must be reversed, and the case sent back for further proceedings not inconsistent with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
We are asked in this case to reverse the finding of the district court upon a question of fact. That question arose in this way. Plaintiff sued defendant before a justice. His bill of particulars filed claimed twenty dollars. The case was tried by a jury, who brought jn a verdict for defendant for one dollar. Plaintiff appealed to the district court, and there upon motion of defendant the appeal was dismissed upon the ground that it was an action tried by a jury in which neither party claimed in his bill of particulars more than twenty dollars. Plaintiff before the dismissal had moved for an order on the justice to correct his record by showing the filing of a bill of particulars by defendant. The motions were heard together, and the question was whether defendant did in fact file a bill of particulars. Several affidavits were read upon both sides. The district court found for the defendant, and we think correctly. Certain facts are undisputed, or proved beyond question: The docket of the justice shows the filing of plaintiff’s bill, but does not show the filing of any bill for defendant. The justice is required to note thereon the filing of the bill of either party; Gen. Stat., p. 815, §188. No bill of defendant was demanded before the trial. No bill or memorandum was presented or used by defendant until after the plaintiff had finished his case. No bill was actually marked filed by the justice. During the examination by defendant’s counsel of his witness a paper containing a statement of the matters claimed by defendant was produced and used by him. It was left on the table after the termination of the trial, was placed among the papers by the justice, and transmitted with them to the district court where it was filed by the clerk as “Defendant’s bill of particulars,” but afterward returned to counsel as having been so left, transmitted, and filed by mis take. These matters are disputed, and doubtful: Plaintiff claimed that after he had rested defendant offered his bill, and that plaintiff objected to its being filed as out of time, but that the justice overruled the objection and ordered it filed. Defendant insisted that he did not offer to file it; that the objection made was to the introduction of testimony because no bill had been filed, and that this objection was overruled, the justice holding that the defendant was not bound to file any bill unless the same had been required by plaintiff under § 71 of the justices act. Upon this point we think the preponderance of testimony was with the defendant, and that no application was in fact made to file the bill. Defendant insists that this statement was a mere private memorandum to assist counsel in trying the case; that it was not filed, was not offered, and was not intended for filing. While the matter is not perfectly clear, we are inclined to think that the testimony sustains this claim. Referring to the matter in dispute, and it appears that plaintiff’s claim was $10 for rent of house and $10 for damage to stable. It would seem that defendant’s claim was, that no damage had been done to stable; that a balance of rent of $20, including the $10 in plaintiff’s bill, had been paid by agreement in building an outside cellar or root-house, and that defendant was entitled to recover of plaintiff $7 or $8 for the cost of building this cellar over and above the amount due for rent. It would seem also, though this is a matter not made clear by the testimony, that there was no dispute between the parties but that $10 of rent had been paid by the building of this cellar, and that the only matters in dispute were whether any damage had been done to the stable, and whether the $17 or $18 alleged cost of the cellar (over and above the rent conceded to have been paid) was applicable so far as was necessary to the rent not admitted to have been paid, and gave to defendant a claim against plaintiff for the excess. It is probably however unnecessary to determine the exact nature and extent of the controversy between the parties. Upon the whole case, we think there is not enough to justify us in reversing the'order of the district court, and the same 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 on a forfeited recognizance, and the first question arises on the overruling of a demurrer to the petition. The petition alleged the arrest of the defendant Rheinhart, his examination before a justice, the order requiring him to give bail, his failure to do so, the commitment, the giving of the recognizance to the officer, its acceptance by him, and the consequent release of the defendant from custody, his failure to appear at the district court for trial, and the forfeiture. It also gave a copy of the recognizance. The specific objection is, that it does not contain a copy of the order of the court declaring a forfeiture, nor does it allege that such order was “duly made.” Neither of these is necessary. Sec. 121 of the civil code, upon which the latter part of the objection is based, refers only to judgments and orders of courts and officers of special jurisdiction, and has no application to the orders and judgments of the district coui’t, which is a court of general jurisdiction. Nor is the forfeiture in any sense “a part of the written instrument which is the foundation of the cause of action.” The recognizance is a separate and complete instrument. The forfeiture is an independent- matter, and the evidence that the condition of the recognizance has been broken. It may be necessary to establish a liability on the recognizance, as demand is necessary to establish a liability on a note payable on demand; but it is no part of the instrument. The demurrer was properly overruled.
The answer contained a general denial, and also a special denial under oath that the justice before whom the preliminary examination was had, and the'deputy-sheriff who took and approved the recognizance, were legal officers. Upon the trial certain testimony was admitted over the objection of the plaintiff in error, defendant below. To most of the testimony thus admitted, no specific ground of objection was raised. Under those circumstances error cannot be affirmed: Walker v. Armstrong, 2 Kas., 199; Wilson v. Fuller, 9 Kas., 176; Luke v. Johnnycake, 9 Kas., 511; Marshall v. Shibley, 11 Kas., 114. Other testimony was objected to on the ground that being part of the original case it was admitted in rebuttal, and also because it was received after the testimony had once been closed. These are matters largely within the discretion of the trial court, and unless it is apparent such discretion has been abused are not grounds for reversal. There is here no evidence of any abuse. (Laws of 1872, p. 329, § 1.) These cover all the matters of evidence noticed by counsel for plaintiff in error in his brief.
It may also be said that the motion for a new trial is based solely upon the ground that the findings of fact are not supported by the testimony, and that the conclusions of law are contrary to law. Under these circumstances it is apparent that the rulings of the court in the admission of evidence must be taken to be correct. Notwithstanding this we have carefully examined the testimony, and see no error in the admission of evidence. As to the finding of the court that the justice and deputy-sheriff were legal officers, it is abundantly sustained by the testimony. As to the justice, it appeared that he was elected and qualified in 1870, and had continued to act .without objection ever since. It appeared also that he was re-elected in 1871 and again in 1873. The bond filed at this last election does not appear on the face of it to have been approved. Still, under his prior election he held until his successor was qualified, (Const., art. 3, § 12,) and hence was still a justice dejure as well as defacto. As to the deputy-sheriff, it appeared that this was during the second term of the sheriff, that the written appointment of the deputy was made and filed at the commencement of the first term, and no other was on file in the office of the county clerk, though the deputy-sheriff testified that at the commencement of the second term he received a written appointment and filed’it in the county clerk’s office; but it also appeared that this party had been regularly acting as deputy - slieriff during both the first and the second term. Under those circumstances it is evident that he was at least an officer defacto, and as such his acts were binding.
"We see no error in the proceedings, and the judgment must be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
As a preliminary question, counsel for defendant in error insist that there was such a defect in the proceedings to make a case as is fatal to its validity, and that therefore there is nothing before us for examination. The case was signed May 1st 1873, but was not filed ° *1 \ with the papers in the case until July 18th 1873. This it is claimed is fatal. The law in force at the time, as claimed by counsel, reads thus: “The case and amendments shall be submitted to the judge, who shall’ settle and sign the same, and cause it to be attested by the clerk, and the seal of the court to be thereto attached. It shall then be filed with the papers in the case.” Laws 1871, p. 274, § 1. We are inclined to think the law applicable to this case must be found in § 1 of ch. 85, Laws of 1870, p. 168, but it is,, so far as this question is concerned, wholly immaterial which statute governs ; the only difference being, that in the latter the word “thereupon” is used, instead of “then.” We do not consider the objection well taken. The law does not make an immediate filing a condition of validity. The case of Brown v. Rhodes, 1 Kas., 363, is cited as authority, but the reasoning of the court in that case shows that it is inapplicable. The question there arose as to the validity of a bill of exceptions filed two years and three months after the adjournment of the trial-term. The court held that “the records of a term of court are made during the term, and under the direction of the court;” that a bill of exceptions must be filed to become a part of the record, and that therefore it must be filed during the term to become a part of the record of that term. But with a case-made the rule is different. Express authority is given to extend the time por making it beyond the term, and there is no statutory limit within which it must be completed. The judge may fix the time within which the case must be made, that within which it must be served, that within which amendments thereto must be suggested, and the notice that must be given of the time of its presentation for settlement. When so presented it is his duty to settle, sign and certify to it, and then it shall be filed with the clerk. But “then” does not mean the same day, for the judge may be several days’ journey away from the clerk’s office. It does not mean at the same term, for the term may long since have adjourned, The most that can be claimed is, that it means ¿^at the case must be filed within a reasonable time. We do not decide that even that is essential to its validity. It may be claimed with much force that the time of filing is an immaterial matter — that the signature of the judge is the essential thing, and that even-an unreasonable delay in filing will not affect its validity. It will be time enough however to decide that question when it is fairly before us. It is enough for this case to hold that it is sufficient if the case be filed within a reasonable time after it has been settled and signed, and that two months and a half is not, in a district composed of several counties, prima facie an unreasonable delay. We are compelled therefore to examine into the questions presented in the record.
The material facts are as follows: On the 29th of September 1865 the Osage Indians made a treaty with the United States, which was ratified and proclaimed January 21st 1867, (14 U. S. Stat., 687,) by which they conveyed certain lands to the government “ to be surveyed and sold under the direction of the Secretary of the Interior on the most advantageous terms for cash; * * * but no pre-emption or homestead settlement shall be recognized, and after reimbursing the United States the cost of said survey and sale, * * * the remaining proceeds of sales shall be placed in the treasury of the United States to the credit of the civilization fund,” etc., (see 1st article treaty.) By the 14th article it is provided that “the half-breeds of the Osage tribe of Indians, not to exceed twenty-five in number, who have improvements on the north-half of the lands sold to the United States, shall have a patent issued to them in fee simple for eighty acres each, to include as far as practicable their improvements, said half-breeds to be designated by the chiefs and head-men of the tribe, * * * and all of said lands to be selected by the parties, subject to the approval of the Secretary of the Interior.” On the 10th of April 1869 congress passed the following joint resolution:
“Resolved, by the Senate and Souse of Representatives of the United States of America in congress assembled, That any bona fide settler residing on any portion of the lands sold to the United States, by virtue of the first and second articles of the treaty concluded between the United States and the Great and Little Osage tribe of Indians, September 29th 1865, and proclaimed January January 21st 1867, who is a citizen of the United States, or shall have declared his intention to become a citizen of the United States, shall be and hereby is entitled to purchase the same in quantity not exceeding 160 acres, at the price of $1.25 per acre, within two years from the passage of this act, under such rules and regulations as may be prescribed by the Secretary of the Interior: Provided however, That both the odd and even-numbered sections of said lands shall be subject to settlement and sale as above provided: And provided further, That the sixteenth and thirty-sixth sections in each township of said lands shall be reserved for state school purposes in accordance with the provisions of the act of admission of the state of Kansas: Provided however, That nothing in this act shall be construed in any manner affecting any legal rights heretofore vested in any other party or parties.”
In September 1867the twenty-five half-breeds were “designated by the chiefs and head-men,” and the “ lands selected by the parties,” as provided in said 14th article. William Tinker was designated as one of these half-breeds, made his selection, and thereafter a patent for the land in controversy was issued to him, of date June 10th 1870, which recites that it was issued under the 14th article, and shows the approval on the 15th -of June 1869 by the Secretary of the Interior of the selection. On September 30th 1870, Tinker and wife deeded to Lownsberry, and this was his chain of title. In January 1866 Rakestraw moved upon the land, made improvements upon it, and afterward, having all the personal qualifications requisite, obtained a duplicate receipt for it under the joint resolution of 1869, though this receipt was thereafter canceled by the officers of the land-office-, as issued by mistake. It appears probable from the testimony that, prior to Rakestraw’s occupation, and prior to the treaty, there had been some improvements on the land, though whether owned by Tinker, or not, is doubtful, but that all kad< been removed or destroyed prior to those dates. It was claimed that the land selected by- Tinker was not the land embraced in the patent, and that through some mistake or design a change had been made intermediate the selection and the patent. Upon these facts the court charged the jury as follows:
“Should you therefore find from the evidence that on the 29th day of September 1865, (that being the date of said treaty,) the said William Tinker had no improvement, as hereinbefore defined, on the land in controversy, and that long prior to the issuing of said patent to William Tinker for the land in controversy the defendant Rakestraw had a lawful and bona fide settlement upon said land, as defendant has in his answer averred, the issuing of the patent to Tinker in itself would not operate to divest defendant of any rights he may have acquired before the issuing of said patent by virtue of settlement and improvements.”
The court also refused this instruction:
“If the jury find from the evidence that the chiefs and head-men of the tribe, before the 10th day of April 1869, designated William Tinker as one of the half-breeds of the Osage tribe of Indians who should have a patent for eighty acres of land under the provisions of the 14th article of the treaty of Sept. 29, 1865, and that the said Tinker selected the land in controversy before the 10th of April 1869, and his selection was afterward approved by the Secretary of the Interior, then the said Tinker had on the 10th of April 1869 a vested right in the land in controversy, and the defendant could obtain no title to the same as against Tinker or his grantees by purchase under the joint-resolution of congress approved April 10th 1869.”
The same rulings appear elsewhere in instructions given and refused. In their brief, counsel say:
“The fact that said Tinker was designated as one of the twenty-five of the Osage tribe of Indians entitled to patents is not questioned by defendant in error, as the case now stands; but the two vital points we rely on in opposition to his right to rightfully receive a patent for the land in controversy are, 1st, that he never had any improvements on said land; and 2d, that he never selected said land as his head-right.”
In these rulings we think the learned court erred. Prior to April 10th, 1869, Rakestraw’s possession and occupancy gave him no rights in the land. He was simply a naked trespasser, whose possession, no matter how long continued, could never ripen into a title. Wood v. The M. K. & T. Rly. Co., 11 Kas., 323. It is therefore, so far as respects - , . 1 . , _ the acquiring by other parties oí any title from the United States under the provisions of the treaty, as though the land were wholly unoccupied and vacant. "While it is true that only such half-breed Osages as had improvements on the nortlu-half of the lands were to be entitled to patents, yet the treaty provided a tribunal for determining who should thus receive patents, and the determination of that tribunal is conclusive. Testimony is no more admissible to show that William Tinker Avas not an Osage half-breed, or that he had no improvements on the north-half of the land, than it would be after the final determination of this case, to show that the facts upon which the judgment was based did not exist. United States v. Arredondo, 6 Peters, 729. Counsel in their brief do not seem to contest this proposition, or at least do not rest their case upon any denial of it; nor did the court instruct the jury in direct opposition thereto, though it refused an instruction asserting it, and did charge the jury that Tinker must have possessed the qualifications named to be entitled to a patent: Such ruling would be very apt to convey a wrong impression to the jury. The treaty not only provided for designating the individuals, but for the selection of their lands, giving to the individuals named the privilege of making this selection, subject only to the approval of the Secretary of the Interior. And while it contemplated that such selections should include their improvements, yet it did not make this absolutely imperative. It says, “as far as practicable.” It thus contemplated the possibility of selections outside of improvements. Perhaps the selection of one half-breed would cover the improvements of another as well as his own. Perhaps other selections authorized by the treaty might conflict. Perhaps there might be conflicting titles to the same improvements. "Whatever may have been the reason, the fact is apparent, that the treaty contemplated the possibility that some selections might not cover the party’s improvements. Hence, the mere fact that the selection did not include the party’s improvements would not necessarily defeat the selection.
Again, it provided for a selection subject to the approval of the Secretary of the Interior. Such approval was conclusive as against any rights which did not exist at the time of the selection. The approval related back to the selection, and confirmed it. The title thus acquired was good as against any one who did not then have a better claim. The only parties who at the time had any interest or rights in this land were the Osage Indians, the government, and Tinker. No one else could question the validity of the selection. So that, whether Tinker had any improvements on the land at the time he made his selection, or not, is a matter into which Rakestraw, holding by a subsequently-acquired title, cannot be permitted to inquire. This ruling compels a reversal of the judgment, and the remanding of the case for a new trial. It will also have the effect of excluding on such subsequent trial much of the evidence offered on this trial.
The question of an error between the selection and the patent, we have not as yet considered, but perhaps should notice before closing. It is claimed that the land actually selected was the E.J of N.W.J of sec. 9, instead of the land in controversy. It is true, that if Tinker selected one piece of land, and by mistake another was reported to the Secretary of the Interior for approval, the error could be corrected, even though the matter had gone so far as the issue of the patent, and the actual selection might still be submitted to tWé Secretary for his approval; but it is equally true that, if Tinker, before the 10th of April 1869, became aware of the fact that a mistake had been made in the tract of land reported as his selection, made no effort to correct the mistake, and assented to its being thus presented to the Secretary for approval, it was virtually a selection by him of the tract reported, and the approval of the Secretary confirmed the title in him as of date prior to any rights which Rakestraw could acquire by his occupancy. We do not care 'to pursue this inquiry further, for we cannot anticipate the testimony which may be offered on the next trial.
The judgment will 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
Kingman, C. J.:
This action was upon an account for $319.92 for cattle sold and delivered by Newby to Kermeyer. The answer was a general denial, and payment, but on the trial it was admitted that the plaintiff Newby sold and delivered the cattle at the price stated in the petition. The case was tried by the court, who found generally for the plaintiff, thereby finding, in addition to the admitted facts, that payment had not been made. There were no special findings of fact, and no question of law raised for this court, except that the evidence does not sustain the judgment. The conditions upon which this court will reverse a j udgment of the court below on this ground have been too often decided to need statement here. It is only necessary to examine the record to see if there was evidence tending to support the judgment of the court on the want of payment for the cattle. The testimony is in substance as follows: Kermeyer testifies positively that he paid for the cattle in money, and strengthens his testimony by that of witnesses who heard conversations between himself and Newby in which Newby admitted payment either in money or check. On the other hand, Newby testifies that he had taken for the cattle a check on the German Savings bank of Leavenworth which he had lost, and introduces some other testimony tending to strengthen his own, and throw doubts on the testimony of the defendant as to the payment in money. In his testimony the plaintiff used these expressions: Having testified to the sale and delivery of. cattle to defendant at different times, he said,' “ he (defendant) paid me sometimes with checks on the German Savings bank of Leavenworth, and sometimes in cash.” * * * “ He paid me the amount I claim in a check on the German Savings bank, and did not pay me in cash for this lot of cattle.” * * * “I received the check in payment of the lot of cattle, and must have lost it.” On this evidence, the plaintiff in error (defendant below,) insists that he ought to have had judgment, as in law it makes no difference whether payment was made in cash or by check. It is unquestionably true in law, however it may be in fact, that, if payment be made, it matters not whether it be- by check or money. The real question is, was payment made. The court must have found these facts, or it could not have given judgment— first, that the cattle were sold and delivered by plaintiff to defendant, at the price alleged; second, that there was no payment therefor. To reach this last conclusion .it is certain that the court must have found that a check was given for the price of the cattle, and that the check was not payment for the cattle. Under all the evidence in the case, this court is not able to say that any of the facts found as above are erroneous, and the only question for this court is, whether the taking of the check is a payment in law. There is no doubt that, if by agreement it is taken as a payment, then the law makes it a payment, as much as if paid in cash; but there is no evidence of any such agreeement, save the inference that may be drawn from the terms used by the plaintiff quoted above, and the court must have held these expressions as but the loose use of words by the witness, who would hardly have admitted payment of a claim that he was seeking to establish. Take his whole testimony together, and we cannot say the court erred in that conclusion. Then the law question which we have to consider is simply whether taking a check is a payment. On this subject, Parsons in his work on Bills and Notes, p. 85, says: “It is undoubtedly payment as soon as it is cashed; but, generally, at least, not until then.” In a subsequent chapter, page 150, et seq., the authorities on the presumptions of law as to payment by accepting negotiable paper for a debt are referred to, and from them it will be seen that as a general rule, in this country and in England, that the acceptance of such paper does not extinguish the original debt. The exceptions are carefully pointed out, and the facts and principles stated on which the exceptions are founded, but none of them are broad enough to include this case. One of the exceptions would be where a party had taken negotiable paper, and by his own laches a loss is incurred, then upon proof of such loss, by the debtor, the negotiable paper becomes by the negligence of the holder a satisfaction of the debt without a special agreement; but the burden of proving this loss is upon the debtor. In Massachusetts, Maine, and Vermont, it seems to have been long established that the taking of a note is the extinguishment of the debt. In Wisconsin (24 Wis., 607,) it seems that the receiving of a check is prima fade evidence of the payment of the debt, and is absolute payment if the holder of the check, through his own negligence, fails to take proper steps to obtain payment. In all the other states, so far as examined, the rule of the common law prevails, that the giving of one simple executory contract for another does not extinguish the latter. In this case, therefore, we but follow the rule of the common law, and the current of authorities, in holding that the simple taking of the check was not a payment of the debt, nor an extinguishment of the contract for which it was given. The authorities to support this conclusion are referred to in note a, page 153, of Parsons on Notes and Bills. The judgment must therefore be affirmed.
Valentine, J., concurs. | [
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The opinion of the court was delivered by
Valentine, J.:
In September 1872 James Streeter and Robert O. Rizer were the owners of a certain judgment, which they had previously recovered against George Sander-son and Evander Light. This judgment they could not collect in the ordinary way or on execution, on account of the insolvency of Sanderson & Light. So they therefore commenced this action against Sanderson and Light and Mary V. Sanderson, for the purpose of having certain real estate (the title to which was in Mary V. Sanderson,) declared subject to the payment of said judgment. The court below rendered judgment in favor of the plaintiffs, and the defendants as plaintiffs in error now bring the case to this court. The property which the court below ordered to be subject to the payment of said judgment was the undivided-half of Lots 12, 13 and 14, in Block 27, in Junction City. The order of the court below was made upon the ground that the property really belonged to George Sanderson, and not to Mary V. Sanderson, (his wife,) and that the title to the property was kept in her name merely for the purpose of hindering, delaying, and defrauding creditors. It appears from the record that in 1866 the title to the property was in fact in George Sanderson, that on June 13th 1866 he and said Mary ~V. his wife conveyed the same for the expressed consideration of $965 to Jonathan Sanderson. The deed of Conveyance was acknowledged on the same day, and was recorded on June 15th 1866. The title thus conveyed remained in Jonathan Sanderson for over four years, when Jonathan conveyed the same to Mary V. Sanderson by two deeds, one of which was for the undivided-half of lots 11,' 12 and 13,- in said block 27, consideration expressed $1,000, dated August 11th 1870, acknowledged the same day and recorded August 26th 1870, and the other deed was for Lot 11 and the undivided-half of Lot 14 in said block 27, consideration expressed $1,000, dated September 9th 1870, acknowledged the same day, and recorded September 10th 1870. It does not appear that at the time these deeds were executed, acknowledged and recorded, George Sanderson was indebted to any person, or that he even contemplated contracting any debts. Nor has he since contracted or attempted to contract any debts of any considerable amount except the one for which said judgment was rendered. On May 10th 1871 George Sanderson was arrested on a charge of misappropriating government property. The time when said offense was supposed to have been committed is not shown or stated. The charge however was tried upon its merits, and Sanderson was acquitted. At the time he was arrested he promised one James H. Brown that he would pay Brown $500 for going on his recognizance as bail for his appearance at the next term' of court. Afterward, on December 5th 1871, Sanderson as principal, and Light as surety, gave to Brown their promissory note for $600, due January 1st 1872, the consideration therefor being said $500 agreed to be paid to Brown for going Sanderson’s bail, and $100 more for other debts recently incurred. This note was transferred by Brown to Streeter and Rizer, and upon this note Streeter and Rizer recovered their said judgment against George Sanderson and said Light. There was direct and positive evidence in abundance, outside of the several deeds of conveyance, that said deeds from George and Mary V. Sanderson to Jonathan Sanderson, and from Jonathan Sanderson to Mary V. Sanderson, were made in good faith, and for a sufficient consideration. But suppose that they were not made in the best of faith. Suppose that they were made without any consideration — that they were purely voluntary — and still we cannot see how the plaintiffs (Streeter and Rizer) can question their validity. The deeds were not made to defraud them, nor in any manner to delay or hinder the collection of their claim.. It cannot be supposed that the parties to the deeds could have had in contemplation at the time the deeds were made the state of things which afterward occurred, and out of which the plaintiffs’ cause of action arose. It cannot be supposed that the parties expected when said deeds were executed that sometime in the future George Sanderson would be charged with the misappropriation of government property; that Brown should afterward go his bail, and that Sanderson and Light should afterward give their promissory note to Brown for $500 therefor. It was nearly five years after George Sanderson conveyed away his title to said lots before he was arrested on said charge; and there is no evidence in this case that he ever did misappropriate government property, or that he was even suspected of such a thing until he was arrested therefor. Said deeds could not have been executed to defraud prior or existing creditors, for it does not seem that George Sanderson had any such creditors. And they could not have been executed to defraud subsequent creditors, for there is no evidence that any of the parties ever contemplated that George Sanderson would have any of that kind of creditors. And the deeds were all immediately after their execution put on record, so that all persons dealing with any of the parties might know where the title to the property was. When Streeter and Rizer purchased said note of Brown they had had about five-and-one-half years in which to ascertain from the county register’s office the fact that George Sanderson had conveyed away his title to said lots. Under such circumstances it would hardly seem that they could have been very badly deceived or defrauded. The suspicious circumstances of this case are about these: It would seem that George Sanderson has a great deal of property in his possession, and that he does a large amount of business, but that the title to all the property is held by his wife, Mary "V", Sanderson, and all the business is done in her name. Any person who will trust such a man perhaps ought to lose occasionally, in order to learn a proper lesson. But the courts cannot in such case take property held for a long time openly, notoriously and publicly by the wife, and pay debts subsequently contracted by the husband. We shall decide this case upon the theory that all of said deeds were voluntary, and that the title to said lots was a gift from George Sander-son to his wife Mary V., through the intervention of Jonathan Sanderson. And even upon that theory we must reverse the judgment of the court below.
Judgment reversed, and new trial ordered.
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The opinion of the court was delivered by
Brewer, J.:
The question in this case is on the construction to be given to a portion of the mechanics-lien law of 1872. The plaintiffs in error furnished lumber to be used in the erection of a building belonging to one of the defendants. They filed their papers for a lien within four months from the completion of the building, but not within four months of the time of delivering the lumber. Have they a lien? This is purely a question of the construction of the statute. The first section provides that “any mechanic or other person, who shall under contract * * * perform labor or furnish material for erecting, altering or repairing any building, or the appurtenances of any building, or any erection or improvement, or shall furnish or perform labor in putting up any fixtures or machinery in or attachment to any such building or improvement, or plant and grow any trees, vines, and plants, or hedge fence, or shall build a stone fence, or shall perform labor or furnish material for erecting, altering or repairing any fence on any tract or piece of land, shall have a lien upon the whole tract,” etc. Sec. 3, after describing the statement that must be prepared adds, “ such statement shall be filed within four months after the completion of the building, improvements, or repairs, or the furnishing or putting up of fixtures or machinery, or the planting of such hedge or the building of such fence, or the furnishing of such material or labor for the building of such fence.” It seems to us that the only time given from which to date, in a case like the one at bar, is the completion of the building. The latter part of the quotation is of course inapplicable, referring as it does specifically to fixtures, machinery, hedge, and fence, so that we must look to the first clause. That says, “after the completion of the building, improvements, or repairs.” Now in this there is nothing which by any sort of fair construction can be held to refer to the delivery of material. It obviously refers to the completion of the work for which the material was furnished, and upon which the labor was performed. If it was a matter of repairs, the time dated from the completion of the repairs, and not from the time each separate contractor completed his part of the repairs. And the same, if it was the erection of a building. It is true, that this may in some cases give a long time in which a secret lien is preserved, and that the law looks with disfavor upon secret liens. But with the wisdom of such legislation we have nothing to do. The legislature prescribes the time, and we are not authorized to limit it. This construction gains some little support from the last clause of the quotation from § 3, that in reference to the building of a fence. Here the furnishing of the material, as well as the doing of the labor, is made a point from which to date the four months. So that the matter was before the attention of the legislature, and for reasons which we do not know, a distinction was made between fences and buildings. The authorities cited from Missouri and Pennsylvania have little application, as the terms of their statutes are different.
The judgment of the district court will 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.:
The question in this case is, whether a certain tract of land was subject to taxation for the year 1871. The facts as agreed are as follows: Title to the land was obtained under the homestead act; (12 U. S. Stat. at Large, 393.) On the 1st of March 1871 title was still in the government. On the 12th of June 1871 the owner made final proof and entry, and on the 12th of March 1872 the patent issued. The land was not returned by the assessor, but was placed upon the tax-roll by the county clerk under the provisions of § 36 of the tax law, (Gen. Stat., p. 1033,) as amended in 1870; (Laws of 1870, p. 245, § 1.)
The first of March is the time at which the taxability of property is determined. This is true, as a general rule, of both personal and real property: Gen. Stat., p. 1023, § 8; p. 1024, § 11; p. 1027, § 19; p. 1029, §§ 25 and 27; p. 1032, §35. The last section provides that “lands entered on or before the first day of March in each year shall be subject to taxation for that year.” Was this land subject to taxation on the 1st of March 1871? Clearly not. The title still remained in the government. Nor does it appear that a right to a patent then existed. Under the second section of the Homestead Act five years continuous possession is essential to secure the right of final entry. If possession ceases before the lapse of the five years, all rights under the act fail, and the title remains with the government. No such possession is here shown, and final proof was not made till the June following. There was therefore then no patent, and no right to a patent. It was government land, and therefore free from taxation. It is unnecessary to consider what difference it would make if the final proof had been made prior to March 1st. It is insisted that §4 of the Homestead Act would have prevented taxation until after the issue of the patent. It will be time enough to determine that question when it is fairly before us. For while it is contended that under § 36 of the Tax Law as amended in 1870, (Laws of 1870, p. 245, § 1,) lands entered between the 1st of March and 1st of July are taxable for that year, (which would bring the question above noticed before us,) we are of the opinion that such claim cannot be sustained. That section, or at least the portion applicable here, reads thus:
“It shall be the duty of the county commissioners to direct the county clerk to procure from the land officers of the proper district or districts an abstract or abstracts of all lands entered subsequently to the first day of July of the previous year, and all such lands as shown by said abstract not appearing on the tax-roll, shall be entered upon said roll by the county clerk as 'soon as the abstract shall be received.”
So far as this portion of the section is concerned the amendment makes no change, and the law was the same in 1868 as in 1870. We do not think this changes as to these lands the taxable point from the first of March. There is nothing to indicate positively up to what time the abstract is to extend. The roll is to be returned to the clerk on the 20th of June. Should the abstract be made up to that day?' It dates from the 1st of July. Shall it run to the same date? Shall it run only to the 1st of March, the time otherwise fixed to determine the question of taxability? Shall it run up to the time it may be transmitted to the county clerk, whatever that time may be? These are questions unanswered by the statute. It would seem if the legislature intended to change by this section the time of taxability, the time of the termination of the abstract should have been clearly given. It is a rule of construction to seek to give effect to each expression of the legislative purpose, and to harmonize if possible any seemingly antagonistic expressions. It is also a rule of construe tion that when one section of a statute treats specially and solely of a matter, that section prevails in reference to that matter over other sections in which only incidental reference is made thereto. Not because one section hás more force as a legislative enactment than another, but because the legislative mind having been, in the one section, directed to this matter must be presumed to have there expressed its intention thereon rather than in other sections where its attention was turned to other things. Griffith v. Carter, 8 Kas., 565. Now in the one section the sole matter is, the time at which lands shall become taxable; in the other, the addition to the tax-roll of lands overlooked by the assessor. Of course therefore, the former should control the latter in this matter of the time of taxability. This would be true if the time to which the abstract was to be made up, was definitely stated. Much more so when it is left so uncertain and indefinite. Effect also is thus given to both sections. By the first, the time of taxability is definitely fixed. By the second, one means is: provided of ascertaining additions to the taxable lands of the prior year. -It is true, a fuller list of additions would be obtained if the abstract extended to the first of March of such year; but the legislature may have thought that by this abstract the county clerk would reach all the lands that the assessor had overlooked. At any rate, if each abstract was extended from July 1st to July 1st, the county clerk would be in a position to ascertain the total additions. However that may be, we are clear in our opinion that the 1st of March remains unchanged as the time to which the taxability of lands must be referred.
The district court erred in its judgment; and as the case was tried upon an agreed statement, it must be remanded with instructions to enter judgment in favor of the plaintiff decreeing the tax-sale and certificate thereon null and void.
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The opinion of the court was delivered by
Brewer, J.:
Two errors are alleged, first in refusing a continuance, and second in discharging a temporary restraining order. The case itself was one involving that question of frequent occurrence, the' validity of a county-seat election. The application was for an order restraining the county officers from moving their offices to the place declared by the commissioners as the result of the election, the newly-chosen county-seat. On the 1st of April the petition for an injunction was presented to the judge of the district court. The 22d of April was by him fixed for the hearing, and a temporary restraining order granted to remain in force until the application could be heard. On the 22d of April the plaintiff moved for a postponement of the hearing, and a continuance of the restraining order, which motion was overruled, and of this plaintiff complains. It is well settled that these matters of continuance are largely within the discretion of the trial court. Here no abuse of discretion is apparent, but on the contrary the ruling was evidently correct. The petition alleged that several hundred of the names on the petition for an election were improperly there, some forged, some the names of non-residents, minors, etc. The affidavit for the continuance, which referred solely to this matter, alleged that application had been made to parties to give voluntary information by affidavits as to these matters, but that these parties refused, and the testimony could only be obtained by deposition, and enforced attendance; but it did not show that any effort had been made to take a single deposition, nor did it give a single name improperly on the petition. It was moreover simply a statement upon information and belief. We think the court very properly overruled the application. Brown v. Johnson, supra, 377.
The other error alleged was in discharging the temporary restraining order. Here too we see no error, or at least nothing to justify a reversal. The grounds for holding the election illegal, presented in the petition, which was verified, were, first, that the petition for the election did not contain the names of three-fifths of the legal electors, several hundred of them being forged, those of minors, etc., as heretofore stated; second, that the two elections (for no place received a majority at the first election,) were not held within fifty days after the presentation of the petition; third, that the two places declared to have received the highest number of votes at the first, and therefore the sole competitors at the second election did not in fact receive the highest number, and were erroneously so declared; and finally, that there was no such place as that declared the chosen county-seat. In reference • to these restraining orders in limine, it is to be borne in mind that it is not to be expected that the whole case will then be fully tried, so that the. court may properly require that a clear showing be made of a right in the plaintiff to relief, and a right which may be seriously impaired unless immediately protected. Where it is doubtful .what upon the final hearing may be ascertained to be the real facts of the case, and where the rights of the plaintiff are such as Avill suffer no serious injury if not enforced until the facts are finally and definitely determined, it oftentimes is the duty of the court, in the ex ercise of a sound discretion, to refuse an injunction in limine. Otherwise, a defendant might be unnecessarily and improperly restrained from doing that which he has a right to do, and through such restraint suffer an injury for which no adequate compensation is afforded. Stoddart v. Vanlaningham, ante, p. 18; Akin v. Davis, ante, p. 144. Now in this case, while the petition (which, being verified, was the principal evidence for the plaintiff,) alleges that there were several hundred forged names and names of minors, etc., the paper containing these names is not presented, nor is there a single name given. More than that, the verified answer of the county commissioners denies this allegation of the petition. Whatever may be said upon the sufficiency of the petition as a pleading, as evidence it is not specific nor definite. Not only does it fail to give any names, but also, by the even numbers used, it is evident the pleader does not mean to be considered as stating the facts exactly. Thus, he says there were the names of “two hundred non-residents,” of “fifty minors,” of “one hundred dead persons,^ that there were “ three hundred forged names,” “two hundred fictitious names,” etc. It is evident from this that he did not have in his mind any specific names, or any exact numbers, but was making his allegations large enough to cover the expected proof, and to meet the necessities of his case. It may be remarked too, that there is no showing of any special injury that would result to the plaintiff from the removal, or any grievous wrong to other parties.
So far as the matter of time is concerned, the petition was presented February 1st, and the elections held on the 11th and 25th of March, respectively. The first election was within the fifty days. This we think is all the statute requires. Gen. Stat., 297, § 5.
The two remaining allegations of the petition may be considered together. The place declared the newly-chosen county-seat is thus described in the proclamation of the result: “ Farmer City, situated as follows, 40 acres in S.E.J of N.W.£ of sec. 14; 30 acres off the S.W. qr. of the N.E. qr. of sec. 14, all in town 21, of range 23, in Linn county, Kansas.” Now it is alleged that at .the time of said elections there was no such place as “Farmer City,” and no city, town or village anywhere within the limits of said “section 14,” and that at the first election some of the ballots counted as for this place contained the very words of the description in the proclamation, while others added on the word “and” between the words “sec. 14,” and “30 acres;” and that classing these ballots as for separate places, neither of them stood first or second on the list; of candidates. On the other hand it is alleged that prior to the first election the place designated and known as “Farmer City” was selected upon actual view, and placed in nomination as one of the places to be voted for, by a convention of five delegates from each of six townships, and that such selection was witnessed by two hundred or more persons from different parts of the county, and that the place so selected and named “Farmer City” became and was quite notorious, and at each of said elections was generally known and understood by the legal electors voting at said election. There seems to have been no dispute as to the facts thus alleged on the respective sides. If the majority of the electors of a county are unwilling to select any of the existing towns for the county-seat, but prefer to choose a new place, and start a new town therefor, we know of nothing to prevent them from so doing. Each elector is to give “the name of the place” for which he votes. This “place” may be an incorporated city, a village, or an unoccupied quarter-section; and if a majority choose a tract of unimproved prairie, the courts have no power to interfere and set aside their selection. The wisdom of such a choice may be questioned, but the power to make it is beyond dispute. Again, if a given tract of land is known by a specific name, the use of that name is a sufficient description. If a certain definite seventy-acre tract was generally known as and by the name of “Farmer City,” the use of that term in a ballot was a sufficient description, and the ballot was not vitiated by a mere imperfection in a further description therein of the land. No greater precision or definiteness is necessary in a ballot than in a deed. There was in these facts nothing to justify the court in continuing the restraining order. Upon the whole case therefore we cannot see that the court, in the exercise of a sound discretion, erred in discharging the temporary restraining order, and the judgment will be affirmed.
Probably the only matter affected by this decision is the question of costs, as, if the public press be reliable, subsequent elections have relocated the county-seat.
The order of the district judge is 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 plaintiffs in error against McGuire, for the partition of a certain quarter-section of real estate. The plaintiffs in error claim to own an undivided-half of said real estate. The defendant in error claims to own the whole of it. The plaintiffs’ title is as follows: Patent for the land from the United States to David Eckert, dated October 1st 1858; deed of general warranty for the land, from Eckert to Morris S. Knight, dated August 9th 1857; deed for an undivided-half of the land from Knight to two of the plaintiffs, dated August 7t¡h 1857. The defendant’s title is as follows: Said patent, and said deed from Eckert to Knight; sheriff’s deed conveying the interest of Morris S. Knight in said land (being the other undivided-half of said land) to Abel Whitney, dated Nov. 12th 1863; deed for an undivided-half of said land from Whitney to the defendant in error, dated January 25 1865 ; tax deed for the whole of said land from the county clerk of Jefferson county to the defendant in error, dated April 29th 1866. All the questions involved in this case are with reference . to the validity and effect of said tax deed. Said tax deed reads as follows :
“Know all men by these presents, that whereas, the following described real property, viz., the S.W.f of section 31, in township 9, of range 18, containing 160 acres, situated in the county of Jefferson and state of Kansas, was subject to taxation for the year 1861: And whereas, the taxes assessed upon said real property for the year 1861 aforesaid remained due and unpaid at the date of the sale hereinafter named: And whereas, the treasurer of said county did on the 7th day of May 1862, by virtue of the authority in him vested by law, (an adjourned sale of) the sale begun and held on the first Tuesday of May 1862, exposed to public sale at the county-seat in said county, in substantial conformity with all the requisitions of the statute in' such cases made and provided, the real property above described, for the payment of the taxes, interests, and costs then due and remaining unpaid on said property: And whereas, at the time and place afore said no person bid the amount of tax, penalty and charges on said land, the said land was bid off by the county treasurer for the county of Jefferson for said amount, to-wit, the sum of seven dollars and fifty-seven cents, being the whole amount of taxes, interests and costs then due and remaining unpaid on said property for the S.W.-J- of section 31, in township 9 of range 18, containing 160 acresj which was the least quantity bid for: And whereas, the said county treasurer did on the 6th day of October 1862 duly assign the certificate of the sale of the property as aforesaid, and all the right, title, and interest of the said county to said property, to Thomas McGuire, of the county of Jefferson and state of Kansas: And whereas,.two years have elapsed since the date of said sale, and said property has not been redeemed therefrom as provided by law: Now therefore, I, Terry Critchfield, county clerk of the county aforesaid, for and in consideration of the said sum of $18.61 taxes, interest and costs due on said lands for the year 1861, to the treasurer paid as aforesaid, and by virtue of the statute in such case made and provided, have granted, bargained, and sold, and by these presents do grant, bargain, and sell unto the said Thomas McGuire, his heirs and assigns, the real property last herein-before described, to have and to hold unto him the said Thomas McGuire, his heirs and assigns, forever, subject however to all rights of i’edemption as provided by law.
“ In witness whereof, I, Terry Critchfield, county clerk as aforesaid, by virtue of the authority aforesaid, have hereunto subscribed my name, and affixed my official seal, on this 27th day of April 1866.
[county seal.] Terry Critchfield, County Clerk
L. J. Trower, Witness.
State of Kansas, Jefferson County, ss. :
I hereby certify that, before me, a register of deeds in and for said county, personally appeared the above Terry Critchfield, clerk of said county, personally known to me to be the clerk of said county at the date of the execution of the above conveyance, and to be the identical person whose name is affixed to and who executed the above conveyance as clerk of said county, and acknowledged the execution of the same to be his voluntary act and deed, as clerk of said county, for the purpose therein expressed. Witness my hand and official seal this 28th of April 1866.
[seal.] “L. J. Trower, Register of Deeds.”
This deed was recorded in the county register’s office April 28th, 1866. There is nothing in the record of this case, as brought to this court, which shows when this action was commenced. But as the action was not tried until May 28th 1873, and as the court then found generally in favor of the defendant and against the plaintiffs, and rendered judgment in favor of the defendant and against the plaintiffs, thereby sustaining the regularity and validity of said tax deed, we should presume in favor of the findings and judgment of the court below that this action was not commenced until after more than two years had elapsed after the recording of said tax deed, and therefore that the two-years statute of limitations had run in favor of said tax deed before this action was commenced. Therefore we cannot declare the tax deed void unless it is void upon its face, or unless it is affected with some incurable irregularity not shown upon its face. The plaintiffs claim that it is void upon its face for about six supposed irregularities. We shall mention them in their order:
1st. It is claimed that the deed is not duly witnessed. This deed was witnessed by one witness, and only one. He was the same person -yho took the acknowledgment of the execution of the deed. The only reasons for claiming that said deed was not duly witnessed are as follows : In § 10 of the tax law then in force (Comp. Laws, 878,) there was a clause which reads as follows: “And such deed [a tax deed] duly witnessed and acknowledged, shall he prima fade evidence of the regularity of such proceedings from the valuation of the land by the. assessor inclusive up to the execution of the deed, and may be recorded with like effect as other conveyances of land.” And in the same section, at the bottom of the form given for tax deeds, where witnesses usually sign their names, the word, “ Witnesses,” is printed. It will be perceived that the statute quoted does not expressly require that a tax deed shall be witnessed, nor does the statute state how it shall be witnessed, whether by one, two, or a dozen witnesses. The statute simply says that “such deed duly witnessed,” etc., “ may be recorded with like effect as other conveyances.” Now what does “ duly witnessed,” mean ? We think it means “witnessed according to law.” And how does the law require that a deed of conveyance should be witnessed ? It in fact does not require that a deed of conveyance shall be witnessed at all. The common law never did require that deeds of conveyance should be witnessed by attesting witnesses: Jacobs’ Law Dict., Deed, ii, 8; 2 Black. Com., 307, and note 21; Comyn’s Digest, Fait, B, 4; 4 Greenl. Cruise on Real Prop., 31, ch. 2, § 77, et seq., and notes; 4 Kent Com., 458; 2 Washb. Real Prop., 572; 2 Hil. on Real Prop., 208, § 153. And no statute can be found in this state that requires any such thing. Tax deeds were unknown to the common law, and our statutes do not require that they shall be witnessed in any different manner from other deeds, but leave the matter entirely optional with the parties executing and receiving them. The statutes above quoted were borrowed almost literally from Wisconsin, where attesting witnesses were necessary to all deeds; and this accounts for the words “witnessed,” and “witnesses,” being used. In this state the certificate of the officer taking the acknowledgment of a deed, with his signature, and seal if he has one, is considered a sufficient attestation of any deed; and with such a certificate the deed may be read without other proof. We think the deed in. this case was duly witnessed, that it is valid, (if it is in other respects sufficient,) and that it is prima jade evidence of title.
2d. It is claimed that the deed does not show that any consideration was paid for the tax-sale certificate, or the assignment thereof. The property was bid off at the tax sale by the county treasurer for the county of Jefferson, and the county was not required by any law to pay anything therefor. The deed recites that the certificate of sale was duly assigned to the defendant; and this it does in almost the exact language given in the form prescribed by the statute. This we think was sufficient. It will be presumed that the purchase-money, ánd all that was necessary, was paid when the eertifi cate was “ duly assigned.” The certificate with all the right, title and interest of Jefferson county to the land in question, could not have been “duly* assigned” to the defendant, as is stated in the deed, if the purchase-money was not paid.
3d. The sale seems to have been on May 7th 1862, which was Wednesday. But the deed plainly enough shows that the sale was “an adjourned sale of the sale begun and held on the first Tuesday of May 1862.”
4th. The name of. the officer taking the acknowledgment is not given in the body of the certificate. That is not material. The officer certifies “that before me, a register of deeds,” etc., and then signs his name, “L. J. Trower, Register of Deeds.” There can be no misunderstanding as to whom the pronoun “me” refers. It personates unmistakably the person signing the certificate, and with its connection clearly expresses his official character.
5th. The property was bid off by the county treasurer for the county, and the certificate of sale was issued to the county, and afterward assigned by the county treasurer to the defendant. It is claimed that no tax deed could be made on such a sale, or such a certificate. Everything seems to have been done in accordance with the law as the law existed at the time the same was done. We think a valid tax deed may be made on such a sale and such a certificate, when the certificate and the interest of the county has been duly assigned, as in this case. A valid tax deed may be made under the laws of Kansas to the assignee of a county, the legal holder of the tax-sale certificate. (Sprague v. Pitt, McCahon, 212.)
6th. It is claimed that the middle portion of said tax deed is not in the statutory form. This is true; but still it is in the proper form to express the facts as they exist in this case, and as they must exist under the law in all such cases. The form of this deed is varied from the statutory form only far enough to express the facts in the case. In the case of Bowman v. Coakrill, 6 Kas., 311, 324, 325, we held that a tax deed need not be in the exact form prescribed by the statute; and in two later cases, Norton v. Friend, 13 Kas., 532, and Magill v. Martin, ante, 67, we have held that the form of the tax deed must be so varied in all cases where the facts and the statutory form do not.agree, that the deed will state the facts as they really are. The deed must state the exact truth, and must always show a legal sale, or the deed will be void.
7th. We hardly think that the question desired to be raised under the seventh heading of plaintiffs’ brief is in the case. The question is, whether oné of two or more tenants in common can procure a valid tax title to land held by himself and his co-tenants. It seems from the tax deed that the property in controversy was taxed for the year 1861. It was sold May 7th 1862 for the taxes of 1861, to the county of Jefferson. On October 6th 1862 the lax-sale certificate, and the interest of Jefferson county in and to the land, were transferred to the defendant, Thomas McGuire. And the tax deed is prima fade evidence of all of these recitals. If there was any evidence in conflict with these recitals the court below may have believed these recitals, and disbelieved the other evidence in conflict therewith. The ccfurt below found generally in favor of the defendant and against the plaintiffs, and therefore it would seem that the court did find that these recitals were true, notwithstanding there may possibly have been some evidence tending to contradict them. If there was any evidence tending to contradict these recitals it was slight parol evidence. If these recitals are true, neither Butts nor Whitney ever owned said tax-sale certificate. But even if Butts did own the certificate, if Whitney never owned it the point attempted to be raised is really not in the case. But even if Whitney at one time owned the certificate, still the point does not seem to be in the casé. The assignment of the tax-sale certificate seems to have been made on October 6th 1862, yet Whitney did not have any other interest in the land until he got such interest under his sheriff’s deed, on November 12th 1863. It would therefore seem that he obtained his right to said land under his tax-sale certificate about thirteen months before he obtained any right under the sheriff’s deed. If the true facts are, that Whitney had said tax-sale certificate as signed to him, and then afterward bought the undivided-half of said land at sheriff’s sale, we suppose it will not be claimed that he had no right to take a tax deed to himself for the land on his tax-sale certificate, or to assign his tax-sale certificate to the defendant so that the defendant could take a tax deed upon the land. What the real facts are we cannot tell. But if there was really any mere irregularity in the assignment of said tax-sale certificate, we should not for that reason alone, and against all the presumptions in favor of the tax deed which has had more than three times the necessary length of time for the statute of limitations to run in its favor, and against all the presumptions in favor of the findings and judgment of the court below, declare the tax deed void, and reverse the judgment of the district court. It is admitted that there never was any unity of title between Whitney and McGuire on the one side, and the plaintiffs on the other side, for they all held under different titles. Was there any unity of possession? and if not, was Whitney or McGuire deprived of the privilege of acquiring a tax title? We do not think it is necessary to answer these questions.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
This was a prosecution for maliciously cutting down and carrying away a lot of growing wheat.. It was originally tried before a justice of the peace, where a conviction was had. On appeal to the district court, it was again tried, with the same result. Erom that court the appellant brings the case to this court, alleging many errors, which will be noticed in their order.
I. It is said that there is no proof that appellant assisted in cutting the wheat, or in carrying it away, or that he was on the wheat-field at all; and therefore the verdict is not sustained by the evidence. It is true, that no witness testifies that appellant was on the ground; but it is in evidence that the twenty-two men and three teams that did the work were employed by appellant for that purpose, and that the wheat was hauled to his farm and stacked there. Many other facts are detailed in the evidence, going to show that if any offense was committed, it was done by the procurement of the appellant solely. If the offense were felony, these facts would have rendered him liable as accessary before the fact, if not as principal; but in a misdemeanor, where there are no accessaries, but “all persons concerned therein, if guilty at' all, are principals,” he may on such evidence be found guilty as principal, if the necessary facts are established. (4 Blackstone’s Com., 34; Crim. Code, §115, Gen. Stat., 839.)
II. Two witnesses were allowed to state what one C. J. Cleveland said while in possession of the land as to the extent of his possession. Whatever diversity of opinion existed at one time on this question, it seems now well settled that declarations of this character by one in possession are admissible as part of the res gestae. 1 Greenl. Ev., § 109. The authorities on this point are collated in note 81, vol. 1, p. 153 of Cow. & Hill’s notes to Phillips on Evidence.
III. A copy of a submission and award was admitted in evidence. It is claimed that this copy was improperly admitted, because there had been no sufficient foundation laid by using proper means to obtain the original, and • because the signatures to the original had not been proven genuine. This evidence was important. The submission was between the appellant and Cleveland. The award showed that the possession of the south-half of a certain quarter-section of land was rightfully, in Cleveland, and it was on this half that the wheat was grown. The man that broke the ground, and sowed the wheat, held under Cleveland. Before offering the copy in evidence the state had shown that when the award was made it was in writing; that the submission and award had been made out in duplicate, and one given to each of the parties; that the copy was a true copy of the original given to Gurnee; that the witness did not know where the originals were; that Cleveland was (lead, and had told witness that he had lost his copy, and the copy offered in evidence was taken at the instance of Cleveland. The county attorney also testified that he did not have the originals, nor had he any means of obtaining them. We think this was sufficient foundation for the introduction of the copy. One of the originals was lost, its owner dead. The other was in the possession of appellant, and there was no power in the state to compel its production as evidence against himself. The second objection rests in a misapprehension of the facts. The witness who presented the copy testified that he was one of the arbitrators, that the award was made in writing, and that the paper offered was a true copy of the award so made. We think that was sufficient. The controversy as to whether one Bright signed the award or not, arose afterward. The state made a sufficient prima fadie showing of its genuineness to authorize its admission.
IV. ' The fourth error is the refusal of the court to allow a witness, A. G. Newton, to testify as to whether at the time he took a deed for the land he had notice of the fact that.the submission and award had been set aside, and a new contract had been entered into by which Cleveland was to have a life lease for only twenty acres of the south half-quarter-section, with a dwelling house on it, and that Gurnee was to have the rest of the quarter-section. At the time this question was asked no attempt had been made to prove that such a contract had ever been made, nor was any suggestion made that such proof would be offered. Under such circumstances the court was justified in refusing to permit an answer. This evidence was inadmissible on another ground. George H. Newton claimed to own the wheat as the lessee of Cleveland. To prove that his father, A. G. Newton, had notice of Gurnee’s claim was inadmissible in this suit. It is true that A. G. Newton had told his son that when his title was perfected he would deed him the land; but this gave George H. Newton no rights, and in no way threw any light on the questions at issue.
V. It is insisted that the court erred in admitting in evidence the papers and docket entries of a justice of the peace in a case for an unlawful detainer, wherein the appellant was plaintiff and Cleveland and another were defendants. This evidence tended directly to show that at a certain time (which was subsequent to the time when it is claimed the award was set aside and a new contract made,) Cleveland, by Gurnee’s admission, was in possession of the south-half of the quarter- section, and that Cleveland claimed that that possession was lawful. The evidence being admissible for one purpose, and nothing appearing that it was used for any other purpose, it is useless to discuss the other questions raised by appellants.
VI. The court at the instance of the counsel for the state gave certain instructions, numbered from one to twenty. Eighteen of these we are told are wrong, but no error is pointed out or suggested. It was the duty of counsel to point out errors, if any existed; and the failure to do so may be relied on as sufficient assurance that there are none. They seem correct. Some of them enunciate principles as old as the common law. Under the circumstances we do not feel called upon to pass upon them.
VII. The counsel for appellant asked thirty-two instructions; twenty-two of them were given. We have examined those refused, and think they were properly refused, and will indicate the reasons briefly. The 4th-instruction was to the effect that if the land on which the wheat was cut was not the land of Newton, (the man who sowed the wheat,) the verdict must be for the defendant. The counsel for appellant insist that the person owning the fee must be named in the information, and the fact proved as laid. This point is made in the motion for arrest of judgment, but may as well be considered here as elsewhere. The information charges the land to belong to George H. Newton, and the testimony abundantly shows that he held under a lease from Cleveland, and that appellant also claims under Cleveland by a verbal contract made with him. The offensé charged is one plainly under § 107 of the crimes-and-punishment act, p. 338, Gen. Stat. It is also an offense under § 1 of ch. 113, p. 1095. Under the first of these sections we do not think it necessary that it should be proven that the party injured is the owner of the land in fee. It would be as much an offense, for the landlord, who owns the fee, to enter upon his tenant’s possession, and sever therefrom and carry away the growing crops, as it would be for a Stranger.' The language of the section does not require such a construe-' tion. It is the injury to the “property of another,” that is the offense, not injury to the land alone. In this case the fee was not in Newton. The appellant says that the fee was in the United States, and that is probably true. If so, no one had any but possessory rights, except the government. This possessory right was shown to be in Newton, under Cleveland. Unless the language requires it, we should be reluctant to hold that such possessory rights could be invaded by the strong hand, and no remedy but an action of trespass against persons who in most cases are not responsible. The decision in the case of The State v. McConkey, 20 Iowa, 575, seems to be in opposition to this view; but the reasoning of that case is right, and not in conflict with this opinion. As to ownership, the court charged that, to authorize a conviction, the state must prove beyond a reasonable doubt, that the grain cut was standing on land .not belonging'to defendant ; that defendant had no right or interest in the grain so alleged to have been cut and carried away; a peaceable possession of the land on the part of the prosecuting witness at the time of plowing the land, and sowing the grain; a lawful right to that possession as against defendant, and a possession of the land on the part of the prosecuting witness at the time the wheat was cut. The 6th instruction professed to state what was evidence of possession, and in the main correctly, but failed to include those qualifying facts necessary to make it applicable to the evidences, and was therefore properly refused. The 11th. instruction was refused. It is an absurdity. It is as follows:
“11th. That if either of two theories should be adopted by the jury from all the evidence, one of such theories consistent with the innocence of the defendant, and the other consistent with his guilt, then I charge you that you may adopt the theory which is consistent with the innocence of the defendant.”
If the jury adopted a theory consistent with the innocence of defendant, they were bound to acquit; and this instruction authorized them, if from the evidence they adopted a theory of the guilt of defendant, they might acquit. The 14th instruction could have been no guide to the jury. It was a guide for the court, and one which the record shows the court was governed by.
VIII. The 18th, 19th, and 20th instructions were in reference to the arbitration, and as abstract propositions of law are probably correct. If testimony for defendant was believed, and one of the arbitrators did not sign it, we think it was not a binding award. But the award was accepted by both parties, and acted on by both. It did not show title, except as against Gurnee, even if genuine. But, valid or void, the proof shows that both parties acted on it, and thus it became in either event evidence of the extent of the possession of the parties. As asked, the instructions would have misled the jury, because they did not contain any allusion to the effect arising from the acceptance of the award by the parties, and an arrangement of the possession of the .land in accordance therewith.
The 21st instruction is not applicable to the case. The defendant had not shown himself the rightful owner of the land; and for the court to have assumed the fact, as asked in the instruction, would have been a grave error. It is not intended to say that the instruction is or is not correct law. We think the 28th is correct law, but if between the making of the verbal contract and the execution of the deed in pursuance thereof, Newton acquired his rights, then Newton would not be affected by a verbal contract of that kind of which he had no knowledge, and the instruction needed this modification to make it applicable' to the case. As it was asked, it ought to have been refused. The 32d instruction is not law, and was properly refused.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
Charles C. Wilkins was assaulted and beaten upon a public street of the city of Mineral. He brought an action under the statute making cities liable for damages caused by the action of mobs. (Gen. Stat. 1915, § 3822.) He recovered a judgment for $1,500, and the city appeals.
The assault and battery is admitted, and the only ground upon which a reversal is asked is that there was no' evidence to support a finding that it was due to the action of a mob, because it was the act of a single person, or at all events that it was not participated in by as many as three people, the minimum number which may constitute a mob. (Gen. Stat. 1915, § 3674.) There was testimony tending to show these facts, which must be deemed to have been established, the circumstance that upon some points there was evidence to the contrary being of course immaterial for present purposes: The plaintiff was a clergyman acting as pastor of a church at Mineral and also of one at the neighboring town of Scammon, where he resided. He had been active in efforts for the enforcement of the prohibitory law and in this way had incurred the ill will of one Dick Burt, who had been engaged in the business of selling liquor, for which he was twice convicted. On the day of the assault the plaintiff rode in the car of a suburban railway from Scammon to Mineral. Burt and an associate accompanied him on the car for the admitted purpose of assaulting and beating him, which was announced to the bystanders at a place in Mineral where they went to get a drink. On his arrival at Mineral the plaintiff, fearing an assault, borrowed a pistol which he carried in plain sight. On the street Burt approached the plaintiff and attempted to seize him. The plaintiff drew the pistol and Burt stopped. The plaintiff began to move slowly backwards across the street. When he was some fifteen feet from the curb a bystander (a member of the city council) asked him what right he had to carry concealed weapons. Burt followed the plaintiff at a distance of twelve to fifteen feet. The plaintiff turned and walked as fast as he could about ninety or a hundred feet, Burt following him and fourteen or fifteen men following Burt at a distance of fifteen or twenty feet. Burt overtook the plaintiff, jumped upon his back, threw him to the ground and brutally assaulted and beat him, inflicting serious injuries. The spectators now numbered twenty-five or thirty men; some of them began to yell “Kill him, kill him, knock his head off,” and pushed forward and crowded around; they were laughing and talking. The plaintiff called for help but no assistance was offered him for a considerable time — until Burt had accomplished his purpose. Burt’s associate, who had come from Scammon with him as he expressed it to give the preacher a thumping, appears to have been the first person to interfere, doing so by telling Burt to get off of the plaintiff, that he had given him enough.
From this statement it is entirely obvious that there was ample evidence to support a finding that a considerable number of the onlookers were virtual participants in the assault, that they knew it was to take place, encouraged the assailant, and presumably by their attitude restrained the interference of any who might have had a disposition to come to the assistance of the plaintiff.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The defendants, appeal from a conviction of having liquor in their possession, and maintaining a nuisance in an automobile, the sole ground of the appeal being that the jury were instructed:
“That where a conviction for a criminal offense is sought upon circumstantial evidence aloné the state must not only show by a preponderance of evidence that the alleged facts and circumstances are true, but they must be such facts and circumstances as are absolutely incompatible upon any reasonable hypothesis with the innocence of the accused and incapable of explanation upon any reasonable hypothesis other than the guilt of the accused.”
The question presented is the effect of u'sing the words “by a preponderance of the evidence” rather than “beyond a reasonable doubt.” Numerous authorities are cited to sustain the rule that every essential fact in the chain of circumstances must be proved beyond a reasonable doubt. In The State v. Pack, 106 Kan. 188, 186 Pac. 742, a distinction was drawn between the essential links making a chain of circumstances and the constituent elements of a given link. It was there said:
“But if, to make up one of these essentials, it was necessary to show that the defendant had two pairs of shoes which would leave different imprints, and he claimed to have had the other pair on at the time, the identity of the ones making the tracks found need not be proved beyond a reasonable doubt.” (p. 191.)
Here, of course, the language complained of refers to the essential facts or constituent links, and taken by itself, the charge was plainly wrong.
The question then is whether or not the error was material under the circumstances. The jury were told that—
“Under the law the defendant is presumed to be innocent of each and every essential ingredient of the crime charged, and this presumption continues until it has been overcome by evidences which establish their guilt to your satisfaction beyond a reasonable doubt. The burden of proving their guilt rests with the state and at no time does the burden of proof shift to the defendants. If, however, it has been overcome by the evidence and the guilt of the defendants established to a moral certainty and beyond a reasonable doubt it is your duty to convict. If upon consideration of all the evidence you have a reasonable doubt of the defendants’ guilt you should acquit them, but a doubt to authorize an acquittal on this ground ought to be a substantial doubt touching the defendants’ guilt and not a mere possibility of his innocence.”
Then after attempting to define “reasonable doubt” the jury were expressly told, at least three times, that proof beyond a reasonable doubt was essential, and in one portion of the charge this language was used touching the possession of liquor:
“This may be proven by circumstantial evidence, and if [from] all the evidence in the case, either direct or circumstantial, you believe beyond a reasonable doubt that the defendants did have in their possession, on or about the day mentioned, in Greenwood County, Kansas, intoxicating liquor, then you will find them guilty of such charge.”
In addition to all this the jury were told that if after having heard the evidence, the. instructions and the arguments and having .retired to their room and deliberated upon the case—
“. . . any juror still entertains a reasonable doubt as to the defendants’ guilt, the jury cannot convict them.”
It is almost impossible to conclude in view of all this reiteration or to believe that the jury could have been misled by the language complained of, or that they failed to comprehend thoroughly that all the essential facts of the case must be proved to their satisfaction, beyond a reasonable doubt.
In The State v. Wolftey, 75 Kaff. 406, 89 Pac. 1046, 93 Pac. 337, the jury were told, touching the claim of the defendant that he owned the cattle which he was charged with stealing:
“ ‘It is a question for the jury to determine from all the facts and circumstances in the case whether or not such defense is probably true.’ ” (p. 411.)
This was complained of as entirely insufficient, but the court said:
“Any tendency it may have had in that direction, however, was counteracted by the concluding words of the same instruction.” (p. 411.)
The words referred to were to the effect that the state had to prove guilt beyond a reasonable doubt. In The State v. Reilly, 85 Kan. 175, 116 Pac. 481, the court refused to give the following instruction:
“ ‘The presumption of innocence which the law guarantees to the defendant should be considered by you as evidence in his favor.’ ” (p. 176.)
After discussing, but not deciding, the correctness of this instruction it was said that it might have been refused because it had already been given, and that even if it were regarded as a correct statement of the law it could not .be said, without knowledge of the other instructions given, that its refusal was error.
The rule concerning one defective instruction found among numerous others correctly stating the law is that, if on examination of the entire charge the law has been fairly given, it is sufficient. (The State v. Dickson, 6 Kan. 209, 221; The State v. Atterberry, 59 Kan. 237, 52 Pac. 451; The State v. McCoy, 70 Kan. 672, 79 Pac. 156; The State v. Wortman, 78 Kan. 847, 851, 98 Pac. 217; The State v. Johnson, 92 Kan. 441, 140 Pac. 839; The State v. Warner, 93 Kan. 378, 140 Pac. 220; 14 R. C. L. 812, § 72.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The defendants were arrested upon a charge of unlawfully and maliciously placing poison in a pasture where the cattle of Alex Rupp were grazing, with the intention of poisoning the cattle, and it is alleged that nine of them died from eating the poison so placed. At a preliminary examination of the defendants before a justice of the peace, it was found that the offense charged had been committed, and that there was probable cause to believe that they were guilty of the offense. Contending that the evidence was insufficient to warrant binding them over for trial they applied to the district court for a discharge upon a writ of habeas corpus. That court examined the evidence and decided that it was sufficient to warrant the commitment of the defendants for trial. From the decision refusing a discharge and remanding the defendants to the custody of the sheriff they appeal to this court.
It appears that Rupp had rented a farm from the mother of defendants and a controversy had arisen among them as to the termination of the lease, which resulted in litigation. There was hostility between the defendants and Rupp, due in part to the dispute as to the lease and occupancy of the farm, and in part as to the impounding of defendants’ cattle by Rupp for trespass. On the rented farm was a pasture in which Rupp had a herd of cattle, and these began to sicken and die. An examination indicated that they had died from poison. On further investigation it was found that quite a number of piles of poison had been placed here and there in the pasture. There was testimony to the effect that on several days shortly before the death of the cattle, the defendants had been seen near to and in the pasture. On one occasion when there was a quarrel between Rupp and Alexander Pfeifer about the impounding of defendants’ cattle by Rupp, some strong language was used by the defendant, and among other things he said, “I will get your cattle,” and when Rupp remarked that he would not, as he, Rupp, did not allow his cattle to get out, Pfeifer said, “I will get them anyhow, and you will pay pretty damn dear. . . .” There appears to be "ample evidence that the cattle died from poison and enough to show that the poison had been purposely placed in the pasture by some person. The testimony connecting the defendants with the offense is slight, but in view of that showing their hostility to Rupp, their being in the pasture about the time the cattle were poisoned, and the threat mentioned, it is deemed to be sufficient to hold the defendants for trial. There is a difference between the quantum of proof essential to a binding over for trial and that required to convict at the trial. The guilt or innocence of a defendant is not adjudged at a preliminary examination, and it is not necessary that evidence upon which a defendant is held for trial should be sufficient to support a conviction. It is enough if it- shows that an offense has been committed and that there is probable cause to believe the defendant is guilty. (In re Danton, 108 Kan. 451, 195 Pac. 981.)
The judgment is affirmed. | [
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The opinion of the court was delivered by ■
MASON, J.:
Sarah E. Burns, the widow of John T. Burns, brought this action against his four children by a former wife, and other defendants, the principal purpose being to procure a division of his estate under the law of descents and distributions instead of according to the terms of a written ante-nuptial agreement and a will to which she had given her consent in writing, both of which instruments she claims to be invalid. Judgment was rendered against her and she appeals.
The plaintiff contends that the provisions of the ante-nuptial contract are so unconscionable as to render it unenforceable, or, at all events, to cast upon the defendants the burden — which was not met — of proving it to have been en tered into with full understanding on her part; that the evidence required a finding that there was either actual fraud in procuring her signature to the contract, or the existence of such conditions as in equity to require it to be set aside.
At the time the contract was entered into, November 23, 1897, the plaintiff was about thirty-nine years old. Her first husband, a brother of John T. Burns, had died about a year before. Seven children of that marriage survived, two of them being married, the other five living with her, the youngest being three years of age. She had no considerable property. John T. Burns was fifty-five years of age; a widower with four children, all of whom survived him. His property consisted of an eighty-acre farm in Jackson county on which he lived, worth $2,000, subject to a mortgage of $600, and personalty worth $500. He was unable to work. His eyesight was very bad; he was practically blind, subject to rheumatism, and later a cancer developed. He received a pension of $75 a month. He died June 7, 1917, his estate then amounting to nearly $20,000, the Jackson county farm — the homestead— figuring in this estimate at $8,000, a Meade county farm at a like amount, an accumulation of pension money at $800, and growing crops at $1,000;.the remainder being made up of stock, implements, household goods' and other personal property. One child, who still lives, was born to the plaintiff and her second husband, in 1901.
The antenuptial contract provided that if the wife survived the husband she should receive only one-fifth of his estate — that is, an equal share with each of his four children, the portion of any child that might die before the father to go to the surviving children. Other provisions were that the wife should care for the husband’s children as if she were their mother; but that as soon as any of her children became able to earn its own living she should find some place for it to work and the husband should not be held liable for -its support; and that he might refuse to keep any of them around the farm who refused to obey him. The husband released all claims to his-wife’s estate, but this was so small as to be unimportant.
We do not regard the contract as so unfair as to be unenforceable or to cast upon those relying upon it the burden of producing affirmative evidence of its having been fully under stood, its voluntary execution being admitted. There is no room for a suggestion that the wife was misled as to the extent of the husband’s estate — that he had property the existence of which he concealed from her. His possessions consisted mainly of the home farm, which was mentioned in the contract. The difference in his financial worth at the time of his marriage and at the time of his death was real and not merely apparent: The increase was due to new accumulations and rise in values, not to the bringing to light of concealed assets. Moreover, the wife, being allotted a fractional part of the estate, shared in the benefit of the increase in the same proportion. The one-fifth interest in her husband’s property assigned to the plaintiff by the contract is not so much less than the half interest to which she would have been entitled under the law as to condemn the settlement as inequitable. An antenuptial contract which was evidently used to a considerable extent as a model in the preparation of that now under consideration, and in which the “child’s share” which was allotted to the wife amounted to but one-eighth, the husband having seven children, was upheld by this court. (Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537.)
The provision of the contract with respect to the wife’s children was certainly ungracious, but we do not regard it as sufficient to vitiate the contract. The fact that the accumulation of the property in question is largely due to the efforts of the plaintiff is urged in support of her claim. Her husband’s almost helpless physical condition of course prevented him from sharing in the manual toil, but it is not clear that his advice and direction may not have been an important factor in the matter. He was obviously a close bargainer, while the plaintiff is represented as not being much of a business woman. It is not disputed that the property in controversy belonged to the husband, and the basis of its division at his death having been fixed by a valid contract, the court has no power to vary the apportionment because of the meritorious conduct of the plaintiff. Of a somewhat similar situation it was1 said in a former case:
“Some 'make-weight allegations are inserted in the petition, to' the effect that through the joint .efforts of husband and wife, incumbrances on the land in controversy were paid off, and valuable, permanent im provements were placed on it. The plaintiff does not ask for compensation, or for a lien. What she wants is one-half the land, something she is not entitled to receive.” (Osborn v. Osborn, 102 Kan. 890, 895, 172 Pac. 23.)
The validity of an antenuptial agreement is not determined by precisely the same considerations in all jurisdictions. These rules have been declared in this state:
“It would seem from the authorities, that agreements of this kind are generally looked upon by the courts with favor, and are to be liberally interpreted with a view of carrying out the intentions of the persons engaging in them. We entertain no doubt, in the present state of our statutes, of the validity of an ante-nuptial contract, entered into in good fáith by parties competent to contract, and which, considering the circumstances of the parties at the time-eof making the same, is reasonable and just in its provisions, and that the rule thus agreed upon will take the place of that prescribed by the statute, in the distribution of their property upon the death of either.” (Hafer v. Hafer, 33 Kan. 449, 459, 6 Pac. 537.)
“If the intended wife is competent to make a contract and ha* a fair and adequate knowledge concerning the future husband’s property when she enters into an ante-nuptial agreement which is free from, deceit or fraud, it should not be set aside merely because the court or jury find that the provision made for her is in great disproportion to his property.” (Gordon v. Munn, 87 Kan. 624, 635, 125 Pac. 1.)
A daughter of the plaintiff testified that her mother was illiterate — not educated; that she could read large print and sign her name, but nothing further. This fact, unless somé fraud or imposition is shown, does not affect the validity of the contract or shift the burden of .proof as to its having been under standingly entered into.
“It is the duty of every contracting party to learn and know its contents before he signs and delivers it. He owes this duty to the other party to the contract, because the latter may, and probably will, pay his money and shape his action in reliance upon the agreement. To permit a party, when sued on a written contract, to admit that he signed it but to deny that it expresses the agreement he made, or to allow him to admit that he signed it but did not read it or know its stipulations, would absolutely destroy the value of all contracts. The purpose of the rule is to give stability to written agreements, and to remove the temptation and possibility of perjury, which would be afforded if parol evidence was admissible. . . . The rule that one who signs a contract is presumed to know its contents has been applied even to contracts of illiterate-persons on the ground that if such persons are unable to read, they are negligent if they fail to have the contract read to them. If a person cannot read the instrument, it is as much his duty to pro cure some reliable person to read and explain it to him, before he signs it, as it would be to read it before he signed it if he were able to do so, and his failure to obtain a reading and explanation of it is such gross negligence as will estop him from avoiding it on the ground that he was ignorant of its contents.” (6 R. C. L. 624, 625.)
“Where a person cannot read the language in which a contract is written, it is ordinarily as much his duty to procure some person to read and explain it to him before he signs it as it would be to read it before he signed it if he were able so to do, and his failure to obtain a reading and an explanation of it is such gross negligence as will estop him from avoiding it on the ground that he was ignorant of its contents.” (13 C. J. 372.)
The circumstances attending the execution of an antenuptial agreement are of course to be examined in a very different light from a contract between strangers or persons between whom no relations of confidence exist. But in either case there is no essential difference between a literate person signing a paper without reading it and an illiterate person signing it without ascertaining its contents in some other way. The mere fact of illiteracy does not raise a presumption of overreaching. Expressions are to be found to the effect that one who relies upon a contract signed by an illiterate person has the burden of proving that it was understandingly entered into, if a claim to the contrary is made. (18 C. J. 873, note 41.) We conceive the true rule to be, however, that it is only where some fact is established tending to show the practice of deception that the necessity arises of producing affirmative evidence in support of the good faith of the transaction.
Here the plaintiff introduced evidence the purpose of which was to show that the contents of the antenuptial contract that was signed were different from what the plaintiff with good reason supposed them to be. An acquaintance testified that just before the marriage John T. Burns told him that he and the plaintiff had agreed that in case he died first the children were to share alike and she should have an interest during her lifetime, and that the witness told the plaintiff what he had said. The plaintiff testified that she was not present when the antenuptial contract was being drawn up and that it was not read over to her; that she never had but one understanding with her husband with reference to the property she was to receive after his death; that she did not know there was any contract or will or anything until the day after he was buried. A daughter of the plaintiff testified that about two weeks after the marriage she heard the plaintiff’s husband say in the presence of the plaintiff that he had needed a housekeeper and she had needed a home for herself and her children and that she would get his pension and would always have a home — that he was to provide a home for her children; that he would not likely live long and that she would have a home for herself and children; he did not mention putting the agreement in writing. With the exception of the plaintiff’s statement that the contract was not read to her, which the trial court must be presumed to have discredited, there being no special findings, this evidence has little bearing upon the plaintiff’s information as to the contents of the paper she signed, and so far as it tended to show a want of knowledge on her part it may not have been believed. The prima facie effect of the executed contract therefore remains the same as though such evidence had not been introduced.
The defendants’ case, however, does not rest upon the antenuptial contract but is supported also by the will which was executed about two weeks after the marriage, the plaintiff signing a consent to it in the presence of subscribing witnesses. The will was short and simple. It merely in general terms gave all the testator’s property, without describing any or referring to any particular item, share and share alike to the plaintiff and his four sons. Affirmative evidence was introduced that the written consent which the plaintiff signed was read to her. There was no evidence tending to show that she did not understand the effect of it unless that quality be attributed to the testimony already recited, or to the statement of witnesses that after the marriage the plaintiff’s husband told them that he had felt it his duty to marry her so if he died she could have his pension and have a home for her children, and that he expected to have it so that the farm would be her home while she lived, and if he died first he had it fixed so it would be her home while she lived. We find in this no basis for reversing the action of the trial court in giving effect to the plaintiff’s written consent to the will.
At the time of the death of the plaintiff’s husband the Jackson county farm was occupied .as the family residence. The plaintiff contends that even conceding the validity of the antenuptial contract and the written consent to the will she is entitled to remain in the occupancy of the farm during her life (unless she should remarry) in virtue of its character as a homestead. It is settled that her right to continue in possession of the property was not lost by signing the antenuptial contract (Hafer v. Hafer, 33 Kan. 449, 6 Pac. 537; Watson v. Watson, 106 Kan. 693, 189 Pac. 949), and.the question to be determined is whether at the death of her husband the will, having been consented to by her, passed at once a full title including the right of immediate possession to the legatees — the plaintiff and her four stepchildren. The argument in support of an affirmative answer may be thus stated:
The will having been consented to by the plaintiff in the manner provided by statute, upon its probate became effective according to its terms and the full title to all the testator’s realty passed at once to the devisees with all the rights incident thereto, there being no exceptions or reservations of any kind. The situation was substantially the same as though the plaintiff after her husband’s death had elected to take under the will. A widow who takes under the will can get nothing additional under the law, even where there is property undisposed of by the will. (Compton v. Akers, 96 Kan. 229, 150 Pac. 219.) If the provisions of the will are inconsistent with the homestead rights the widow must elect between them. (40 Cyc. 1970.) The doctrine of the Hafer case that a homestead right cannot be waived in an antenuptial contract goes to the extreme limit in that direction and should be extended no further. The Illinois case (McMahill et al. v. McMahill, 105 Ill. 596) there cited in support of the view taken was decided by a bare majority of the court and has since been overruled. (Colbert v. Rings, 231 Ill. 404. See Watson v. Watson, 107 Kan. 193, 191 Pac. 482.) The Hafer case, however, presents a quite different situation from the present. There, the marriage not having taken place, no homestead right had accrued. There is no statutory provision for its waiver at that stage. The statute, however, does specifically provide for one spouse giving effective consent to the will executed by the other. A wife by joining with her husband in a deed to land occupied as a family residence, although no reference is made therein to the homestead right, parts not only with the title but with all rights of occupancy as well, and in this aspect the act of consenting to her husband’s will which makes a similar disposition of it is not essentially different.
On the other hand an argument to this effect may be made in favor of the plaintiff’s contention, requiring a negative answer to the question whether the will cut off her homestead right:
The grounds upon which the decision in the Hafer case was based were that the antenuptial contract did not in terms refer to the homestead privilege and did not show a purpose to waive it, and that apart from this consideration public policy would forbid a waiver in such manner. Here the will does not in terms refer to the homestead privilege, and it does not disclose a purpose to waive it by any language substantially different in effect from that of the antenuptial contract in the Hafer case. The will says that the testator devises and bequeaths all his property, real and personal, to his wife and four sons in equal shares. The contract said that the husband should forever separately hold, own, use, possess, convey and dispose of all his property, real and personal, except the “child’s part” to be received by his wife, to the same extent as though he were not married. The phraseology appears in one case as much as the other to exclude the idea that the wife was to enjoy a homestead right in addition to the “child’s share.” The two instruments were made within a few weeks of each other and the will manifestly was intended to give effect to the provisions of the antenuptial contract and not to subject the plaintiff to a diminution of her rights as therein provided. The public policy of preserving the homestead right for the benefit of the widow and any minor children — to the end that they may not suffer from poverty or burden the public with their support — appears to have the same room for operation after the marriage as before. While there is no statute in terms permitting the making of antenuptial contracts the law permits them and places no express limitation upon them with respect to homestead rights. The statute fairly implies that one spouse with the written consent of the other may dispose of all his property by will (possibly subject to the homestead right) but the language from which this implication results is merely that “either may consent in writing, executed in the presence of two witnesses, that the other may bequeath more than one-half of his or her property from the one so consenting.” (Gen. Stat. 1915, § 11790.) This may be interpreted in connection with the provision forbidding the distribution of the homestead while it is occupied by the widow and minor children (Gen. Stat. 1915, § 3825) as not intended to impair that prohibition. The antenuptial contract, the will and this statute may all be regarded as contemplating that the title to all the husband’s property, including that occupied as' a family residence, upon the death of the husband shall pass to his devisees, but that the right of occupancy in the surviving members of the family shall continue, not even partition to be permitted, until the children become of age or the widow dies or remarries. (Gen. Stat. 1915, § 3828.) The statutory authority of the husband to dispose of all his property by will with his wife’s consent is given in no more explicit, absolute' and unqualified terms than the statute employs in giving him a right to dispose of half of it in that manner without her consent. (Carmen v. Eight, 85 Kan. 18, 116 Pac. 231; Breen v. Davies, 94 Kan. 474, 146 Pac. 1147.) Yet the widow and children cannot be deprived of the right to occupy the homestead after the death of the husband by a will executed by him without her consent devising to others a half interest therein. (Vining v. Willis, 40 Kan. 609, 620, 20 Pac. 232.) This re•sult is prevented by construing the statute authorizing the husband to dispose of half his property by will irrespective of his wife’s wishes in connection with the statute preserving to the widow the right to continue in the occupancy of the homestead. In the same way the homestead statute may be deemed to affect the interpretation of that which allows the husband with his wife’s consent to dispose by will of all his property. In Oklahoma a wife’s homestead privilege has been held not to be subject to disposition by her husband’s will to which she had consented, and the reasoning seems in point here although the decision is affected to some extent by differences of local law. (Bacus v. Burns et al., 48 Okla. 285. See, also, Koster v. Gellen, 124 Mich. 149.)
Upon weighing all these considerations the court adopts the view that by a will to which his wife consents in writing in the presence of subscribing witnesses a husband may dispose of all his property, including that occupied as a family residence, and thereby cut off the right of the widow to continue in its occupancyand that such a will which in general terms bequeaths and devises to persons named all his property without specifying any items, and without making any exceptions or reservations, is to be construed as intended to have that effect. It results from this that the plaintiff has no right to the possession of the homestead except as the owner of a one-fifth undivided interest therein.
The plaintiff contends that, conceding the validity of the consent to the- will, she is still entitled to have set off to her the exempt personal property under the provisions of the statute in relation thereto. (Gen. Stat. 1915, §§ 4533-4535, as amended by Laws 1917, ch. 186.) It has already been held that the statute enables a husband to dispose of a full half of his property by will notwithstanding these provisions. (Breen v. Davies, 94 Kan. 474, 146 Pac. 1147.) We think it follows that his statutory right to dispose of all his property by will with her consent enables him to divert to others the exempt as well as the nonexempt personalty. This question is less difficult than that presented by the homestead claim because the homestead right is not a mere exemption but a privilege of a much broader character.
The conclusions already announced make it unnecessary to consider questions that have been presented with regard to the acquiescence of the plaintiff in the leasing of the homestead.
The minor son of the plaintiff and her second husband was represented by a guardian ad litem and asserted a claim with respect to the homestead, but as no appeal was'taken in his behalf no question is presented in that connection.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this foreclosure proceeding the claims of the parties and the priorities of their liens on two city lots were adjudicated. Upon a former appeal the judgment was affirmed except as to a small amount. (Lumber Co. v. Bowersock, 100 Kan. 328, 164 Pac. 156.) After the remand of the case and the modification of the judgment, the plaintiff caused an order of sale to be issued under which a sale of the property was made, one lot for $4,500 and the other for $4,750. The sale was confirmed and distribution of the proceeds ordered in accordance with previous findings and adjudication of the several liens. As to lot 7 it had been adjudged that J. D. Bowersock had a first lien upon it for $4,153, the plaintiff lumber company, a second lien for $537,- and Mrs. M. G. Bowersock, a third lien for $300. This lot was sold for $4,500. As to lot 8 the judgment was that J. D. Bowersock had a first lien on it for $3,751, the lumber company a second lien for $229.34, and Mrs. Bowersock a third lien for $300. The sale price of this lot was $4,750. The proceeds of the sale were insufficient to discharge the costs, charges and liens adjudged against the lots, and hence the court required J. D. Bowersock to account for rentals received by him while in possession of the property. The former owner and mortgagor had abandoned the property and J. D. Bowersock had obtained possession of it and had received as rentals $40 per month on each of the lots. Upon an accounting it was. found that after allowing J. D. Bowersock, the mortgagee in possession, for payment of taxes, insurance, repairs and other expenses, properly chargeable against the rentals, there remained in his hands $1,250, and it was ordered that this be applied first to the balance due on the first lien held by him, secondly, on the second lien of the lumber company, and then upon the claim of J. D. Bowersock that was postponed to the lien of the lumber company, and the balance, if any, on the lien of Mrs. Bowersock.
The defendants contend that the court erred in requiring the application of the rentals to the payment of plaintiff’s second lien in preference to the subsequent ones held by them. It is urged that as mortgagees in possession they had the rights of Brown, the mortgagor, who if he had not abandoned the property would have been entitled to the possession and use of it until a foreclosure and sale had been effected. They therefore insist that under the doctrine of the application of payments they had a right to apply the rentals, which would have been Brown’s and as to the payment of which he had given no directions, upon their later liens as they might see fit. • First, it may be said that Mrs. Bowersock was not held to be a mortgagee in possession. According to the findings J. D. Bowersock only was in possession of the property, and his wife did not have the rights of a mortgagee in possession. He was in possession of the property under and by virtue of his mortgage, and the mortgagor was not claiming an equity of redemption, but had, as we have seen, abandoned the property. The taking of possession is a method of payment and is one of the remedies afforded mortgagees to obtain satisfaction of their liens. There being specific liens on the property, J. D. Bowersock did not have the right to dispose of the rentals as he saw fit, but it was the duty of the court to make an application of them. The other encumbrancers had an interest in the property of the same character as his own, although subsequent to his first lien. Equity requires that he should account to the holders of the subsequent liens according to their rank for any surplus that remained of the. rentals after satisfaction of his earlier lien. In Gordon v. Lewis, 10 Fed. Cas. 5613, it was said:
“But the case of Archdeacon v. Bowes, 13 Price, 353, 373, seems to me fully to justify this proceeding; as it also conclusively establishes the right of a second mortgagee, after the satisfaction of the first mortgage, to claim from the first mortgagee, after notice, all the rents and profits, which have not been paid over or accounted for, to the mortgagor, so far as they are necessary for the satisfaction of the second mortgage.”(p. 811.)
In Hatch v. Falconer, 67 Neb. 249, it was held that:
“It is the duty of a mortgagee' in possession to account to subsequent mortgagees for the full and fair rental value of the premises while controlled by him.” (Syl. ¶ 2. See, also, 27 Cyc. 1252.)
After the rendition of judgment M.. G. Bowersock asked permission to offer in evidence a deed from the mortgagor, purporting to quitclaim his interest to her, the deed having been found in the possession of a third party, but how it came into his possession was unknown. No error was committed in refusing to reopen the case and admit the paper in evidence.
It must be held that an equitable and proper distribution of the rentals from the property was made by the court and hence its judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
William M. Todd sued the Kaw Valley Drainage District alleging that while working as a deck hand on a dredge-boat used by it in cleaning out the channel of the Kansas river he was injured as the result of the negligent conduct of the foreman. A demurrer to his evidence was sustained, and he appeals.
The sole question presented is whether a drainage district organized under the Kansas statute by the board of county commissioners, upon the petition of two-fifths of the resident taxpayers, is liable for the negligent acts of its agents while carrying oút "work of the character indicated.
The prevailing view has been that drainage districts are essentially governmental in their functions and for that reason are not answerable in damages for the negligence of their officers or employees unless the statute expressly (or by such clear implication as amounts to the. same thing) so provides. The plaintiff- asserts that a tendency has recently developed to abandon this position. It is true that in Illinois earlier decisions on the subject appear to have been modified in this direction. But the distinctions there made are to some extent at least based upon features of the statute giving the drainage districts a commercial character not possessed by those of this state. A recent Nebraska case however seems to support the plaintiff’s contention, the statute involved being quite similar to our own. (Bunting v. Oak Creek Drainage District, 99 Neb. 843.) The modification of the Illinois doctrine is there re-, ferred to and stress is laid upon the consideration that drainage districts are voluntary corporations existing principally for the benefit of the owners of the land within their boundaries. It has elsewhere been argued that districts of this nature, although brought into being only on the application and with the consent of a certain percentage of the inhabitants, are not properly classed as voluntary, because the organization is forced upon at least a nonconsenting minority of the residents. The present state of judicial opinion on the general • question, and the reasoning upon which the conflicting views are based are so fully exhibited in a recent note as to make a detailed discussion here unnecessary. (L. R. A. 1918 B, 1010.)
While this court has not heretofore passed upon the specific question now presented, the test of liability of public bodies it has applied, and the effect it has given to the statute relating to drainage districts, compel the affirmance of the judgment of the trial court upon these grounds: The purpose of the legislature in providing for the organization of drainage districts like the defendant was to preserve and protect life and property from the ravages of floods. (Drainage District v. Railway Co., 87 Kan., 272, 278, 123 Pac. 991; Railway Co. v. Montgomery County, 93 Kan. 319, 144 Pac. 209.) It might have created the districts by its own direct action, or it might have provided that districts should be created wherever certain conditions existed. It evidently concluded however that the self-interest of those most directly, but not solely, concerned could be relied upon as a sufficient incentive to bring about the desired improvements so far as they are vitally necessary. “The power [to create a drainage district] is exercised by the legislature itself by the passage of the drainage act, which is to become operative in any part of the state when certain conditions are found to exist, and certain agencies or instrumentalities for which it provides are organized. The operation of the law does not depend on the'will of the petitioners, but it is the will of the legislature which is to .be put in force when the board of county commissioners find that the prescribed conditions exist within the district which the petitioners ask to have incorporated. If the conditions are found to exist a corporation is organized and an election held to choose the officers of the district, who proceed to make the improvements as the legislature has provided.” (Railroad Co. v. Leavenworth County, 89 Kan. 72, 79, 130 Pac. 855.) An inference that the owners of property within a district were regarded as the sole beneficiaries of the contemplated improvements cannot be drawn from the fact that the burden of meeting by taxation all the consequent expenses was cast upon them, for the legislature may of course in its discretion require the entire cost of an improvement designed to promote the public welfare to be borne by those peculiarly benefited. (25 R. Q. L. 87.) The public character of the ends sought by the creation of the class of drainag'e districts to which the defendant belongs is sufficiently indicated by the title of the act under which it was created:
“An act in relation to natural watercourses, providing for the protection, control, deepening, widening, removing obstructions from, changing, regulating, establishing and maintaining the channels thereof; the construction, maintenance and repair of levees along the same to prevent overflow, and the raising or elevation of railroad tracks and public highways that interfere with the construction and maintenance of such levees; the construction and regulation of drains and other works conducive to the public health, convenience and welfare in districts subject to overflow; and to these ends providing for and authorizing the organization of public corporations to be known as drainage districts, and prescribing the duties and defining the powers of such public corporations.” (Laws 1905, ch. 215 [Gen. Stat. 1915, ch. 31, art. 3, preceding running section 3890.])
The statute requires an engineer’s report .to be made before the widening and deepening of a watercourse is undertaken, and provides that such improvement may be ordered if upon the consideration of the report and other information it is determined “that the improvement of any natural watercourse by the removal of obstructions from the channel thereof or otherwise, or the construction of any levee, levees or system of levees will prevent the overflow of such natural watercourse, and thereby protect all of the lands within such drainage district from injury therefrom, and will be conducive to the public health, convenience, or welfare.” (Gen. Stat. 1915, § 3906, amended Laws 1920, ch. 40, § 2.) This court has said, in holding that such a drainage district is not required to build or maintain bridges where its ditches cross a highway:
“It is well established that this liability is imposed upon a private corporation by common law. . . . But that principle has no application to a case where the construction of ditches or embankments by a public corporation makes it necessary to improve a highway. The drainage district, like the county, is a quasi public corporation, an arm of the state, created by the legislature to perform a function of government. . . . In draining the swamps and lowlands of the district, the drainage board performs a public service and promotes the public health and welfare. . . . The fact that the construction of the drains and ditches was intended to and does improve and render more valuable the lands of private individuals, who alone are charged with -the cost of the improvement, makes the corporation none the less a quasi public one.” (Jefferson County v. Drainage District, 97 Kan. 302, 303, 304, 155 Pac. 54.)
And it has also characterized as an exercise of the police power the work of this particular district in cleaning the channel of the river. (Drainage District v. Railway Co., 87 Kan. 272, 279, 123 Pac. 991.)
A city is held liable without express statute for an injury resulting from the negligence of its employees if it is acting in its proprietary capacity, but not if the function undertaken is governmental. (See Rose v. City of Gypsum, 104 Kan. 412, 179 Pac. 348, and cases there cited.) Difficulty has often arisen in applying this familiar principle, and an apparent exception is made with regard to the maintenance of its streets, which may not be entirely logical-. (See Everly v. City of Gas, 95 Kan. 305, 307, 147 Pac. 1134, and Hibbard v. City of Wichita, 98 Kan. 498, 501, 159 Pac. 389.) So the nonperformance by a city of a class of duties described as “ministerial” is held to constitute actionable negligence, even though such duties are connected with the performance of governmental functions. (Bowden v. Kansas City, 69 Kan. 587, 77 Pac. 573.) The case just cited has been referred to as repudiating the usual distinction between the private and public functions of a city. (Note, 25 L. R. A., n. s., 97.) Whether or not that case departs from the generally accepted theory the test used with respect to a municipal cor poration proper — an organization of wide powers having much in common with a private corporation — is not necessarily applicable to such purely governmental bodies as counties and townships, to which class the drainage district belongs.
The district having been created as a governmental agency of the state for the carrying out of public purposes, and the injury complained of having arisen in the course of work adapted to that end, no liability on the part of the defendant exists, there being no specific statutory provision to modify the general rule.
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The opinion of the court was delivered by
Johnston, C. J.:
George R. McIntosh brought this action against the Atchison, Topeka & Santa Fe Railway Company, under the Federal employers’ liability act, to recover damages sustained by him in a head-on collision caused, it is alleged, by the negligence of the defendant in giving an order as to the time and place of the meeting of two trains. The trial re- suited in findings and verdict in favor of the plaintiff, fixing the extent of his injury at $25,000, but also finding that $7,000 should be deducted from that amount on account of the contributory negligence of the plaintiff. Defendant appeals, and insists that the evidence does not support the verdict and several of the special findings; that there was error in rulings on the admission of evidence and in the giving and refusing of instructions, and also that the verdict was given under the influence of passion and prejudice.
It appears that two trains of the defendant were traveling upon a single track in opposite directions. The one on which plaintiff was riding and acting as engineer was No. 352, and was going north from Arkansas City to Florence. His train crew consisted of himself, fireman Benning, Butts the conductor, brakemafi Babbitt, and Hopson. The train coming south was designated as Extra 1817. When plaintiff’s train, No. 352, reached Winfield Junction some switching was done and, the signal indicating that there, were orders as to the operation .of the train, plaintiff and Babbitt went into the office of the operator and there found orders on a table in three piles — one for the engineer, one for the conductor and one being the office copy. Plaintiff and Babbitt picked up the orders from the table and plaintiff read his copy aloud in the presence of the operator, White, and brakeman Babbitt. The conductor did not come for his copy as he should have done, but Babbitt signed the order for him and took a copy to the caboose at the rear of the train where the conductor then was, and delivered it to him. The conductor read the order in the presence of the brakeman, but neither he nor the engineer compared their orders as the rules required. The contents of the order are in dispute, and plaintiff’s right of recovery depends upon whether the order contained directions for the trains to meet and pass at Rock, or Douglass. Plaintiff and Babbitt both testified that Douglass was named as the passing station, and Hopson testified that he heard Butts, the conductor, read the order which gave Douglass as the meeting point. On the other hand, the train dispatcher testified that Rock was ■ the station named for passing, and that after giving it, the order was repeated back to him by the operator, each word being spelled out. Telephones were used for transmitting the orders. White, the operator, said that the orders were written on carbon paper by a single impression and were all alike, and that Rock was written as the passing place. Butts, the conductor, produced and identified the order given to him and it directed the trains to pass at Rock. The train master testified that on the morning following the accident, he found the office copy of the order in the operator’s office, and that it gave instructions for the trains to pass at Rock, but this copy was not produced because it was said to have been lost. The order delivered to those in charge of train 1817, which was said to have been sent at the same time as the one sent to train 352, named Rock as the passing point. Upon receiving the order, train 352 proceeded north to Rock, and, after attending to the discharge and taking on of freight at that place, the conductor gave the leaving signal and the. train moved forward to a point between Rock and Douglass, where the collision occurred.
In the course of the trial the defendant introduced in evidence a petition filed by the plaintiff in another court against the Atchison, Topeka & Santa Fe Hospital Association and the defendant company, in which he alleged that while he was in the hospital for treatment of the injuries sustained in the collision the attending physician mistreated him and aggravated his injuries, and among other things averred that—
“If he had been properly treated he would have recovered from his injury. . . . That he suffered intense pain and that were it not for the negligence of said defendants, he would now be a strong able-bodied man in good health, and that by the negligence of said defendants he has been rendered entirely helpless and will be a permanent cripple, ... all to his damage in the sum of $35,000.00 for which he asks judgment.”
In respect to this evidence the court instructed-the jury:
“A person injured by the negligent acts of another does not insure that the surgeons,, doctors or nurses employed by him will be guilty of no negligence, want of care or skill or error in judgment. The liability to mistake in judgment, or the efforts or means used in the endeavor to effect a cure or to remedy a condition is an incident to the original injury, and the injured party having used ordinary care in the selection of attendants the injury resulting from such mistake is in law regarded as one of the immediate and direct damages resulting from the injury. There has been introduced in evidence in this case a petition filed in the district court of Sumner county, Kansas, against the defendant herein, and other defendants to recover for injuries alleged to have been the result of malpractice on the part of the physicians and surgeons employed to treat the plaintiff for injuries for which he claims damages in this case. This has been permitted upon the theory that it may affect the plaintiff’s credibility or throw light upon the facts and circumstances in this case. And you have the right to so weigh this evidence in connection with all the other facts and circumstances in this case, you being the sole judges of the weight and effect of such testimony. The filing or prosecution of that suit is not to be considered by you as in any manner augmenting or diminishing to the plaintiff’s claim for damages here if he was injured as he sets out in his petition in this case, and you find that such injury was the result of the negligence of the defendant, and, if you find that the plaintiff used ordinary care in the selection of his attendants, physicians and surgeons, then if there were any mistakes in judgment, efforts or means "used by the physicians in endeavoring to effect a cure or remedy the same were incidents of the original injury, and the injury resulting from such circumstances would be in law regarded as one of the immediate and direct damages resulting from the original injury.- And a recovery by the plaintiff in this action, would be a complete bar to that or any action by him to recover any damages for malpractice, if any, against the defendant or any attendant physician or surgeon employed by him or on his behalf to effect a cure of his original injury.”
Assuming for the sake of argument that the testimony was admissible, it was brought into the case by the defendant and it became the duty of the court to instruct the jury as to the consideration which should be given to it. It was probably introduced in an effort to show that" the alleged injury sustained by the plaintiff was not so great as claimed by him in this action, since he had deliberately stated in his pleading in the other action that but for the negligence of the doctors he would now be a strong, able-bodied man and in good health. The instruction was appropriate and within the authorities must be regarded as a correct statement of the law.
A person injured by the negligence or wrong of another is entitled to recover from the wrongdoer the damages which naturally result from the wrong. It is the duty of a person injured through the negligence of another to use ordinary and reasonable diligence in securing medical or surgical aid, and he cannot recover for suffering or ailment due to his own want of such diligence. In that respect he is only required to do what a reasonable person would under the circumstances. If he exercises that degree of care in the selection of physicians or surgeons, their mistakes' or lack of skill in treatments or operations, which aggravate or increase his injuries, cannot be counted as the fault of the injured person, but are regarded by the law as a part of the original injuries for which the wrongdoer is responsible and as a result which reasonably ought to have been anticipated by him. However, if the original injury is aggravated by the failure of the injured person to exercise reasonable care to obtain medical aid or surgical assistance or in failing to follow the advice or instructions of the physicians or surgeons, the enhanced damages are to be excluded from the recovery. (Tex. & Pac. Ry. v. Hill, 287 U. S. 208; Notes in 48 L. R, A., n. s., 93, 110, 114, 116; Note, 19 Ann. Cas. 979; 8 R. C. L. 449.) There was no attempt here to show any negligence on the part of the plaintiff in the selection of a physician or in the means taken to effect a cure. •It appears that the-plaintiff was promptly taken to the Atchison, Topeka & Santa Fe Hospital, which was maintained by the employees of the defendant for the treatment of injuries sustained in the operation of its railroad. Other objections are made to the instructions, but none of them are deemed to afford grounds for a reversal or to require special discussion.
An attack is made on the special findings, not only as to their being contrary to the evidence but also because they are evasive, equivocal and inconsistent. Under the evidence rules were prescribed by the defendant for the running of trains, one of which was that the engineer was made responsible for the safety of the' train. Another was that when orders were delivered by the operator to the conductor, one copy was to be given to the engineer, who was to read it aloud to the conductor and then to the fireman and head brakeman, and the conductor was also required to show his copy to the rear brakeman. It is conceded that the engineer took a copy of the order, whatever it contained, from the operator’s table and that he did not read it to the conductor or compare it with the conductor’s copy. 'He states that the one he took and read named Douglass as the passing station, while the conductor’s order presented in evidence named Rock as the passing place. In respect to the rules, the jury found that they required the plaintiff on receiving an order to read it aloud to the conductor of his train, and to sign the conductor’s copy, and also that he was jointly responsible with the conductor in observing the rules governing the movement of trains. It was found by the jury that the order sent by the train dispatcher directed that the trains should pass at Rock. The next questions were:
“4. If you answer the above question ‘yes,’ then state whether said train order was received by the operator at Winfield Junction. Ans. Yes.
“5. If you answer the last above question ‘yes,’ then state whether said, operator at Winfield Junction made three impression copies of the train order on tissue paper. Ans. Evidence does not show.
“6. If you find from the evidence that plaintiff’s injury was caused through the negligence of the railway company, then state in what such negligence consisted. Ans.. Operator White delivered order to engineer McIntosh to meet Extra 1817 at Douglass.
“7. If you find from the evidence that the plaintiff’s injury was caused through the negligence of the railway company, then state what officer, agent or employees of said railway company was guilty of such negligence. Ans. Operator White.
“8. Was train order No. 36, a 31 order, received at Winfield Junction from the train dispatcher at Newton, changed by Operator White at Winfield to read ‘Douglass’ instead of ‘Rock’? Ans. Evidence shows 31 order No. 36 delivered to engineer McIntosh read Douglass and not Rock, evidence does not show how changed.
“9. If you answer question No. 8 ‘yes,’ then state whether he (White) wrote the word ‘Douglass’ in all the impression copies of the 31 order which he delivered to the train crew. Ans. Evidence shows order to engineer McIntosh read Douglass but satisfactory evidence does not show as to the other orders.
“11. If you find that plaintiff was guilty of contributory negligence how much do you reduce the amount of your verdict on account o'f such contributory negligence? Ans. $7,000.00.”
There was a manifest lack of candor in the answer to the fifth question. The inquiry was an important one in the determination of the action. The defendant contended, and offered testimony tending to show,' that three copies of the order were simultaneously made with a steel stylus on tissue paper with-carbons, directing that the trains should pass at Rock, and that the copy taken by the plaintiff was necessarily the same as the one given to* the conductor. In confirmation of this theory the copy delivered to the conductor which was offered in evidence did name that station as the passing place. There was ample evidence upon which to base a finding upon the question — conflicting, it is true — but it was the function and duty of the jury to detérmine the conflict and give either an affirmative or negative answer to the question. The finding that there was no evidence on the subject was evasive and untrue. There was also a lack of fairness in the answers to' the 8th and 9th questions. The evidence warranted direct answers and defendant was entitled to have the questions fairly answered. The answers relating to the negligence of plaintiff and defendant are too inconsistent and unsatisfactory to warrant the judgment that was entered. The jury found that the plaintiff’s injury was caused by the defendant’s negligence and the negligence was that White, the operator, gave plaintiff an order to pass the other train at Douglass. ■ The jury found that plaintiff himself was guilty of negligence which contributed to his injury, and deducted $7,000 from the amount of damages on that account. His negligence consisted in failing to observe the rule to compare his order with that of the conductor. The jury evidently regarded this to be a grave neglect as it found that it contributed to the wreck and injury and warranted the imposition of a penalty of $7,000. Now there could be no contributory negligence on the part of the plaintiff if the order given to him was the same as that held by the conductor, and if both named Douglass as the passing point. A comparison of them in that case would not have avoided the collision. In finding that plaintiff was negligent the jury necessarily found that the orders did not correspond and that the difference would have been developed' by a comparison. The finding that he was negligent in this respect and that his negligence contributed to the wreck, was in effect a finding that Rock was the passing station named in the conductor’s order, and yet in answer to question 9 the jury found that the evidence did not show what was written in the conductor’s order. The findings of the jury are therefore in conflict with the verdict, part of them are inconsistent with the theory upon which a recovery is sought, and are inconsistent with each other.
The judgment is therefore reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action against a municipality for injuries suffered by plaintiff at the hands of a mob.
The plaintiff recovered judgment. Defendant presents two errors: insufficient evidence to support the judgment, and excessive verdict.
It appears that there was some undisclosed difficulty between two labor unions in Kansas City, Kan., and some twenty or thirty men who were partisans of one of these organiza tions came in six automobiles to the place where plaintiff was employed, shortly before quitting time on the evening of March 31, 1919; and when plaintiff and five of his fellow workmen appeared some of the twenty or thirty men who had arrived in the automobiles assaulted and severely mauled the plaintiff without the slightest provocation.
Counsel for defendant argue that it was a mere fight or brawl between two labor unions. There was very little evidence to justify such a contention, even if the jury had taken that view of the case; but it was certainly a mob according to plaintiff’s evidence and that evidence was amply sufficient to support the judgment. The fact that one of the plaintiff’s fellow workmen drew a pistol and shot one of the assailants did not change the essentially mob-like character of the assemblage.
Touching the amount of the verdict, which.was for $3,150, it was shown that prior to his injuries the plaintiff was an able-bodied, healthy workman, a millwright by trade and earning good wages; that the ruffians beat him repeatedly over the head with a blackjack, beat him on the jaw and knocked him down and kicked him many times; that when he managed to get up and sought to escape to a street car he was repeatedly knocked down and repeatedly dragged off the car. Eventually he did escape with his life, but the evidence shows quite clearly that he was seriously and permanently injured, and that he cannot work regularly at his former well-paid occupation, but is compelled to earn his bread at the small wages of a delivery man for a grocery store. The verdict was not excessive.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The petitioner, Arthur Owen, makes this application for a writ of habeas corpus and prays that he be set at liberty from the custody of the sheriff of Clark county.
From the application for the writ, and from the sheriff’s return thereto, and from an agreed statement of facts signed by counsel for the petitioner and the county attorney, it ap pears that through false and fraudulent representations Owen obtained a bank credit from Lot Ravenscraft, a banker of Sitka, Clark county, Kansas, in the sum of $23,000. Owen falsely represented to Ravenscraft that he owned 400 head of cattle which were on Owen’s ranch in Oklahoma, and he solicited a loan of $23,000 thereon. Ravenscraft made the loan and took a mortgage on Owen’s cattle. Owen gave the numbers, classes and description of the cattle which he pretended to own and keep on his Oklahoma ranch. He executed a note to Ravenscraft for $23,000 payable in 180 days, and likewise signed and executed' the mortgage to him. It was part of the negotiations between Ravenscraft and Owen, that the sum loaned should be deposited in Ravenscraft’s bank in Sitka, and that $18,000 of this deposit should only be drawn out by Owen through the State Bank of Laverne, Oklahoma, for the purpose of paying off loans on Owen’s cattle, and the balance, $5,000, should remain in Ravenscraft’s bank subject to Owen’s check..
These negotiations were arranged and consummated in Clark county, Kansas.
Part of the agreed statement of facts recites:
“5. For several years Owen had carried a general checking a-count at the Laverne State Bank. On June 10th, a Customer’s Draft was drawn under his direction by the assistant cashier of said bank, on the Sitka State Bank, at Sitka, Kansas, for $18,000.00. This draft was cashed by Owen at the Laverne State Bank on said date and he was given credit for the full amount thereof on his general account at the Laverne State Bank and given a deposit slip therefor.....On June 13th,-another Customer’s Draft was drawn by Owen on the Sitka State Bank, for $5,000.00. This draft was cashed by Owen at the Laverne State Bank on said date and he was given credit for the full amount thereof on his' general account at the Laverne State Bank and given a deposit slip therefor. ...
“6. About September 1st, 1918, Ravenscraft inspected the Owen cattle on his ranch near Laverne and found only about 140 head, and also found other facts which convinced him that Owen had only about 140 head of cattle at the time Owen made the mortgage to Ravenscraft at Sitka, Kansas, June 8th, instead of the number shown by the mortgage.”
Soon after the discovery of Owen’s wrongdoing, Ravens-craft caused him to be arrested in Oklahoma, on a charge of having obtained $23,000, in Harper county, Oklahoma, by false representations and pretenses concerning the number of cattle owned by him at the time he executed the mortgage to Ravenscraft in Clark county, Kansas. Owen was arrested and the local court bound him over to answer to the district court of Harper county, Oklahoma, on this charge — a' felony in that state. Later Owen was tried and convicted, and sentenced to 90 days in jail and to pay a fine of $1,000. During his trial in Oklahoma, defendant raised the question of jurisdiction, but the trial court ruled that it had jurisdiction because “of the showing that the money was obtained in Oklahoma.” Thereupon, Owen appealed to the court of criminal appeals of Oklahoma where the cause, presumably, is now pending.
After the conviction and sentence of Owen in Harper county, Oklahoma, and his appeal from that judgment, Ravenscraft filed a complaint against Owen before a justice of the peace of Clark county, Kansas, charging him with the offense of obtaining $23,000 from Ravenscraft in Clark county, Kansas, by false representations concerning the number of cattle which he owned at the time he executed the mortgage to Ravenscraft, at Sitka, in Clark county. Owen was arrested and waived his preliminary examination and was bound over for trial in the district court of Clark county, Kansas. He entered into a recognizance for his appearance at the next term of the district court. An information was filed by the county attorney charging him with the crime above narrated. Owen filed a motion to quash the information. This was overruled by the district court. Thereafter, on arraignment, he pleaded not guilty, and the defendant was ordered- to appear on May 23, 1920, “for further proceedings herein.”
After these proceedings above narrated transpired in the district court of Clark county, Kansas, Owen was surrendered by his bondsmen to the sheriff, and he was in the custody of the latter at the time, May 20, 1920, when this application for a writ of habeas corpus was filed in this court.
The parties have also stipulated, as a part of the agreed facts, that certain provisions of Oklahoma law, more or less pertinent-hereto, provide:
“Sec. 5618 Revised Laws of Oklahoma, 1910, . . . ‘When an act charged as a public offense is within the jurisdiction of another territory, county or state, as well as this state, a conviction or acquittal thereof in the former is- a bar to a prosecution therefor in this state.’ (Agreed to for no other purpose than the same is the law of Oklahoma.)
“Sec. 21, Article II, constitution of . . . Oklahoma, . . . ‘Nor shall any person be twice put in jeopardy of life or liberty for the same offense.’ ” •
The petitioner seeks in this proceeding to test the right of the Kansas court to try Owen at this time and under the facts, shown. He contends that the crime was committed in Oklahoma because although the false pretenses were made in Kansas and the bank credit was obtained in Kansas and the deposit to Owen’s credit on the strength of these false pretenses was made in a Kansas bank, yet the money, the actual cash, never reached Owen’s hands in Kansas. He also contends that the judicial finding by the Oklahoma court that the crime was committed in Oklahoma is entitled to full faith and credit under the Federal constitution. (Art. IV, § 1.) It is also urged on his behalf that by the constitutions of both Oklahoma and Kansas the petitioner cannot be put in jeopardy twice for the same offense; and his prosecution in Clark county is in breach of that comity due between states.
These contentions present some nice questions which would be an interesting task to pursue and determine. But under well established rules and precedents they cannot now be considered. This is not an appeal from the rulings of the trial court, on an assignment of errors. It is an application for a writ of habeas corpus which, if granted, would interrupt and interfere with the orderly and regular procedure for the administration of justice in a criminal cause now pending and undetermined in the district court of Clark county, Kansas. This court does not issue writs of habeas corpus in such a situation.
In the case of In re Will, 97 Kan. 600, 155 Pac. 934, where a writ of habeas corpus was sought to secure the discharge of a petitioner who was held on a police court warrant charging her with the violation of a city ordinance which was alleged to be void, this court said:
“But many years ago this court decided, after full consideration, that where the case in the lower court had not been disposed of, and where the regularly established procedure was still available to the party seeking redress, the orderly jurisdiction of the lower court which issued the warrant and the ordinary procedure for trial and appeal should not be interfered with through writs of habeas corpus out of this court.” (p. 601.)
(See, also, In re Miller, 97 Kan. 809, 156 Pac. 783.)
The application for the writ is denied. | [
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The opinion of the court was delivered by
Marshall, J.:
George Bartram appeals from an order directing P. M. Holcomb, administrator of the estate of William Bartram, to pay to the widow and children the funds of the estate in a certain proportion.
William Bartram was married and hád two children, George Bartram, the appellant, and Mabel Thedrick. She died prior to the death of William Bartram, and left one child, Theron Q. Bartram, as her sole and only heir. After her death William Bartram adopted Theron Q. Bartram, and then died intestate.
The probate court, and on appeal from that court, the district court, directed the administrator to pay over to the widow of William Bartram one-half of the estate, to George Bartram one-sixth thereof, and to Theron Q. Bartram one-third thereof. The effect of the judgment is to give to Theron Q. Bartram an amount of the estate that would be equal to that inherited by two children of William Bartram. The appeal is taken from the order directing payment of one-third of the estate to Theron Q. Bartram.
The only question discussed is, Can Theron Q. Bartram inherit from his grandfather as an adopted child and at the same time as the sole surviving heir of his mother? This court has held that an adopted child inherits in a dual capacity. In Dreyer v. Shrick, 105 Kan. 495, 185 Pac. 30, the court said, “A child by adoption, who is adopted the second time, inherits from his first foster parent.” (Syl. § 2.) In Baird v. Yates, 108 Kan. 721, this court said: “In the case of Dreyer v. Shriek, supra, the rule was recognized that unless some statute destroy the capacity, an adopted child will inherit from both its natural and its adopted parents.” (p. 722.) The logical conclusion to be drawn from the rule declared in these cases is that Theron Q. Bartram inherits from his grandfather both as the -child of Mabel Thedrick and as an adopted child.
The appellant cites Billings v. Head, 184 Ind. 361, Delano v. Bruerton, 148 Mass. 619, and Morgan v. Reel, 213 Pa. St. 81. In these cases the rule is declared that a child adopted by its grandparent cannot inherit from the grandparent in the capacity of both a child and a grandchild, in the Indiana case 'the court used the following language:
“Our statutes of descent provide that an intestate’s land shall descend, one-third to the widow and the remainder to his children in equal proportions, provided that if a child be dead leaving a child surviving the latter shall take the share which its parent would have inherited, if living. § 2991 Burns 1914, § 2468- R. S. 1881. Our statute dealing with the right of inheritance of an adopted child reads as follows: ‘Such court, when satisfied that it will be for the interest of such child, shall make an order that' such child be adopted, and from and after the adoption of such child it shall take the name in which it is adopted and be entitled to and receive all the rights and interest in the estate of such adopting father and mother, by descent or otherwise, that such child would if the natural heir of such adopting father or mother: Provided, however, That should such adopted child die intestate, without leaving wife or husband, issue or their descendants, surviving him or her, seized of any real estate or owning any personal property which may have come to such child by gift, devise or descent from such adopting father or mother, such property so coming to such adopted child shall, on its death, descend to the heirs of said adopting father or mother the same as if such child had never been adopted.’ § 870 Burns 1914, supra.” (p. 362.)
The statute there quoted was given a place in the reasoning by which that court reached its conclusion. This.state has no such statute. In the Massachusetts case the court said:
“The statute provides, in § 6, that, after the decree of adoption, all the rights, duties, responsibilities, and other legal consequences of the natural relation of child and parent, except as regards succession to property, shall exist between the child and the adopting parent, and shall, except as regards marriage, incest, or cohabitation, terminate between' the adopted person and his natural parents and kindred. By § 7 it is provided that, ‘as to the succession .to property, a person adopted in accordance with the provisions of this chapter shall take the same share of property which the adopting parent could have devised by will that he would have taken if born to such parent in lawful wedlock, and he shall stand in regard to the legal descendants, but to no other of the kindred of such parent, in the same position as if so born to him.’ Pub. Sts. c. 148, §§ 6, 7.
“The intent of the statute was to put an adopted child, for all legal purposes with certain carefully defined exceptions, in the place of a natural child,' and to give him the same rights. If the statute had stopped here, it would seem clear that Henry Curtis would, in regard to the succession to the property of his adopting parent, stand as a son, and that his rights of succession as a grandson would be merged in his greater rights as a son.
“But the statute contains a further provision, at the close of § 7 that ‘no person shall, by being adopted, lose his right to inherit from his natural parents or kindred.’ Probably the legislature contemplated, what is in fact true', that most of the children adopted would be infants incapable of protecting their rights and of appreciating the effect of the transaction, and it was just to provide that they should not, without their intelligent consent, be deprived of the right to inherit the property of their natural parents or kindred. As applied to most cases, the provision is plain, and in harmony with the other parts of the statute, and there is no difficulty in carrying into effect every part of it. But when applied to the case before us, if it is to receive the construction claimed by the guardian of Henry Curtis, it becomes inconsistent with the main provisions of the statute.
“The same person cannot, as to the legal descendants of his adopting parent, stand in the position of his son and at the same time claim to inherit a portion of his property as his grandson. It is to be continually borne in mind, that we are not dealing with the question whether Henry Curtis can inherit as a son from his adopting parent and at the same time inherit directly from his father. If his father left property, he would have the right to inherit it. But the sole' question is as to the right to inherit the property of his grandfather and adopting father in a double capacity, as his son and as his grandson. He claims the right to inherit, under the first part of the section, as his son, and under the last clause because he is included among his ‘kindred.’ When the legislature provided that no person should, by being adopted, lose his right to inherit from his natural parents or kindred, we do not think it understood or intended that ‘kindred’ should include the adopting parent. It intended to save the right of inheritance from other parties, having already provided as to the righi of inheritance from the adopting parent. To bring this provision, when applied to a case like this, into harmony with the other parts of the statute and with its general spirit and scope, we are of opinion that it should be held to apply to the' inheritance of the property of some third person, and not to that of the property of the adopting parent.” (p. 620.) .
The limitation placed by the Massachusetts statute on the right of an adopted child should be noticed because in that limitation is found a restriction on the right of the child to inherit.
In the Pennsylvania case the court said:
“The act of May 19, 1887, P. L. 125, after prescribing the conditions and mode of adoption, and, inter alia, that the adopted child ‘shall have all the rights of a child and heir of the adopting parent’ continues ‘Provided, That if such adopting parent shall have other children, the adopted shall share the inheritance only as one of them; in case of intestacy, he, she, or they, shall respectively inherit from and through each other as if all had been the lawful children of the same parent.’ ” (p. 89.)
Pennsylvania has placed qualifications on the right of an adopted child 'to inherit from the adopting parent, and out of those qualifications the Pennsylvania court deduced its rule.
Outside the statutory restrictions in Indiana, Massachusetts, and Pennsylvania limiting the right of an adopted grandchild to inherit from its adopting grandparent, the rule declared by the courts of those states appears to have been followed for the purpose of avoiding the incongruity that is presented by an adopted' child inheriting more than a natural child of the grandparent, but the reasons given for the conclusions that were there reached are not convincing. The logic found in Wagner v. Varner, 50 Iowa, 532, is better. The Iowa court said:
“In the absence of a will the estate descends in equal shares to the children of the deceased. Code, § 2453. If one of the children of the deceased ‘be dead, the heirs of such child shall inherit his share . . . in the same manner as though such child had outlived his parents.’ Code, § 2454.
“Under section 2310 the wards of the plaintiff inherit as the children by adoption of John Burner, and if Mahala Boyer had outlived him she would have inherited as the natural child of said Burner, under section 2453; and section 2454 expressly provides that her children shall inherit in the same manner as though she had outlived her father.
“There is no escape from this conclusion unless it can be said that the child by the adoption is disinherited by its natural parent.
“Because of the adoption the child acquires certain additional rights, but there is nothing in the act of adoption which in and of itself takes away other existing rights, or such as may subsequently accrue, except as is by statute provided.
“The argument that the'se children cannot inherit through their mother leads to this result. Suppose their father after her death consented to their adoption, they could not inherit through their mother or from their father, or through him from a remote ancestor.
“By the act of adoption these children became in a legal sense the children of John Burner. Nevertheless they are the children of their natural parents, and the' act of adoption does not deprive them of the statutory right of inheriting from their natural parents, unless there is a statute which in terms so provides. Not only is there no such statute, but w'e think the contrary is expressly provided.
“If, therefore, a child is adopted by a stranger it will inherit from its natural parents, in the absence of a will, because section 2453 of the Code in express terms so privides.” (p. 533.)
In each of these cases a grandchild had been adopted by its grandparent, and the right of the grandchild to inherit from its grandparent in a double capacity was involved. Extensive excerpts from these cases have been set out for the purpose of showing the reasoning by which the different conclusions were reached. The inequality in the present case is created by statute.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Kansas City Southern Railway Company appeals from a judgment obtained against it by Louis Juznik for injuries negligently caused by backing a train against him and his automobile when he was helplessly stalled on a crossing. The accident occurred at the intersection of a highway and the railroad of defendant in the town of Breezy Hill. It appears that the plaintiff was driving his automobile northward on this highway, which runs north and south, at a speed of about twelve miles an hour, and that as he approached the railroad1 he slowed his car down to a speed of four or five miles an hour. He alleges and testifies that when fifteen feet from the track he looked up and down the railroad, and seeing no train, he drove upon the crossing. When he reached the track he discovered that the crossing was in bad condition. It was not filled up between the rails with proper material, but loose dirt and dust had been thrown in over the ties, and the automobile dropped four or five inches into loose dirt, dust and ruts of the depression. When the front wheels struck the north rail the engine was killed, and plaintiff was thrown against the steering wheel and wind shield with so much force as to stun him, and in such a way, as he said, to “knock my wind out.” When he recovered from the shock, he looked up and saw the train about thirty feet away backing down upon him. Before he could extricate himself and escape from the peril, the rear car struck the automobile and pushed it about forty feet along the track before it was wrecked or the plaintiff injured. The rear car was there derailed, the automobile demolished, plaintiff thrown to one side and injured, while his brother who was seated with him in the automobile was crushed and killed. The defendant was charged with negligence in failing to construct the crossing properly and maintain it in a safe condition as the law requires, in running the train upon the crossing and backing upon plaintiff without signal or warning and without keeping the engine and train under control, and further, without having any brakeman or switchman on the rear of the train. It is insisted by the defendant that the accident and injury were due to the negligence of the plaintiff in driving upon the track in front of an approaching train when by looking he could have’seen it. Not far from the crossing there was a curve in the track and a building near it, and also some hedge trees which at certain points of observation obstructed a view of the track. The jury found that a person seven and one-half feet from the track could see an approaching train a distance of 1,000 feet; at seventeen and one-half feet south of the track he could see a train about 300 feet away; about twenty-seven and one-half feet from it he could see up the track a distance of 150 feet; and at thirty-nine and one-half feet away he could see a train fifty-six feet up the track. The defendant invokes, the rule that its negligence, if any, was no excuse for the contributory negligence of a plaintiff who fails to use his senses to protect himself, and that one who attempts to cross a railroad track in front of an approaching train, which he saw or could have seen by looking, and is injured, convicts himself of negligence, and is not entitled to a recovery, although the railroad company may have been negligent in the operation of the train. There is testimony, however, that plaintiff looked for a train when he was only fifteen feet from the track, and that the train was not then in sight. Under the plaintiff’s evidence it became a question of fact whether there was negligence in his attempt to cross the track. There is testimony tending to show that even if he had seen the train approaching, there was still ample time to have passed over the crossing in safety if it had been in a reasonably safe condition. It was not a mail, express or passenger train, but was one which was moving slowly,'at a rate of about five or six miles an hour, engaged in switching operations. He was unaware of the condition of the crossing and had a right to assume that it was in a fit condition, and that he could pass over it in safety, until he discovered the latent defects, and that was when he dropped into the soft dirt and ruts between the rails. Considering the speed of the train and that half a minute elapsed after plaintiff was thrown against the steering wheel and wind shield before he regained his wind, and the fact that the train was still some distance from the crossing, there was ground for the inference that there was ample time for him to have passed over a safe crossing and without negligence in making the effort. A coming train might be within the view of a driver approaching a cross ing for several minutes before the arrival of the train there, and it would hardly be contended that reasonable prudence required him to await the passage of a train before undertaking to cross in front of it. Of course, it should not be undertaken unless there is-ample time to do so in safety. The condition of the train, the distance, character and speed of it, the condition, power and speed of the automobile, and plaintiff’s lack of knowledge or notice of the condition of the crossing, all enter into the problem of whether he should have gone forward or await the passing of the train, and whether he was in the exercise of reasonable care in making the attempt was a fair- question of fact for the jury. Under the circumstances we think the jury had a substantial basis for finding that plaintiff was free from contributory negligence in driving upon the crossing, and in the handling of his automobile.
Again there was ground for a finding that the defendant was negligent in failing to stop its train after the plight of the plaintiff on the track was or should have been discovered. There was testimony to the effect that he was stalled upon the crossing for thirty seconds or more before the train struck him. The trainmen knew of the dangerous condition of the crossing, and the end of the train was from 220 to 440 feet away when plaintiff’s machine dropped into the depression and his engine was killed. One witness said that when he discovered that plaintiff’s automobile was stalled upon the track the train was still sixty feet away. It was being run at a rate of about five or six miles an hour and, according to the evidence of the trainmen, it could have been and actually was stopped in a distance of forty feet. The day was clear, the view was unobstructed at this time, and the trainmen admitted that they saw him approach and stop upon the track. According to'this evidence there was ample time for the trainmen to have stopped the train after seeing the plaintiff stalled on the track, before colliding with him, and under it there was ground for the jury to find that reasonable care was not exercised to prevent the collision and the injuries sustained by the plaintiff. Evidence was introduced, and is greatly relied upon by the defendant, which is in direct conflict with that of the plaintiff respecting the acts and omissions of the trainmen as well as the plaintiff at the time and place of the accident, but we must accept that which was accepted and believed by the jury, and which,tends to uphold their findings, and verdict.
It is contended that the court erred in submitting the case to the jury on the doctrine of the last clear chance. A reason assigned is that it was not specifically mentioned in the pleadings. The petition set out the circumstances under which the collision occurred and alleged that it was due to the negligence of the defendant. In its answer the defendant pleaded that it was caused by the contributory negligence of the plaintiff, a charge which plaintiff denied. This raised an issue as to what was the immediate, proximate cause of the injury and warranted the introduction of evidence and the application of the doctrine of what is designated as “the last clear chance” or “discovered peril.” The question then'arose.as to what was the proximate ’ cause of the collision. If the defendant was negligent as pleaded and there was contributory negligence on the part of the plaintiff, and his negligence was concurrent and contemporaneous with that of the defendant up to the moment of the injury, there can, of course, be no recovery. On the other hand, if plaintiff negligently drove upon the crossing into a place of danger from which he could not extricate himself, where his negligence ceased, and defendant discovered his plight in time to have avoided injuring him by the exercise of reasonable care, the negligence of the defendant is deemed to be subsequent to that of the plaintiff and to be the proximate cause' of the injury. Under these circumstances there may be a recovery notwithstanding the original and remote negligence of the plaintiff. As decided in Dyerson v. Railroad Co., 74 Kan. 528, 87 Pac. 680:
“The test is, What wrongful conduct occasioning an injury was in operation at the very moment it occurred or become inevitable? If just before that climax only one party had the power to prevent the catastrophe, and he neglected to use it, the legal responsibility is his alone. If, however, each had such power, and each neglected to use it, then their negligence was concurrent and neither can recover against the other.” (p. 536. See, Note in 7 L. R. A, n. s., 132.)
It was not necessary for the plaintiff to plead in words that he was invoking the doctrine of the last clear chance. It was enough that he had alleged facts and charged negligence to which the doctrine was applicable. It was not necessary even that he should admit that he was negligent in driving into a dangerous place, but it was enough to show that his negligence had culminated, and that the subsequent negligence of the defendant after discovering his peril was the immediate, efficient and proximate cause of the injury. (Crowley v. The Burlington, Cedar Rapids & Northern R’y Co., 65 Iowa, 658; Nathan v. Railway, 118 N. C. 1066; Jensen v. Railroad Co., 44 Utah, 100.) This doctrine is but an element of proximate cause, and the allegations in plaintiff’s petition were sufficient to charge that defendant’s negligence was the independent and proximate cause of the injury, and being supported by evidence to the effect that after plaintiff’s negligence had ceased, if he was negligent, and that the defendant failed to exercise reasonable care to avert the injury after discovering his peril, warranted the court in instructing the jury as to the doctrine of the last clear chance. Evidence of the kind named was introduced, without objection by the defendant, and if the petition had been defective as to this feature of the case the defendant was hardly in a position to claim that the doctrine was not applicable. When the question was raised at the end of the trial, the court as a matter of safety permitted the plaintiff to. amend his petition in this respect, and of that action complaint is made. If an amendment had been necessary there was no good ground to complain of it, since it only conformed to the proof that had been introduced.
There is further complaint of the instructions on the subject and particularly as to a statement in the-24th instruction that—
“If you find from the evidence that only the defendant had the power to avert the collision and neglected to do so, and you further find that the plaintiff at the time of the collision was doing all in his power to get his automobile off the track and avert the collision, then the plaintiff is entitled to recover.”
It is contended that in this the court took out of the case any negligent acts of the plaintiff preceding the stalling of the automobile on the railroad. The instructions are all to be considered together. In the part criticized the court was speaking of concurrent negligence and in that connection advised the jury in the same instruction that—
“If, however, you find from the evidence that the' plaintiff and defendant each had the power at the time .of the collision to avert the collision, and each neglected to use such power, then their negligence would in such case be concurrent negligence and recovery cannot be had herein by said plaintiff, if you find such facts to exist.”
In other portions of the instructions, the jury were fully and fairly advised as to contributory negligence which would defeat a recovery and it is plain that the jury could not have misunderstood the charge. There are other criticisms of the instructions, but an examination of the entire charge satisfies us that there was nothing in it to afford any ground of reversible error.
Another assignment is that the court erroneously permitted the jury to find against defendant because it did not have a watchman at the crossing, when there was an absence of evidence upon which to base such a finding. In stating the issues formed by the pleadings the court casually referred to the averment in plaintiff’s petition that the defendant negligently failed to maintain a watchman at the crossing. No evidence had been introduced tending to show that a watchman was not maintained, or that the absence of one caused or contributed to the injury. There was in fact no evidence on the subject. The mention by the court of this alleged ground of negligence upon which there was no evidence cannot have misled the jury. It has been decided that an instruction covering questions on which there is no evidence is harmless. (City of Indianapolis v. Cauley, 164 Ind. 304; Indianapolis Traction, etc., Co., v. Ulrick, 45 Ind. App. 149.)
Error is assigned on the admission of evidence of subsequent repairs of the crossing. Evidence of this kind may be received for what it is worth. (Howard v. Osage City, 89 Kan. 205, 132 Pac. 187; White v. Cloak & Suit Co., 106 Kan. 239, 187 Pac. 670.)
Another assignment is the refusal of the court to submit the question, “Was the rumble or noise made by the coal cars as they approached the crossing, equal to or less than, or greater than the noise made by the Ford engine and automobile, to the ear or hearing of the plaintiff?” This question was properly rejected. There was no evidence as to the volume of the noises made by train or automobile, or as to a comparison of such noises, or yet as to the effect they had on the ear of the plaintiff. It was an involved and . puzzling question and contained an assumption of facts not proven.
The contention that the damages awarded were excessive cannot be sustained. The amount was $13,250. The plaintiff was 49 years of age, and taking the testimony produced in his behalf, his injuries were of a serious and permanent character.
Defendant further contends that the trial court was without jurisdiction in the case for the reason that petitions and bonds for removal to the Federal court had been filed. It appears that as the case was brought, three coal companies and one Ed Roberts, as well as the railroad company, were named as defendants. The petitions and bonds for removal were not filed within the time in which the defendants were required to answer, as the Federal judicial code prescribes, and thereforé the applications to remove were denied. Afterwards the plaintiff dismissed the case as to all of the defendants other than the railroad company, and that company now contends that upon the dismissal of these parties the case became removable and it was the duty of the court to order a removal upon the application previously made. The defendant never renewed the application after the dismissal of the parties nor was the matter of removal afterwards brought to the attention of either the district court of Crawford county, where the action was instituted, or the district court of Bourbon county, to which it was transferred on a change of venue. Instead, the defendant submitted itself to the jurisdiction of the state court, setting up an affirmative defense and asking judgment for costs. It is not now in a position to insist that the state court was without jurisdiction.
All the assignments of error have been examined, and it is held that no substantial error is found in any of them.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered judgment for damages on account of a defective roof laid by the defendant, a corporation, on a school building being erected by the plaintiff for a school district in Osborne county. The defendant appeals.
The defendant complains of an order overruling á demurrer to the plaintiff’s petition which alleged in substance that the defendant contracted with the plaintiff to put a Barrett Specification roof on a school building at Natoma being erected by the plaintiff, and alleged that the offer of the defendant to construct the roof was contained in a letter, and that the offer was accepted by the plaintiff. The letter was as follows:
“W. N. Penland, Osborne, Kansas.
“Dear Sir:
“The Barrett Co., have requested us to submit a figure on applying a Barrett Specification roof on school bldg, you have under contract at Natoma, Kansas. We propose to furnish the specification material, pay all freights and other expense, and apply a twenty-year roof over boards for the sum of Nine dollars ($9.00) per square. This would leave you to furnish 'gravel or Joplin chatts. Either would fulfill specifications. Suppose you will be using more or less chatts for cement floors, etc. You would require for the roof about 300 lbs. to the square. We would be pleased to hear from you. Resp.
“A. J. Shirk Roofing Co. Geo. F. Moeller, Ptest.”
The defendant argues that the petition alleged that the contract was made with the defendant, but that in contradiction thereto the letter showed that the contract was made with the A. J. Shirk Roofing Company. An examination of the letter reveals that it states that the proposition contained therein was submitted at the request of the defendant. There was no allegation in the petition that the Shirk Roofing Company was .the agent of the defendant, but a reasonable interpretation of the letter is that the Shirk Roofing Company was acting for the defendant when the offer contained in the letter was made. If the letter and the allegations of the petition are construed together, as they should be, it will be seen that they are not contradictory to, but are harmonious with each other. It must be held that the petition alleged a contract with the defendant, and stated a cause of action.
At the close of the plaintiff’s evidence the defendant’s demurrer thereto was overruled. To support this demurrer the defendant argues that there was no evidence to show that the defendant had contracted with the plaintiff to put a roof on the school building. The evidence of the plaintiff tended to prove that the proposition contained in the letter, which has been set out, was accepted by him; that when the roof was first laid the defendant had a representative present who directed the work; that the roof proved defective and caused the damage for the recovery of which the plaintiff commenced this action; that the defendant put a new roof on the building; that when the first roof was completed the A. J. Shirk Roofing Company reported to the defendant the amount of material that had been received from it for the purpose of laying the roof, the amount that had been used, and the amount that was returned; that after the first roof had been laid and it had been discovered that it was defective, correspondence took place between the plaintiff and the defendant which resulted in a new roof being put on by the defendant; that when the first roof was completed the defendant gave a surety bond to the school district guaranteeing the roof for a period of twenty years; and that in the bond the defendant agreed that it would at its own expense make any repairs which might become necessary to maintain the roof for that period. The evidence was sufficient to compel the court to submit to the jury all matters that were in issue, and the demurrer to the evidence was properly overruled.
The defendant contends that the court erroneously instructed the jury concerning the agency of the A. J. Shirk Roofing Company. Those instructions were as follows:
“An agent who acts without authority from his principal does not bind the principal unless the principal after full knowledge of what the agent did accepts or approves the acts of the agent or accepts the benefit of the unauthorized act, and in this case if you find by the greater weight of all the evidence that the defendant accepted the acts or things done, if any, by A. J. Shirk & Co. or accepted and received the fruits of the acts of the said A. J. Shirk & Co. in its (defendant’s) behalf, if any, then the defendant would be bound by the acts or doings of A. J. Shirk & Co. the same as if it had authorized A. J. Shirk & Co. to act as its agent or representative before A. J. Shirk & Co. acted in behalf of defendant, if it did so act. Unless you find by the greater weight of all the evidence in this case that A. J. Shirk and Company were authorized by defendant to sell and put in place the Barrett Specification roof on the school building at Natoma, Kansas, or that the defendant accepted or ratified the acts, if any, of A. J. Shirk & Company in its behalf your verdict should be for the defendant, notwithstanding you should also find said roof was negligently constructed and the material furnished was defective.”
The evidence has been summarized and need not here be repeated. It is sufficient to say that the evidence warranted the instructions that were given concerning agency.
The defendant says that “the trial court erred in its instructions in submitting to the jury the question as to whether there was a contract between plaintiff and defendant, when the only evidence they have is in the shape of letter passing be tween the parties.” The difficulty with the defendant’s statement is that the evidence, which has been outlined, other than the letter, tended to show that there was a contract between the plaintiff and the defendant. That evidence showed various acts and was contained in the bond and in other letters. It was proper for the court to submit to the jury the evidence for the purpose of determining whether or not a contract had been made.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This appeal is from a decision in garnishment proceedings where the plaintiff was defeated.
The plaintiff held some past-due notes of one McNabney, a thresherman in Seward county. In the autumn of 1919 Mc-Nabney operated a threshing machine and employed a crew of men and women, and did considerable threshing in the counties of Haskell, Seward and thereabout. He fell behind in the payment of wages to his employees to the extent of several hundred dollars. One of his employees, G. E. Rinehart, seems to have been a man of some capacity; and in an attempt to provide a method of paying the employees, McNabney made an agreement with Rinehart whereby the latter was to take possession of the threshing outfit for a time and operate it on his own responsibility in order to earn money to pay the employees their wages due and to become due. The employees were not all informed of this arrangement at its1 inception, but eventually they learned of it. Accordingly Rinehart took charge of the threshing outfit, and did some threshing. Mc-Nabney, the plaintiff’s debtor and owner of the machine, went away on a vacation. Some time later, after Rinehart had threshed for certain farmers, Ernest Dyerly and F. C. Hase, and others, and before these had paid Rinehart, the plaintiff garnished the sums due for their threshing asi accounts owed to McNabney.
Rinehart interpleaded, setting up the foregoing facts; and judgment was given in his favor.
Plaintiff appeals, assigning various errors; but the principal point urged is that there was no formal assignment by McNabney for the benefit of creditors as provided by chapter 7 of the General Statutes of 1915. Very true, but the contract between McNabney and Rinehart did not purport to be such an assignment. It was simply an agreement that Rinehart should conduct "and operate the threshing outfit for a time and strive to earn some money with it to pay himself and his coemployees. There was nothing unlawful about such an arrangement. There was nothing in the contract to which the plaintiff could obj ect, unless it was to the temporary surrender of the possession of the threshing equipment to Rinehart. Plaintiff certainly had no claim to the money earned by Rinehart and the threshing crew under this arrangement. It is fundamental that a garnisheeing creditor can seize nothing except what belongs to his debtor. (Fairbanks, Morse & Co. v. Inglitt, 106 Kan. 488, 491, 188 Pac. 248.) The accounts of the farmers, Dyerly and Hase, were not the property of McNabney; consequently plaintiff as creditor of McNabney had no right to them.
In Hall v. Terra Cotta Co., 97 Kan. 103, 154 Pac. 210, a debtor assigned to a bank certain contracts for work to be performed and materials .to be furnished by the debtor for various third parties. Another creditor sought to garnishee moneys due the debtor from one of these third parties. It was held that garnishment would not lie, and that there was a valid assignment to the bank “of a sum or sums of money due and to become due”; and that “there wasi nothing about the transaction which was unusual or against public policy.” (p. 109.)
With this principal point disposed of, we will next examine the plaintiff’s assignment of errors in detail. Plaintiff’s demurrer to Rinehart’s interplea was properly overruled, because the material facts were sufficiently pleaded, and because the facts, so pleaded, were sufficient as against a demurrer.
The next error assigned relates to the insufficiency of the interpleader’s evidence. Plaintiff says “there was no definite deal made as alleged in the interplea.” The abstract and counter-abstract both disclose beyond cavil that McNabney and Rinehart made such a contract, and no purpose would be served by reproducing the evidence. But it is urged that such agreement would not bind the plaintiff. That argument is pointless. The contract did not attempt to bind the plaintiff, nor to bind anybody except the parties and such of McNabney’s other employees as cared to acquiesce in it. Neither is there merit in plaintiff’s objections to the evidence of the conversations between the interpleader and the other employees “in the absence of plaintiff.” The presence or absence of plaintiff was of no consequence. However informal the bargain between McNabney and Rinehart, or between Rinehart and his coemployees, the assent or objection of plaintiff thereto would not have affected it in the slightest degree.
Plaintiff also objects to the instruction© to the jury, but this seems to be based on his erroneous view of the law. The jury was instructed that if the threshing was done for Dyerly and Hase by the interpleader under his arrangement with Mc-Nabney, the plaintiff had no lawful claim on the accounts due from those farmers; and if not, the plaintiff was entitled thereto. This ruling was correct.
The objection that the verdict was “not sustained by any evidence” is not well taken; nor does the record justify plaintiff’s contention that the jury rendered it “under passion and prejudice.”
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Action in the nature of a creditor’s bill which resulted in a judgment for plaintiff, and from it defendants appeal.
On May 20,1920, the bank obtained a judgment against C. E. Leslie for $2,757.63, and an execution issued upon the judgment was returned unsatisfied. The present action was then commenced in which plaintiff alleged that on January 30, 1920, C. E. Leslie had executed a bill of sale to his wife, purporting to transfer practically all of his personal property of the value of $15,510 for the purpose of defrauding his creditors, and particularly to defeat the claim of the plaintiff which would mature on February 11, 1920, and that his wife accepted the bill of sale with knowledge of the fraudulent purpose, and with the intention of aiding her husband in defrauding the plaintiff. It was further alleged that C. E. Leslie is the owner of several farms for which he had provided the greater part of the purchase money, had managed and farmed the same for many years, but had taken the title thereto in his wife’s name, and that he is the equitable owner of at least one-half of the same. It was alleged that he pretended that he was indebted to his wife for the rents and profits of the land, and that together they are attempting to conceal his interest in it and in that way defraud his creditors, including the plaintiff.
There was a further averment that another tract of land obtained from the guardian of his mother had been conveyed to his wife, that it was owned jointly by both of them, and that the placing of the title in her name was for the purpose of defeating and defrauding his creditors. The plaintiff asked that C. E. Leslie’s interest in all of the real estate be determined, that its judgment be declared a first lien thereon, and that the personal property be sold and the proceeds applied to the payment of the judgment.
The defendant, C. E. Leslie, and his wife alleged that the transfer of the personal property was made in good faith and for a sufficient consideration.- Mrs. Leslie averred that she did not know of her husband’s indebtedness when the bill of sale was executed, and she denied that the purpose of the transfer was to aid him in concealing his property or in defrauding his creditors. She also alleged that the real estate was conveyed to her long before her husband became indebted to plaintiff; that the transfers were made in good faith, and that she never authorized her husband to treat the property as his own or to represent that he was the owner of any interest in it; and further, that she was the absolute owner of the land, having paid the entire consideration of its purchase.
A jury was called in an advisory capacity to which some of the questions of fact were submitted, and they found that the transfer of the personal property was made in bad faith, that it was done for the purpose of defrauding the creditors of C. E. Leslie, of which purpose Mrs. Leslie had full knowledge, and that she paid no consideration for the property. It was further found that she held the legal title to three of the tracts of land in controversy for her husband. A motion was made by defendants to set aside the findings on the ground that they were not supported by the evidence, but the motion was overruled and'the court then proceeded to make findings for itself, which were substantially in accord with those made by the jury. It was found that the transfer of the personal property from C. E. Leslie to his wife was made without consideration, for the purpose of hindering, delaying and defrauding the creditors of C. E. Leslie, and further, that his wife accepted the bill of sale without payment of consideration, and with the knowledge of her husband’s fraudulent purpose in making it. The court then found that three 80-acre tracts of land which formed the principal subject of the controversy were in fact owned by the-defendant, C. E. Leslie, subject only to a certain valid mortgage thereon, and that while the land is held in the name of the wife of C. E. Leslie, he is the actual owner thereof. Following these findings the court adjudged that the personal property be sold at public auction, and the proceeds applied to the satisfaction and payment of the judgment, and if it was insufficient to satisfy the judgment that the real estate described be sold and applied to the satisfaction of the residue of the judgment.
The principal contention of the defendants is that the evidence does not support the findings and judgment. Involved in the controversy are many transfers of property and numerous transactions between C- E. Leslie and his wife, covering a period of twenty-five years. They were married in 1895 and started with two or three horses, a cow and a little pocket money. They purchased a farm on time and paid for it, and from time to time purchased additional tracts until they acquired 400 acres, and this, with other property, is worth about $60,000. They worked diligently together on the farm, and their accumulations and success were due to the work and thrift of both. The title to some of the tracts purchased was taken in the name of the husband and some in the name of the wife. Mortgages on the land owned by them were executed by both to purchase other tracts and to obtain means to carry on farming operations. The husband managed the farms and conducted the business largely as if he were the owner. At one time the title to three of the tracts stood in his name and two of them in that of his wife. One of them he transferred to his wife for the stated consideration of one dollar. Three tracts of eighty acres each which had stood in his name were sold to Corley, a brother-in-law, for $19,500, payable in installments, but he only held them for a short time and, having paid no more than a fair rental for the land, surrendered it back, but in the conveyance Mrs. Leslie was named as the grantee. There was testimony tending to show that this land was owned by her husband, and that he afterwards spoke of and treated it as his own. The jury found that the wife held the legal title for her husband and that the consideration for the land was furnished by both husband and wife. In separate findings made by the court it was stated that these tracts were in fact owned by the husband, subject to a certain mortgage thereon, and that while they are held in the name of the wife, the husband is the actual-owner thereof. It is contended that the conveyances were made long before the indebtedness of the husband to the bank was incurred, and that the conveyances could not have been made to defraud the plaintiff.. It is not claimed that the land was transferred to the wife to defraud the plaintiff, but the contention is rather that he is the equitable and actual owner of the land, and that it is subject to be appropriated to the payment of the judgment rendered against him. There is testimony pertaining to many dealings between the husband and wife, and between them and others, and many circumstances were brought out in the testimony in support of the judgment of the court, but it is not practicable to narrate all the facts or to recount all the circumstances upon which the judgment rests. It is enough to say that an examination of the testimony satisfies us that it is sufficient to uphold the findings of the court.
As to the sale of the personal property by the husband to the wife, the court found that it was made without consideration, and for the purpose of hindering, delaying and defrauding creditors. The bill of sale, which was executed just before the plaintiff’s debt became due, purported to transfer to her all the personal property of the husband used or kept on the farms. It included thirty-five head of cattle valued at $4,510, eleven horses and mules valued at $1,785, a number of hogs valued at $210, several sets of harness valued at $185, farm implements and equipment valued at $2,249, grain, hay and other products of the farm valued at $6,580, all of the value of $15,510. This property was recognized to be that of the husband and was transferred by him on the theory that he was indebted to his wife for the products of the farms, several of which, as we have seen, were owned by him. The circumstances developed in the testimony warranted the finding that the transfer was made to delay and defraud his creditors, including the plaintiff, from collecting his debts out of his property.
We find nothing substantial in the objections made to the admission of testimony. There is a contention that the declarations of the husband relating to his ownership 'of property were improperly received in evidence. They were made when he was in possession of the property. Being in possession of it he is presumed to be the owner of it, and his declarations are not to be treated as hearsay evidence, but admissible to illustrate the character of his possession and explain his claim of ownership. In Hubbard v. Cheney, 76 Kan. 222, 91 Pac. 793, it was said:
“The declarations of persons in possession of real property which illustrate the character of their possession and explain, their claims of ownership are admissible to' show the character and extent of their claims.” (p. 225.)
(See, also, Hunnicutt v. Oren, 84 Kan. 460, 114 Pac. 1059; Butts v. Butts, 84 Kan. 475, 114 Pac. 1048; Kimball v. Edwards, 91 Kan. 298, 302, 137 Pac. 948; 3 Wigmore on Evidence, § 1779.)
Complaint is made of the instructions but the case was one for trial by the court. While the court took the advice of the jury on certain questions of fact, it ultimately determined the facts for itself and, besides, we find nothing in the instructions indicating that the court had an erroneous view of the law applicable to the' facts or which would have been erroneous if the jury had been the trier of the facts.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
L. P. Jacobs sued W. C. Greening and the Exchange State Bank of Parsons charging them in a first cause of action with having' wrongfully garnished funds of the plaintiff and in a second with having wrongfully procured the issuance of a restraining order against him. A demurrer to the petition was sustained as to both causes of action and he appeals.
The petition alleged that the defendants were actuated by malice in procuring the garnishment and the restraining order, and that no probable cause therefor existed. The action was begun more than a year after the matters complained of had taken place, and, regarded as one for malicious prosecution, was therefore barred by the statute of limitation. (Gen. Stat. 1915, § 6907, subdiv. 4.) The plaintiff, however, urged that the allegations of malice and want of probable cause may be disregarded and the petition held sufficient to authorize a recovery for actual damages by virtue of its alleging that the garnishment and restraining order were wrongfully procured, irrespective of the motive.
The generally accepted rule is that in the absence of express statutory authority an action other than one upon the bond cannot be maintained by one against whom an attachment order was issued, on the ground that its issuance was wrongful, without a showing of malice; but the opposite view has been taken in a féw states, including Kansas. (6 C. J. 496; McLaughlin v. Davis, 14 Kan. 168.) The defendants contend that although in this jurisdiction an action for wrongful attachment will lie irrespective of motive it does not follow that the same rule obtains with respect to a wrongful garnishment, because the latter process is issued upon allegations veri fied only upon information and belief (Gen. Stat. 1915, § 7121) while the former requires a positive affidavit. Assuming that the affidavit for garnishment is required to go no further than to state the affiant’s belief that certain facts exist, we see no basis for the application of a different rule on that account. The law does not contemplate the appropriation to the payment of a plaintiff’s claim of funds due the defendant, merely because the plaintiff or his agent believes that certain facts exist, but because the affidavit although made only upon information and belief is deemed to show their existence prima facie — sufficiently to justify the issuance of the garnishment process. If, for instance, it should develop that the defendant is not indebted to the plaintiff, or that the fund sought to be reached is exempt, it would follow that the garnishment was wrongful and could not be sustained. This court has already affirmed a judgment for the plaintiff in an action for wrongful garnishment, not brought upon the bond, where malice although alleged in the petition was not shown by the evidence. (Dody v. Bank, 82 Kan. 406, 108 Pac. 804.)
So far, therefore, as the first cause of action is concerned the one-year statute of limitation did not apply, and for that reason the order sustaining the demurrer was to that extent erroneous.
The procuring of a restraining order or temporary in-, junction, however, stands upon a different footing. Attachment or garnishment process issues as a matter of- course upon the plaintiff’s filing an affidavit and complying with the other statutory requirements. An injunction, on the other hand, requires action by the court, which particularly in the case of a restraining order is largely a matter of discretion and may be merely a means of preserving a status until opportunity can be had for a hearing on the merits. We regard an action (other than one upon a bond) for its wrongful procurement as not maintainable unless brought as one for malicious prosecution. That view appears to have met general if not universal acceptance. (22 Cyc. 1061; 14 R. C. L. 479.) The demurrer was therefore rightly sustained as to the second cause of action.
As to the second cause of action the judgment is affirmed; as to the first it is reversed, the cause being remanded for further proceedings. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This case was here before upon an appeal from a ruling sustaining a demurrer to plaintiff’s evidence. It was then determined that the uncontradicted evidence of the plaintiff was sufficient to overcome the demurrer and the judgment was therefore reversed. (Bushey v. Coffman, 103 Kan. 209, 173 Pac. 341.) Upon a remand of the case for another trial, the defendant with leave of the court filed an amended answer alleging that the plaintiff had waived any claim he may have had for damages by taking charge of the bank and operating it for many months without complaint, and by purchasing additional shares of stock long after the purchase of the controlling interest in the bank, and further that by failing to tender a return of the stock he was estopped to complain of the acts of the defendant. On the second trial a vast volume of conflicting evidence was received as to the representations made in the negotiations and as to the character and value of notes and other assets of the bank at the time of the transfer of the stock to the plaintiff. While evidence was offered tending to show misrepresentations as to the condition of the bank and the value of its assets, there was abundant evidence that the defendant acted fairly and honestly in the negotiation, and in the transfer of his stock in the bank. Because of the conflict in the evidence the instructions given by the court in the submission of the issues to the jury were of vital importance.
Complaint is made of several instructions and particularly of one relating to the remedies available to a defrauded party. It may be said that plaintiff’s petition was in two counts, the first of which charged that the sale of the bank stock was procured through the misrepresentation and fraud of the defendant, and for his loss and damage he asked judgment for $23,700. The second count was for a rescission of a contract for the purchase of certain real estate and water rights for $2,500, obtained under duress, and asking that a promissory note executed by plaintiff and delivered to defendant for $2,500, in payment of the property, be canceled. In this connection the plaintiff tendered a deed of the property acquired under the purchase. On the second count the verdict of the jury was in favor of the plaintiff and thereon judgment canceling the note was rendered. Of this part of the judgment there is no complaint. Upon the first count the verdict and judgment were in favor of the defendant and the present review is confined to the rulings and judgment upon that count.
The contention of the plaintiff is that the court erred in .defining the issues and submitting the case to the jury. Instead of treating the count as an action for the recovery of damages sustained by reason of the fraud, it is claimed that the court confused the issues and misled the jury by submitting an instruction relating to the rescission of the contract. The first count was a charge of fraud and a demand for the recovery of the loss and damage sustained by reason of the fraud. There was no averment by plaintiff of a purpose to disaffirm or rescind the contract, no tender of that which had been received under it, nor of the taking of the steps essential to a rescission. The averments of the petition all tended to show that plaintiff had elected to retain what he had received under the contract which had been executed and to sue for the damages sustained by reason of the deceit and fraud of the defendant. On the former appeal the first count was regarded and treated as a cause of action for damages and not of rescission. (Bushey v. Coffman, supra.) When the pleader reached the second count he made it very plain that plaintiff was asking for a rescission and restoration. The instruction complained of did not interpret the pleading and define the issue submitted, but left the jury to determine what remedy had been chosen by plaintiff and presented in the petition.
In instruction 31 the trial court referred in general terms to the several courses open to one who has been induced to enter into a contract through the fraud of another. First, that he may elect to rescind and be restored to his former position ; second, that he may affirm the contract, retain the property received under it, and recover his damages for any loss sustained because of the fraud; and third, he may waive the fraud and take such action as will estop him from asserting fraud and claiming a recovery on account of it.. The instruction proceeds—
“If plaintiff desired to rescind the contract between himself and the defendant, and recover the consideration paid by him for the bank stock then it was obligatory upon him, the plaintiff, to return or offer to return the bank stock to the defendant Coffman, before he instituted his action or he would not be entitled to recover herein, but if you shall find that he elected to retain the bank stock at its fair and reasonable value and recover the difference between such fair and reasonable value and the price paid therefor as his damages sustained, then and in that event, he of course, would not be required to tender a return of the bank stock before he would have a right of recovery against the defendant, but in either event he is required to act promptly after discovering that fraud has been practiced upon him by the defendant, or he cannot recover in this case. The law does not permit a person who has been defrauded, and who has knowledge of the fact, to retain possession of the property without complaint, and hold it to suit his own convenience with the thought and expectation of gaining a profit thereon, before exercising his right of rescission or action for damages, and for the reason that this would give him an undue advantage of the other party, for after waiting, if the market should prove favorable he could sell and thus secure a profit, while on the other hand if the market should prove unfavorable, then he would escape all possibility of loss by looking to the party who had defrauded him for a return of all the consideration paid, or at least to the amount of damage sustained. The law does not permit a person to play fast and loose in such a manner. He must act promptly if he would look to the party who has defrauded him, or retain it beyond the period of prompt action and thus affirm the contract and be bound thereby as though no fraud had been committed. By the term ‘acting promptly’ as used herein is meant that one must have taken action to protect his rights within such a period of time after discovering that he had been defrauded as a reasonably prudent person surrounded by the circumstances of this particular case would have done. In this case if you shall find and believe from the fair weight or preponderance of the evidence that the defendant George M. Coffman made any false and fraudulent representations to plaintiff A. H. Bushey, that said Coffman at the time of making them knew that they were false and untrue, that Bushey actually relied upon them and believed them to be true, and was thus damaged, but you shall further find and believe from the evidence herein that after the discovery of the fraud thus practiced upon him, the plaintiff A. H. Bushey paid the defendant for several shares of the bank stock theretofore purchased by him; that he made new loans for the bank on his own account as president of the bank; that he renewed and increased, on his own account, some of the old loans held by the bank at the date of the purchase of said bank stock; that he, on his own account, as president of the bank released from some of the banks paper sureties that were financially responsible in taking renewal of such paper; that he, after a lapse of more than one year, with the bank under his exclusive management and control, sold his stock therein at a considerable profit, and if you further find that he did not exercise his right under the law in instituting his action with that degree of promptness which an ordinary prudent person, situated as he was should have done, but instead, held -and retained the bank stock and the management of the bank, without any complaint of the fraud thus known to him,' and with the intention and for the purpose of gaining a profit out of the transaction, and after an unreasonable delay, lost on the transaction, instead of gaining a profit thereon, and then for the first time sought a recovery from the defendant of all the consideration paid by him, then and in these events, plaintiff would, by such acts on his part, have waived the fraud and affirmed the contract, notwithstanding the fraud, and he would be, thereby estopped from claiming a right of recovery herein and your verdict must be for the defendant.”
It was the duty of the court to determine from the pleadings the relief that was sought by the plaintiff and to advise the jury as to the rules of law applicable to the enforcement of that remedy. The instruction covered the different remedies open to the plaintiff, but the jury could not go to the pleadings to ascertain the election that had been made by the plaintiff, nor could they look to the evidence to determine what the issues in the case were. The averments of the petition proceeded on the theory that the plaintiff was affirming the contract, retaining the property purchased and asking a recovery for the loss sustained because of the fraudulent representations of the defendant, and the jury should have been instructed that the plaintiff had elected this remedy and was required to produce evidence essential to recovery of damages. That portion of the instruction as to rescission and the restoration or tender of the stock' sold was not within the issues and was confusing and misleading.
Another feature of the instruction is open to objection. It was laid down with considerable emphasis that plaintiff could not recover' damages if he affirmed the contract by an act in performance of it; that is, if he retained the property purchased and did not promptly complain and ask for damages upon learning of the fraud, no recovery could be had because of the fraud. The court applied the same rule to a demand for damages as to one for rescission. However pertinent the instruction might have been, if the plaintiff had elected to rescind the contract it was not applicable to' the remedy sought. Plaintiff had paid full consideration for the stock first purchased. It was a considerable sum, $23,700, and under the purchase he had obtained and held the control of the bank some time before the discovery of the alleged fraud. Performance of the contract was practically complete before that time. The rules applicable to a contract imposed on a party by fraud while it is purely executory, do not*apply where the contract is partly or completely performed before the discovery of the fraud.
Some of the courts have held that if a defrauded party learns of the fraud while the contract remains wholly executory, and thereafter voluntarily does any acts in performance of the contract, he will be deemed to have condoned the fraud and waived his right to sue for the fraud. (20 Cyc. 92 '12 R. C. L. 413.)
In Van Natta v. Snyder, 98 Kan. 102, 157 Pac. 432, it was held that a party who had been induced by fraudulent representations to enter into a contract which had been partly performed before the discovery of the fraud, was not precluded from recovering damages for the fraud. The fact that she did not repudiate the contract or promptly complain of the fraud, it was held, did not bar her right of action. The contract being partly performed she was at liberty to affirm the contract, retain what she had received under it, complete her part of the performance, and then sue for the damages suffered from the fraud, and her action therefor might be brought at any time within the period fixed by the statute of limitations. In such a situation an affirmance of the contract is not deemed to be a waiver of the right to recover damages.
In the later case of Geiger v. Cardwell, 99 Kan. 559, 560, 163 Pac. 613, it was said that—
“This court has disavowed the rule that a discovery of the fraud in an early stage of performance puts the injured party to an election between on the one hand stopping operations under the contract and seek ing remedy for the fraud, and on the other going ahead under the agreement and condoning the wrong.” (Citing the Van Natta case.)
It was decided that—
“Where one who has contracted to buy certain property for about $15,000, the transaction involving his assumption of an obligation which he discovers, after having paid $1,000 on the purchase price, tó be about $500 larger than the seller had represented, he does not waive his right to recover damages on account of the fraud by accepting the property and completing the payment.” (Syl. ¶ 1.)
The instruction questioned directly conflicts with the rules announced in these cases and must be regarded as material error. ,
Complaint is made of instruction 32 relating to the testimony of bankers and business men as to the responsibility of the makers of the notes which were alleged to have been represented to be good but were of little value. The jury were told that the opinions of the bankers and business men were admissible but their evidence was not conclusive on the jury. It was to be considered in connection with other evidence, direct and circumstantial, and given such weight as it was justly and fairly entitled to. Although the bankers and business men were sometimes erroneously referred to in the instruction as experts, the court was speaking of opinion evidence, and the instruction, only a summary of which has been given, gave the correct measure of opinion evidence.
Nor is there any reason to complain of instruction 33 which advised the jury that the value of the bank stock and assets of the bank alleged to have been misrepresented by the defendant was to be determined as of the date the sale was made. The court rightly instructed the jury that evidence of its value or worthlessness at any other time could only be considered as throwing some light on its value on the day the contract was made, and that if the assets and notes were good upon that date, it could make no difference that they may have depreciated in value or have become worthless at a later time. There was no error in the instruction.
It appears that the bank commissioner of Colorado visited the bank more than sixteen months after the plaintiff had purchased it, and some time after he had sold it to others for a price higher than he had paid the defendant for the stock, but with a guarantee of the notes then in the bank. The bank commissioner required that quite a number of the notes which were in the bank when the defendant sold it should be charged off as worthless. In this connection the jury were instructed that if the makers and sureties of the notes held property not exempt from sale under execution and were in fact solvent, the notes were "to be' regarded as good, notwithstanding they had been charged off under the direction of the bank commissioner. Plaintiff contends that the commissioner is a sworn officer of the state, with authority to investigate the condition of banks and the values of the notes, securities and assets held by banks, and that the instruction of the court minimized the weight and force of the evidence of such an officer. There is nothing conclusive in the inferences or action of the commissioner as to the value of the paper in the bank, or of the solvency of those indebted to the bank. His opinion and order that the makers of notes wTere insolvent and the notes worthless, would not be entitled to credence if it were shown by other competent and convincing evidence that the makers were solvent and the notes were good. It appears that he called and held a midnight meeting of the directors and apparently with little inquiry directed the charging off of many of the notes in the bank. Whatever may have been the extent of his. inquiry and information as to the value of the notes, his opinion and action did not foreclose inquiry by the court as to the financial responsibility of the makers and sureties of the notes when the sale was made by the defendant.
Other instructions are criticized by the plaintiff, but we find nothing erroneous in them nor anything requiring special comment.
• For the error pointed out in the instructions, the judgment will be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
West, J.:
W. H. Ferrell & Company of Minneapolis, Minn., sold three shipments of potatoes to R. Cameron of Courtland, Kan., consigning two of them, shippér’s order, to W. H. Ferrell & Company at Mankato, Kan., and one, shipper’s order, to Phillipsburg, notify H. C. Bickford. With each shipment was a sight draft, drawn by W. H. Ferrell & Company on R. Cameron in favor of the plaintiff, attached to the bill of lading and indorsed in blank by W. H. Ferrell & Company, with written instructions — “Deliver documents on payment of draft only. . . . Return at once if not accepted or paid. . . . Telegraph non-payment of drafts of $500 or over,” signed by the plaintiff bank. These were sent to the defendant for collection. The cashier of the defendant bank detached the bills of lading and delivered them to Cameron without collecting any money on the drafts. Cameron obtained possession of the potatoes which he claims were not up to the quality agreed upon. He procured a reduction on the two cars sold to one customer and took over the other car and retailed it out, receiving altogether from the three cars $814.41 less than their cost.
The plaintiff sued, alleging in substance that the defendant bank failed to follow instructions, and asked for damages in the sum of $814.41, with interest, alleging that if the defendant made any reduction to Cameron it was without the knowledge or authority of the plaintiff, and averring that the defendant undertook to handle and collect the draft in accordance with instructions given, and that the plaintiff was the owner and holder of the drafts.
The amended answer, after a general denial, admitted receiving the drafts for collection and remittance, alleged that the potatoes were of inferior quality and that the shippers authorized Cameron to make reasonable allowance to the customers to whom he had sold some of them, that the potatoes were sold for all that they were, in fact, worth, and that the shipper and buyer had settled for the loss, and.had done so at the suggestion of the plaintiff who accepted and approved and ratified the settlement.
The jury found for the defendant and in answer to special questions found that the settlement between Ferrell and Cameron included the shortage on the draft.’
The plaintiff appeals and insists that, being the owner of the drafts and having turned them over to the defendant bank for collection, and the latter having failed to follow the written instructions, the plaintiff is entitled to recover the difference between the face of the drafts and the amount realized from the sale Of the potatoes.
The defendant’s theory is that the drafts were .unaccepted; that the plaintiff has received all that the potatoes, for which the drafts were drawn, were worth; that the shortage was settled for with the consent of the plaintiff and with its approval; and that the court correctly charged the measure of damages to be the real loss suffered by the default of the defendant bank, in other words, that the action is really for the conversion of personal property and the recovery limited to the value thereof.
Ordinarily, when a bank undertakes to make a-collection for a customer it must follow instructions, and can depart therefrom only at its peril. This rule is fully conceded by the defendant’s counsel who ask, “What, then, is the measure of damages for our having so departed?” and answer — the actual loss sustained.
Our attention has been called to no decision in this state bearing directly on this point, although numerous cases in•volving the collection of bills of lading and collections’ of negotiable paper by one bank for another have been before us. -In 2 Michie on Banks and Banking, 1517, the rule is thus stated:
“The damages which the- holder of a bill, note or draft, is entitled to recover of a bank guilty of negligence of default as a collecting agent, is the actual loss occasioned- by such negligence or default. While the face of the bill, note, or draft is, prima, facie, the measure of the damage which the party interested therein has sustained, yet the collecting bank may, notwithstanding its default or breach of duty, show the actual damage which has been sustained by the interested party, or may show that no damage has been actually suffered by him in defense of such action brought against it.”
In 7 Corpus Juris, 623, it is said:
“Where a bank which has undertaken the collection of a bill or note has been guilty of negligence in the performance of its duties, the damages which the depositor is entitled to recover are measured by the actual loss occasioned by the improper conduct of the bank. While the amount of the bill or note placed in the hands of the bank is prima, facie the measure of its liability, defendant may mitigate the damages by showing either the solvency of the maker or acceptor, the insolvency of the indorser, that the paper was partially or wholly secured, or that any other fact existed which would lessen the actual loss to plaintiff, and if it appears that the depositor has not been injured, nothing can be recovered beyond nominal damages.”
In support of this text, authorities are Cited from Alabama, Arkansas, Indiana, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New York, North Carolina, North Dakota, Oklahoma, Pennsylvania, Tennessee, Texas, West Virginia, The Supreme Court of the United States, and England.
“It is a fundamental principle that negligence on the part of an agent in the transaction of the business of his principal will not render him liable for damages unless his negligence results in an actual injury to his principal. And as a corrollary the damages recoverable by a principal for the negligence of his agent are the actual loss which the principal has suffered. So it would seem to follow that a recovery for the negligence of a collecting bank resulting in a failure to make the collection should be limited to the actual loss suffered by its customer.” (3 R. C. L. 631.)
In a note, 1 L. E. A., n. s., 246, Judge Story is quoted to the effect that although negligence may be wrong, yet if it is without damage it will not avail, for, “to maintain an action, both must concur.” In Jefferson County Savings Bank v. J. C. Hendrix, 147 Ala. 670, an action for failure to present a check deposited for collection and to give notice of its dishonor, the court said:
“But the damages recoverable are by no means necessarily the amount of the check, ... It will, therefore, not suffice for the owner to hale the collector bank into court and implead that ‘you took this check to collect it, you did not do your duty in that regard and of consequence the check was not collected, therefore, the check is yours, and the amount of it in money is mine and in your hands for me, and you must pay me that amount.’ . . . The mere failure of collection of the check does not demonstrate the loss to the owner of the demand for which it was given, or any part of such demand. The owner should say to the bank: ‘You took this check for collection. Certain duties were thereby devolved upon you . . . You failed to perform those duties . . . Because of its nonpayment I have suffered damages in the sum of so many dollars. For these damages you are liable to me, and must account in this action.’ ” (pp. 675, 676.)
To a similar effect is First National Bank of Decatur v. Henry, 159 Ala. 367, wherein the court quoted with approval from 1 Daniel on Negotiable Instruments, § 329, that the measure of damages is the actual loss suffered. In Second Nat. Bank v. Bank of Alma, 99 Ark. 386, it was held that—
“A collecting bank which wrongfully surrenders a bill of lading attached to a draft is liable only for the actual loss which results from such unauthorized act.” (Syl. ¶-2.)
(See, also, Chapman v. McCrea et al., 63 Ind. 360; The Farmers’ Bank and Trust Co. of Stanford v. Newland, 97 Ky. 464; Lord v. Hingham National Bank, 186 Mass. 161.)
In First Nat. Bank v. Fourth Nat. Bank, 77 N. Y. 320, the court, among other things, said:
“When the agent so deals with the draft as to secure and preserve to his principal all his rights and remedies against the prior parties to the bill, he is liable only for the actual or probable damages which his principal has sustained, in consequence of his negligence; ... In all these cases, the negligence of the! agent being established, it is a question of damages, and the agent may show notwithstanding his fault, that his principal has suffered no damages; and the recovery can then be for nominal damages only. He may show, in reduction of the damages, that if he had used the greatest diligence, the bill would not have been accepted or paid, or that his principal holds collaterals, or has an effectual remedy against the prior'parties to the bill.” (p. 329.).
To the same general effect is First Nat’l Bank v. Fourth Nat’l Bank, 89 N. Y. 412. In National Bank v. Brogden & Bryan, 98 Tex. 360, the bank received from the shipper of a carload of apples a draft on the consignee for the purchase price with the bill, of lading attached, and without surrendering the draft, took from the consignee a draft for the price, on third parties, and delivered the bill of lading to him. The third parties refused payment, and it was held that'the bank was liable to the shipper, but that the measure of damages was not the amount of the draft, but the value of the apples at their destination, less freight charges. In Van Wart v. Woolley, 3 B. & C. Rep. (Eng.) 439, the action was for damages-for failure to give due notice of the nonacceptance of a bill of exchange. Abbott, C. J., said:
“The plaintiff is, therefore, entitled to maintain his action against them, to the extent of any damage he may have sustained by their neglect. ... If, as between the plaintiff and Irwing & Co., he has made the bill his own, and cannot call upon them for the amount, his damage will be to the full amount for which the verdict has been taken. If he still retains a remedy against them, and has only been delayed in the pursuit of such remedy as he might have had against the drawer,' a bankrupt, the amount of his loss has not been inquired into or ascertained, and is probably much less than the amount of the bill.” (p. 444.)
Towards the close of-the opinion it was said:
“In the present case it does not appear that Irwing & Co., have sustained any damage by the want of notice of the nonacceptance of the bill. Cranston, the drawer, was not entitled to such notice; he'had no right to draw, and he sustained no prejudice. He had become bankrupt some weeks before notice of the non-acceptance could háve reached Irwing and Co.; nothing appears to show that they have lost any remedy that they might have had either against him or his estate, if they could ever have had any; but even this does not appear affirmatively; the circumstances under which they received the bill not being disclosed; and possibly they may have received it upon the terms 'of being accountable only in case it should be accepted, and not otherwise.” (p. 448.)
It was therefore ordered that the case be again submitted to a jury to ascertain the amount of this loss unless the parties could agree thereon.
There is a feeling that negotiable paper entrusted to a bank for collection should be so handled that its face value may be forthcoming in order that the commercial world may not be disturbed by failure to treat such paper with the sacredness it deserves, and it is doubtless true that a bank collecting commercial paper, or a bank entrusted with the commission to handle other valuable securities must use due diligence in the performance of its duties. But it would be a harsh rule which would require a bank in all instances to account for the face Value on all paper entrusted to it.
The general doctrine is that one who has suffered damages by the negligence of another may recover such damages and no more; and we know of no rule of the law merchant applicable to bills of lading with drafts attached, constituting an exception to this general rule. Certainly the authorities cited and referred to seem overwhelmingly to bear out such general rule rather than to sustain the claimed exception thereto.
Concluding, as we are compelled to do, therefore, both upon principle and upon authority, that the trial court adopted the •Correct measure of damages, its judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The petition alleged that when the accident which caused the plaintiff’s injuries occurred both parties were engaged in interstate commerce. It was not necessary, therefore, that the petition refer specially to the acts of congress upon which the cause of action is predicated. (Railway Co. v. Brinkmeier, 77 Kan. 14, 93 Pac. 621.) Sections 3 and 4 of the Federal employers’ liability act of 1908 (U. S. Comp. Stat. 1918, §§ 8659, 8660) provide that where an injury resulting to an employee is caused by the carrier’s violation of any statute enacted for the safety of employees, neither contributory negligence nor assumption of risk shall constitute any defense. Therefore, two of the defenses pleaded in the answer, and referred to in the briefs, go out of the case. Section^ of the Federal boiler-inspection act of February 17, 1911 (U. S. Comp. Stat. 1918, § 8631), provides in substance that it shall be unlawful for any common carrier to use any locomotive engine propelled by steam power in moving interstate or foreign traffic unless the boiler of such locomotive is in proper condition and safe to operate in the service to which it is put without unnecessary peril to life and limb, and it has been held that the last-mentioned act is a “statute enacted for the safety of employees” within the meaning of the employers’ liability act. (Great Northern Ry. Co. v. Donaldson, 246 U. S. 121, syl. ¶ 2.) By the amendment to this act of March 4, 1915, it includes all parts of a locomotive used upon a railroad engaged in interstate commerce.
It is contended, however, that the injury was caused by the sole negligence of the plaintiff, and that therefore he cannot recover. This contention seems to be based upon the following facts: When the train stopped at Girard on the return trip the plaintiff, who was the engineer, discovered that the stay bolts supporting the crown sheet were leaking and he sent a telegram signed by himself and the conductor, to the train master and master mechanic at Chanute, stating in substance that all the crown-sheet bolts were leaking badly, and asking for instructions. No reply to the message was received. After waiting forty-five minutes, and after the conductor had received orders to go ahead, the train proceeded and had gone about seven miles when the crown sheet dropped and the explosion occurred. It is insisted that the engineer knew the condition of the boiler and the crown sheet and that he should not have proceeded further with the engine in that condition. Practically the same contention was urged in Illinois Central R. R. Co. v. Skaggs, 240 U. S. 66. In the opinion it was said:
“It may be taken ior granted that the statute does not contemplate a recovery by an employee ior the consequences of action exclusively his own; that is, where his injury does not result in whole or in part from the negligence of any of the officers, agents or employees of the employing carrier or by reason of any defect or insufficiency, due to its negligence, in its property or equipment. . . . But, on the other hand, it cannot be said that there can be no recovery simply because the injured employee participated in the act which caused the injury. The inquiry must be whether there is neglect on the part of the employing carrier, and if the injury to one employee resulted ‘in whole or in part’ from the negligence of any of its other employees, it is liable under the express terms of the act.” (pp. 69, 70.)
Assuming that plaintiff was negligent in not refusing to proceed further with the engine when he discovered the defective condition of the stay bolts, and until he received a reply to his message, his negligence in this respect could not be held the sole cause of his injuries.
The real question in the court below was whether the dropping of the crown sheet and the explosion which resulted were caused by a defective or insufficient condition of the crown sheet, or were due to the lack of water covering the sheet. It may be true, as defendant claims, that the great preponderance of the evidence showed that leaky stay bolts would not cause the crown sheet to drop, and showed that the accident could not have occurred except for the failure of the engineer to keep a sufficient supply of water on the crown sheet. On the other hand, there was the testimony of the engineer, the fireman and the rear brakeman, who rode on the engine, that just-before the explosion the injectors were working properly and that there was a half glassful of water over the crown sheet. The fireman testified that it had not been more than a minute before the explosion when he looked at the water glass, and that it showed a half glass of water, indicating that the crown sheet was covered to a depth of about foür inches; that he looked at the water glass on this trip every five minutes or oftener, and opened the gauge cocks when between stations. This witness also testified that when 'he received the engine in the morning at the roundhouse he noticed that two or three of the stay bolts were leaking, and that when the engineer sent the telegram two-thirds of the bolts were leaking badly. The jury might have discredited all of the testimony showing that sufficient water was kept upon the crown sheet up to the time it dropped, but the jury did just the contrary, and it must be said that there was sufficient evidence to sustain the finding.
In their answers to special questions the jury said that the negligence of the defendant consisted of sending out a defective engine and also failing to answer the telegram sent by the engineer. It is claimed that these findings are insufficient to sustain the verdict, and further, that the acts of negligence found are not alleged in the petition. Of course, the failure to answer the telegram was not the proximate cause of the injury and it had nothing to do with plaintiff’s right to recover. But there was so much said about the matter on the trial that its importance seems to have impressed the jury. That part of the findings may, and we think should, be entirely disregarded. Sending out a defective engine is broad enough in its scope to include an engine with a defective boiler and crown sheet.
In view of the evidence as to the plaintiff’s injuries, the court is of the opinion that the amount of the verdict and judgment is excessive and that it should be reduced from $12,800 to $8,500. The plaintiff, however, is given the option to accept that amount or a new trial upon that issue.
In other respects the judgment is affirmed.
Johnston, C. J., dissents from the modification. | [
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The opinion of the court was delivered by
MARSHALL, J.:
The defendant appeals from a conviction for rape by carnally and unlawfully knowing a female under the age of eighteen years.
It is urged that the court committed error in refusing to grant a continuance ón the application of the defendant. The action had been twice tried; each trial had resulted in a failure of the -jury to agree upon a verdict. The trial which resulted in a conviction, commenced on March 4, 1920. On that day the defendant presented an application for a continuance on the ground of the absence of Mrs. John Kipers, who had been subpoenaed, but who at the time was sick and unable to attend. That application was verified, but it was denied. Mrs. John Kipers and Lola Kipers had been witnesses on one or the other or both of the former trials. The. evidence of Mrs. John Kipers given at a former trial was read to the jury. The plaintiff by leave of court, over the objection of the defendant, endorsed the names of certain witnesses on the information. The defendant then orally renewed his application for a continuance and stated as an additional ground therefor that Lola Kipers, who had been subpoenaed, could not attend on account of the sickness of her eight months’ old child, and that the testimony of this witness was desired to refute the testimony of witnesses whose names had been on that day endorsed on the information. The statements in the renewed application were not sworn to nor verified, and the application was again denied. The plaintiff then made its trial statement at the conclusion of which the following transpired.
“By Attorney Geddes for defendant: In view of the statement of the attorney for the state, the defendant now asks leave to add a statement of what the witness Lola Kipers would testify to if present, such statement to be added to the application of the defendant for a continuance. This statement goes in as additional grounds for a continuance; that the witness Lola Kipers would testify, if present, that the information given to the attending physician with reference to the paternity of the child was given by her and not by the defendant, Anthony Kipers.
“By the Court: That goes in as a part of. the other application, and there is no need of any further ruling on it.
“By Attorney Geddes: No need of any further ruling.”
On.the trial the attending physician testified that he obtained information, as to the paternity of the child from Anthony Kipers, the defendant. The testimony of Lola Kipers given at a former trial was read to the jury. Neither of the first two applications presented the evidence of the absent witness in such a form that it could be read as the deposition, and the last one was not sworn to nor verified. Continuances in criminal actions are granted “for like causes and under the like circumstances as in civil cases.” (Crim. Code, § 210.) In civil actions an application for a continuance on the ground of the absence of evidence must be made by affidavit, must show the materiality of the evidence expected to be obtained, and must show what the applicant believes “the witness will prove.” “If thereupon the adverse party will consent that on the trial the facts alleged in the affidavit shall be read and treated as the deposition of the absent witness, or that the facts in relation to other evidence shall be taken as proved to the extent alleged in the affidavit, no continuance shall be granted on the ground.of the absence of such evidence.” (Civ. Code, § 315.)
None of the applications complied with the statute, and for that reason it was not error for the court to refuse to grant a continuance.
The person against whom the crime is alleged to have been committed was Hazel Belle Kipers. She gave birth to a child on December 30, 1918, and died a few days thereafter. The trial occurred more than a year after the birth of the child. It was exhibited to the jury over the objection of the defendant, who urges that as error. Although there is a sharp division of the authorities on the subject, this court has declared that a child may be exhibited to a jury for the purpose of establishing paternity in bastardy cases. (The State, ex rel., v. Browning, 96 Kan. 540, 152 Pac. 672.) Why the same thing cannot be done in a rape case is not readily perceived. Many authorities state that it can be properly done, although again there is a conflict in the decisions. (22 R. C. L. 1202; 33 Cyc. 1477.)
A certified copy of the birth certificate as it was on file with the board of health of the state of Kansas was introduced in evidence, and was presented by L. P. Kissler, an oificer from the board of health, who testified that it was an exact copy of the original certificate on file. The introduction of that certificate is urged as error. The attending physician testified that he made out the certificate, that he obtained from the defendant the information from which he made out the certificate, and detailed the conversation in which the information was given. The abstract discloses the following:
“By the Court: Tell the jury what information he gave you. A. Well, I asked him what township and he said Murdock. And I asked him his full name and he said Anthony E. Kipers; residence, Benton; color, white; age at last birthday, 31; birthplace, Potomac, 111.; occupation, farming. I filled this in. It says: Number in order of births and I put it number 1. I do not know whether that was correct or not, but it was the first child by this mother and the full maiden name of the mother was Hazel Halsey; residence, Benton; age at last birth, 19; birthplace, Douglass, Kansas.
“By the Court: Did the defendant say anything to you about who was the father of this child? A. We did not discuss that at all.
“Q. Nothing said about that at all? A. Only the first question that I asked him before I filled this out.
“Q. What was that first question? A. I asked him if he was married. And he said yes, and then he gave me his name as father of the child.”
If the certificate was improperly admitted in evidence the testimony of the attending physician rendered immaterial any error that had been committed in its admission.
It is urged that the court committed error in overruling the defendant’s demurrer to the plaintiff’s evidence. It has often been said that a demurrer to the evidence is not proper in criminal cases. The question that the defendant urges under this head is that there was no-evidence to prove that the offense had been committed in Butler county. There was no direct evidence as to the commission of the offense; the evidence was either circumstantial or was contained in admissions of the defendant. The defendant and his children and Hazel Belle Kipers lived in the same house at the defendant’s home in Butler county. The mother of the defendant had adopted Hazel Belle Kipers when the latter was a small child, and she had been raised in the family with the defendant and three other boys. The husband of the adopting mother had died, and the mother had remarried. The defendant and his family, consisting of a wife and some children, had moved from Chicago to the home of his mother in Butler county, where his wife died. After the death of his wife his -family consisted of his children and his adopted sister. The wife of one of the brothers of the defendant lived with him a part of the time.
At the time of the birth of the child the members of the family of the defendant were sick with the “flu,” and he had difficulty in getting any of the neighbors to render any assistance. The testimony of one witness, a neighbor, as set out in the abstract was in part as follows:
“I saw him again that night at my house; he came over after some milk. I asked him how they were and he said they were pretty sick and he said if someone would go in there and cook for them, that the kids were starving and nobody said nothing. When he went away or just before he went away he said that he guessed they could lay there and kick the bucket. I told him, I says, Now, Tony, if this is a confinement we will go in and help you and do. all we can, but if it is the flu we do not want to run into it. He said nothing. Mrs. Wilson and I went over about 8 o’clock; we did not go in the house at first. I talked with Tony; I said, Now, Tony, you have got to come across, and I said if it is a confinement case, we will go in and help, but if it is the flu we do not want to run into it, and he says it is not time for anything like that yet. He wanted me to get someone to go in there and I went to George Pitcher’s and my wife and I and Bertha Pitcher went back to the Kipers home and went into the house; this was about half past 9; I went into the kitchen and the women went into the room where Hazel was. Anthony said he wanted me to get a doctor We were in the kitchen at the Kipers home when that conversation took place. I went to Mr. Phares and got *Dr. Hurd at Benton but he did not come out. I went back to the house and the baby had been bom. At that time I had a conversation with Kipers, and I says, Tony, you know that you ought not to have done this, and he says, why, and he says, we are married, and I thought then it was none of my business.”
Another witness testified to hearing a statement made by the defendant at a place where threshing was being done, in which the defendant in substance stated that he was having illicit intercourse with some one, not named, at his home. The defendant denied making these statements, but the evidence of the witnesses who testified concerning them, and the undisputed evidence concerning the place of residence of the defendant’s family, and his relationship to them, justified the jury in finding that the offense was committed in Butler county.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from a judgment rendered in favor of plaintiff, J. F. Gigoux, against Charles Griffith, upon a promissory note executed by Griffith to the Denver, Laramie & Northwestern Railroad, which had been transferred to plaintiff. The execution of the note was admitted but defendant alleged that it had been procured through fraudulent representations of the payee, of which the plaintiff had knowledge, and that he was not a holder in due course. There was a further defense that the note was barred by the statute of limitations.
It was executed on September 4, 1911, payable six months after date, and the limitation period expired on March 4, 1917. Plaintiff’s petition was filed on February 26, 1917, and a summons issued thereon was immediately served. After the service and on March 27, 1917, defendant moved to quash the summons on the sole ground that there was no indorsement upon it of the amount for which judgment would be rendered in case the defendant failed to answer. 'Without waiting for the disposition of the motion, the plaintiff on March 31, 1917, caused 'an alias summons to be issued on which the proper indorsement was made. On September 1, 1917, when the motion came on for hearing, the defect in the first summons was confessed and the motion sustained, but the court held that the action had been duly commenced before the bar of the statute of limitations had fallen. The contention of the defendant is that the first summons was void and that the action was not in fact commenced until the alias summons was issued, and it is insisted that when the plaintiff confessed the motion, the ruling sustaining it was a binding finality as to him.
An action is deemed to be commenced at the date of the summons which was served on the defendant, and an attempt to commence an action is equivalent to a commencement, when the plaintiff faithfully, properly and diligently endeavors to procure a service and the attempt is followed by service within sixty days. (Civ. Code, § 19.) As to the defect in the first summons, the pertinent code provision is:
“Where the action is on contract ior the recovery of money, there shall be indorsed on the writ the amount to be furnished in the praecipe, for which, with interest, judgment will be taken, if the defendant fail to answer. If the defendant fail to appear, judgment shall not be rendered for a larger amount and the costs.” (Civ. Code, § 60.)
The indorsement, as will be observed, is only required where the action is on contract for the recovery of money, and is only important in case of a default, and only affects the entry of judgment if the defendant fails to answer. If the defendant ignores the summons and fails to appear the judgment is limited to the amount indorsed on the summons, but if he appears and answers, the provision is without application or effect. While’the plaintiff confessed the motion to quash the first summons, he cannot be regarded to have admitted any more than the defect pointed out in the motion, which was the lack of the indorsement. Before the motion was submitted or confessed the plaintiff had caused the issuance and service of the alias summons. The summons first issued was at least notice to the defendant that an action had been commenced against him and to give the court jurisdiction over him. The omission of the indorsement was an, irregularity, but the process was not void. (Simpson v. Rice, 43 Kan. 22, 22 Pac. 1019; Dusenberry v. Bennett, 7 Kan. App. 123, 53 Pac. 82; Brock v. Francis, 89 Kan. 463, 131 Pac. 1179.) It was certainly sufficient to constitute an attempt to begin an action which under the code is equivalent to the commencement thereof when followed by a faithful, proper and diligent effort to procure service and service is effected within sixty days. Here the alias summons properly indorsed and in legal form was issued and served within the sixty-day period allowed by the code. The action must therefore be deemed to have been commenced at the date of the first summons and at that time the limitation period had not expired.
The next contention is that the evidence shows that the ■plaintiff was not a holder in due course of the note in suit. That claim is based on the alleged fraud of the officers of the Denver, Laramie & Northwestern Railroad Company, and subsidiary companies, in procuring and negotiating the note in suit. The facts in the case are substantially the same as those brought out in two former cases that were here on appeal, and as the applicable rules of law were there fully stated, there is no necessity to restate them in this appeal. (Gigoux v. Moore, 105 Kan. 361, 184 Pac. 637; Gigoux v, Henderson, 107 Kan. 325, 190 Pac. 1092.) It appears that plaintiff gave full value for the note of defendant and acquired it before its maturity. The alleged fraud of the railroad company and those allied with it which were organized to promote the building of a railroad, consisted of representations of the officers and agents of the companies as to the equipment and other property of the railroad company, the purpose for which the money derived from the subscription of defendant and other stockholders was to be used and as to the financial condition of the companies, which were said to- have been false. Whatever may be the fact as to the representations made to secure the subscription note from the defendant, the evidence fails to show that plaintiff had any connection with the financial operation or management of the companies. He purchased some stock in the company, and was induced to make a loan of money to it, to secure which the defendant’s notes and those of others were transferred to him. His connection with the company was that for a time he.acted as a helper to a station agent, a freight checker, and later as an engine hostler. The testimony is that he had no knowledge of any fraud- in procuring the note and that he acquired it- without notice of any infirmity. Acording to the evidence there was little if any grounds even to arouse his suspicions of infirmity, and, as has been decided, the fact that he may have had a suspicion of infirmity and did not use ordinary diligence in following up the suggested facts is not enough to deprive him of the character of a bona fide holder. (Gigoux v. Moore, supra.) The testimony supports the finding of good faith in the transaction on the part of plaintiff and shows that he was a holder in due course.
We find nothing substantial in the objections to rulings on the admission of evidence nor in the exception to the overruling of the motion for a new trial.
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The opinion of the court was delivered by
Mason, J.:
The principal controversy in this case was whether the defendant had been released from the performance of a contract to sell the plaintiff 5,000 bushels of wheat at 64 cents. This issue was decided against the defendant and a judgment was rendered accordingly which was affirmed by this court on appeal. The amount allowed the plaintiff on this account was $1,415 and interest, from which was deducted in the trial court $331.89 and interest because of a balance due upon another contract. This court on the appeal directed a further deduction of $146.58 on a similar claim. (Milling Co. v. Edwards, 108 Kan. 616.) On a motion for a rehearing the defendant urged that by the plaintiff’s own admission he was entitled to a further offset because of shipments he had made upon other contracts in excess of the amount he was required to deliver, the market price being in excess of that agreed upon. A rehearing was granted upon this question, which is now to be determined.
The defendant asserts that where on a sale of wheat the seller delivers more than the round number of bushels specified by his contract the custom is for the excess to be either settled for at the market price, or applied upon any other open contract between the parties; that upon contracts with the plaintiff other than the one for 5,000 bushels at 64 cents the defendant had made net overshipments of at least 1,150 bushels; and that the plaintiff before bringing his action had acknowledged that fact and applied the surplus upon the contract sued upon. The defendant’s answer, however, made no reference to a claim of that character.. It did allege that upon another contract he had shipped 646 bushels more than was required of him, but this was for the purpose of showing that he had not been paid for the full amount shipped. It also included a general denial which he now suggests was sufficient to put in issue the quantity of wheat that remained due under the contract sued on. The defendant’s contention..that his liability upon the 64-cent contract should be reduced by his surplus or overage on the others was first distinctly brought to the attention of the trial court by a request to submit that issue to the jury. The refusal of such an instruction would seem to be justified upon the ground that the issue had not been presented by the pleadings. However, the evidence had developed these facts: On July 25, 1914, the defendant, in a letter to the plaintiff, suggested that he might be helped out on the 64-cent contract by his shipment on another contract having overrun a small amount; and on December 3, 1914, the plaintiff wrote to him in these words, those of especial importance in this connection being here italicized:
“As per our letter and statement of recent date, you will see that all returns are in on cars shipped to export and we have the figures complete, which show a balance in money, account of overdrafts, to the amount of four hundred sixty odd dollars, and the amount of wheat remaining due on the old contract [the one sued upon], after the, overages from the other contracts are figured él, is a/round 3,850 bushels, as these statements will show you. Also please let us know just as near as you can when you will ship the remaining amount of wheat, as we wish to know just what to.expect from you.”
While this letter is not conclusive of the merit of the defendant’s claim in this respect, it tends so strongly in that direction, in the absence of anything to explain away its apparent force, that to deny him a hearing before the j ury upon the matter after it had been developed by the evidence, because of his failure to plead it, might be to apply the general rule with too great rigor. It may doubtless be assumed that the refusal to submit the issue was not based expressly upon the state of the pleadings, or an amendment would have been offered. We conclude that the probability of the final result being in accordance with substantial justice will be promoted by providing for a trial of the overage issue.
The order heretofore made will therefore be modified by this addition: A new trial is. allowed upon the sole issue whether the defendant is entitled to a credit, not to exceed 1,150 bushels, upon the amount of wheat he contracted to furnish at 64 cents, by reason of a net surplus shipped on other contracts, the final judgment to be made to conform to the result of such trial. | [
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The opinion of the court was delivered by
Johnston, J.:
This is an appeal from a judgment of conviction rendered against the appellant for bigamy. It was alleged in the information that—
“ Chastgen Hughes, at the county of Shawnee, in the state of Kansas aforesaid, and within the jurisdiction of this court, on the 21st day of March, 1885, did then and there unlawfully and feloniously marry one Loretta Cavender, and her, the said Loretta Cavender, then and there had for his wife, and the said Chasteen Hughes then and there being a married person, being then and there married to one Mary Hughes, she, the said Mary Hughes, being then and there alive, and the bond of matrimony between the said Chasteen Hughes and Mary Hughes then being still undissolved.”
It is insisted by the appellant that the information is defective in this, that it does not state the time and place of the ®rst mari’iage; and the refusal of the court to quash the information upon that ground, is the firet objection which is made. The objection is not good. There is nothing in the statute nor in the nature of the offense requiring such particularity of averment. The offense, as defined by statute, consists in marrying a second time while the husband or wife of the defendant is still living. That the accused had a wife living at the time he contracted the second marriage, is an essential allegation which should be stated with precision. But information of the exact time and place of the first marriage is not always available to the prosecution, nor is it very important to the defense. It is enough to allege and show that the marriage relation had been entered into and existed between the accused and his first wife at the time of the second marriage. The information clearly charges that the defendant had a wife living at the time of the second marriage, and the first wife is identified and described by name, which is sufficient to apprise him of the particular offense against which he is required to defend. The substantial rights of the defendant upon the merits could not have been prejudiced by the absence of these averments, and the ruling of the court upon the motion cannot be held erroneous. (Crim. Code, § 110; Hutchins v. State, 28 Ind. 34; State v. Bray, 13 Ired. 289; State v. Armington, 25 Minn. 29.)
The principal question presented upon the appeal is the competency and sufficiency of the testimony offered to establish the alleged first marriage of the appellant. This question arises upon an objection to testimony offered by the state of the admissions and conduct of the defendant, with respect to the first marriage, and upon the charge of the court. The learned judge who tried the case refused to charge the jury that there must be proof of a formal celebration of the marriage ceremony, but gave the following instruction:
“The marriage betweeu a man and a woman in this state is a civil contract to which the assent of the contracting parties is essential, and may be proven in this case like any other fact. The evidence of the admissions of the defendant that he and Mary Wheat intended to marry, the defendant's admissions that he and Mary Wheat were married, and the evidence that the defendant and Mary Wheat cohabited together as husband and wife, and that he held her out to his neighbors and friends as his wife, and that there was a child born to them while cohabiting together, tend to prove the fact that the defendant and Mary Wheat were married, and were husband and wife."
The doctrine of this instruction is denied by the appellant, and he contends that the admissions and evidence of cohabitation are inadmissible and insufficient to prove the first marriage until there is introduced some record evidence, or evidence by the officiator, or the testimony of an eye-witness, of the formal solemnization of the marriage; and to support his contention he cites Commonwealth v. Littlejohn, 15 Mass. 163; People v. Humphrey, 7 Johns. 314; State v. Roswell, 6 Conn. 446; People v. Lambert, 5 Mich. 349; State v. Armstrong, 4 Minn. 335. The course of decision upon this question has not been uniform. In the states of New York, Massachusetts, Connecticut, and Minnesota, the rule contended for by the appellant has been held, but the weight of authority and the better reason support the proposition that the acts and declarations of the parties, coupled with cohabitation, are competent evidence to go to the jury in proof off marriage.
Mr. Greenleaf, in discussing the proof necessary to sustain the charge of bigamy, lays down the rule that the first marriage “ may be shown by the evidence of persons present at the marriage, with proof of the official character of the eelebrator; or, by documents legally admissible, such as a copy of the register, where registration -is required by law, with the proof of the identity of the person; or, by the deliberate admission of the prisoner himself” (3 Greenl. Ev., § 204.)
In his work on Criminal Law, Mr. Wharton states that—
“ When the lex fori recognizes, as is the case in all those jurisdictions in which the English common law continues in force, consensual marriages, the admissions of the parties may be received as tending to establish such marriages, whatever may be the weight to which they may be entitled, provided such admissions have not been extorted by force or fraud.” (2 Wharton’s Crim. Law, § 1700.)
As a general rule, the confession of a party voluntarily and deliberately made, is evidence of the highest nature against him. The objections urged against testimony of this character in a prosecution for bigamy, are that the confession may have been lightly made, or stated by parties living in a state of fornication for the purpose of avoiding public censure or public prosecution; but these are reasons which go to the credibility rather than to the competency of the testimony. The force and effect of the testimony are to be weighed and determined by the jury, and depend upon the manner and circumstances under which the confession was made. If ■ it was carelessly stated, or the circumstances under which it was made indicated a purpose to conceal from the public illicit relations existing between the parties, the jury should not, upon such unsupported confession, convict the defendant; but •where it is freely and solemnly made by parties cohabiting together, and frequently repeated to different persons, with no apparent motives to hide the real facts, it is clearly competent to go to the jury, whose province it is to determine its sufficiency. It is direct and positive proof of an actual marriage. Counsel for appellant conceded that a marriage might be proved by a witness present at the ceremony, and certainly a party to a marriage contract who has complete knowledge of the facts is as competent, and his testimony is of as high a nature, as that of a mere eye-witness, who may be mistaken as to the occurrence, the identity of the parties, or their capability to contract marriage. The confession in this case was that the appellant and Mary Wheat were married in Missouri. In that state it is not'essential to the validity of a marriage that there should be any ceremony or formal solemnization of the contract. An agreement entered into in good faith between parties capable of contracting marriage, followed by cohabitation, is there held to be sufficient to constitute a valid marriage, and to subject them to legal penalties for a disregard of its obligations. (Dyer v. Brannock, 66 Mo. 391.)
By the terms of our statute, a marriage which is valid where it is contracted must be held valid in all courts and places in this state. (Comp. Laws of 1879, ch. 61, § 9.) If this marriage was then a mere consensual one, as it might have been, how can it be established? If the parties, by mutual consent, agreed to take each other as husband and wife, and thereafter cohabited as such, without any ceremony, religious or otherwise, how can the rule contended for by appellant be applied? In such a case there would be no record evidence, no officiator, and no eye-witness of the solemnization of the marriage. The best, and in fact about the only evidence, that can be offered to establish such a marriage, is the acts and declarations of the parties themselves. Some of the courts have gone to the extent of holding the bare confessions of the party to be competent and sufficient to establish marriage; but however that may be, the multiplied decisions are such that it may be regarded as the settled doctrine of the American courts, that in prosecutions for bigamy, the deliberate admissions of the defendent of a former marriage, coupled with cohabitation and repute, are evidence tending to prove actual marriage, upon which a jury may convict. (State v. Hughes, 2 Kas. L. J. 395; Warner’s Case, 2 Va. Cas. 95; Wolverton v. The State, 16 Ohio 173; Squire v. The State, 46 Ind. 459; Commonwealth v. Jackson, 11 Bush, 679; Cook v. The State, 11 Ga. 53; Langtry v. The State, 30 Ala. 536; State v. Hilton, 3 Rich. 434; Murtagh’s Case, 1 Ash. 272; Forney v. Hallacher, 8 Serg. & R. 159; The State v. Britton, 4 McCord, 256; Williams v. The State, 54 Ala. 131; Halbrook v. The State, 34 Ark. 511; O’Neale v. Commonwealth, 17 Gratt. 582; The State v. Seals, 16 Ind. 352; Finney v. The State, 3 Head, 544; The State v. Libby, 44 Me. 469; Jackson v. The People, 2 Scam. 231; Commonwealth v. Henning, 10 Phila. 209; West v. The State, 1 Wis. 209; Miles v. United States, 103 U. S. 304.)
About the sufficiency of the testimony to sustain the verdict when assailed in this court, there can be little doubt. The conduct of the defendant, as detailed in the evidence, is strongly corroborative of his repeated and deliberate declarations that he married Mary Wheat in August, 1883. It is in testimony that the defendant was a frequent visitor at the home of Mary Wheat during the summer of 1883, aud that in August of that year he asked and obtained consent of Mary’s father to marry her, and that on the 15th of August, 1883, the defendant and Mary started to Kansas City, Mo., with the avowed purpose of getting married. Both parties subsequently declared that they were there married, and they exhibited a marriage certificate which purported to be duly signed and witnessed, dated August 16, 1883, by which it appeared that they had been married by a Methodist minister of Kansas City, Missouri. They lived together as husband and wife in the cities of Leavenworth, Wyandotte, Kansas City, and Topeka, from August, 1883, until March, 1885. During this time they visited among and were .visited by, their relatives and acquaintances, when the defendant introduced, spoke of and in all respects treated Mary as his wife. On December 13, 1884, while they were living and cohabiting together, a child was born to them. During the same time the defendant applied to become a member of the “Ancient Order of Foresters,” and in the blank application for insurance, the blank being filled out in writing by himself, he designated Mary Hughes as his wife. This application gives the name of the defendant, his age, occupation, and post-office address, and designates his wife as beneficiary, stating her name, age, and condition of health. It is true, there was contrary testimony offered on behalf of the defendant, but as the second marriage was conceded, a finding of guilty on the foregoing testimony will certainly not be disturbed.
It is next contended that the court erred in excluding testimony offered by the defendant. Mrs. Dora Wheat was asked to state “what was said to her by the defendant and her daughter while they were living together as to their relations with one another with reference to being married.” The objection to. this question was properly sustained. It did not appear that the testimony sought for was a part of any conversation called out by the prosecution, nor can it be regarded as a part of the res gestee, but rather as a self-serving declaration of the defendant which was not admissible. The answer of the witness that Mary Wheat lived with the defendant in the relation of mistress instead of wife, was a mere conclusion of the witness, and was also rightly excluded from the jury.
The finql complaint made in the case is, that the court erred in the sentence. When the defendant was first called for sentence, the court inadvertently adjudged him to confinement at hard labor in the penitentiary for a term of six months. This, of course, was erroneous, for no person can be sentenced to confinement at hard labor in the penitentiary for a term less than one year. (Comp. Laws of 1879, ch. 31, § 291.) Within an hour after sentence was pronounced, the attention of the court was called to the mistake, and the prisoner and his coun sel being still in court, the case was again called, and the court proceeded to sentence the prisoner to imprisonment for a term of one year. It does not appear that a formal order was made setting aside the first sentence, but the court pronounced the second sentence upon the same verdict, stating in the record as a reason for its action, that the statute did' not authorize the judgment first pronounced. This was, in effect, a setting aside of the first judgment; and the only formal judgment recorded in the case is the one under which the prisoner is in custody sentencing him to imprisonment for one year. The general rule is that the records of a court may be corrected or revised at any time during the term at which the judgment is rendered. The sentence first pronounced against the defendant was not executed or put into operation,, and “so long as it remained unexecuted, it was, in contemplation of law, in the breast of the court, and subject to revision and alteration.” (Commonwealth v. Weymouth, 2 Allen, 147.) We think it is °learly within the - discretion and power of the courfc until the end of the term, to amend and revise or increase the sentence which had not gone into effect. (1 Bish. on Cr. Proc., § 1298, and cases cited.) As nothing had been done under the sentence first pronounced, and as the final sentence did not impose a penalty in excess of that provided by law, the rights of the defendant were not infringed upon, nor has he any ground for complaint.
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 Leander Davis, in April, 1884, against Patrick Harrington, to have certain tax titles set aside and held for naught. It appears from the record, among other things,,as follows: The plaintiff through proper conveyances holds the original patent title to the east half of the southwest quarter and the west half of the southeast quarter of section 3, in township 13 south, of range 1 west of the sixth principal meridian, in Saline county, Kansas. The defendant through proper conveyances holds title to the property under two tax deeds, one on the east half of the southwest quarter, and the other on the west half of the southeast quarter of said section of land, both tax deeds having been executed on September 10,1883, upon tax sales made on September 7, 1880, for taxes levied upon the land for the year 1879, which tax deeds were'recorded on September 11, 1883. The defendant is in the possession of the property. The case was tried on December 19, 1884, before the court without a jury, and the court took the case under advisement until January 8, 1885, when it made a general finding in favor of the defendant and ¿gainst the plaintiff, and rendered judgment accordingly; and to reverse this judgment the plaintiff brings the case to this court.
In this court the plaintiff makes the following points: (1.) The tax deed for the east half of the southwest quarter of said section is void, because it recites that the land was taxable for the year 1879, and was sold in 1879. (2.) The tax deed for the west half of the southeast quarter of said section is void, because it recites that the land was sold at a sale begun and publicly held “at the county seat of said county.” (3.) The sale itself was void, because of an unlawful combination among the bidders. (4.) The sale was also void for the reason that there was no record evidence of any notice of the sale on file. (5.) The tax deeds are void for the further reason, that the recitals in each of them show that the amount required for the final redemption of the land from the taxes was a less amount than the final redemption notice to the owner of the land showed the same to be.
By agreement of the parties, the record was so amended as to take the plaintiff’s first point out of the case.
The second point made by the plaintiff is, that the tax deed showed that the land was sold by the county treasurer of Saline county “at the county seat of said county,” and did not state or show that the same was sold by him “ at public auction at his office.” In this respect the tax deeds followed the form given by the statute, and there was not the slightegt necessity to deviate from that form in order to make them speak the truth; and hence, in this respect we think the tax deeds were sufficient. (Hobson v. Dutton, 9 Kas. 477, 486.) The sale was in fact made at public auction, and at ijhe treasurer’s office.
The third point made by the plaintiff is, that there was an unlawful combination among the bidders at the tax sale. Now nearly all the evidence, including the evidence of several witnesses, was against this claim of the plaintiff, and ^he coart below found generally in favor of the defendant and against the plaintiff, and therefore found that there was no such unlawful combination. Several witnesses, including the, purchasers of the property in controversy at the tax sale in question, testified positively that there was no combination, nor any agreement or understanding between the bidders that would prevent competition or bidding by any person who desired to bid, and nothing that would render the sale in the least unfair. There was evidence, however, which tended to show that the bidders did' not in fact compete with each other for the purchase of the land; and this resulted principally from the fact that no bidder wanted to purchase the land unless he could get the whole of it for the taxes due thereon. Some of the bidders were speculators, some of them were mortgagees who wished to protect their mortgage liens, and others probably bid for other reasons. This case we think comes within the decision, in the case of Beeson v. Johns, 59 Iowa, 166, 169. In that case the court used the following language:
“ There were three bidders at the tax sale and they did not bid against each other, and this constitutes the only evidence there was of a fraudulent combination. We feel constrained to say this evidence is not, in our opinion, sufficient. Fraud cannot be presumed, but the contrary presumption must be indulged in in the absence of evidence. It might well be that each bidder obtained all the laud he wanted without the necessity of bidding against anyone else.”
\
The plaintiff also claims that the tax sale was void for the reason that there was no record evidence of any notice of the sale on file. Now the tax deeds themselves are prima facie evidence that all things necessary to the validity of the tax deeds were done. And besides, there was ample evidence introduced on the trial to show that such notice was given, that proper proof thereof was made, and that the notice and proof were properly filed as required by law. Afterward, however, such notice and proof were lost or destroyed, and another notice, with proper proof thereof, was substituted therefor. This we think was sufficient. The loss or destruction of the notice and proof first filed does not render the tax sale void, nor the tax deed void; nor does the fact that the notice and proof were at one time lost or destroyed and not on file in the proper office, render any of such tax proceedings ' void. (Watkins v. Inge, 24 Kas. 612, 616.) And further, it will always be presumed, in the absence of anything to the contrary, that public officers do their duty as required by law. (Young v. Rheinecher, 25 Kas. 367, 368; Mix v. The People, 81 Ill. 118.)
The last objection urged by the plaintiff against the tax deeds is, that their recitals show that the amount required for the final redemption of the land from the taxes was a less amount than the final redemption notice to the owner of the land showed the same to be; or, in other words, the tax deeds show conclusively what the amount inquired for the final rel demption of the land was, and the redemption notice required a larger amount, and therefore required too much. Now we do not think that the tax deeds show any such thing. On the contrary, we think they tend to show the reverse. The tax deeds show the amount of the taxes which the holder of the tax titles and his assignor actually paid upon the land, but they do not show the amount which it would take to redeem the land from the taxes at the time when the tax deeds first became due; or in the language of the statute, “ the amount of taxes charged, and interest, calculated to the last day of redemption;” but such amount might with some degree of accuracy be calculated from the amounts which the tax deeds show was actually paid by the holder of the tax deeds and his assignor. If the times of such payments were shown by the tax deeds, the amount could be calculated with absolute certainty; but the times of such payments are not shown. The county clerk, however, when he executed the tax deeds, inserted in each tax deed, as the consideration therefor, the aggregate amount of the taxes paid by the purchaser of each eighty-acre tract of land, without adding any of the costs or interest due thereon. Of course this aggregate amount of taxes paid, without interest or costs, would not be equal to the amount which it would take to redeem the land from the taxes on the last day of redemption, and at the time when the tax deeds became due on the land, which includes all taxes, interest, and costs. But, this failure on the part of the county clerk to state, as the consideration for each of the tax deeds, the ... amount of the taxes paid, with interest and costs, as we think he should do, does not vitiate the tax deeds. This has been expressly decided in the case of Bowman v. Cockrill, 6 Kas. 325, where it is held that the filling of the blank (designated in the statutory form as the place for the statement of the consideration of a tax deed) with an amount less than it should be does not render a tax deed void. We presume the redemption notice was absolutely correct. There is no showing to the contrary.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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.The opinion of the court was delivered by
Valentine, J.;
This was an action brought by James B. Clark against the Missouri Pacific Railway Company, to recover for injuries alleged to have been caused through the negligence of the: railway company. The case was tried before the court and a jury, and the jury found a general verdict in favor of the plaintiff and against the defendant, and assessed the plaintiff’s damages at one dollar; and also made a large number of special findings, upon which special findings the court rendered judgment in favor of the defendant and against the plaintiff for costs, notwithstanding the general verdict. Of this judgment the plaintiff complains, and brings the case to this court for review.
It appears that on April 15, 1882, at about 6 o’clock in the afternoon, while the plaintiff was crossing the defendant’s railway track, going northward on Locust street, in the city of Paola, Kausas, the hind end of his wagon was struck by one of the defendant’s engines, which was attached to and was drawing a westward-bound railway freight train, and that this collision caused the injuries complained of.
There are two principal questions involved in this case:. First, was the defendant guilty of any negligence causing the injuries complained of? Second, was the plaintiff guilty of any contributory negligence? Both of these questions we think have already been virtually decided by this court in the cases of Mo. Pac. Rly. Co. v. Pierce, 33 Kas. 61; and U. P. Rly. Co. v. Adams, 33 id. 427.
The only negligence charged against the railway company in this case is, that it failed to sound the engine whistle three times, at least eighty rods east of a certain point where the railway crosses a public road or street at the east edge of the city of Paola, and claimed to be outside of the city limits. The statute does not require that the whistle shall be sounded in a city or village. (Comp. Laws of 1879, ch. 23, §60.) But it is claimed that the whistle should have been sounded at least eighty rods east of this road or street, for the reason that it was not within the city limits. This road or street was about four hundred and seventy-three feet east of Locust street and of the place where the accident occurred. Now, assuming that the aforesaid road or street was not in the . aüC* ^at the whistle was not sounded at least eighty rods east thereof, still these facts, if they are facts, do not necessarily show negligence on the part of the defendant affecting this case. This exact ques tion has already been decided by this court, in the case of Mo. Pac. Rly. Co. v. Pierce, first above referred to. The accident in that case happened at the very same place where the accident in this case happened, and in that case it was held as follows:
“ The failure of a railroad company to sound the locomotive whistle three times, at least eighty rods from the point where the railroad crosses any public road or street which lies outside of a city or village, is negligence; but such negligence is not attributable to the railway company in a case where the injury complained of was done at a street-crossing within the limits of a city.”
Also,'in that case, the following language was used in the opinion of the court:
“ The purpose of the legislature in requiring this warning to be given before reaching a highway, is manifestly to afford protection to persons or property that may be upon, or passing over such highway, and therefore the omission of the company to comply with this statutory requirement cannot be held to be negligence as to any injury done except at the crossing of the particular highway for which the whistle is required to be sounded. The company owed no duty under this statute to parties crossing Locust street, within the limits of Paola, which is a city of the second class.”
We also think that the questions whether, under the facts of this case, the plaintiff was guilty of contributory negligence, and whether such negligence will bar a recovery, have been virtually decided by the case of the U. P. Rly. Co. v. Adams, 33 Kas. 427. In that case it was held as follows:
“Where an action is brought to recover for personal injury, and the plaintiff's testimony shows that his own negligence contributed directly to the injury, he has failed to make out a prima facie right of recovery, and a demurrer interposed to his evidence should be sustained.
“It is the duty of a person about to cross a railroad track, to make a vigilant use of his senses as far as there is an opportunity, in order to ascertain whether there is a present danger in crossing. A failure to listen, or look, when by taking this precaution the injury might have been avoided, is negligence that will bar a recovery, notwithstanding the negligence of the railroad company in failing to give signals, contributed to the injury.”
The plaintiff was well acquainted with the crossing of Locust street by the railway track. He had lived in that county and near that place for twenty-five years. He had crossed the railway track at that place a great many times, crossing sometimes as often as six times a day. Also, there < J t 7 was a sign put up at that crossing, in plain view, with letters on it saying: “ Look out for the cars.” He, at the time of the accident, was going north. The train which did the injury was coming from the east. The plaintiff, at one time, when he was at a great distance from the railway track, looked toward the east and. toward the railway track, but he did not look toward the east nor toward the railway track at any time after he arrived within 200 feet of the track. During the time while he was approaching the railway track he was looking toward the west. We think the case above cited settles the question that the plaintiff in this case was guilty of contributory negligence, and that he cannot recover.
Of course, presumptively, the general verdict of the jury is a finding of everything in favor of the plaintiff and everything against the defendant; but we know from the special findings of the jury that such was not the intention. We would presume from the general verdict alone, that the jury intended to find that the defendant was guilty of negligence; but from the special findings we know that they did not so intend. Specific questions were put to the jury for the purpose of ascertaining whether the defendant was guilty of negligence, or not, and the jury answered in substance that they could not answer; which was in effect an answer that there was no sufficient evidence introduced to prove negligence on the part of the defendant. And this answer is true. There was no such evidence introduced. It is true there was some evidence introduced on the trial tending to show, and the jury found, that no whistle was sounded eighty rods east of a certain highway claimed to be outside of the city limits; but this evidence and finding merely tended to show negligence on the part of the defendant as toward persons traveling on that highway, and not negligence as to ward persons traveling on Locust street, in the city of Paola, where this accident occurred. Besides, this finding that the whistle was not sounded, was against the preponderance of the evidence. But taking this finding as it is, still the entire evidence tended to prove and the special findings show that the defendant was not guilty of any negligence as toward the plaintiff in this case. Also, from the general verdict alone, we would presume that the plaintiff was not guilty of any contributory negligence; but the evidence and the special findings of the jury show that he was; hence the special findings and the general verdict are inconsistent with each other, and the special findings must govern. (Civil Code, § 287.) Also, we think the special findings in this respect are sustained by the uncontradicted evidence.
The plaintiff in error also complains that the jury were not required to answer all the special questions of fact presented to them. Now we would think that the court below should have urged the jury more strongly than it did to answer properly all these questions; but still, we cannot say that any material error was committed in this respect as against the plaintiff. The jury failed to answer only four of the questions presented to them at the request of the plaintiff, and upon two of these at least the findings should have been against the plaintiff, and not in his favor; and the other two, under the circumstances of this case, were immaterial. Besides, the court sent the j ury out a second time to make findings upon all the questions presented to them. But here the court may have committed a slight error in stating to the jury at that time, among other things, “that if there was any question they could not fairly answer, they might so state.” But whatever error the court may have committed in this respect, we do not think that it could have materially prejudiced any of the rights of the plaintiff. It was rather an error against the defendant than against the plaintiff.
We do not think that any material error was committed against the plaintiff, and therefore 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 petitioner was arrested December 30, 1884, under a warrant issued by the police judge of the city of Leavenworth, upon complaint of the city marshal, charging him with refusing to pay what is known as the road tax, sometimes called the poll tax. Before the police court he moved to quash the complaint, which avbs overruled. Upon the trial, he was adjudged guilty, and assessed to pay a fine of five dollars aud stand committed to the city jail until the fine was paid.'
After being committed to the city jail, these proceedings were instituted, the petitioner alleging that he is illegally held in custody. He claims that there is no power conferred upon cities of the first class to enforce the collection of road taxes by arrest, fine and imprisonment; that if such alleged power has been attempted to be conferred, it is in conflict Avith the constitution of the state: (1) Because taxes are debts, and are therefore within the meaning of the constitutional provision abolishing imprisonment for debt; (2) that § 6 of the bill of rights specifies there shall be no involuntary servitude, except for the punishment of crime, within the state, and the power attempted to be conferred violates this provision; (3) by attempting to confer such power, the legislature has imposed additional qualifications upon the citizen to exercise the right of suffrage; and finally, that the ordinance of the city under which the petitioner was arrested is invalid, because it is in conflict with the general statutes in several respects.
The statutory authority for the ordinance relating to labor on the streets of Leavenworth city, under which the petitioner was arrested, is found in paragraph 34, §11, ch. 37, Laws of 1881, of the act “To incorporate and regulate cities of the first class,” and reads as follows:
“ Each city shall constitute a separate road district, and the mayor and council are authorized and empowered to compel each male resident of said city between the ages of twenty-one and forty-five years to perform two days’ labor of ten hours each, on the streets, alleys or avenues of said city, or in lieu thereof to pay to the street commissioner the sum of one dollar and fifty cents per day. The city clerk shall make out and certify to the street commissioner and city treasurer, on or before the first day of April of each year, duplicate lists of persons registered by him as voters, between the ages of twenty-one and forty-five years, and the street commissionér shall collect the sum of one dollar and fifty cents per day from each person so certified by the clerk, or compel such person to perform two days’ labor on the streets, alleys or avenues of said city. The street commissioner shall, every forty-eight hours, turn over to the city treasurer all moneys collected by him during said time, together with a list of the persons from whom said money was collected, and shall, once every week, make out and deliver to the city treasurer a list of all persons who have performed their two days’ labor on the streets. The city treasurer shall place the money collected by the street commissioner in a special fund, which shall only be applied to the repairs of the streets, alleys or avenues of said city. All work or labor done under the provisions of this section shall be under the superintendence and control of the street commissioner. Each city shall have power to pass all ordinances, and to enforce the same by fine or imprisonment, or both, to carry out fully the provisions of this section.”
The word “section” used in said paragraph 34 must be considered to mean “subdivision or subsection.” The language of the whole paragraph or subdivision taken together will bear no other reasonable construction. The final sentence of subdivision 34 is, “each city ' shall have power to pass all ordinances; and to enforce the same by fine or imprisonment, or both, to carry out fully the provisions of this section.” The preceding sentence in subdivision 34 is as follows: “All work or labor done under the provisions of this section shall be under the superintendence and control of the street commissioner.” In both of these sentences the word “section” is to be construed as meaning “subdivision or subsection.” Said section 11, which contains the enumeration of powers delegated to the mayor and council, embraces forty-three paragraphs or subdivisions, of which subdivision 34 is one.
It was decided by this court, in In re Wheeler, that “the pro vision of the constitution declaring ‘no person shall be imprisoned for debt except in cases of fraud/appües only to liabilities arising upon contract;” therefore road assessments or levies are not debts within the meaning of the constitutional provision abolishing imprisonment for debt. (34 Kas. 96. See also, 1 Desty on Taxation, 9, 10; Cooley on Taxation, 2d ed., 14; Amenia v. Stanford, 6 Johns. 92; Johnston v. Mayor, &c., 62 Ga. 645.)
The power to impose labor for the repair of public highways and streets has been exercised from time immemorial, and comes within the police regulation of the state or city. A commutation of such labor in money in lieu of work, while in the nature of a tax, is not in common speech or in customary revenue legislation, understood as embraced in the term tax. The power to impose this labor is exercised for public purposes, and the general good and convenience .of the community. (Cooley on Taxation, 2d ed., supra; 1 Desty on Taxation, 296; Starksboro v. Town of Hindsburg, 13 Vt. 215; State v. Halifax, 4 Dev. 345; Day v. Green, 4 Cush. 433; 1 Dill. Mun. Cor., 3d ed., § 394.) Such labor has never been regarded or construed by any of the authorities as falling within the terms of the constitution # ^ 0 prohibiting slavery and involuntary servitude. Militia service is also compulsory, and if the theory of the petitioner is correct, such service, when involuntary, is within the terms of § 6 of the bill of rights, and the thirteenth amendment to the constitution of the United States. Such however is not the case, and we do not think that art. 8 of the constitution of this state conflicts in any way with § 6 of the bill of rights or with the thirteenth amendment. There are certain services which may be commanded of every citizen by his government, and obedience enforced thereto; among these services are labor on the streets or highways, and training in the militia. As the performance of work upon an assessment or levy, payable in labor for the repair of roads or streets, is not the kind of involuntary servitude evidently in tended to be embraced within the provisions of the constitution of the state or of the United States, the power to impose such labor by the legislature, or a city acting under its authority, cannot well be questioned.
If it be urged against the exercise of this power, that if the legislature has a right to require a man to work two days upon the road or street, it may compel him to work every day of the year, and thereby make him a slave to the state, the answer is sufficient to say that no such case is before us.
The claim that the levy made payable in labor to keep the streets in repair, which may be commuted in money in lieu of work, is a tax upon the right to vote, is not susta'ined. It is true that no one in a city of the # # first class can vote unless he is registered, but the satisfaction of the levy for street purposes is not a prerequisite of registration. It is not true that the assessment can only be collected from those who register. The statute authorizes cities.of the first class to compel each.male resident between the ages of twenty-one and forty-five years to perform the labor complained of, or in lieu thereof, to pay the sum of three dollars. The list of registration is only one of the means of ascertaining who are liable to work upon the streets of the city, and if a voter fails to register, he is not thereby exempt from the performance of labor upon the street. Section 1 of the ordinance reads:
“Each male resident of the city of Leavenworth between the ages of twenty-one and forty-five years is hereby required in his own proper person each year, upon notice from the street commissioner, his deputy, or an officer appointed for that purpose, to perform two days’ labor of ten hours each on the streets, alleys or avenues of said city, under the direction and control of the street commissioner or his deputies, or in lieu thereof to pay to the street commissioner the sum of one dollar and fifty cents for each day.”
Section 3 reads:
“After the duplicate list of persons registered has been delivered to the street commissioner, he shall, from time to time, as work may in his judgment, or upon the order of the city council, be required to be done, notify the persons upon said list, or so many thereof as may be necessary, to report to him at a time and place in said notice specified, which notice shall be either printed or written, or pay to him at said time and place the amount of money due for any delinquency in work, the same being for not less than one full day’s labor.”
Section 4 also reads :
“ The street commissioner shall also notify all other persons specified in the first section of this ordinance whose names are not included in the list of registered persons, in the same manner as herein provided for persons registered, and such persons shall be subject to all of the provisions of this ordinance, and the names of such additional persons shall be by the street commissioner furnished to the city treasurer.”
It is not shown that the petitioner is a cripple, or unable to perform the work required of him, and therefore the exemption of a disabled person is not before us for determination.
As the legislature has constituted each city of the first class a separate road district, and given such cities full control over the labor to be performed upon its streets, and authorized ordinances to be enacted to enforce the same, such statute is controlling, as it is a substitute for the prior statute, so far as it conflicts therewith. (Laws of 1881, ch. 37; City of Salina v. Seitz, 16 Kas. 143 ; City of Macomb v. Twaddle, 4 Bradw. 254; Fox v. City, 38 Ill. 452.)
The petitioner in the case must be remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The only question to be decided in this case is, whether Win. Schotten & Co., who interpleaded in the action, had a right, under the facts, to reclaim the goods which they had sold to the Emporia Mercantile Association. It is agreed that the goods were sold on credit, and that after the sale and before their arrival at the point of destination the consignee became insolvent. The right of the vendors to repossess themselves of the goods at any time while they were on the road and prior to their arrival at Emporia is conceded. But it is claimed that because the goods had reached the point to which they were shipped, and had been unloaded from the cars and placed in the wai’ehouse of the railroad company, the transitus was at an end, and the vendors’ right of stoppage was extinguished. The right of stoppage in transitu is not so limited an one as the plaintiffs would make it. It is one which the law favors, and is said to be founded upon the just principle that one man’s property shall not be applied in payment of another man’s debts, and the courts have been inclined to encourage rather than to réstrict the exercise of the right. The general rule is that the vendor may resume possession of the goods at any time before they actually reach the possession of the vendee. This rightuóntinues in the vendor not only while the goods are be-' ing carried to the place of consignment, but may be exercised at any time until the delivery to the vendee or his agent has been completed. The unloading of the goods and the placing of them in the warehouse of the railroad company does not necessarily terminate.the transitas, nor put an.end to the right of stoppage; so long as they remain in.the hands of the carrier or middlemen as such, the right does not cease. There may be cases where the possession of the carrier or warehouseman, after the final destination is reached, will, owing to the agreement of the parties, or the special circumstances of the case, be regarded as the possession of the vendee, and so put an end to the vendor’s right of stoppage. But where goods are consigned and shipped in the ordinary way, and the railroad company which brings them to the point of delivery, in performance of its duty as carrier, unloads and places the goods in its warehouse awaiting the payment of fpgjg^ charges before delivery to the vendee, the presumption will be that the goods are still in transit, and that the right of stoppage yet remains in the vendor.
In an Ohio case quite analogous to the one at bar, certain goods that had been consigned and shipped in the usual way, were transferred by the railroad company to its warehouse at the station to which the goods were. consigned, and near to which the vendee resided and did business, there to await the payment by him of the charges thereon as a.condition precedent to their removal and delivery at his business house, and it was held that the transfer did not ipso facto constitute a delivery of possession to the vendee, but was to be regarded as a reasonable exercise of the duty by the carrier in the course of their transit, and as connected with the original employment of the company as agent of the vendor to transport and deliver, and therefore did not preclude the vendor’s right of stoppage in transitu. It was recognized that in some instances the carrier or middleman might become the agent of the vendee and hold possession for the vendee, but it was said that such “agency will not be implied from the carrier’s original employment, and can arise only by showing affirmatively some arrangement or understanding to that effect other than the general words of an ordinary consignment.” ( Calahan v. Babcock, 21 Ohio St. 281.)
There is.no conflicting authority upon the question presented here, and no necessity for a review of the decided cases. Among many others which might be cited in support of the views expressed, we refer to the following: Rucker v. Donovan, 13 Kas. 251; O’Neil v. Garrett, 6 Iowa, 480; Buckley v. Furnis, 15 Wend. 137; Covell v. Hitchcock, 23 id. 611; Harris v. Pratt, 17 N. Y. 249; Loeb v. Peters, 63 Ala. 243; Newhall v. Vargus, 13 Me. 93; Inslee v. Lane, 57 N. H. 454; Hoover v. Tibbitts, 13 Wis. 79; Atkins v. Colby, 20 N. H. 155; Blackman v. Pierce, 23 Cal. 508.
The record of this case discloses nothing from which we might infer that the carrier was the agent of the vendee. The goods were sold and consigned in the ordinary course of business between merchants, and when they arrived at Emporia they were taken out of the cars by the railroad company and placed in its warehouse, and there held in its character as carrier to await the payment of charges and a delivery to the consignee; The railroad company had not delivered the goods to the vendee, and in that respect its duty as carrier was incomplete. . The freight was never paid, nor have the goods ever reached the pos'session of-the vendee. The trausitus, therefore, had not terminated, and the vendor’s right of stoppage continued notwithstanding the seizure made under the .attachment sued out by the plaintiff. The cause was rightly decided by the district court, and its judgment will be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Gr. C. Hixon and A. W. Pettibone, partners as Gr. C. Hixon & Co., in the district court of Atchison county, against William Sanderson, James P. Tracy, and John A. Tracy, partners as Sanderson & Tracy, and John Seaton, to foreclose a mechanics’ lien for the value of materials furnished by the plaintiffs, as sub-contractors, to Sanderson & Tracy, the contractors, and placed in a building upon land owned by Seaton. On April 13, 1880, the building was completed. On May 6,1880, the plaintiffs filed in the proper office their affidavit for a lien upon the land on which the building was situated, and on the same day commenced an action in the district court against the aforesaid defendants to foreclose such lien, which action was consolidated with three other cases of like character, brought by other plaintiffs against the same defendants. On August 4, 1881, this consolidated action was tried, and in such action judgment was rendered in favor of the plaintiffs, G. C. Hixon & Co., and against Sanderson & Tracy, for the amount of their claim against them; and judgment was further rendered against the plaintiffs G. C. Hixon & Co. and in favor of Seaton, denying their right to foreclose their lien, upon the ground and for the reason only that the plaintiffs had commenced their action prematurely and within less than sixty days after the completion of said building. This judgment was afterward affirmed by the supreme court. (McDonald v. Seaton, 27 Kas. 672.) On May 29, 1882, this present action was commenced. The plaintiffs’ petition set forth the foregoing, among other facts. To this petition the defendant, John Seaton, demurred, upon the ground that the petition did not state facts sufficient to constitute a cause of action. This demurrer was overruled by the court. The defendant, John Seaton, then filed an answer to the plaintiffs’ petition, setting forth in substance: First, a general denial; second, a special denial as to the ownership of the property; third, a plea of a former adjudication of the matter in controversy; fourth, a plea of a certain statute of limitations. The plaintiffs replied to this answer. The other defendants made default. On July 22, 1884, this action was tried upon the foregoing pleadings before the court without a jury, and the court found special conclusions of fact and of law, and upon these conclusions rendered judgment in favor of the plaintiffs- and against the defendant Seaton for the foreclosure of plaintiffs’ lien, and all the defendants, as plaintiffs in error, have brought the case to this court. The only controversy, however, in this court, is between the plaintiffs, G. C. Hixon & Co., who are now defendants in error, and Seaton.
It is claimed that the court below erred in overruling the demurrer of the defendant Seaton, and also erred in its conclusions of law. But the real questions presented by counsel are as follows: (1.) Is the judgment rendered in the first action brought by G. C. Hixon & Co. a bar to the prosecution of this present action? (2.) Is this present action barred by the one-year limitation prescribed by §4 of the mechanics-lien law? (3.) Is the description of the property, as set forth in the plaintiffs’ statement for a lien, sufficient, or is it too indefinite and uncertain? These questions we shall consider in their order.
I. Is the judgment rendered in the first action a bar to the prosecution of the present action ? Does such j udgment amount in effect to a “res cidjudiecita” f We think not. Such judgment was nothing more than that the first action as between the plaintiffs, G. C. Hixon & Co./and John Seaton, for the foreclosure of the plaintiffs’ lien, was brought prematurely; that it was brought within less than sixty days after the completion of the building, which, under the statutes, is too soon, (Mechanics-lien law, § 2; Comp. Laws of 1879, ¶4169.)
II. Is the present action barred by the one-year- limitation prescribed by § 4 of the mechanics-lien law? We think not. That limitation requires that an action to foreclose the lien shall be commenced within one year after the building has been completed; but it also provides that “the practice, pleadings and proceedings in such action shall be in conformity with the rules prescribed by the code of civil procedure, so far as the same are applicable.” . (Comp. Laws of 1879, ¶ 4171.) And § 23 of the code of civil procedure reads as follows :
“Sec. 23. If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or if he die and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure.”
It is claimed by counsel for Seaton that the words “ within due time,” as used in the foregoing section, mean a time within which the action may be prosecuted, a time not too soon nor too late, and mean only such time; and therefore that as the first action was commenced prematurely and before the action could have been prosecuted as against Seaton, the action was not commenced “within due time,” and therefore that this action does not come within the saving clause of said § 23. We do not think that the words “within due time,” as used in the foregoing section, have the full meaning which counsel for Seaton claim they have. These words are used with reference to the full running of statutes of limitations and the absolute barring of actions thereby, and not with reference to anything else. All that they require to bring the action within said § 23, is that the action shall be commenced before any statute of limitations has barred a recovery. If the action is commenced before it has been barred by any statute of limitations, then it is commenced “within due time” within the meaning of the foregoing section; but if it is not commenced until after it has been barred, then it is not commenced “ within due time.” In the present case this second action was brought within less than one year after the plaintiffs’ failure in the first action in the district court, and within less than one year after their failure and the affirmance of the judgment in the supreme court; and hence we do not think that this present action is barred by the limitation prescribed by'§4 of the mechanics-lien law.
III. Is the description of the property, as set forth in the plaintiffs’ statement for a lieu, sufficient, or is it too indefinite and uncertain ? This statement describes the property as being in the city of Atchison, Kansas, and the property upon which the aforesaid building was erected, and as owned by John Seaton, and as “lots 15 and 16, block A A, corner Q, and South Fourth streets.” "We think the description is amply sufficient under the findings of the court. The description is true in every particular; no other property answers to this description, and the property may easily be found by anyone who may be acquainted with this description and with the facts which exist, and which may easily be ascertained upon inquiry. Such a description, when it can be so aided by existing facts, is always sufficient. The property is in the corporate limits of the city of Atchison, although it is also in an addition to that city, south of the original boundaries of the city, and is usually described or designated as “ South Atchison.” In such addition there is a block designated as “A A,” and there is no such block in any other part of the city, or in any other addition thereto. The'Southwest corner of said block A A is at the northeast corner of the intersection of Fourth and Q, streets, and the last-named street is situated wholly within the foregoing “South Atchison” addition, and there is only one “.Fourth street” in Atchison, apart of which is in “South Atchison,” and of course “South Fourth street” must be in “South Atchison.” The description of the property contained in the deed of conveyance under which John Seaton claims, is as follows:
“That part of block A A of South Atchison, [an addition to the city of Atchison,] commencing at the southwest corner, running 75 feet north, thence 150 feet east, thence 75 feet south, thence 150 feet west, to the place of beginning, said plat of ground being known-on the official plat of the city of Atchison as .lots 15 and 16, of block A A.”
"We presume that lots 15 and 16, in block A A, South Atchison, have well-defined and well-known or easily-ascertained boundaries, and that such boundaries are specifically shown by the official plat. There is certainly nothing in the record showing the contrary.
Finding no material error in the rulings or judgment of the district court, its judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment, brought by Charles Hayden against E. D. Rose for the' recovery of lots numbered 100 and 102, on Wisconsin avenue, in the city of Holton. The case was tried before the court, without a jury, and the court made a general finding in favor of the plaintiff and against the defendant, and rendered judgment accordingly; and to reverse this judgment the defendant brings the case to this court.
In the court below the plaintiff claimed to hold the absolute title, legal and equitable, to lot No. 100, and claimed to hold the paramount equitable title todot No. 102, admitting that the defendant held the legal title to that lot, but claiming that the defendant held such title in trust for the plaintiff; on the other side the' defendant claimed to hold the entire title, legal and equitable, to both the lots. The facts of the case appear to be substantially as follows: In September, 1883, Mary_ Dihle owned the patent title to both the lots in controversy, and the plaintiff, desiring to purchase the same, employed as his agents in the negotiations therefor the defendant and J. H. Chrisman, who were partners doing business at Holton, Kansas, as real estate agents, under the firm-name of Rose & Chrisman. Pursuant to this employment, Rose & Chrisman wrote to Mrs. Hihle, and ascertained that her price for the lots was $150, which fa#t they reported to the plaintiff. In the meantime the plaintiff had learned that there was an out- . standing tax title on lot No. 100, which fact he communicated to his agents, Rose & Chrisman, and instructed them to write again to Mrs. Dihle, informing her of that fact, and instructed them to ascertain from her whether she would not take less than $150 for her title to the lots. This they agreed to do. The entire agreement between the plaintiff and Rose & Christ man was in parol. The plaintiff then purchased the outhJ^standing tax title to lot No. 100, and had the deed therefor executed to S. K. Linscott, and the plaintiff then left the state and was absent for about three weeks. On his return he called upon the defendant, Rose, to ascertain what had been done concerning the lots, and Rose then informed him that he had purchased the lots for himself, taking the deed therefor in his own name, and had paid therefor $85. The plaintiff then informed Rose that he owned the outstanding tax title on lot No. 100; that although the title was ill Linscott’s name, yet that Linscott had no real interest therein, but simply held the title to the lot for the benefit of the plaintiff. The plaintiff then tendered to Rose $110, and also tendered to him a deed, and demanded that he should convey the title to the lots to the plaintiff; but Rose refused. Afterward, and on October 30,1883, Linscott executed a quitclaim deed for lot No. 100 to the plaintiff, and the plaintiff then brought this action for the recovery of both the lots. The plaintiff has at all times kept his tender good.
In this state, the action of ejectment is an equitable remedyj as well as a legal remedy, and in such action the party hold-1 the paramount title, whether legal or or or partly one and partly the other, may recover. The only question, then, for us to consider in this case is, which has the paramount title to the property in controversy—the plaintiff, or the defendant? That the defendant with his partner was the agent of the plaintiff to carry on negotiations for the purchase of the lots in controversy for the plaintiff, there can be no question, and but little question as to the nature and charagter of the #gency. The defendant, with his partner, was simply to carry on negotiations for the purchase of the lots, under the directions and instructions of the plaintiff and for the plaintiff. Under such circumstances, could the defendant purchase the property for himself, in his own name and with his own money, and take the title to himself, without becoming a trustee for the plain-0pp[011 0f plaintiff, and holding the legal title to the property merely in trust for the plaintiff, and until the plaintiff should repay him the amount which he had expended in the purchase of the property and reasonable compensation for his services? . Except for the statute of frauds, which we shall hereafter consider, we think he could not. (Krutz v. Fisher, 8 Kas. 90; Fisher v. Krutz, 9 id. 501; Lees v. Nuttall, 1 Russ. & M. Ch. 53; same case, on appeal, 2 Myl. & K. Ch. 819; Taylor v. Salmon, 4 Myl. & Cr. Ch. 134; Heard v. Pilley, 4 Ch. Ap. L. R. 548; Massie v. Watts, 10 U. S. 148; Winn v. Dillon, 27 Miss. 494; Wellford v. Chancellor, 5 Gratt. 39; Church v. Sterling, 16 Conn. 38|; Rhea v. Puryear, 26 Ark. 344; Sweet v. Jacocks, 6 Paige’s Ch. 355, 364; Matthews v. Light, 32 Me. 305; McMahon v. McGraw, 26 Wis. 615; Barziza v. Story, 39 Tex. 354. See also the various cases hereafter cited.)
But can the statute of frauds make any difference? Under the authorities cited by the defendant, plaintiff in error, he claims that it not only can but does. Under such authorities he claims that the plaintiff has no remedy and is pot entitled to any relief. The following are the principal authorities cited by the defendant: 2 Sugden on Vendors, ch._21, § 1, ¶ 15, 8 Am. ed. from the 14 Eng. ed.; 2 Story on Eq. Jur., § 1201a; Bartlett v. Pickersgill, 1 Eden, 515; same case, 4 East, 577, in note to King v. Boston; Burden v. Sheridan, 36 Iowa, 125; Allen v. Richard, 83 Mo. 55; Botsford v. Burr, 2 Johns. Ch. 405; Nixon’s Appeal, 63 Pa. St. 279; Steere v. Steere, 5 Johns. Ch. 1; Perry v. McHenry, 13 Ill. 227; Walter v. Klock, 55 id. 362; Watson v. Erb, 33 Ohio St. 35; Pinnock v. Clough, 16 Vt. 500; Hidden v. Jordan, 21 Cal. 92.
Under the authorities cited by the plaintiff, it is claimed that the statute of frauds makes no difference. It is claimed . that with or without the statute of frauds a trust resulted by operation of law in favor of the plaintiff, and that the defendant simply holds the legal title to the property in trust for the plaintiff. The principal authorities cited by the plaintiff, in addition to those which we have already cited for him, are the following: Chastain v.Smith, 30 Ga. 96; Cameron v. Lewis, 56 Miss. 76; Gillenwaters v. Miller, 49 id. 150; Sandford v. Norris, 4 Abb. (N. Y.) App. Dec. 144; Parkist v. Alexander, 1 Johns. Ch. 394; Wood v. Rabe, 96 N. Y. 414; Burrell v. Bull, 3 Sandf. (N. Y.) Ch. 15; Bennett v. Austin, 81 N. Y. 308; Hargrave v. King, 5 Ired. (N. C.) Eq. 430; Kendall v. Mann, 93 Mass. 15; Jackson v. Stevens, 108 id. 94; McDonough v. O’Niel, 113 id. 92; Sandfoss v. Jones, 35.Cal. 481; Snyder v. Wolford, 33 Minn. 175; Soggins v. Heard, 31 Miss. 426; Seichrist’s Appeal, 66 Pa. St. 237; Peebles v. Reading, 8 Serg. & R. 484; Onson v. Cown, 22 Wis. 329; Bryant v. Hendricks, 5 Iowa, 256; Bannon v. Bean, 9 id. 395; Judd v. Moseley, 30 id. 424; Jenkins v. Eldredge, 3 Story, U. S. C. C., 183, 288 to 290; Baker v. Whiting, 3 Sumner, 476, 482, et seq.; Rothwell v. Dewees, 67 U. S. 613; Cave v. Mackensie, 46 L. J. Ch. Div. 564; 37 L. T. N. S. 218; Fisher’s Eng. Digest for the year 1877, 400; McCormick v. Grogan, 4 Eng. & Irish Appeals, L. R. 97; Bond v. Hopkins, 1 Sch. & Lef. (Eng.) 433; Dale v. Hamilton, Hare’s Ch. (Eng.) 369.
The statute of frauds upon which the defendant relies will be found in §§ 5 and 6 of the act of the legislature of Kansas relating to frauds and perjuries. The statute, so far as it is necessary to quote it, reads as follows:
“Sec. 5. No leases, estates, or interests, of, in or out of lands, exceeding one year in duration, shall at any time hereafter be assigned or granted, unless it be by deed or note, in writing, signed by the party so assigning or granting the same, or their agents thereunto lawfully authorized, by writing, or by act and operation of law.
“Sec. 6. No action shall be- brought whereby to charge a party, . . . upon any contract for the sale of lands, ten ements, or hereditaments, or any interest in or concerning them, . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof) shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.”
The statute relating to trusts and powers, so far as it is necessary to quote it, reads as follows:
“Sec. 1. No trust concerning lands, except such as may arise by implication of law, shall be created, unless in writing, signed by the party creating the same, or by his attorney thereto lawfully authorized in writing.”
The statute relating to conveyances, so far as it is necessary to quote it, reads as follows:
“Sec. 8. Declarations or creations of trust or powers, in relation of real estate, must be executed in the same manner as deeds of conveyance; but this provision does not apply to trusts resulting from the operation or construction of law.”
It will be seen from a reading of § 5 of the act relating to frauds and perjuries, § 1 of the act relating to trusts and powers, and § 8 of the act relating to conveyances, that all interests in real estate which may arise or be created “ by- act and operation-of law,” or which “ may arise by implication of law,” and “trusts resulting from the operation or construction of law)” are not within the statutes requiring a writing for the creation of interests in real estate; and hence it would seem that these statutes cannot apply to the present case; for the plaintiff in the present case does not claim to have any inter-j est in the real estate in controversy, except such as arises byl S, operation of law. He does not claim any interest in the real' ~ estate in controversy by virtue of the express terms of any cones' tract, written or oral. There was no contract, written or oral, « that purported to transfer the property, or any interest therein, to the plaintiff. Nor did the plaintiff employ the defendant .* to take or hold the title to the property, either for the plaintiff or for the defendant, nor with or without the defendant’s own money. He simply employed the defendant by a simple parol contract to negotiate for the purchase of the real estate for the plaintiff, and of course the plaintiff expected to pay for it himself, and to take the title to himself, and to take such title by a formal and valid written instrument; and when the defendant took the title in the defendant’s own name, instead of following the terms of the contract between himself and the plaintiff, he violated the terms of his contract, and abused the confidence reposed in him by the plaintiff. Under the contract as it was actually made, (and it was a parol contract which did not in terms give the property to the plaintiff,) and under the facts and circumstances connected with the contract, and with the parties to the contract before and afterward, and with the'property in dispute, all that the plaintiff claims is merely that which results to him through the operation of law. We think it is clear that § 5 of the statute of frauds cannot apply to this case. But can § 6 of the statute of frauds so >pply? It is difficult to see how even §6 can ,apply. The contract between the plaintiff and the defendant, j constituting the defendant the agent of the plaintiff, was not I “ a contract for the sale of lands, tenements or hereditaments, I or’any interest in or concerning them,” but' it was simply a T contract making the defendant an agent to negotiate for the | purchase of lands, tenements and hereditaments, and interests in and concerning them; and while § 5 of the statute, which contemplates- an absolute transfer of an interest in real estate, requires that the authority of an agent, empowered to transfer the same, shall be in writing, yet § 6 of the statute, which merely contemplates a simple contract for the future transfer of some interest in real estate, does not require that the authority of the agent shall be in writing. There is a marked distinction between the language of the two sections. Even a contract giving authority to an agent to make a contract for the sale of real estate need not be in writing, under §6.(1 Reed on Statute of Frauds, § 379, and cases there cited; Rottman v. Wasson, 5 Kas. 552; Butler v. Kaulback, 8 id. 669, 675, 676; Ayres v. Probasco, 14 id. 187, 188.) And certainly a contract ; authorizing an agent to make a contract for th o purchase of real estate need not be in writing. In our opinion, neither § 5 nor § 6 of the statute of frauds can apply to this case.
The principal defect, as we think, in the reasoning of the defendant, is in his not making any distinction between trusts or interests in real estate which are expressly created by the terms of the parol contract itself, and trusts or interests which arise from facts and circumstances which sometimes include a parol contract, but which arise from such facts and circumstances only by implication or operation of lawf and the authorities which he cites are, so far as they are applicable to this case, and so far as they maintain the doctrine which he urges, alike defective; and indeed, we do not think that they truly state the law. The defendant and his authorities also make the mistake of supposing that the statute of frauds may be used as an instrument of fraud. Such was not the intention of the legislature. The intention of the legislature in enacting the statute was to prevent fraud, and the statute should be enforced in its spirit and not merely as to its letter.
The first and leading case upou which the doctrine of the defendant rests is the case of Bartlett v. Pickersgill, reported in 1 Eden, 515, and 4 East, 577; but the authority of that case has been denied, and we think overruled, even in Eng-'-^’ land. It was decided in 1760, and in 1829 it was held, in the case of1 Russ. & M. Ch. 53, that “if an agent employed to purchase an estate becomes the purchaser for himself, he is to be considered as a trustee for his principal.” And this case was affirmed in 1834, in Lees v. Nuttall, 2 Myl. & K. Ch. 819; and this was a case where the agency was created wholly and entirely by parol. In the case of Heard v. Pilley, 4 Ch. Ap., L. R., 548, 552, which was decided in 1869, it was held that'“a contract for the purchase of land made by an agent will be enforced, although the agent be appointed merely by parol;” and in that case Lord Justice Selwyn used the following language:
“I cannot at all accede to the argument urged in reply, that under these circumstances when the agent goes to the principal and says, ‘ I will go' and buy an estate for you/ it is not a fraudulent act on his part afterward to buy the estate for himself and to deny the agency. I think that would be an attempt to make the statute of frauds an instrument of fraud.”
In the same case Lord Justice Gifford used the following-language :
“I cannot help adding, as regards the case of Bartlettv. Piokersgill, that it seems to be inconsistent with all the authorities of this court which proceed on the footing that it will not allow the statute of frauds to be made an instrument of fraud.”
In the case' of Bond v. Hopkins, 1 Schoales & L. 433, which was decided in 1802, the Lord Chancellor uses the following language :
“ The statute of frauds says that no action or suit shall be maintained on an agreement relating to lands which is not in writing, signed by the party to be charged with it, and yet the court is in the daily habit of relieving, where the party seeking relief has been put into a situation which makes it against conscience in the other party to insist on the want of writing so signed, as a bar to his relief.” »
In the case of Cave v. Mackensie, above cited, which was decided in 1877, it was held that—
“A contract for the purchase of land made by an agent in his own name, vests the equitable estate in the principal, and may be established by him against the agent and persons claiming under him, although the agent is appointed merely by parol.”
See also the other English and Irish cases above cited. On the other hand, Mr. Sugden, in his work on Vendors, vol. 2, ch. 21, § 1, ¶ 15, 8th Am. ed., from-the 14th Eng. ed., follows the case of Bartlett v. Pickersgill, and uses the following language :
“Where a man merely employs another person by' parol as an agent to buy an estate, who buys it for himself and denies the trust, and no part of the purchase-money is paid by the principal, and there is no written agreement, he cannot- compel the agent to convey the estate to him, as that would be directly in the teeth of the statute of frauds.”
Upon the authority of Mr. Sugden, and the case of Bartlett v. Pickersgill, Mr. Story, in his work on Equity Jurispru dence, vol. 2, § 1201a, uses very nearly the same language as Mr. Sugden. Mr. Story’s statement was inserted in his work on Equity Jurisprudence as early as 184% and it may have been inserted therein at an earlier period of time. And while it may be good law as long as it is confined to parol express trusts, it cannot be good law if it be extended to trusts arising merely by implication or operation of law. The objection to this statement is that its language is too broad and covers cases which cannot properly come within its terms. The following from Mr. Story, enunciated by him at a later period of time, more truly states the law. In 1844, Mr. Story, as judge of the U. S. circuit court'for the first circuit, and in the case of Jenkins v. Eldredge, 3 Story, 289, 290, uses the following lan-
“It appears to me that here a confidential relation of principal and agent did exist; and that being once shown, it disables the party from insisting upon the objection, that the trust is void, as being by parol. The very confidential relation of principal and agent has been treated as for this purpose, a ease sui generis. It is deemed a fraud for an agent to avail himself of his confidential relation to "drive a bargain,' or create an interest adverse to that of his principal in the transaction; and that fraud creates a trust, even when the agency itself may be, nay, must be, proved only by parol.' Bartlett v. Pickersgill, (1 Eden, R. 515;) S. C. 1 Cox R. 15; 4 East, R. 577n, and Leman v. Whitley, 4 Russ. R. 423, are, I admit, against this doctrine,—not wholly, but to a limited extent; for the latter case excludes a case of fraud. Butthen Lees v. Nuttall (1 Russ and Mylue, R. 53) expressly decides, that if an agent employed to purchase an estate, purchase for himself, and on his own account, he becomes a trustee for the principal. In that case the whole agency and trust was made out b)T parol, and the purchase was from a third person? Carter v. Palmer (11 Bligh, R. 397, 418, 419) goes the full length of the same proposition.”
Also, Mr. Browne, in his work on Frauds, § 96, uses the following language:
“ It seems to have been held that where, in a' case of trust arising upon an agency, the defendant’s answer denied the fact of agency, parol evidence was inadmissible to prove it; but the later English cases favor a contrary doctrine.”
(See also Browne on Frauds, § 84.)
In the case of Chastain v. Smith, 30 Ga. 96, 97, it was held that—
“ Where one person agrees, as agent, to buy land for another as his principal, and does buy it, but takes the title in his own name, this title in his hands stands affected with a resulting trust for the benefit of the principal by operation of law, and the case is not within the statute of frauds, resulting trusts being expressly excepted from the operation of the statute.^
. And Mr. Justice Stephens, in delivering the opiniou of the court, uses the following language:
“The only question presented in this case is, whether or not the statute of frauds is in the way of the specific performance prayed by Mr. Chastain. In the first place, this case was never within the statute of frauds. Thesubstance of the agreement, so far as that particular part of the land to which Mr. Chastain seeks a title is concerned, is that the Smiths would, as his agent, buy it for him. They did, in fact, buy it, but took a title to themselves. This title in their hands was immediately affected with a resulting trust for his benefit by operation of law. Now, a trust raised, or resulting by operation of law, is expressly excepted from the operation of the statute, and this case therefore was not within the statute from the beginning.”
In the case of Wood v.Rabe, 96 N. Y. 414, 425, 426, Judge Andrews, in delivering the opinion of the court, uses the following language:
“There are two principles upon which a court of equity acts in exercising its remedial jurisdiction, which taken together, in our opinion, entitle the plaintiff to maintain this action. One is that it will not permit the statute of frauds to be used as an instrument of fraud; and the other, that when a person through the influence of a confidential relation acquires title to property, or obtains an advantage which he cannot conscientiously retain, the court, to prevent the abuse of confidence, will grant relief. .... The principle, that when one uses a confidential relation to acquire an advantage which he ought not in equity and good conscience to retain, the court will convert him into a trustee, and compel him to restore what he has unjustly acquired, or seeks unjustly to retain, has frequently been applied to transactions within the statute of frauds.”
It seems to be admitted by the defendant, and also by the authorities which he cites, that where the principal advances the purchase-money to the agent, and the agent then purchases the property in his own name and for himself, a trust would result in favor of the principal, and the agent would hold the property merely in trust for the principal. But the defendant claims, and the authorities cited by him seem to sustain him, that as the plaintiff in this case did not advance any of the purchase-money, and that as the defendant purchased the property with his own money, no such resulting trust has arisen or could arise. Of course where the purchase-money is advanced by the principal to the agent, and the agent then purchases the property with his ju'incipal’s money, and in his own name, it makes out a stronger case of resulting trust than where the agent himself advances the purchase-money; but the fact that the principal advances the purchase-money cannot be the controlling fact in the case. Many authorities hold that where the agent furnishes the purchase-money with the consent of the principal, it will be considered as a loan, and the agent will hold the property purchased in trust for his principal, and as a security to himself for the money advanced by him. (Kendall v. Mann, 93 Mass. 15; Sandfoss v. Jones, 35 Cal. 481; Soggins v. Heard, 31 Miss. 426.) Also, in many cases, the principal may have an interest in the property before he employs the agent to make the purchase, and may simply employ the agent to purchase for the principal an outstanding adverse title, for the purpose of bolstering up or protecting the principal’s own title. This outstanding adverse title may be very good or very bad; but whether good or bad, the doctrine cannot at all be tolerated that tjhe agent may, in violation of his duties as agent, purchase for himself the outstanding adverse title, and hold the same adversely to his principal, merely because his principal has not advanced the purchase-money, when, in fact, at the time of the employment of the agent the amount of the purchase-money could not be at all known. The question of the advancement of purchase-money in such a case should not have much weight. And in this connection it might be well to remember that the plaintiff in this case had an interest in the property in controversy at the time when the defendant purchased the same, although it is possible that the defendant may not have known of such interest. The plaintiff held a tax title in the name of S. K. Linscott, on one-half of the property in controversy, to wit, on lot No. 100, at the time the defendant purchased the two lots. And here the question may arise: Is it material whether the defendant did have any knowledge of the plaintiff’s interest in the property, or not ? Was the plaintiff bound to divulge his interest in the property to his agent, in order to protect his own rights and interests as against his own agent, and to prevent his own agent from acting adversely to him, and from perpetrating a fraud upon him? This question must certainly be answered in the negative. The principal is entitled to the services which the agent has agreed to perform, without divulging to the agent all his reasons and the necessities which prompted him to make the employment. A contract which has for its object the actual sale of real estate and the transfer of the title thereto by the terms of the contract itself, is of course within the statute of frauds, and it is generally held in such a case that the payment of the purchase-money alone cannot take the contract out of the statute of frauds. (4 Kent’s Com., p. 451, Browne on the Statute of Frauds, §461.) In such a case, the payment of the purchase-money does not seem to count for much. Something else must be done in order to take the contract out of the statute. And we do not think that the payment or non-payment of the purchase-money in this case should count for much. We think the trust nevertheless resulted. The controlling ques- .... . , tion m this case is not whether'the principal ad-advanced the purchase-money or not, but it is whether in equity and good conscience the agent who in fact purchased the property with his own money in his own name, in violation of his agreement with his- principal and in abuse of the confidence reposed in him by his princijjal, can be allowed to retain the fruits of his perfidy. The weight of authority is, -we think, that he cannot. (Sandford v. Norris, 4 Abb. N. Y. Ct. of App. 144; Wellford v. Chancellor, 5 Gratt. 39; Onson v. Cown; 22 Wis. 329; Winn v. Dillon, 27 Miss. 494; Cameron v. Lewis, 56 id. 76; Gillenwaters v. Miller, 49 id. 150; Chastain v. Smith, 30 Ga. 96; Heard v. Pilley, 4 Ch. App. L. R. 548; Lees v. Nuttall, 1 Russ. & M. Ch. 53; same case, affirmed on appeal, 2 Myl. & K. Ch. 819; Taylor v. Salmon, 4 Myl. & C. Ch. 134; Cave v. Mackenzie, Fisher’s An. Digest for 1877, 400; Baker v. Whiting, 3 Sumner, 476; Snyder v. Wolford, 33 Minn. 175; S. C. 22 N. W. Rep. 254; Peebles v. Reading, 8 Serg. & R. 484; Burrell v. Bull, 3 Sandf. Ch. 15; and other cases heretofore cited.)
The defendant also urges, in connection with the statute of frauds and the fact that the plaintiff did not advance the purchase-money, the further facts that the plaintiff has never had the possession of the property in controversy and has never made any improvements thereon. We do not think that these further facts can make any difference. The plaintiff could not have taken the possession of the property until after he had purchased Mrs. Dihle’s title thereto, and he employed the defendant for no other purpose than to assist him in purchasing such title; and it was solely the defendant’s fault that he never obtained the possession of the property. We think that the other facts upon which the resulting trust is claimed are, aside from possession and'improvements, amply sufficient. Even the defendant himself and his authorities would not consider possession and improvements asjof any importance if the plaintiff had advancedNthe purchase-money. The facts that the defendant was the agent of the. plaintiff for the purpose of negotiating for the purchase of the property; that in violation of his agency he purchased the property for himself and took the title thereto in his own name; and the further facts that the plaintiff has elected to treat the defendant as a trustee holding the property for the plaintiff, and has tendered to the defendant the full amount which the defendant paid for the property, and an additional amount sufficient to compensate the defendant for all his services as agent, are, we think, sufficient to entitle the plaintiff to recover. But besides these facts, the plaintiff, as before stated, also had an interest in the property, or in at least one-half thereof, at the time when the defendant purchased the same. And we might further state that the plaintiff had previously employed the defendant to act as agent for him in the purchase of other real estate, and had paid him for his services, Avhich fact, together with the present employment, indicates that more intimate and confidential-rel-ati-o-i^-existed between the parties than a single transaction or a single employment would.
Under the facts of this case, as heretofore stated, we think the plaintiff holds the paramount equitable title to the property in controversy, and that the defendant merely holds the naked legal title, and that he holds the same in trust for the plaintiff. Therefore we think the plaintiff is entitled to recover in this action. This renders it unnecessary to consider any of the other questions supposed to be involved in this case. We might, however, say that from a hasty examination of the plaintiff’s tax title, we are inclined to think that it is also good, and with reference to lot 100 is a better title than that procured from Mrs. Dihle.
The judgment of the court below will be affirmed.
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The opinion of the court was delivered by
Johnston, J.:
This is a controversy concerning the title to the office of city attorney of the' City of Kansas, which is claimed by William S. Carroll by virtue of having been elected thereto at the regular election in April, 1883. He was then chosen for a term of two years, and until his successor was elected and qualified. On March 11,1885, an act amendatory of the law relating to cities of the second class went into effect, which provided that the city attorney should be appointed by the mayor, with the consent of the council. (Laws of 1885, ch. 99.) Tn pursuance of this law, and on the 13th day of April, 1885, the mayor of the City of Kansas nominated the defendant, E. J. Wall, as city attorney, and submitted his name for confirmation to the council, which was then in session, with all the members present. A vote was taken thereon, upon which the council divided equally, and thereupon the mayor gave a casting vote in favor of confirma ti-on. The defendant was immediately installed in the office, and now holds and claims the same by virtue of the appointment and confirmation thus made. The question to be decided is, whether the mayor has a right to give a casting vote upon the confirmation of an appointment when there is a tie, and it is purely one of statutory construction. Section 21 of the statute governing cities of the second class, gives the mayor- a casting vote, in these words: “ The mayor shall preside at all meetings of the city council, and shall have a casting vote when the council is equally divided, and none other.” (Comp. Laws of 1879, ch. 19.) This is a prospective provision, which is broad and general in its .terms, and the power therein conferred on the mayor to give a casting vote, if not restricted by other provisions of the statute, extends to a vote upon every question where the council is equally divided.
The plaintiff contends that there are exceptions, and that the provision with respect to appointments is one of them. The language of that provision is: “The mayor shall appoint, by and with the consent of the council, a city marshal, a city clerk, a city attorney, a city assessor, and may appoint an assistant marshal, a city engineer, a street commissioner, and such policemen and other officers as may be necessary.” (Sec. 13.) There is no express denial in this provision of the power conferred by § 21 upon the mayor to give a casting vote when the council is equally divided, nor do we think that such an ex-ception arises by implication. Upon certain questions which come before the council, so many votes are required that a tie vote cannot arise, and the mayor is thus precluded from giving a casting vote. Counsel for plaintiff call these exceptions to the rule prescribed in § 21, and liken them to the provision enacting that appointments shall be made with the consent of the council. In § 19 of the act it is provided that the council, by a vote of the majority of all the members elect, may, for cause, remove certain officers ; and in § 42 of the same act it is said that “no ordinance providing for the borrowing of moneys, levying taxes, or appropriating money, shall be of any validity unless a majority of all the councilmen elect shall vote for such ordinance.” In these provisions the legislature has clearly taken the questions referred to, outside of that provision of § 21 which gives the mayor a casting vote; but it has made no such requirement respecting confirmations. If it had been the intention to require a majority of the council to consent to or confirm an appointment, it would have been easy to have so said, and in expressing its purpose the legislature would likely have used the same or similar language as was employed in the provisions above quoted. That the legislature explicitly required a majority in those cases and not in the one respecting appointments, argues strongly against the position assumed by the plaintiff.
It is contended that as it is provided that the council shall consent to and confirm the appointment, it necessarily means that the consent must be given by the council acting as a separate and independent body. This can hardly be, as the council is not authorized to act independently of the mayor. It cannot withdraw from or exclude him from its council meetings. The statute provides that when the members meet as a council, the mayor shall be present and preside. And the mere fact that the legislature stated that the council shall confirm, when read in connection with other provisions of the act, does not manifest an intention to exclude the mayor from giving a casting vote. In the sections conferring power upon the mayor and council, the usual and almost the only form of expression employed is, that “ the council shall have power” to do this, that and the other, making no mention of the mayor; and yet no one would argue that it was intended' that the council should act apart from and independently of the mayor. And it would also be readily conceded that if the council should divide equally upon the exercise of many of the powers conferred, the mayor would have a deciding vote. The provision that the council shall confirm an appointment is no more restrictive of the power given in §21 than other provisions of the act^ where the council alone are mentioned. The power conferred upon the mayor by that section cannot be held to have been taken away or restricted by other provisions of the statute, unless they are clear and unambiguous to that effect.
The other matters brought to our attention by the plaintiff are not material, and therefore the relief which he asks must be denied. Judgment for costs will be given in favor of defendant.
Valentine, J., concurring.
Horton, C. J.:
I do not think it good policy for the mayor to be permitted to give the casting vote upon the confirmation of his own nominations to the city council; and unless the language of the statute imperatively demands such a construction, the mayor should have no vote in the confirmation of his appointments. I think the words that “the mayor shall appoint, by and with the consent of the city council,” should be construed to mean that, while the mayor may appoint, the council alone shall confirm, and that it was not the intention of the legislature to permit the mayor to control or participate in the confirmation by giving him the casting vote. | [
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The opinion of the court was delivered by
Johnston, J.:
The ruling of the court refusing the demand for a jury trial made by P. J. Morgan is assigned for error. In his petition, Lyman Field set forth a promissory note and asked for a recovery of the amount due thereon, as well as the foreclosure of the mortgage executed to secure the same. If issue had been joined upon the demand for money, a jury trial should have been awarded, as' was decided in Clemenson v. Chandler, 4 Kas. 558; but no issue of fact was joined upon that question. The administrator of the estate of Dennis Morgan, deceased, made default. And the plaintiff in error did not deny the execution of the promissory note, nor ques tion the right of the defendant in error to recover the amount claimed by him. The pleadings, therefore, admitted the allegations respecting the promissory note, and the right of defendant in error to recover judgment for the amount claimed, and left nothing to be tried except his right to have the mortgage foreclosed, and the lands sold in satisfaction of his claim. The issues joined between the defendant in error and P. J. Morgan were therefore purely equitable in their character, upon which a jury trial cannot be demanded as a matter of right. (McCardell v. McNay, 17 Kas. 434; Woodman v. Davis, 32 id. 344.)
.The action of the court holding that the mortgage executed by Dennis Morgan in his lifetime should be foreclosed and the land sold in satisfaction of the claim for which the mortgage was given as security, is complained of. About six years before the execution of the mortgage the same laud was conveyed by Dennis Morgan to John G. Spivey, and by Spivey conveyed to P. J. Morgan. It is apparent, however, from the findings of the court, that the conveyance to Spivey was voluntary and against Spivey’s wish, and that the deed from Spivey and wife to P. J. Morgan was without any consideration, and that all of the parties to the conveyances intended that the real title and interest in the land should remain in Dennis Morgan. There was no actual transfer of the land by Dennis Morgan, nor did he part with its possession and control. The understanding of the parties was that the transfer was entirely nominal, and that the equita'ble title should be reserved to Dennis Morgan. Only a bare legal title was conveyed to P. J. Morgan, by whom it was to be held in trust for Dennis. It is true there was no express trust, the conveyance being absolute in form, and that something more than a mere parol agreement was necessary to create the trust and to reserve to Dennis Morgan the equitable title. It appears that, connected with the parol agreement or understanding, there were other facts and circumstances which it seems to us fully establish the trust. As we have seen, there was’no change of possession. Dennis Morgan continued to reside thereon, cultivate, and treat the land as his own from the time of the conveyance until his death, a period of more than eight years. During all this time the taxes thereon were paid by him, and he also plowed considerable of the land, planted and cultivated apple and peach trees thereon, and made other lasting and valuable improvements, treating it as his own in all respects, as he had done prior to the conveyance to his brother. Although P. J. Morgan resided in the immediate vicinity of the land, no claim was made by him to it; he never claimed rent nor offered to pay taxes, nor undertook to obtain possession; and the probate judge testifies that after the death of Dennis Morgan, when the plaintiff came to fake out letters of administration upon the estate of his brother, he admitted that the land in controversy was the property of the estate. It seems that soon after the deed was made to P. J. Morgan he returned the instrument to .his brother, and there is some ground for the claim of counsel for defendant in error that it was understood between the plaintiff in error and his brother that any claim which the former might have set up under his deed was extinguished by the return of the instrument. Under all the facts in the case, we cannot doubt that the full equitable title to the land was in Dennis Morgan when the mortgage was executed and at the time of his death, and that the same is subject to the payment of his debts.
We cannot sustain the objection of the plaintiff in error that the findings are not justified, as a careful reading of the testimony satisfies us that it sufficiently supports the result reached by the court. Nor can we disturb the judgment on account of the refusal of the court to restrict the cross-examination of the plaintiff in error.- It did take a wide range, but it must be remembered that it was an examination of a party to the action, and the other party to the transaction inquired about was dead.' Possibly some of the questions asked were somewhat remote from.the matters inquired about in the examination-in-chief, but they were mostly explanatory of the testimony given upon the direct examination, and as the trial was before the court alone, we do not think the plaintiff was prejudiced by the extended inquiry.
The judgment and decree of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hokton, C. J.:
This was an action commenced by The McCune Mining Company against W. B. Adams, before a justice of the peace of Crawford county, to recover from the defendant the sum of $95, alleged to be due the plaintiff from the defendant upon his subscription to the capital stock of that company. Judgment was given before the justice against the 'plaintiff aud in favor of the defendant, and an appeal taken to the district court. Upon the trial, after the plaintiff had produced all its testimony, the defendant demurred thereto, which demurrer was sustained by the court. Of this complaint is made.
It appears from the briefs before us that the district court decided that no testimony was introduced upon the trial showing or tending to show that ‘the compatay had any legal existence as a coi’poration. The specific objection to the existence of the corporation is that it was not shown that the charter was subscribed by three persons who were citizens of this state. The plaintiff introduced in evidence a copy of its charter, duly certified by the secretary of state, and supplemented this testimony with proof of the election and qualification of the directors of the company, the adoption of by-laws by the company, and other evidence tending to show that the subscribers of the charter took all the steps supposed by them necessary to complete the incorporation. Stock was subscribed, assessments upon the stock were made, and notices of such assessments given to the stockholders. The stock book of the company, offered in evidence, showed that the defendant, on January 18,1884, subscribed for one share of the capital stock of the company and attached his signature thereto. Notices were properly directed and mailed to him of the assessments upon the stock subscribed by him.
The statute provides that “ a copy of the charter, or 'of the record thereof, duly certified by the secretary of state, under the great seal of the state, shall be evidence of the creation of the corporation.” (Comp. Laws of 1879, ch. 23, § 9.) Therefore it was unnecessary to offer any evidence showing that the subscribers to the charter were citizens of the stat§. In addition to this, the defendant is estopped from denying the existence of the corporation at the time he contracted with it as such. A party cannot be permitted, in a collateral way, to question the regularity of the organization of a corporation. (Pape v. Bank, 20 Kas. 440; Rice v. Railroad Co., 21 Ill. 93; Brookville &c. Company v. McCarty, 8 Ind. 392; Baker v. Neff, 73 id. 68.) Thompson, in his excellent work on the Liability of Stockholders, says:
“ If a person, when sued by a corporation, pleads nul tiel corporation, the production of the certificate of incorporation which has been filed, and proof of user, and possibly proof of user alone, will be sufficient evidence prima facie of the fact that it is a corporate body in fact as well as in name. The rule extends further: A person who has contracted with a body in writing, by a corporate name, when sued upon the instrument in the same name, is estopped to deny that the payee or obligee is such a corporation.” (§ 407.)
The bill of particulars so clearly states a cause of action that it is unnecessary to comment thereon. It is contended that some of the evidence admitted by the court was incompetent. The defendant has filed no cross-petition in error, and the question as to the competency of evidence admitted by the trial courtis not relevant. We have examined the other questions presented, and upon a careful consideration of the same, perceive no good reason for the action of the court in sustaining the demurrer to the evidence. (Bequillard v. Bartlett, 19 Kas. 382; Merket v. Smith, 33 id. 66 ; Christie v. Barnes 33 id. 317.)
The judgment of the court below will be reversed, and the cause remanded for a new trial, and with the direction that the court overrule the demurrer to the evidence.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The grounds relied upon in this case for a reversal are as follows: First, The record does not show that there was any answer to the petition in the court below; second, The decision of the court below is not sustained by sufficient evidence.
In answer to these objections we would say, first, the record does show that there was an answer to the petition. Even that portion of the record which the plaintiff in error claims constitutes the whole of the record, shows it. It shows that there was a petition, answer and reply, and that the action was tried thereon; and the other portion of the record sets out the answer and reply in full.
In answer to the second proposition of the plaintiff in error, we would say: If we should consider only that portion of the record which the plaintiff in error claims to be the whole of the record, then we could not tell what the issues in the case were in the court below; for in that portion of the record the answer and reply are not set out in full, nor is even the substance of the answer or reply given; and therefore we could not tell what evidence would be required to prove such issues, or to sustain the decision of the court below. But even if we should examine the whole of the record, and ascertain what the issues were, still we could not tell whether the evidence introduced on the trial would sustain the decision of the court below, as the record does not purport to contain all the evidence, or even any material portion of the same. There certainly was evidence, for the decision purports to have been rendered upon “ the evidence in the cause, and the arguments of counsel thereon.” It is true, the plaintiff states in his motion for a new trial that there was no evidence introduced, except the plaintiff’s affidavit for a continuance; but there was no evidence to sustain this statement, and the statement itself is no evidence of the fact. The court overruled the motion, which is some evidence that the statement was not true. It should therefore be presumed by the supreme court that the statement was not true.
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
Burch, J.:
The action was one by the holder of a note secured by mortgage, against the grantee of the mortgaged premises, to recover on a covenant assuming the mortgage, contained in the grantee’s deed. The plaintiff recovered, and the defendant appeals.
On July 10, 1914, Forriss, then owner of the land, contracted to trade it for land belonging to the defendant. A realty company was made depositary of deeds and other papers. The defendant was allowed twenty days from July 10 in which to approve the land he was to receive, and unless his disapproval were filed within that time, the exchange of property became absolute. Deeds were to be deposited within twenty days, and the depositary was authorized to deliver them. There were two mortgages on the land which the defendant was to receive, a first mortgage for $4500, and a second mortgage to the Mackie-Clemens Fuel Company for $1,150. The deed of Forriss to the defendant was dated and acknowledged on July 29, and was left with the depositary. The deed contained the covenant referred to, and was filed for record on August 5, 1914. The defendant accepted the property. He testified the deed was filed for record by the depositary before he made final examination of the property. Examination of the property on or after August 5 was unimportant, because he was obliged, by the contract, to file disapproval, should he disapprove, on or before July 30. The "defendant admitted he had an opportunity to examine the deed before it was left with the depositary. He testified he did not examine it very thoroughly, and expected to examine it more thoroughly when he looked at the land again. In September, 1915, an action was commenced to foreclose the first mortgage. On November 3, 1915, the fuel company filed a cross-petition, asking foreclosure of the second mortgage. Personal judgment against the defendant was prayed for, based on the assumption clause contained in his deed. The defendant read the pleadings, knew their contents, and on November 30, 1915, moved to set aside the service on him, which had been’made by publication. Judgments of foreclosure were entered, the land was sold, and the defendant redeemed from the sale. The present action was commenced to recover the amount due on the fuel company note, which was not satisfied by the foreclosure sale. The ground of the defendant's liability was the covenant contained in his deed from Forriss. On February 9, 1919, the defendant answered. The answer was that the note was assigned to the plaintiff after the defendant had redeemed from the foreclosure sale, and that the defendant had a counterclaim against Forriss. This answer was abandoned, and on November 20, 1919, the defendant filed another, on which the case was tried. The position then taken was that the defendant did not assume the mortgages described in his deed, and that the assumption clause was inserted in the deed through a mistake of the scrivener, which was not discovered until after the foreclosure suit was commenced. The burden of proof was placed on the de f endant. He testified that at the time of the trade he discussed with Forriss the subject of assumption of mortgages. He was willing to assume the first mortgage, but he refused to assume the fuel company mortgage. He received the deed and was owner of the land. He did not know the deed provided he should assume the fuel company mortgage, until the foreclosure suit was commenced. His first answer in the case was admitted in evidence as a part of his cross-examination. The court sustained a demurrer to the defendant’s evidence.
The burden of proof was properly placed on the defendant. The deed was a formal instrument, delivered by the grantor and accepted by the grantee, and presumptively expressed the intention of the parties. The burden rested on the defendant to overcome the presumption and, if parol evidence were depended on, he was obliged to produce proof of clear and convincing character, establishing mistake beyond reasonable controversy.
The deed purported to create a liability on the part of the defendant to any holder of the fuel company note, and indicated the defendant had become principal debtor, while Forriss had become surety only. Relying on the deed, a person might safely purchase the note, ignoring Forriss and the real-estate security. The facts which have been stated probably warrant imputing to the defendant knowledge of the contents of the deed when it was delivered and he took possession under it. However this may be, the defendant’s primary liability was actually asserted in the foreclosure suit commenced within a little more than a year after the deed was delivered. He was then definitely apprised of the contents of the deed. He did not deny liability, and he redeemed the land from, sale as owner by virtue of the deed. He neglected to take steps to have the deed reformed, and he suffered the plaintiff to purchase the note after the real-estate security had become worthless. When sued by the plaintiff, he tacitly confessed liability by his first answer. Not until November 20, 1919, did it occur to him to dispute his deed. It is not necessary to' discuss the unsatisfactory character of the proof offered in support of the belated call upon the court to rewrite the deed. It is quite manifest that ratification, laches and estoppel are all disclosed, and the demurrer to the evidence was properly sustained.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought in the district court of Reno county by the city of Hutchinson, and L. D. Ferguson, for himself and 3,590 other telephone subscribers of the city, against the Southwestern Bell Telephone Company to enjoin the enforcement of rates for telephone service which the company had promulgated on its own motion, and which had not been approved by the public utilities'commission, on the ground that they were excessive, unreasonable and illegal. Upon a hearing the court found that the rates promulgated by the telephone company were unreasonable and in excess of those prescribed by the court of industrial relations, and its successor, the public utilities commission, and adjudged that the defendant be enjoined from collecting any excess over the rates theretofore allowed by the industrial court and the utilities commission, and from discontinuing the service because of the refusal to pay the proposed rates. From this order the telephone company appeals.
The contention of the telephone company is that the rate formerly prescribed by the industrial court and utilities commission had formerly been the subject of litigation in the district court of Shawnee county,; wherein the parties were substantially the same as in this case, and that court had found and adjudged the fates to be unreasonably low, noncompensatory and confiscatory and enjoined their enforcement, and that as there was identity of subject matter and parties, the district court of Reno county was without authority to enjoin the fixing of higher rates than those adjudged to be confiscatory. It appears that an action was brought in the district court of Shawnee county by the telephone company against the court of industrial relations, the attorney of that tribunal, and also the attorney-general of the state, alleging that the rates prescribed in six cities of the state, including the city of Hutchinson, were unreasonably low and confiscatory. It was shown that in the summer of 1920 the telephone company had made application to the court of industrial relations for authority to put into effect increased rates in the six cities and that on March 18, 1921, when the action was brought in the district court of Shawnee county, no order had yet been made. Alleging that the delay was unreasonable, arbitrary, and resulted in the taking of property without due process of law, the action was brought to enjoin the court of industrial relations and officers from, enforcing the rate alleged to be confiscatory. The case was heard and on March 26, 1921, that court made findings as to the amount invested in the telephone business, the cost of maintenance and service, and found that when allowance was made for depreciation, nothing remained as compensation for service or as a return upon the investment. It was found that under the existing rates' in the six towns, there was an actual monthly deficit of about $8,000, allowing nothing for return upon the investment or for depreciation, and the court therefore found as to Hutchinson as well as the other cities, that the rates prescribed were confiscatory, and enjoined the enforcement of the same until the public utilities commission should determine what is a just and reasonable rate to be charged for such service, or until the final judgment of the court.
As to the applications made to the court of industrial relations for an increase in rates, it was found that they had been made to the court in three of the cities, including Hutchinson, on July 22,1920, and in three other of the cities on September 3,1920. The hearing in the case of the city of Hutchinson was on October 15, 1920, and the latest one of the six cities was Winfield on October 28,1920. It was also found that the applications for increase as to Hutchinson and several other of the cities had been pending before the court of industrial relations for a period of approximately eight months, and that during that time applications of a like character in a number of cities had been disposed of, some in a few days, some in a month, and that out of fifty-two like applications the average time required for decision was about two months. It was further found that the court had made no request for additional information or evidence, and that a majority of its members regarded the hearings as completed, and had stated to the officers of the company that they had arrived at a decision and were preparing, orders with reference to same. The court therefore held that the delay and nonaction on the part of the court of industrial relations were arbitrary, unjust and oppressive, and operated ■ as a denial to plaintiff of a right to a decision within a reasonable time and constituted a confiscation of its property, without due process of law. Because of the change in the law transferring the jurisdiction over utilities to the public utilities commission, the court made an order enjoining the enforcement of the confiscatory rate but provided that before promulgating and charging other rates, the telephone company should exe cute a bond for $100,000, conditioned that it will pay the subscribers the excess, if any, of the rates which the plaintiff may collect from the subscribers under the protection of the judgment over the rates which shall be finally adjudicated to be just and reasonable by the public utilities commission. To enable the public utilities commission to take action, the court directed that the injunction order be stayed for thirty days from March 26, 1921, but provided in case the commission failed to pass upon the cases within that time or should impose rates that are confiscatory under the evidence then before the court, the temporary injunction should forthwith be binding upon it.
Although the court of industrial relations had jurisdiction and control over the public utilities of the state for a time, the legislature of 1921 created a public utilities commission, and conferred upon it all the powers and duties vested in the court of industrial relations relating to public utilities, and the act became effective on March 15, 1921. (Laws 1921, ch. 260.) When this appeal was submitted no order or decision had been made by the utilities commission upon the pending application of the telephone company to establish reasonable rates, and the appeal must be determined according to the status of the case when the judgment was rendered and the appeal submitted.
The district court of Shawnee county had complete jurisdiction of the parties and of the subject matter and its judgment, finding that the rates formerly prescribed were unreasonable and confiscatory, is binding upon all the parties. No appeal has been taken from that judgment and the sufficiency of the testimony upon which the judgment was based was not open to consideration or review in this action. Notwithstanding that the rates established by the commission had been adjudged to be confiscatory and unconstitutional, and had been enjoined by a court of competent jurisdiction, the district court of Reno county made an order enjoining the telephone company from imposing or collecting any increase of rates beyond the schedule previously allowed by the commission which had been set aside because they were illegal and confiscatory. It must be conceded that that judgment operated to set aside and annul the established rates and after its rendition no established rates were in force. The tele phone company then promulgated the rates which it had asked the court of industrial relations to approve, rates which it alleged were reasonable and just. The principal contention of counsel for the plaintiffs is that the new rates promulgated by the telephone company are unreasonable and excessive and that these not having been within the consideration or judgment of the district court of Shawnee county were open to inquiry by the district court of Reno county, and that court having found the company’s rates to be unreasonable and excessive had jurisdiction and power to enjoin their enforcement. It certainly had no authority to enj oin the imposition of rates higher than those which had been adjudged to be confiscatory. The telephone company was required to carry on and give service to its subscribers. It was not required to serve the public at rates that were noncompensatory. When the rates fixed by authority of law were set aside it had the right, and indeed it may be said it was its duty, to put in reasonable, compensatory rates and continue the service to the public. ■Having a legal right to put in a rate, those promulgated must be deemed to be authoritative until they are set aside by proper authority. For the time being these rates are as binding on its subscribers as if they had been allowed by the commission. If parties interested deem them to be unreasonable and excessive, the law affords them a remedy and has provided a tribunal before which questions of that kind are investigated and determined. Upon promulgation of the increased rates any complaining subscriber could have applied to the public utilities commission, the only tribunal which has authority to revise and establish rates, to have the reasonableness of the rates fixed by the company determined. That this was the only proper course was decided in Telephone Co. v. Utilities Commission, 97 Kan. 136, 154 Pac. 262, and since the consideration and decision of the question in that case there is little room or necessity for further discussion. It was there held that after a decision adjudging rates to be confiscatory, the utility is not required to continue service under the illegal and unconstitutional rates until the commission has passed on a new application for an increase as “the commission while acting in entire good faith and in accordance with its best judgment might reach the same conclusion as before. The process might be kept up indefinitely and there would be no way in which a change in the rate could ever be compelled or by which the courts could give relief agaihst confiscation.” (p. 140.) Speaking of the effect of a judgment setting aside rates and of the right of the utility t© establish rates for itself, it was said:
“These having been removed the company was left free to take the initiative. The modified judgment will leave the telephone company without any rate. It must then fix the rate it will charge. This rate will be in effect until the public utilities commission fixes a different rate. The rate fixed by the commission will then be subject to examination by the courts and may be set aside. This rule will confine the courts to the exercise of their proper functions. It will leave the public utilities commission free to act under the law, and it will prevent the public utility from being compelled to render service at less than a compensatory rate.” (p. 141.)
As there stated, when the company fixes the rates it would charge, these are to be deemed the legal rates and to remain in effect until the commission establishes different rates. The legislature hás vested the. commission with authority to fix rates, and within constitutional limitations its power is primary and plenary. It has full and exclusive power and supervision of all public utilities and upon a hearing may fix rates, fares, charges, rules, regulations, classifications or schedules, and if any are found to be unreasonable, unjust, unfair or in anywise in violation of law, it may change them and substitute others that are determined to be just, reasoñable and necessary. (Gen. Stat. 1915, §§ 8340-8343.) Under the statutes, the rate-making functions have been committed to the commission and any complaint of existing rates, whether made by the utility or its patrons, as to rates or practices, must be presented to it. The utility is not required to perform service for less than a fair rate on the facilities employed in serving the public; and on the other hand, the utility cannot demand for the service more than the services rendered are reasonably worth. The question of the reasonableness of rates is primarily for the commission and the courts are powerless to interfere until action has been taken by the commission. Other cases bearing upon the subject are The State, ex rel., v. Gas Co., 88 Kan. 165, 127 Pac. 639; Railroad Co. v. Utilities Commission, 95 Kan. 604, 148 Pac. 667; The State, ex rel., v. Postal Telegraph Co., 96 Kan. 298, 150 Pac. 544; City of Seammon v. Gas Co., 98 Kan. 812, 160 Pac. 318; The State v. Gas Co., 102 Kan. 712, 172 Pac. 713; Telephone Association v. Telephone Co., 107 Kan. 169, 190 Pac. 747; The State, ex rel., v. Railway Co., 108 Kan. 847, 851, 197 Pac. 192, 194.
Plaintiffs urge that they should not be required to await the action of the “slow-moving” commission to investigate and revise the rates promulgated by the utility, but should be permitted to go into a court of equity at once and enjoin the collection of a rate deemed to be unreasonable and excessive. However, we have seen that rates promulgated by the utility when established rates are set side, are to be treated as legal rates until otherwise provided by the commission. This conception and rule was announced on January 8,1916 (Telephone Co. v. Utilities Commission, supra), and since that time there have been several sessions of the legislature in which a number of amendments of the utilities act have been made, but the legislature has not seen fit to change the rule or provide that rates promulgated by a utility after a decree annulling commission rates, may be interfered with or enjoined by courts before rates are established by the commission. Since that interpretation was announced it has been uniformly recognized that when rates fixed by the commission are held to be void and there are no existing rates, the utility may fix a rate which will continue in effect until different rates are made and substituted by the commission, and there has likewise been legislative acquiescence in this view. So far as the matter of delay in making application and obtaining a revision of such rates is concerned, it is not necessary that it should be a long one as it may be assumed that the tribunal appointed by. law will act with reasonable promptness and dispatch. It has been furnished with engineers, experts and other facilities for expeditious inquiry, and we may assume that the commission will act as expeditiously as the circumstances may require. Doubtless there will be some complaints which will require extended inquiry and considerable time to ascertain what are reasonable and just rates, but ordinarily such cases will be disposed of speedily. If the commission should fail to act on. an application of complainants or there should be unreasonable and unnecessary delay the courts are open to them and they could by mandamus compel action by the commission. (The State, ex rel., v. Postal Telegraph Co., supra.) As al ready shown, the district court of Shawnee county which entered a judgment annulling the established rates made provision for the protection of the plaintiffs and other patrons of the company by requiring the telephone company to execute a bond in the sum of $100,000 conditioned that it would refund to subscribers any excess of rates collected from them under the protection of the injunction, over the rates determined by the commission to be reasonable and just. This bond has been given and its protection is available to every subscriber in case the rates promulgated by the company are not approved and lower rates are established by the commission. As the law has provided an adequate remedy to plaintiffs by application to the public utilities commission, they were not entitled to maintain this action of injunction, and the judgment entered is therefore reversed with direction to dismiss the action. | [
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The opinion of the court was delivered by
West, J.:
The defendants appeal from a judgment of conviction finding them guilty of violating an Order issued by the district court of Crawford county enjoining them from calling a strike in any of the coal mines of that county. The answer in the court below contained fourteen divisions, seventeen subdivisions, and five divisions of one of the subdivisions. Here, however, the defense presents but one question — the constitutionality of the statute under which the conviction was had— chapter 29, Laws of Special Session of 1920 — creating the court of industrial relations. The closing sentence of their brief states: “We are submitting in this case but one proposition, believing it 'to be the big underlying question in this case.” Reference in another part of their brief is made to the question of wages. That question is in no wise involved here and need not be discussed. That matter, however, was treated in the Packing Company case to which reference is made.
The constitutionality of the industrial court act was exhaustively considered in The State, ex rel., v. Howat, ante, p. 376, 198 Pac. 686, and certain specific features were considered with equal care in Court of Industrial Relations v. Packing Co., ante, p. 629, 201 Pac. 418, and with these decisions we are entirely content, for the reasons therein set forth.'
No claim or intimation is brought forward that the evidence was not abundantly sufficient to warrant the judgment— merely that the act is void. The statute now again assailed grew out of an emergency condition, and was framed and passed to cover emergencies and prevent their recurrence. This was made plain in the Packing Company decision and no occasion arises now to reiterate anything heretofore said by this court touching the validity of the act.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Sarah Dunsworth and Emma Hutton brought this action seeking to enjoin the city commissioners of Hutchinson from proceeding with the paving of a street. They were denied relief, and appeal.
The case involves the interpretation of the statute providing that in cities of the first class having a population of over 25,000 no resolution to pave a street shall be valid without a petition asking such improvement “signed by the resident owners of not less than one-half of the feet fronting or abutting upon such street.” (Gen. Stat. 1915, § 1232.) The peti tion in the present case met that requirement only by classifying the board of education of the city of Hutchinson as a “resident owner” and counting its signature to the petition by virtue of school premises fronting upon the street to be paved. This court has already held that the county cannot be regarded as a resident owner within the meaning of a similar statute in such sense as to authorize the frontage of the courthouse upon a street to be included in a computation of the total amount of property of resident owners liable to taxation for its improvement. (Osborne County v. City of Osborne, 104 Kan. 671, 180 Pac. 233.) While three justices dissented from that decision there is no occasion to reexamine the question there passed upon. The matter is merely one of statutory construction, and if the view adopted does not result in a rule which is satisfactory to the legislature, that body can readily, by amendment, establish another. There is little basis for a distinction between that case and this. It is true the territorial jurisdiction of the public corporation known as the board of county commissioners extends over the whole county, while that of the board of education extends only over the. city and territory attached for school purposes, but the difference in this regard does not appear vital. Moreover the board of education is nearly allied to the city itself — it is in a sense the city as organized for school purposes — it represents the public of the city in that matter and its request for the proposed improvement would be more or less akin to that of the city commission itself.
“Residence is an attribute of a natural person, and can be predicated of an artificial being only by a more or less imperfect analogy. Whether a corporation is to be considered a resident of a particular place by virtue of its doing business there, depends entirely upon the connection in which the question arises. Where the problem is one of statutory construction it must be solved in the light of the purposes of the act.” (Kimmerle v. City of Topeka, 88 Kan. 370, 372, 128 Pac. 367.)
“But a corporation is neither a resident nor an inhabitant within the meaning of a statute, where it is not within the purpose and intent of the statute.” (14 C. J. 67.)
In committing the question whether or not a street should be paved to the resident owners of abutting property, and allow-, ing no voice in the matter to nonresidents whose property would be affected in the same way and be equally subject to assessment to pay for the cost, the legislature clearly intended a distinction based upon the different attitude toward the matter of one who in addition to his interest in the increased value of his holdings would presumably be actuated by what may be described as personal considerations growing out of the fact of his residence. It is difficult to conceive these considerations as applicable to a corporation at all, and especially to a public corporation — a body existing for purely governmental purposes. Adhering to the view announced in the earlier case we hold the same principle to be applicable here and to require a decision that the board of education was not-a competent signer of the petition for the paving.
A number of other objections are made to the proceedings for paving the. street, but it will be unnecessary to pass upon them because the conclusion already reached requires the granting of the injunction asked.
The. judgment is reversed, and the cause is remanded with directions to render judgment for the plaintiffs. | [
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The opinion of the court was delivered by
Porter, J.:
The action was under the Federal employers’ liability act. The plaintiff recovered and the defendant appeals.
Plaintiff was employed as a carpenter at the roundhouse of defendant at Parsons, Kan. The petition alleged that plaintiff was at work about 4 o’clock in the morning repairing the pilot on engine No. 394; that another engine stood on the same track near by; that the hostler in charge of it recklessly and without any warning to plaintiff started his engine so that the front of the engines came together and plaintiff was caught between the pilots of the two engines and his right leg was crushed so that amputation was necessary at a point four inches below the knee. Negligence was alleged in failing to furnish plaintiff with a safe place to work, in failing to protect him from injury by notifying other employees of his presence, and in the reckless starting of the engine without warning to plaintiff.
It was alleged that at the time the injury occurred engine No. 394 had always been and was then regularly assigned to and used continuously and exclusively in pulling passenger trains in interstate commerce, and was not used for any other purpose; that just before the accident it had come to the terminal at Parsons, Kan., from Kansas City, Mo., and at the time plaintiff received his injuries the engine had'been assigned and ordered for its next trip and was then waiting under its own steam to pull the next regular passenger train from Parsons, Kan., to Kansas City, Mo., in interstate commerce. The answer was a general denial with pleas of contributory negligence and assumption of risk.
The main contention is that the plaintiff at the time he was injured was not employed in interstate commerce.
Mary O’Reagan was employed at the roundhouse as engine dispatcher and her duty was to receive calls from the yard office and chief dispatcher. She had authority over engineers and firemen. She testified that trains were called by the yard office and that she would notify the men to get the engine and would notify the engineer and fireman; that she called engine No. 394 at 7:30 on the morning of April 2 for use on a train at 9:30 a. m. which usually left at 8 o’clock but which was late; that she received this order from the down-town yardman and he received it from the chief dispatcher who has charge of moving trains; and that no one else has authority to order engines for any particular train until the witness is notified. Her testimony was credited by the jury, and "one of their special findings was that engine No. 394 was ordered by the dispatcher and the order was transmitted by engine dispatcher, Mary O’Reagan, for train No. 24 at 7:30 a. m. to leave at 9:30 a. m. They further found that at the time of plaintiff’s injury this engine had not been coaled or supplied for use; and that it was the custom and practice for the train dispatcher to order engines for the various trains and designate the time when they were to be used on the particular train for which they were ordered.
An engineer, called as a witness by the plaintiff, testified that he had been with the road for thirty years; that he was running passenger trains Nos. 23 and 24 between Parsons, Kan., and Kansas City, Mo.; that engine No. 394 is one of .the largest engines on the road; that he had seen this engine used in both passenger and freight service; that he had seen it in freight service on the Kansas City division. The evidence shows that on this division passenger trains run from Parsons, Kan., to the union depot in Kansas City, Mo., while freight trains on this division stop on the Kansas side at Glen Park roundhouse. On the plaintiff’s motion the court required the defendant to produce the record of engine No. 394, which was offered in evidence and showed that this engine made three trips on the Cherokee division, which is interstate, two trips on the Sedalia division, also interstate, and thirty-nine trips on the Kansas City division. There was no record of where it was used from April 23 to May 28, 1918, nor on June 27 and June 28, 1918.
The defendant insists that the case falls within the doctrine of Minneapolis & St. Louis R. R. Co. v. Winters, 242 U. S. 353. In that case the plaintiff was injured while making repairs upon an engine which had been used in the hauling of freight trains carrying both intrastate and interstate commerce, and it was so used after plaintiff’s injury. Quoting from the opinion, it was said:
“The last time before the injury on which the engine was used was on October 18 when it pulled a freight train into Marshalltown, and it was used again on October 21, after the accident, to pull a freight train out from the same place. That is’ all that we have, and is not sufficient to bring the case under the act. This is not like the matter of repairs upon a road permanently devoted to commerce among the states. An engine as such is not permanently devoted to any kind of traffic and it does not appear that this engine was destined especially to anything more definite than such business as it might be needed for. It was not interrupted in an interstate haul to be repaired and go on. It simply had finished some interstate business and had not yet begun upon any other. Its next work, so far as appears, might be interstate or confined to Iowa, as it should happen. At the moment it was not engaged in either. Its character as an instrument of commerce depended on its employment at the time not upon remote probabilities or upon accidental later events.” (p. 356.)
In Chicago, Kalamazoo & Saginaw Ry. Co. v. Kindlesparker, 246 U. S. 657, an engine was placed in the shops April 14 and repairs were completed July 4. On July 3, it was taken to the cinder pit where plaintiff was injured while doing the final work of repair. Before plaintiff’s injury the engine had been used in road service and in switching and handling indiscriminately trains carrying cars composed of intrastate and interstate traffic. After plaintiff’s injury the engine was used in the same character of traffic. The lower court held that the plaintiff was employed in interstate commerce at the time of his injury because there was no evidence showing an intention of defendant to withdraw the engine from active use, except for the purpose of repairs, and because within three days after the repairs were completed the engine was again placed in its former service which comprised both intrastate and interstate' commerce. The judgment was affirmed by the circuit court of appeals prior to the decision in the Winters case. Afterwards the Federal supreme court reversed the judgment on the authority of the Winters case. '
In Baltimore & Ohio R. R. Co. v. Branson, 242 U. S. 623, plaintiff, a painter, was injured while engaged in painting cars and engines which, it was claimed, were used in interstate commerce. The trial court and the supreme court of Maryland held that he was engaged in interstate commerce. A judgment in his favor was reversed by the supreme court of the United States in a memorandum opinion on the authority of the Winters case, and Shanks v. Del., Lack. & West. R. R., 239 U. S. 556.
In Chi., Burlington & Q. R. R. v. Harrington, 241 U. S. 177, plaintiff was a member of a switching chew engaged in switching loaded coal cars from coal chutes which supplied, as needed, locomotives engaged in interstate, and also those engaged in intrastate traffic. It was held that he was not employed in interstate commerce.
A case directly in point with the case at bar was before the supreme court of Oklahoma. In Chicago, R. I. & P. Ry. Co. v. Cronin (Okla. 1918), 176 Pac. 919, an employee was injured while repairing a locomotive which had just been used in pulling an interstate passenger train and which was repaired in time to make its next regular interstate trip. The Oklahoma court held that the facts were not sufficient to bring the case within the Federal employers’ liability act. It was said in the opinion:
“The fact that the repairs had been made and the engine placed back in service in time to make its regular trip from Sayre, Oklahoma, to Amarillo, Texas, does not necessarily mean that the engine was not out of service in the meantime. We cannot agree with the plaintiff in error that this broken down engine was in interstate commerce at the time of the accident; indeed, it was not in commerce of any kind. It was ‘dead,’ undergoing the repairs necessary to placing it in commerce.” (p. 920.)
There is a strong similarity in some of the facts in the present case to those in the Winters case because in both the engine was used on an interstate trip before it was repaired, and immediately after being repaired was placed in the same kind of service. We think, however, that this case should be distinguished from both the Winters case and the Kindlesparker case. In those cases the engine had been used indiscriminately, at times in interstate and at other times in intrastate traffic. In the opinion in the Winters case it was expressly said:
“And it does not appear that this engine was destined especially to anything more definite than such business as it might be heeded for. . . '. Its next work, so far as appears, might be interstate or confined to Iowa, as it should happen.” (p. 356.)
In both of the cases upon which the defendant relies the engine, prior to being repaired and after being repaired, was used in interstate and intrastate traffic, so that it was just as logical in those cases for a jury to find that while being repaired the engine was in one kind of traffic as to say that it was in the other. In the present case defendant insists that plaintiff failed to produce evidence to show that if the repairs to this engine had not been completed in time to take out train No. 24 on the morning of April 2, the engine might not have been used for trafile other than interstate in character. A sufficient answer to this contention is that, while one of plaintiff’s witnesses, an engineer, testified that he had seen engine No. 394 hauling freight trains on the Kansas City division (which freight division is wholly within Kansas), yet the testimony failed to show when this engine was so used. So far as appears from defendant’s record of the service of engine No. 394 during the entire year prior to the accident, it was used solely in hauling interstate passenger trains, and within three hours after the plaintiff’s injury it was assigned to and on the same day was used in the same kind of traffic. If the plaintiff’s evidence had shown, or if it had appeared from the testimony of the defendant, that this particular engine was used at times in intrastate service, there would be force in the defendant’s contention. Ordinarily an engine is not permanently devoted to any kind of traffic- — as is a bridge or other permanent structure, but we think there was evidence in this case sufficient to sustain the finding that the engine had been devoted solely to interstate traffic for a year before plaintiff’s injury, and continued thereafter in the same character of traffic. It is therefore held that plaintiff ,at the time of his injury was employed in interstate commerce.
There is complaint of an instruction with reference to assumption of risk, but the court correctly stated the rule that plaintiff could not be held to have assumed the risk unless he appreciated the danger, or unless a reasonably prudent person under the same circumstances and knowledge would not have entered upon the work at the time and place. (McMullen v. Railway Co., 107 Kan. 274, 191 Pac. 306.)
The facts upon which the claim of contributory negligence is based have been found adversely to the defendant.
The jury made a finding that the defendant was negligent in failing to provide plaintiff with proper signals for his protection and it is insisted that this was not a ground pleaded in the petition nor submitted to the jury. It comes, we think, fairly within the first and second grounds which were submitted to the jury — failure to furnish a safe place; the promise to protect the plaintiff and a failure to do so.
The jury allowed the plaintiff $18,000 for permanent injuries, and in their special findings stated that nothing was allowed for pain and suffering. It is insisted that the amount is excessive. Plaintiff testified that he was fifty years of age, and while employed as a carpenter for the railroad company his earnings would average $125 per month; and that after he recovered from his injury he procured an artificial limb, and for three months previous to the trial had been engaged in driving a taxicab which he owns. His life expectancy is about twenty-one years. In view of the age and earnings of the plaintiff, the court is of the opinion that $18,000 for the loss of a leg from three to four inches below the knee is excessive, and that the judgment should be reduced to $12,000, the plaintiff to be given the election to accept that amount or another trial upon that issue.
The judgment will be modified in respect to the amount of the judgment, and as modified, affirmed.
Porter, J., dissenting from first paragraph of syllabus and corresponding part of the opinion. | [
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The opinion of the court was delivered by
Mason, J.:
A. T. Stewart, a taxpayer having an interest as such in the matters referred to, brought an action against the officers of a rural high-school district to enjoin the issuance of bonds for the erection of a high-school building and against them and the officers of a school district to enjoin the erection of a single school building to be used by both organizations. He was denied relief by the district court, and appeals.
The right of the rural high-school district to issue the bonds is challenged on the ground that the election to vote upon ,the question of their issuance was called and canvassed by the board of county commissioners instead of by the rural high-school district board, as required by the statute according to the plaintiff’s interpretation. The defendants interpret the law as authorizing either of such bodies to act in the matter. As the statute existed prior to March 22, 1917, the power of a rural high-school district board to issue bonds (except where such authority had been given by a vote taken at the election by which the district was created) was derived only from a provision giving it the same power as school-district boards. (Gen. Stat. 1915, §-9352.) In this condition of the statute it was held that the board of the high-school district and not the board of county commissioners was the proper body to call an election for schoolhouse bonds. (Reynolds v. High-school District, 101 Kan. 231, 165 Pac. 860.) On the date mentioned the section of the statute just cited was amended by the addition of provisions giving explicit Authority to issue such bonds, in this language:
“The rural high-school district board shall have authority to issue the bonds of the rural high-school district for the purchase of a site and for the construction of a building or buildings for school purposes; provided, that no bonds shall be issued unless authorized by an election held in accordance with section 2 of this act [which authorizes a proposition to issue bonds to be voted upon at the election called to vote on the question of establishing the district] or by an election held in accordance with sections 9177 and 9178 of the General Statutes of 1915 [which relate to the issuance of bonds by ordinary school districts] ; provided, that notice of all such elections in rural high-school districts shall be given as provided in section 2 of this act. Except as herein provided, the laws relating to the issuing of school-district bonds shall apply to rural high-school districts formed in accordance with this act.” (Laws of 1917, ch. 284, § 5.)
The defendants’ position is that this statute gives an option as to the manner in which the election may be ordered, authorizing it to be called either by the county conynissioners upon the petition of two-fifths of the electors, or by the school board upon the petition of one-third of them. The plaintiff on the other hand contends, as we think correctly, that the meaning of the statute quoted is that the bonds may be issued only where authorized by a vote cast at an election called by. the county board if to be held at the same time the proposal to create the district is voted upon, and called by the board of the district if petitioned for after the district has been created. An election to decide whether a rural high school shall issue bonds, if held in connection with an election to decide whether the district shall be created, would necessarily have to be conducted by somebody already in existence, and the board of county commissioners was selected by the legislature as the natural agent for the purpose. But after the district has been brought into being there is no occasion whatever for its invoking the services in that regard of any officers other than its own. The language above quoted relating to section two of the act is fully accounted for by the fact that the statute, in defining the conditions under which bonds may be issued, had necessarily to mention the contingency of authority for their issuance having been granted before the organization of the district. The suggestion is made that unless the statute does offer a choice of methods of calling the election the amendment of 1917 made no change in the law as it already existed. If this were the case the new enactment might have been justified as a mere clarification of the existing law by substituting express provisions for mere implicatiqns — no judicial construction having then been given it. However, a material alteration was made in this respect: Under the original law only a ten days’ notice of the bond election was required, that being the period named in the statute relating to ordinary school districts (Gen. Stat. 1915, § 9178), while by the amendment the time is fixed at twenty-one days. (Laws of 1917, ch. 284, § 2.) We hold that the election was ordered by a body having no authority to take such action, and was without legal effect.
The validity of the election is also challenged on the ground that the notice was defective. This objection is probably not well taken, but the conclusion already announced makes it unnecessary to consider that matter.
It remains to determine’ whether the rural high-school district and the ordinary school district can lawfully unite in the construction of a single schoolhouse to be used by both. The question appears to be novel. Notes on the capacity of a municipality to be a part owner of property or to enter into a partnership contract for the construction -of an improvement are found in 35 L. R. A. 737 and Ann. Cas. 1916 C, 909, but the cases cited relate largely to agreements between public bodies and individuals or private corporations. It has been held that a city and county (the county board being made up of the city council and three additional members) may purchase and hold in common the title to land to be used for a city hall and courthouse and jail. (De Witt v. San Francisco, 2 Cal. 289.) The matter principally discussed in the opinion, however, was the somewhat technical one of the capacity of corporations to hold title to realty in common with each other. Moreover, while the doctrine of implied powers applies to some extent to all governmental subdivisions, a larger freedom of action — -a wider discretion in the choice of methods — is allowed to a city — a municipal corporation proper — than to any other, and doubtless to a county than to a school district, because of the wider field of its activities. On the other hand an arrangement by which a city was to buy an interest in the county courthouse for the purpose of accommodating it with public buildings has been held invalid because of want of power in the county authorities to enter into such agreement. (Bergen v. Clarkson, 6 N. J. L. 352, 363.) In a case holding that the legislature cannot require a city to bear the whole expense of a county building it has been said that where “the legislature authorizes such action” a city may establish im provements not exclusively for its own purposes, which will accommodate the larger bodies with which it is identified, and that it is common for cities to furnish accommodations in its public buildings, gratuitously or otherwise, for public officers and bodies which do not represent the city; and for city halls and similar buildings to be used for state and county court and executive purposes. (Callam v. Saginaw, 50 Mich. 7.) An arrangement by which through contributing to the cost of the building of a private academy the public had acquired a beneficial interest therein has been held to authorize taxation to provide a lighting plant for it. (Brooks v. School District, 78 N. H. 263.) Where the same officer is empowered to provide a high-school building and a primary-school building it has been held that he may in his discretion erect one building for both purposes, but there no question of divided control was involved. (Smith v. State, ex rel., 187 Ind. 594.) Under a charter specifically granting a city authority to purchase and hold any estate whatever in property for corporation purposes, it has been held that an undivided interest in land cannot be purchased unless the right of the city to its' occupancy and use so long as it holds such interest is distinctly and unequivocally secured, the intimation being that such a provision would make the action valid. (Hunnicutt v. City of Atlanta, 104 Ga. 1.) The right-of a school district to use public funds in repairing a schoolhouse owned and controlled in part by several lodges has been denied, but the decision was affected by a statute requiring the trustees to take a fee-simple title to lands used for school sites. In the opinion it was said: “Whilst it is possible that there might be some saving in this arrangement at the start, it, is evident that, in the long run, complications might arise which would compel the abandonment of the use of the property by the common-school district. It is better that both the spirit and language of the statute should be observed, and that the common-school buildings should be devoted exclusively to the purposes for which they were intended.” (Dawson, &c., v. Trustees Common School District No. 40, 115 Ky. 151, 155.)
Inasmuch as the rural high-school district and the ordinary school district are separate organizations we think that without express legislative authority they have no power to join in the erection of a schoolhouse for their common benefit. The situation that would be so created, involving a divided control, no provision being made for determining what course should be pursued if a difference of opinion should arise in some matter of policy -relating to the use or the care, preservation or improvement of the building, is so anomalous that we cannot regard the authority to enter into such an arrangement as fairly inferable from that granted to each to erect a schoolhouse for its own use. It is true that in a particular ease no difficulty in administration might ever in fact arise. But the possibility of such an occurrence is so obvious, and the advisability of the plan here sought to be followed out is so open to debate, that we feel constrained to hold that until further legislation on the subject a single building may not be erected by the two districts for their common use.
The judgment is reversed and the cause remanded with directions to grant the injunction prayed for. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff seeks to set aside his father’s will. Judgment was rendered sustaining it, and the plaintiff appeals. The grounds alleged for setting aside the will were, that the father, John Akins, at the time he made the will, was of unsound mind, was a constant and excessive user of intoxicating liquor, was unduly influenced by defendants Maud Akins and Blanche Akins, his daughters, and was under an insane delusion which controlled him in making the will. There was evidence to show that he was of .unsound mind as the result of the excessive use of intoxicating liquor, and there was likewise evidence to show that he was of sound mind and of testamentary capacity; there was no evidence to show undue influence. The trial was by the court who found that the will expressed the intent and desire of John Akins, that it was not the result or product of undue influence, of any fraud or false representation, or of an insane delusion; that he knew he was making his will, the relationship that the devisees and legatees therein named bore to him, the disposition he desired to make of his property, and the property that he was disposing of by the will. The court further found that John Akins, when he made the will, was of sound and disposing mind and memory. The principal questions presented revolve around the testamentary capacity of John Akins.
The plaintiff argues that the uncontradicted testimony compels a judgment in his favor. The uncontradicted testimony was, so far as the court is able to gather from the abstracts, that which tended to prove the execution of the will, the relation of the devisees and legatees to John Akins, the property owned by him at the time of his death, the business in which he was engaged, the service rendered by the plaintiff to John Akins in that business, the habitual and probably the excessive use of intoxicating liquor by him, his abuse of the plaintiff, and his idea that the plaintiff had' wronged him. These things do not compel a judgment for the plaintiff for the reason that they do not prove that the plaintiff did not have testamentary capacity, that he was insane, that undue influence was exercised or fraud practiced to procure the execution of the will, nor prove any other reason for avoiding it. There may have been other testimony that was uncontradicted, but if there was, that testimony is hardly material in the present discussion.
The plaintiff contends that there was no sufficient testimony to uphold the findings of the court, nor to justify the conclusions of law. There was evidence which tended to show that John Akins had testamentary capacity; that he knew the members of his family and recognized his relationship and obligation to them; that he was not under undue influence; that no fraud had been practiced on him; that he was of sound mind and was not under an insane delusion. That evidence justified the findings, and they compelled the conclusions of law that were reached.
It is argued that when the will was made, John Akins had been deprived of his judgment and reason by the excessive use of intoxicating liquor, and that therefore the will is invalid. Proof of the excessive use of intoxicating liquor does not prove that the user is of unsound mind or does not have testamentary capacity. During intoxication the person intoxicated may not comprehend or understand, and he may then be incapable of executing a will, but it is well known that those who habitually use intoxicating liquor to excess have periods when they are mentally alert and have the full use of all their faculties. A clear statement of the rule concerning the testamentary capacity of a person addicted to the use of intoxicating liquor is found in 40 Cyc. 1017, as follows:
“If one knows what he is about he may make a will, although intoxicated at the time of execution, or of intemperate habits to such an extent as to have become a habitual drunkard, or judicially declared a drunkard; and this is so even though his mind was so weakened by intoxicants that he could not take care of his estate, but one does not possess testamentary capacity where he is suffering from chronic alcoholic insanity or where the will is made when deprived of judgment and reason from the use of intoxicants. One who is frequently intoxicated may still have testamentary capacity when sober, and capacity at the time of execution of the will is the point in issue.”
There was no evidence to show that John Akins was intoxicated at the time he executed the will.
Another matter that is insisted on is that John Akins was laboring under an insane delusion. He accuse^ the plain tiff of robbing him and of wrongfully inducing him to sell his business to a third party so as to enable the plaintiff to purchase it from that party. The circumstances shown by the evidence concerning the sale of the business were substantially, that John Akins was engaged in the feed business; that the plaintiff desired that John Akins sell the business; that they quarreled about that matter; that the business was sold; that later the plaintiff offered the purchaser $500 for his bargain; that John Akins learned of that matter and accused the plaintiff of wronging him. These ..circumstances, and all of the others concerning which John Akins accused the plaintiff of wronging him, do not justify the conclusion that John Akins was laboring under an insane delusion. The evidence tended almost conclusively to show that the plaintiff had not in any way wronged his father in the management of the business or in the sale of it, although in the sale there was that which would excite the suspicions of many men. Grant that John Akins was mistaken,'a mistake is not an insane delusion. A mistaken belief entertained by one that he has been wronged by another is a very common frailty of humanity, but such belief is not necessarily an insane delusion. In Medill v. Snyder, 61 Kan. 15, 58 Pac. 962, this language was used:
“There may be an insane delusion, although the belief entertained is not in the nature of things a physical impossibility; but if such belief is entertained against all evidence and probability and.after argument to the contrary, it affords grounds for inferring that the person entertaining it labors under an insane delusion.” (Syl. ¶ 5.)
In Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849, this court quoted from Bean v. Bean, 144 Mich. 599, as follows:
“ ‘The opinion of a father that certain of his children, whom he disinherited, had wronged and cheated him, and were scheming to get possession of his property, cannot be said to be the result of insane delusions, so as to invalidate his will, where there were real controversies between them which may have given rise to his belief, irrespective of which of the parties might have been able to make the better showing of real right.’ ” (p. 50.)
In 40 Cyc. 1013, this language is found:
“A mistaken belief as to a matter of fact or illogical conclusion therefrom is not necessarily an insane delusion.”
In Taylor v. McClintock, 87 Ark. 243, this language is found:
“The distinction between a mistake and an insane delusion is that a mistake, whether of fact or law, moves from some external influence which is weighed by reason, however imperfectly; while a delusion arises from a morbid internal impulse, having no basis in reason.” (Syl. ¶ 12.)
In Porter v. Jones et al., 20 Ore. 239, this language is found:
“Here there is a claim of facts upon which the belief is founded, and unjust and unfeeling as may be such belief, in view of the known character of his wife for chastity, it is not the spontaneous product of pure fancy, but a grave error, showing a lack of judgment or a want of reasoning powers — the outcome of an over-sensitive, jealous disposition, prone to exaggerate any trifling circumstance with which his wife may be connected into an unworthy and wicked importance, and to draw from them conclusions untenable, illogical and unworthy of belief.” (p. 250.)
In Hutchinson v. Hutchinson, 250 Ill. 170, it was said:
“A belief which a rational person may entertain, however erroneous, is not an insane delusion.” (Syl. ¶ 7.)
In Conner v. Skaggs, 213 Mo. 334:
“An insane delusion ... is never the result of reasoning and reflection; it is not generated by them, and it cannot be dispelled by them; and hence it is not to be confounded with an opinion, however fantastic the latter may be.” (Syl. ¶ 3. See, also, 4 Words and Phrases, 3644; 2 Words and Phrases, 2d series, 1091.)
The plaintiff worked for his father in his feed business for a number of years — practically conducted it .during the latter part of that time, and made it a financial success out of which John Akins acquired his property. The plaintiff was paid wages all the time. He urges the fact that he built up the business to show that the will was unreasonable, and therefore must have been the result of a disordered mind. The fact that the plaintiff worked for his father and made a success of the business is not a ground for setting aside the will; it may have been competent evidence to show other grounds, but neither by itself nor in connection with all the other evidence introduced, is it sufficient to compel a reversal of the judgment. The father could dispose of his property as he saw fit.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
In this action the plaintiffs were given judgment in replevin for the possession of an automobile, or its value, $1,728.
The defendants complain of two peremptory instructions given by the trial court:
“(No. 1.) . . . at the time of the commencement of the action the plaintiffs were the owners of and entitled to the possession of the automobile in controversy.
“(No. 2.) . . . the undisputed evidence in this case shows that at the time of the cpmmencement of this action the automobile in question was of the value of $1,728.”
The correctness of these instructions, which were the basis for the verdict and judgment, depends upon the evidence, and this must be noted at some length. It appears that the plaintiffs, a partnership engaged in business at Falls City, Neb., owned the automobile sometime in 1918. One W. E. Snider was a traveling salesman for the Empire Electric Manufacturing Company of Kansas City. In June, 1918, Snider sought to make a bargain with plaintiffs whereby the latter were to receive certain electrical goods and supplies from his employer in exchange for the plaintiffs’ automobile.' A contract to that effect was prepared but plaintiffs insisted that it should be signed by Snider’s principal, the Empire Electric Manufacturing Company. Snider took the contract away with him and later brought it back to plaintiffs with what purported to be the signature of the Empire Company by its president. The pertinent part of the contract reads:
“For the above consideration Werner Mosiman and Company will deliver to Mr. W. E. Snider one (1) Case 6-60, 1919 Model, 5 passenger sport model automobile with the complete understanding that title shall not pass from the aforesaid Werner Mosiman Company until the complete fulfillment of this contract.
“In connection with this contract the following conditions are stipulated. Should, the Empire Electric Manufacturing Company fail to complete their part of the contract as above stated, they agree to be governed by the conditions stipulated on a promissory note to be executed by the above mentioned Mr. W. E. Snider and attached hereto as a part of this contract for the sum of seventeen hundred twenty eight ($1728.00) dollars for which they as co-makers of this contract will become responsible. . . .
“Empire Electric Manufacturing Company,
“By R. H. Barber, Pres.
“As a party hereto C'e undersigned becomes responsible to the Empire Electric Manufacturing Company. W. E. Snider.”
The plaintiffs accepted Snider’s note and this contract and delivered the automobile to Snider. The electrical goods contracted for were not delivered and the note was not paid. Shortly afterwards Snider sold the car to defendants for $1,050. The evidence showed that the car was nearly new, and certain witnesses variously testified its value to be $1,500 or $1,600, $1,800, $1,875, one witness putting its value as high as $2,100. It was also shown in evidence that the president of Snider’s employing company, R. H. Barber, did not sign the contract and that his signature was a forgery. There was no evidence that the contract had been recorded in Nebraska or elsewhere. The evidence on the point whether the defendants should have been put on their guard in purchasing the car from Snider lay chiefly in the fact that they were buying it for several hundred dollars less than it was worth.
Under the evidence thus summarized, was it correct for the trial -court to give a peremptory instruction that the plaintiffs were entitled to the possession of the car? It is a legal presumption in the absence of a showing to the contrary that the statutory law of Nebraska is like our own. (Newton v. Insurance Co., 95 Kan. 427, 148 Pac. 619, and citations.) Our statute reads:
“That any and all instruments in writing or promissory notes how in existence or hereafter executed evidencing the conditional sale of per sonal property, and that retains the title to the same in the vendor until the purchase price is paid in full, shall be void as against innocent purchasers, or the creditors of the vendee, unless the original instrument, or a true copy thereof, shall have been deposited in the office of the register of deeds of the county where the property shall be kept, and shall be entered upon the records the same as a chattel mortgage, and when so deposited shall remain in full force and effect until the amount of the same is fully paid, without the renewal of the same by the vendor; and any conditional verbal sale of personal property reserving to the vendor any title in the property sold shall be void as to creditors and innocent purchasers for value.” (Gen. Stat. 1915, § 6508.)
The burden of showing that the contract was recorded in Nebraska or that the lex loci contractu did not provide for recording was on the plaintiffs. If the plaintiffs gave permission to Snider to bring the car into Kansas, the contract should have been recorded in Doniphan county or in whatever counties in this state the plaintiffs intended to permit Snider to take it. -There being no showing to that effect, and the car having been delivered by plaintiffs to Snider, a purchaser who had no notice of Snider’s defect of title might lawfully deal with him. It is not very material whether the president of the Empire Company signed the contract or not, since Snider also signed it and was a party to the contract; and neither the Empire Company nor Snider had title to the car as against the plaintiffs; but if the defendants purchased the car in good faith from Snider without notice of any defect in his title they are protected under our statute above quoted. In view of the fact, however, that defendants bought the car at a gross sacrifice on its real value, it seems that the matter should have been left to a jury to determine whether or not the defendants were innocent purchasers.
Less discussion is required to dispose of the peremptory instruction that the “undisputed evidence” showed that the car was of the value of $1,728 at the time the action was commenced. Even in the brief of appellees we find the following:
“No one places the value of this automobile under $1500.00 and one of the appellants valued it as high as $1,800.00 after he had looked up its value. . . . That ($1728) is the value alleged in plaintiff’s petition in the district court. There was no great variation from that sum in the evidence.”
Clearly the peremptory instruction on the value of the car was erroneous. Its value was a question'for the jury.
We note that there is a journal entry of judgment which recites:
“If said automobile cannot be delivered to plaintiffs, then that they have judgment against defendants for the value of said automobile as agreed in the sum of $1,728.00.”
The words “as agreed” may be a mere inadvertence, and that the words “as alleged” were intended by the draughtsman. Perhaps it refers to the agreement in the contract where Snider was to give plaintiffs his note for $1,728. Be that as it may, the issue concerning the value of the car was in the case throughout. There was varying evidence of its value according to the presumably qualified opinions of different witnesses, and so far as shown by the record there was no agreement of parties to this lawsuit or their counsel that the value of the car was $1,728.
The appellees argue that because of delay appellants are not entitled to have this cause reviewed on its merits. The judgment was entered on October 9, 1917, the motion for a new trial was filed in time but was not decided until April 15, 1920, and the notice of appeal was served on June 14, 1920. But the matters involved in this appeal are only those which had to await the ruling, of the trial court on the motion for a new trial. And while the motion was not argued but submitted with a statement of counsel that the court consider the argument made on the triál, yet the errors in the instructions complained of and which we have reviewed above were clearly set out in the motion; nor is there the slightest reason for supposing that the trial court had been permitted to make these errors through any lack of frankness or mere darkness of counsel on the part of defendants; and the rule announced in Riverside v. Bailey, 82 Kan. 429, 108 Pac. 796; Emery v. Bennett, 97 Kan. 490, 155 Pac. 1075, and kindred cases has no application.
The judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
West, J.:
Sarah E. Spruens died November 12, 1914, leaving her husband as her only heir. May 5, 1917, on the petition of Francis M. Clark, an administrator was appointed. His claim — the only one — was filed against the estate, May 10, 1917, for money lent June 12, 1909, $1,500, about November 12, 1914, $5, interest $720, total, $2,225, with credit for the use of a room, $522 — leaving a balance of $1,703. The claim was allowed by the probate court and an appeal was taken to the district court where the jury returned a verdict in favor of the claimant. The administrator demurred to the evidence, which demurrer was overruled, and from this judgment he appeals and contends that the claimant was barred by the three-year statute of limitation, and that the statute of nonclaim, section 4565 of the General Statutes of 1915, also precludes his recovery.
There was evidence indicating that in 1908 the claimant lent his stepmother $1,800. The testimony of the banker and the production of a certain check tended to show such fact. It was suggested on the argument that the claimant had forgotten the exact amount of the loan and as he was sure of only $1,500 and interest, less credits, he could not recover more. It appears that the jury found the exact amount claimed, $1,703, which the court reduced to $1,500, and from which there is no cross appeal.
The claim would appear to be barred save for testimony to the effect that for more than five years Mr. Clark had the use of a room at the house of the deceased for which he gave her credit at the rate of $90 a year,- amounting to $522. It appeared that Mrs. Spruens had said in substance that this room rent was to offset the interest on the note, and while the evidence of the witness so testifying.was severely criticized by counsel we find nothing in the record which precludes giving it credence as the trial court seems to have done.
It is contended that there was no evidence introduced to avoid the operation of the statute of nonclaim, and that as the creditor permitted more than two years and fifty days to elapse before applying for an administrator he lost his right to proceed against the estate. In Bauserman v. Charlott, 46 Kan. 480, 26 Pac. 1051, it was held that a creditor having a claim to establish against an estate may, if the widow or next of kin refuse to take out letters for fifty days after the death of the deceased, obtain the appointment of an administrator, and he cannot without good reason defer making such application until the statute of limitation has run, and then contend that all of the time from the death of the debtor to the appointment of the administrator the statute of limitations is suspended on account of the nonappointment of such administrator.
“If a creditor would save his claim, against the estate of a decedent from the bar of the statute, he must exercise reasonable diligence, if the widow or next of kin refuse to take out letters of administration, to obtain administration for himself or some other person.” (Syl. ¶4.)
In Kulp v. Kulp, 51 Kan. 341, 32 Pac. 1113, it was held that a creditor must take affirmative action within a reasonable time or the statute will run. Bauserman v. Charlott was approved and followed. It was held in Brown v. Baxter, 77 Kan. 97, 94 Pac. 155, 574, that where no administrator has been appointed the claim of a creditor will become void at the end of three years from the last date on which an administrator might have been appointed.
“Where the parties immediately interested in an estate fail to have an administrator appointed within the time fixed by the statute, then any creditor may cause one to be appointed, and from the time when such appointment could have been made the three-year statute of limitation begins to run against the creditors, whether an appointment is made or not.” (p. 110.)
.The three-year statute was changed to two in 1911. (Laws 1911, ch. 188, § 4.) Hoover v. Hoover’s Estate, 104 Kan. 635, 180 Pac. 275, discusses, reviews and affirms the Bauserman, Kulp and Brown cases. There the executor failed to present his own claim. It was said:
“If, however, there had been a coexecutor, it would have been Hoover’s duty to exhibit his demand to that coexecutor under section 4582, or sections 4565 and 4590 would apply to him, unless those sections are modified by section 4592 . . . E. G. Hoover argues that sections 4565 and 4590 began to' run from the publication of the notice of appointment as executor, but that argument is faulty for the reason announced in Bauserman v. Charlott, 46 Kan. 480, 26 Pac. 1051; Kulp v. Kulp, 51 Kan. 341, 32 Pac. 1118; and Brown v. Baxter, 77 Kan. 97, 94 Pac. 155, 574, where it was held that these statutes run against a creditor who permits the statutory time to elapse without procuring the appointment of a personal representative to whom the creditor’s claim may be presented.” (p. 641.)
(See, also, Collamore v. Wilder, 19 Kan. 67; Scroggs v. Tutt, 23 Kan. 181, 188, syl. ¶ 5; Andrews v. Morse, 51 Kan. 30, 32 Pac. 640; Bank v. King, 60 Kan. 733, 57 Pac. 952; Faler v. Culver, 94 Kan. 123, 146 Pac. 333.)
Here the death occurred November 12, 1914. The fifty days would be up January 1, 1915, and the statute of nonclaim (§ 4565) would have had full operation by January 1, 1917.
The language of the section amended was: “All demands not thus exhibited within two years shall be forever barred, . . .” (Gen. Stat. 1915, § 4565), and this precise language was retained in the amendatory section save the change of three to two years. Words could hardly be plainer, and the decisions cited simply give to them their natural and necessary effect.
The application for administration was not made until May 5, 1917 — more than four months too late. For this reason the plaintiff is precluded from recovery.
The judgment is therefore reversed, and the cause remanded with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Porter, J.:
The action was on a promissory note for $5,000. The defense was that the note was given for usury in connection with a loan. The plaintiffs prevailed and the defendant appeals.
Plaintiffs are officers of the First National Bank of Liberal, C. E. Woods being cashier. On September 17,1913, Woods and George made a loan to L. S. Curry of $25,000 and took his note for that amount due in sixty days and payable to their order, with interest at the rate of ten per cent per annum. The note was secured by deeds to real estate which Curry executed and delivered to the payees under a written agreement. Curry’s account with the bank was credited with the face of the note less the interest. There was an agreement between the parties that Curry was to pay George and Woods a bonus of $500 for making the loan. The bonus had not been paid when the note fell due. Curry wanted the note renewed and after several weeks of parleying, an agreement for an extension was made and a new note was executed for $25,000 payable to the plaintiffs which Curry has since paid with the full ten per cent interest. During the negotiations for the extension of the loan, the parties agreed that Curry should pay a bonus for the extension, and also pay the $500 bonus on the original loan.
One of the questions in the case is, What was the amount of the second bonus agreed upon? Curry’s positive testimony is that he agreed to pay $3,000 in addition to the $500 he owed as a bonus. Woods testified that the amount agreed to be paid was $1,000, but his testimony in respect to this is, to say the least, equivocal. On the other hand, Curry offered in corroboration of his statement a written instrument executed in duplicate and signed by him- during the negotiations for the renewal of the $25,000 note. The fact that this agreement was written and tendered to Woods and George for them to sign is admitted by Woods, who was the only witness for plaintiffs. The instrument reads as follows:
“Liberal, Ks., 11-20-13.
“It is hereby mutually agreed by & between L. S. Curry, J. E. George & C. E. Woods that a certain contract by & between the above named parties dated Sept. 17-1913 shall be. extended for 90 days, said Curry hereby agreeing to pay 10% int. on the $25000.00 & a bonus of $3000.00 for said extension and $500.00 bonus which is due on the original contract.
“Witness our hand the day and year first above written.
“L. S. Curry.”
Curry testified:
“Mr. George said he would like to have something to show for the agreement to pay the bonuses. Would like to have a note or contract or something, so I wrote out a couple of contracts. ... I wrote up these papers and after I had written one, Mr. George read it while I was writing the other. Mr. Woods came in and picked it up and read it. Mr. George had picked up a pen and was about ready to sign it but Mr. Woods came back and beckoned him and when he came back he did not sign it. . . . I wrote these papers on letter heads in the bank and kept them both.”
Woods testified that Curry was in the bank, and—
“We told Mr. Curry that if we could get the money we would but we would want something to secure the loan some place else because we were borrowing the money and we did borrow it.
“Q. And then what did Mr. Curry say about that, about getting the money for him? A. He wanted to fix it up.
“I can’t say just when it was fixed up. He was in there and wrote out a piece of paper, something he would do, and showed it to us, and I told him we would rather have the money at that time, didn’t want to sign anything. We wanted to know whether we could get the money or not before we signed anything. That was in November. He wanted us to sign these papers, but we declined to do it. Mr. George had to have money for some cattle.”
This occurred on November 20. Eighteen days afterwards when plaintiffs had succeeded in arranging to borrow from another bank the money Mr. George required in the purchase of cattle, they were ready to agree to extend Curry’s loan and on that date, December 8, they took Curry’s note for $3,500, and later the $25,000 note was renewed. Curry claims this $3,500 note was given for no other consideration except in payment of the bonuses. Woods testified repeatedly that the note sued on for $5,000 is a renewal of the $3,500 note, and that both were given in connection With the loan transaction. He offered no suggestion of any reason why Curry would make an offer in writing -to pay plaintiffs $3,500 in bonuses if the agreement was to pay but $1,500. The only reason he gives for their refusal to sign the contract which Curry tendered them on November 20 was that they were not yet ready to agree to an extension until they could arrange to obtain money elsewhere for Mr. George to buy cattle.
When the renewal of the $25,000 note matured, Curry had moved away from Liberal. At that time the bank also held a note against him which was past due. Curry was in Cowley county and Woods went there to see him and threatened foreclosure unless the three notes, including the $3,500 note were renewed. Curry told him that just as. soon as he could he would go to Liberal, and on October 21 he drove there, arriving after banking hours. He saw Woods at the bank and gave another renewal note for the $25,000 loan, renewed the note, held by the bank, and also renewed the $3,500 note, although it was not due for fifteen or twenty days. He testified that the notes were in the vault at the time, and that he was not sure whether the one he signed in renewal of the $3,500 note was filled out or not. He introduced in evidence the canceled notes which Woods mailed to him a few days afterwards. Woods testified that the $3,500 note was filled out when it was signed. In explanation of how it came to be increased $1,500 he said that it included the $500 and $1,000 bonuses. He was asked to explain why he made Curry take up the note and put it in the $5,000 one fifteen days before it was due. His answer was:
“Well, sir; if he was out here and the note is about due^ — few days before it was due, and this other twenty-five thousand dollars; I wanted them fixed up and I had it all fixed at once I guess.
“Q. Mr. Woods, he fixed up the twenty-five thousand dollar note on the same day? A. Yes, sir.
“Q. Why did you ask him to take up the thirty-five hundred dollar note fifteen days before it was due. A. Probably fixed them both up while he was here.”
Again, on cross-examination, he testified:
“Q. That five hundred dollars that he agreed to give in the first place, and this one thousand dollars, does it go to make up part of the five thousand dollar note? A. Yes, sir.
“Q. Then the note of thirty-five hundred dollars to C. E. Woods and J. E. George, December 8, 1913, what was that for? A. In connection with this other deal.
“Q. With the twenty-five thousand dollar deal? A. Yes, sir.
. “Q. That matter ran along until December 8, 1913, when Mr. Curry gave a note for thirty-five hundred dollars? What is that for? A. I can’t say.
“Q. I am asking you whether you know that that thirty-five hundred dollar note don’t include the five hundred which Mr. Curry agreed to pay you as bonus for securing the original loan in September, and three thousand dollars which he agreed to pay you as a bonus for getting it in November? A. I could not say.
“Q. I believe you stated the five hundred dollars he agreed to pay you in September was in the thirty-five hundred dollar note. A. I do not know.
“Q. The five hundred might be in there [in the thirty-five hundred dollar note] ? A. It might.
“Q. Didn’t you tell me the reason this thirty-five hundred grew to be five thousand is that it might include fifteen hundred for bonus? A. Yes, sir.”
He testified that when Curry first came in to see about extending the note they did not care to extend it, but the matter was permitted to run along until December 8 when Curry gave the note for $3,500. He was asked what that was for.
“A. I can’t say.
“Q. Did you ever, Mr. Woods, yourself and Mr. George, ever loan Mr. Curry any other money except the twenty-five thousand dollars? A. I think we paid a draft. ... I think I advanced the draft drawn up in Nebraska.
“Q. When? A. I can’t say.
“Q. What was it for? A. I don’t remember.
“Q. How do you know if you can’t tell the date or amount paid? A. I know I must have.
“Q. You know you must have in order to account for the balance of the thirty-five hundred dollars note? A. Yes, sir; that is it exactly.
“Q. Just had to be? A. Yes, sir.”
Later on in his testimony he was confronted with a canceled note given by Curry to the bank, attached to which was a memorandum in Woods’ handwriting showing the items which went to make up that note, and he admitted that an item of $2,500 was for the Nebraska draft.
In Marshall v. Beeler, 104 Kan. 32, 178 Pac. 245, the action was for the recovery of usurious interest. The original loan was for $97,500. When it matured the borrower was obliged to agree to pay a bonus of $2,500 for an extension, and a new note was taken for $100,000 which included the bonus. The provisions of the statute were construed in that case and it was held that while the bonus undoubtedly fell within the definition of an involuntary payment — until it was actually paid — Marshall could not recover because he had paid the full face of the note including the bonus without any' compulsion, and therefore could not maintain the action. It was held that in any action brought by the creditor to recover the excess, the statute gave the borrower a perfect defense.
In the present case the situation of the parties differs in no respect because of the fact that different instruments were taken representing the usury instead of including it in the original note. Sometimes the usurious portion is included in the original note; but often it is represented by a separate instrument which the courts treat as part of the same transaction. There are many illustrations in the old books disclosing the use-of all manner of devices and subterfuges by money lenders to escape the penalties imposed by law upon the taking of usury. In an old case, decided at nisi prius, in the court at Westminster in the time of George III, (1810), it was shown that the plaintiff, who brought suit upon a bill of exchange, refused to discount the bill except upon the following conditions ; “that the defendant should take a banker’s cheque for 250Z. a promissory note at 2 months for 286Z. 12s. and a landscape in imitation of Pouffin to be valued at 150Z. The defendant agreed, and the bill was discounted accordingly.” At the trial defendant “offered to prove that the plaintiff had himself purchased the picture for 32Z. and that this was its full value.” Lord Ellenborough expressed the opinion that the burden was on the plaintiff to prove that the picture was worth the price which the defendant was required to pay.
“Garfow for the plaintiff said he was not prepared with evidence of the value of the picture; but contended that if the defendant was to make this an usurious transaction, the onus was thrown upon him of proving that a grossly extravagant and colourable price bad been set upon the article — as had been done with respect to the ostrich feathers, which were proved to be sold and repurchased by the same money-lender several times in the same day.”
“Lord Ellenborough — Where a party is compelled to take goods in discounting a bill of exchange, I think a presumption arises that the transaction is usurious. To rebut this presumption, evidence should be given of the value of the goods by the person who sues on the bill. In the present case I must require such evidence to be adduced: and I wish it may be understood that in similar eases, this is the rule by which I shall be governed for the future. When a man goes to get a bill discounted, his object is to procure cash, not to encumber himself with goods. Therefore, if goods are forced upon him, I must have proof that they were estimated at a sum for which he could render them available upon a resale, not at what might possibly be a fair price to charge to a purchaser who stood in need of them. Can you show that the defendant could have sold your imitation of Pouffin for 1501.?”
“Gari'ow [for the plaintiff] allowed that though the rule just laid down by the Chief Justice might bear hard against his client in this particular instance, its general operation would be most salutary.”
“Plaintiff nonsuited.” (Davis v. Hardacre, 2 Campb. 375, 376.)
The trial court allowed Curry credit for $1,000 illegal consideration and gave judgment against him for $6,297.76. Presumably this was upon the admission of the plaintiffs that $1,000 of the bonus was for procuring the extension, and also upon the theory that the first $500 bonus was not usurious because it constituted a commission for procuring the loan from George. But all the notes were payable to Woods and George, and drew the full ten per cent interest. It is a common thing for usurers to attempt to avoid the statute by calling any excess of the legal rate a commission or bonus, but if it be exacted from the borrower as a condition to the loan, the latter is tainted with usury no matter what the transaction is called. (39 Cyc. 971.) As a matter of common knowledge, it is true that lenders are frequently compelled to borrow part or all of the sums they loan. It is clear that the bonus of $500 and the one of $1,000 were both usurious.
In the face of plaintiffs’ admissions it was manifest error for the court to allow a credit upon the instrument of but $1,000. In any view of the testimony defendant was entitled to a credit of $1,500. He makes the contention that he was entitled to a further credit of $1,500 as the statutory penalty. (Marshall v. Beeler, supra.) For reasons, now to be stated, we think the question of allowance of penalties nee<j. not be considered because of another proposition, which we think is decisive of the whole controversy.
Of course this court will not attempt to weigh conflicting testimony. It is not necessary to do that, however, to determine the right of the matter and direct the proper judgment. While not permitted to pass upon the weight of the testimony, we are not required to stultify ourselves by ignoring undisputed facts. The note fell due in the spring of 1914. So far as the evidence discloses, no effort was made to enforce collection until this suit was brought in March, 1918. 1 The answer pleaded that the note was given without consideration and for usury.- Woods admitted that he expected when he came to testify to be called upon to say what items of indebtedness went into the note in controversy. He was an' experienced bank cashier and had charge of all the transactions involved in the giving of the various notes, but he was unable or unwilling to say what constituted the consideration for the note sued upon, although conceding that at least $1,500 of the consideration was represented by usurious bonuses. In his cross-examination he testified:
“Q. Mr. Curry did agree to give you one thousand dollars if you would get that money? A. Yes, sir.
“Q. Did he ever agree to give you three thousand dollars? A. I don’t think so, don’t remember of it.”
The position taken by the plaintiffs throughout the trial upon the main issue appears from his statements near the close of his examination:
“Q. There is a matter of five thousand dollars that Mr. Curry is claimed to owe to you and Mr. George, do you tell this court you have not got any record of any kind as to what items make up this amount? A. Nothing but the note.
“Q. Note don’t show? A. Shows he owes me five thousand dollars.
“Q. Are you not in the habit of keeping a book as to what the note is for? A. No, sir.
“Q. How do you know if there was any . . . money that you advanced? A. I know there are or I would not have the note.”
In other words, at the conclusion of the testimony plaintiffs were standing upon the presumption that a promissory note imports a valid consideration. Curry had testified positively that there was no consideration for the $3,500 note except illegal bonuses, and in corroboration had produced a writing which plaintiffs concede was prepared by him and tendered to them as a memorandum of the contract; and the only reason suggested by plaintiffs for their refusal to sign it is that they were not ready at that time to agree to the extension. The reasonable implication from Woods’ testimony with respect to this matter is that the writing set forth the understanding of the parties at that time.
The whole case, however, turns upon conceded facts. The controlling fact is that both Woods and Curry testified that the $3,500 note and the one given in renewal of it, were taken in connection with the $25,000 transaction. Now when the original note given .for that loan matured there was nothing due but the face of the note; the interest had been taken out in advance. The renewal of that loan bore the full ten per cent interest and both principal and interest have been paid. Any additional note given as part of the original transaction was necessarily usurious, for the reason that the transaction could not support a valid consideration for another note. That transaction was evidenced by a note already loaded with all the law permitted it to carry; and when Woods testified, as he did several times, that the note upon which plaintiffs seek to recover judgment was taken in connection with and as part of the original loan transaction, he was out of court; his position was not unlike that of a man who goes out on the limb of a tree and saws it off.
The judgment will be reversed and the cause remanded with directions to render judgment in favor of defendant for costs. | [
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The opinion of the court was. delivered by
Marshall, J.:
This is an appeal from an order denying an application for a writ of error coram nobis.
The defendant was convicted of three felonies charged in one information. On the examination of one of the jurors concerning his qualifications, he testified in substance that he had not formed any opinion concerning the guilt or innocence of the defendant. The juror was not asked whether he had expressed any opinion concerning that matter, although he was examined at length.
The verdicts of guilty were returned March 3, 1921, and on March 4, judgment was pronounced; but the court, before sentencing the defendant, asked his counsel if they desired to file a motion for new trial; they informed the court that they did not; and no such motion was filed. On March 5, one of the attorneys for the defendant was informed that the juror mentioned' had said, on the day the trial was commenced and on leaving his home to attend court as a juror, that he would send the defendant to the penitentiary for life if he had anything to say about it. The application for the writ was filed on March 8, and was heard on March 23 and 24. All the proceedings in the action occurred at the February term of the district court of Marshall county.
The application alleged that the defendant did not know and had no way of discovering the bias or prejudice of the juror, and did not discover the same, and could not with due diligence have discovered it so as to present it in a motion for new trial.
This case is concluded by Hamlin v. The State, 67 Kan. 724, 74 Pac. 242, where this court said:
“A writ of error coram nobis is not available to review an adjudicated issue of fact where the error, if any, was open to correction upon a motion for a new trial or upon appeal to a higher court.
“The writ will not lie from a decision in a criminal prosecution holding members of a jury to be qualified, although it is alleged that the jurors made false statements as to their qualifications, and also that defendant had no knowledge of their prejudice against him until long after the motion for a new trial had been made and overruled.” (Syl. ¶¶1, 2.)
In Asbell v. The State, 62 Kan. 209, 213, 61 Pac. 690, the following language is quoted from Sanders v. The State, 85 Ind. 318:
“Under our system all matters of fact reviewable by appeal, or upon motion, must be presented by motion for new trial, and cannot be made the grounds of an application for the writ coram, nobis.” (p. 329.)
Another reason for not reversing the judgment of the trial court is that—
“The application for a writ of error coram nobis must show that, if the facts upon which the error is predicated had been presented to the trial court, the judgment complained of could not have been entered.” (Dobbs v. The State, 63 Kan. 321, 65 Pac. 658, syl. ¶ 3.)
(See, also, Asbell v. The State, 62 Kan. 209, 61 Pac. 690; Collins v. The State, 66 Kan. 201, 203, 71 Pac. 251; Sanders v. The State, 85 Ind. 318, 326.)
The matters that may be properly presented in an application for a writ of error coram nobis are such that, if presented, would have prevented a conviction, not such as, if presented and overruled, would compel a reversal of the judgment and a new trial because of error committed. The prejudice of the juror was not a fact that entered into the guilt or innocence of the defendant and would not have prevented the judgment if it had been made known to the court on the examination of the juror. If the question had been presented, the juror would” probably have been excused, the trial would have proceeded with another juror, a verdict of guilty might have been returned, and sentence could have been properly pronounced on that verdict. The matters alleged were not such as would have prevented a conviction and judgment. They were matters that were open to correction on a motion for new trial or on appeal to this court; and although such matters were not known until after sentence was pronounced, too late to be presented on a motion for a new trial or on an appeal, they were not sufficient to compel the court to grant a writ of error coram nobis.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
An information was filed against Jerry Scott charging him with violating the provision of the industrial-court act forbidding an employee in certain industries, which are therein declared to be affected with a public interest, to induce (or conspire with other persons to induce) others to quit the employment of such an^ industry for the purpose of hindering, delaying, interfering with or suspending its operation. (Laws 1920, ch. 29, § 17.) A motion to quash the information was sustained on the ground that the statutory provision referred to was not within the scope of the- title of the act and for that reason was invalid because of the requirement of the state constitution that “no bill shall contain more than one subject, which shall be clearly expressed in its title.” (Const, art. 2, § 16, Gen. Stat. 1915, § 156.) The state appeals.
The title of the statute in question reads: “An act creating the Court of Industrial Relations, defining its powers and duties, and relating thereto, abolishing the Public Utilities Commission, repealing all acts and parts of acts in conflict therewith, and providing penalties for the violation of this act.” It has already been determined that the word “court”' is not used in a technical sense and does not imply that the tribunal referred to shall be of a strictly judicial character (The State, ex rel., v. Howat, 107 Kan. 423, 430, 431, 191 Pac. 585) just as the term “municipal corporations” in a title has been held to include townships, which are merely quasi corporations. (Rathbone v. Hopper, 57 Kan. 240, 45 Pac. 610.) The title quoted is at least as comprehensive as though it read “An act relating to (or concerning) an administrative body for the regulation of industrial relations.” The subject of the statute is the regulation of the relations of employer, employee and the public in certain industries by means of a board or commission, whieh is given a large power of investigation and control. But in order that the action of this, body may be made effective a number of broad general rules are laid down governing the conduct of individuals which may affect the matter — rules that have a direct connection with and bearing upon the results to be accomplished by the existence of the tribunal created. These rules are within the purview of the title just as would be any other means regarded by the legislature as adapted to the attainment of the end sought. One of the principal objects of the statute is to promote the continuous operation of industries the suspension of which would work hardship to the people of the state. ; This is sought to be accomplished by empowering the court of industrial relations to make such orders from time to time as circumstances shall require, but in order that a fair opportunity shall be given to that body to bring about the desired result a number of specified acts tending to prevent this are forbidden. We regard these prohibitions as within the scope of the title of the act.
The statute is of course to be upheld unless it is clear that the constitutional provision has been violated. A title to an act is not objectionable on the ground of generality so long as its scope and purposes are fairly indicated and it does not appear that the'matter in question may have been surrepti tiously passed. “Everything connected with the main purpose and reasonably adapted to secure the objects indicated by the title may be embraced in the act, without violating the constitutional inhibition.” (Lynch v. Chase, 55 Kan. 367, 376, 40 Pac. 666.) Merely by way of illustration these applications of the principle may be cited: Under, the title “An act to establish a code of criminal procedure” provision may be made for the probate court’s disposing of the property of persons convicted of crime. (Woodruff v. Baldwin, 23 Kan. 491.) Under the title “An act concerning private corporations” provision may be made for the issuance of municipal bonds for subscription to the stock of railway companies. (Comm’rs of Marion Co. v. Comm’rs of Harvey Co., 26 Kan. 181.) Under a title prodding for “the organization and management of the state re;orm school” provision may be made for boys being placed in '>r committed to the school by courts of record, including prooate courts. (In re Sanders, Petitioner, 53 Kan. 191, 36 Pac. 348.) Under the title “An act providing for the appointment of committees to investigate the affairs of state institutions and conduct of officers” provision may be made for the removal by the governor of an officer upon the report of such a committee. (Rogers v. Morrill, 55 Kan. 737, syl. ¶ 1, 42 Pac. 355.)
The clause in the title “and providing penalties for the violation of this act” was unnecessary (Harrod v. Latham, 77 Kan. 466, 94 Pac. 14), but served to show affirmatively and expressly that penal provisions were included.
The motion to quash stated a number of grounds other than-that just considered. In fact, the motion did not assert that the title of the act was not broad enough to cover the provisions under which the information was drawn, but that “the title of said act comprising said chapter contains more than one subject,” which of course is a different matter. The ruling of the trial court was based specifically upon the ground that the title was too narrow to cover the prohibition of the acts charged against the defendant. The language used fairly implied a denial of the motion to quash so far as concerned other •objections. (Milling Co. v. Buoy, 71 Kan. 293, 80 Pac. 591.) The separate grounds upon which the information was attacked may be treated as in effect so many separate motions as in the case of a motion for a new trial in some circumstances. (Bourquin v. Railway Co., 88 Kan. 188, 127 Pac. 770.) The state may appeal from an order quashing an information (Gen. Stat. 1915, § 8199) but the defendant can only seek a review of the overruling of such a motion in the course of an appeal from a judgment of conviction. (The State v. Freeland, 16 Kan. 9.) If the defendant shall be convicted he can upon appeal raise any questions presented by his motion to quash other than the insufficiency of the title of the act.
The judgment is reversed and the cause is remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
Porter, J.:
The action was one to vacate a judgment rendered at a previous term of the court on the ground that the appellee was prevented by unavoidable casualty or misfortune from defending. The action in which the original judgment was rendered was an appeal from the probate court and was not reached at the regular September, 1919, term. An adjournment of court was taken, subject to the call of the judge, no date being fixed. On November 14, the judge returned to Ellis county and held court for one day trying a contested case and -transacting some other business. On the same day and without notice to the appellee or his attorney, and while the attorney was at Kansas City engaged in the trial of an action in the Wyandotte county district court, the case in which the appellee was a defendant was called and judgment rendered in favor of the appellants. The petition alleged facts showing that the appellee has a valid defense to the original action. A demurrer to his evidence was overruled. The appellants elected to stand upon the demurrer and the court vacated the judgment.
Considerable space is taken up in the appellants’ brief in an attempt to argue the merits of the original action which we do not regard as pertinent to the issue here. There was, in our opinion, ample evidence to sustain the judgment vacat ing the original judgment and therefore there is no merit in the contention that the demurrer should have been sustained.
A further contention is that the judgment is erroneous because the trial court made no finding that the appellee had a valid defense to the original action. In proceedings to vacate or modify a judgment, whether by motion at the same term or by an original action at a subsequent, term, there are always two questions to be determined. Section 601 of the code provides:
“The court shall first try and decide upon the grounds to vacate or modify a judgment or order before trying or deciding upon the validity of the defense or cause of action.” (Gen. Stat. 1915, § 7505.)
Section 602 declares that the judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense or valid cause of action. But there is no statutory provision requiring the court to malee separate findings of fact, and it does not appear that there was a request for findings in the present case. The same proposition was urged in Spottsville v. Cement Co., 94 Kan. 258, 146 Pac. 356, but it was held that a general finding of the trial court upon argument and consideration, holding that the judgment should be set aside, implies an adjudication that there was a valid defense. There was a general finding of facts in favor of the appellee. We are unable to discover any ground for a claim that error was committed in setting aside the judgment and granting a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This case was before the court in Bank v. Davis, 103 Kan. 672, 175 Pac. 972. At that time it involved the construction of the bulk-sales law. The present appeal raises another question.
O. L. Davis gave a bill of sale on his stock of groceries to R. L. Glascock and placed the latter in possession. Immediately thereafter the Linn County Bank sued Davis on a promissory note, and caused a garnishment summons to be served upon Glascock who answered denying liability to Davis. The bank took issue on the garnishee’s answer upon the ground that in the transfer of the stock of goods, the bulk-sales law was violated by the buyer failing to take from the seller a verified list of his creditors (the list furnished being complete except for the omission of plaintiff as a creditor). There was a judgment in favor of the garnishee and plaintiff appealed. The judgment was reversed, the court holding that inasmuch as Glascock was innocent of intentional wrong, he was entitled, when sued by the bank, to be subrogated to the rights of the listed creditors whose claims he had satisfied. It was said in the opinion:
“It results from these considerations that error was committed in denying the plaintiff all relief. The extent of his recovery, however, remains to be determined. The goods, in a sense, constituted a trust fund for the benefit of all creditors alike, and as the purchaser was free from intentional wrong he may justly be subrogated to the rights of the creditors whose claims he has paid off. (Note, 51 L. R. A., n. s., 343; L. R. A. 1917D 1067.) Nor is any reason apparent why his own claim should not be as favorably treated as those of others. We conclude, therefore, that the plaintiff should recover the proportion of the value of the stock that the amount of hi^ claim bears to the total sum owed by the vendor at the time of the sale, including the debts paid off by the buyer and that originally owing to him.” (p. 675.)
The judgment was reversed and the cause remanded for further proceedings in accordance with the opinion.
On the second trial the bank made the claim that By virtue of its attachment lien it was taken out of the class of general creditors and that Glascock, the purchaser of the stock, was not entitled to subrogation as against plaintiff’s attachment hen. The trial court, in following the mandate and judgment in the former action, found the total value of the merchandise, effects and accounts sold by Davis to Glascock, and the entire amount of indebtedness, but treated the plaintiff as a general creditor, denying its claim of a specific lien by reason of the garnishment. Plaintiff contends that this was- error, and appeals.
Since the former decision, it has been held that purchasers, in violation of the bulk-sales law, although they act in entire good faith, and pay full value, are not entitled to subrogation to claims of general creditors as against a debt due to a creditor who has secured a valid attachment lien upon the stock and fixtures subsequent to the sale, for the reason that subrogat'on is an equitable right, and in such a case, equity follows the law and cannot ignore the rights procured by the diligent creditor. (Bank v. Hillman, 104 Kan. 264, 178 Pac. 420.)
Conceding this to be the law, the defendants say that for two reasons it has no application to the present case. First, it is insisted that garnishment differs from attachment; that while the attaching plaintiff acquires a lien upon specific property, in garnishment he acquires nothing more than a judicial admonition to the garnishee to hold the property subject to the order of the court. We regard this contention as not sound. Garnishment is merely another form of attachment. It was held in Beamer v. Winter, 41 Kan. 596, 21 Pac. 1078, that garnishment is attachment in the hands of a third person and thereby is a species of seizure by notice. That decision was cited and approved by the Oklahoma court in Barton v. Spencer, 3 Okla. 270, where it was held:
“Where service of process in garnishment is had, the property found in the possession of the granishee is in custodia legis, and no rights can be obtained in such property by subsequent attaching creditors, as against a creditor causing the garnishment summons to issue.” (Syl.)
In Young v. Shockey, 80 Kan. 78, 101 Pac. 631, it was held that a creditor by garnishee process obtains a lien upon a fund due the defendant in the action superior to the lien of laborers employed by him.
“The rule is that the service of a writ of garnishment upon a debtor of the principal defendant creates a lien on the property of such defendant, or upon a debt due him by the garnishee.” (20 Cyc. 1063.)
In Rickman v. Rickman, 180 Mich. 224, it was held to be the general doctrine that the service of garnishment process creates a lien upon the property of the principal defendant in the hands of the garnishee defendant, entitling the plaintiff to hold such property for the satisfaction of his claim. (To the same effect, see 12 R. C. L. 775.) To construe the statute as contended for by defendants would render garnishment proceedings of little practical benefit. As said by the supreme court of Montana:
“If the service of the notice of garnishment by respondent through the court was not the commencement of a proceeding to reach the assets of its debtor, then the law permitting the garnishment of a debt is a nullity, at least so far as this case is concerned.” (Montana N. B. v. Merchants’ N. B., 19 Mont. 586, 591.)
Secondly, defendants insist that the decision on the former appeal is res judicata, and that the trial court could properly take no other action except to follow the mandate of this court and find the value of the stock and the proportion which the bank’s claim bears to the total sum Davis owed when the stock was transferred, and render judgment accordingly. But the question whether a proceeding by garnishment creates a lien upon the funds and property in the hands of a garnishee was not raised in the former appeal nor considered by this court. An examination of the briefs in that appeal shows that the question was not suggested nor argued by either party; from the abstract it appears not to have been raised on the first trial. As we have seen, the former appeal determined merely that as to claims of general creditors, the purchaser of a stock of goods, under the circumstances set forth in the opinion, was entitled to subrogation notwithstanding his failure to insist upon a compliance with the bulk-sales law. No reason is apparent why the scope of the decision in the former appeal should be • enlarged to defeat a just claim under the settled law and prevent the plaintiff from insisting upon the priority acquired by its attachment lien.
The judgment will be reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
West, J.:
August 19, 1919, the defendant, Warren, sued the plaintiff in justice court in Barber county for $139.51. Summons was issued and returned “not found.” An order for publication service was made, and notice was published. October 23, 1919, the defendant being in default, the justice entered judgment for the plaintiff for the amount sued for and costs. An order of sale was issued, after which the defendant appearing specially filed her motion to set aside the judgment, asserting by affidavit that ever since and prior to the beginning of the action she had resided at Wichita and was at no time in Barber county and at no time was service made on her in Barber county. The motion was overruled, and the next day she brought this action in the district court to. restrain the sale, alleging that no service was ever had on her; that she was a resident of Sedgwick county and had been permanently there “at all times since prior to the commencement of this action”; that she was the head of a family of children of whom she was the sole support; and that the property attached was exempt household goods, furniture and other property owned by her.
The answer set up the justice’s judgment as unappealed from, and that the plaintiff had moved to set it aside as void which motion was overruled and such ruling remained unappealed from. The district court granted the injunction and the defendant, Warren, appeals.
The questions presented are the validity of - the judgment rendered by the justice, and the right of the plaintiff to an injunction after failing to set up her claim of exemption in justice court. The plaintiff moves to dismiss the appeal because no specifications of error are filed. But as counsel has clearly pointed out what he thinks is wrong about the decree, we will, for once, overlook the omission to comply with rule 5 in this respect only.
Assuming, without deciding, that the justice had jurisdiction and that his judgment was valid, it must be held that nevertheless he had no right to sell the plaintiff’s exempted property to satisfy such judgment. Exempt property is that towards which the eye of the creditor is not permitted to turn, and this court recently said that the sheriff “has no more authority to seize and sell property of the judgment debtor which is exempt than he has to seize and sell property of a stranger.” (Brewer v. Warner, 105 Kan. 168, 172, 182 Pac. 411.) Neither has a constable such power. And when the owner of exempt property finds that some sheriff or constable is about to sell it under attachment or similar order he may resort to equity to enjoin such sale. (Rice v. Nolan, 33 Kan. 28, 5 Pac. 437; Gardner v. King, 37 Kan. 671, 15 Pac. 920; Frey v. Butler, 52 Kan. 722, 35 Pac. 782; Brewer v. Warner, 105 Kan. 168, 182 Pac. 411.)
In the Frey case it was held that—
“Unless a debtor has, by express declaration or unequivocal act, relinquished the right to claim an exemption of personal property seized upon execution, he may make the claim at any time before the day of sale; ...” (Syl. See, also, 18 Cyc. 1462, 1474; li R. C. L. 545,. § 63 et seq.)
The decree is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
This proceeding was brought by the state on the relation of the attorney-general for the purpose of determining the legal capacity of Charles E. Grove, the defendant, to hold the office of member of the board of commissioners of the city of Wichita, to which he had been declared elected on the can vass of the returns. The case was submitted on the pleadings, the facts not being in dispute, on June 10, 1921. It being suggested that the interest of the public required an early determination of the matter, the court, having reached the conclusion that the defendant was ineligible to the position, announced its • decision to that effect June 27, with the statement that an opinion would be written later.
The defendant is in the employ of the Missouri Pacific Railroad Company, and the claim of disqualification is based upon the statute which forbids an employee of a railway company operating under any franchise granted by the city or having any contract with it to hold any city office, and imposes a penalty of both fine and imprisonment for doing so. (Gen. Stat. 1915, § 1556.) Inasmuch as the defendant had not attempted to enter upon the discharge of the duties of the office the proceeding against him was brought under the provisions of the law enacted at the recent session of the legislature authorizing the rendition of declaratory judgments (Laws 1921, ch. 168), the constitutionality of which is challenged by the defendant. The questions to be determined are whether the declaratory judgment statute is valid, whether the railway company is operating under a “franchise”' granted by the city within the meaning of that term as used in the statute concerning the qualifications of city officers, and whether the company has a contract with the city.
A statute authorizing declaratory judgments has recently been held unconstitutional. (Anway v. Grand Rapids Railway Co., 211 Mich. 592.) The proceeding in which the decision was rendered was not based upo.n an actual controversy. The members of the court appear to have agreed that for this reason it could not be maintained. A majority of the justices, however (two out of eight dissenting and another limiting his concurrence to the result reached), treated the proceeding as one of the kind the legislature intended to authorize, but held the statute invalid because the power to make a declaration ’of rights, where no .consequential relief can be had, is not judicial, and cannot be conferred upon courts.
Whatever may have been the intention of the framers of the Michigan act in that respect, the Kansas statute is explicitly limited in its operation to “cases of actual controversy.” (§ 1.) The decision of the Michigan court that the proceeding there under consideration was not maintainable and should be dismissed appears to have turned upon the fact that (as in Muskrat v. United States, 219 U. S. 846, upon which case much reliance' is placed) no actual controversy existed between opposing parties. The decision so far as it is based upon that ground is not inconsistent with the validity of the act here involved. In the majority opinion in that base, however, views were expressed that if accepted as sound would be fatal to the Kansas statute.
There is no occasion for a general discussion here of declaratory judgments — their purpose, the needs that give rise to them, the extent to which they have been employed and the results obtained. These matters have been fully covered by recent contributions to legal publications, most important among which may be mentioned those of Professor Edson R. Sunderland (16 Michigan Law Review, 69, December, 1917), and Professor Edwin M. Borchard (28 Yale Law Journal, 1, 105, November and December, 1918). The authorities bearing on the question of the constitutionality of such statutes have likewise been so fully collected and discussed in the majority and minority opinions in the Michigan case as to dispense with the necessity of reviewing them here. See also note, 12 A. L. R. 52; in which all aspects of the matter, including the constitutional question, are fully discussed. The first and sixth sections of the Kansas act contain its vital provisions- — those against which the constitutional objections are directed. They read:
“In cases of actual controversy, courts of record within the scope of their respective jurisdictions shall have power to make binding adjudications of right, whether or not consequential relief is, or at the time could be, claimed, and no action or proceeding shall be open to objection on the ground that a judgment or order merely declaratory of right is prayed for. Controversies involving the interpretation of deeds, wills, other instruments of writing, statutes, municipal ordinances, and other governmental regulations, may be so determined, and this enumeration does not exclude other instances of actual antagonistic assertion and denial -of right.” (Laws 1921, ch. 168, § 1.)
“This act is declared to be remedial;'its purpose is to afford relief from the uncertainty and insecurity attendant upon controversies over legal rights, without requiring one of the parties interested so to invade the rights asserted by the other as to entitle him to maintain an ordi nary action therefor; and it is to be liberally interpreted and administered, with a view to making the courts more serviceable to the people.” (Id., § 6.)
Against the validity of the statute it is urged that the occasion for judicial action cannot arise until a claim is made that an actual wrong has been done or is immediately threatened and moreover (what is much the same thing stated in another way) that a decision cannot properly be classed as a judgment — as a strictly judicial act — unless besides determining the merits of the controversy between the parties — deciding which is right — it affords (or denies) some additional remedy — in other words “consequential relief”; and therefore that power to decide a controversy in the absence of the conditions indicated is not judicial and cannot be conferred upon courts by the legislature. This view appears to us to be unsound and to be the result of confusing declaratory judgments with advisory opinions and decisions in moot cases, and perhaps also of an inclination to treat a general practice that has been long established as having acquired the force of a constitutional guaranty. A mere advisory opinion upon an abstract question is obviously not a judgment at all, since there are no parties to be bound and the rights of no one are directly affected. The situation is substantially the same where opposing parties present a moot question — one the decision of which can have no practical effect. Where a judgment is sought of such character as to be of no benefit unless accompanied by an order the carrying out of which is impossible the futility of the proceeding is a sufficient basis for a court’s refusal to entertain it, whether or not jurisdiction to do so exists. But some judgments are wholly or in part self-operative. They perform a valuable function in and of themselves. It is often said that a cause of action • arises only upon the breach of a duty — the invasion of a right. This, however, is merely the announcement of a general rule of practice subject to possible exceptions and to legislative change. Actions to quiet title and to construe wills are recognized methods of invoking judicial action which do not originate in the actual commission of a wrong nor terminate in a judgment inflicting a penalty, granting compensation or injunction, or otherwise giving “consequential relief,” the declaration of rights being all that is necessary to fit the requirements of the case. The decree in an action to quiet title is sometimes so drawn as to order the setting aside or cancellation of a deed. A declaration that the instrument is void and without effect amounts to the same thing. The judgment does not change the condition of the title but simply declares where it is vested. It gives the only relief that is necessary to settle the controversy — the determination of the ownership of the property. Why the legislature cannot authorize similar procedure in like situations to meet like needs is not apparent. It is hardly conceivable that any fundamental principle of our government, beyond legislative control, prevents two disputants, each of whom sincerely believes in the rightfulness of his own claim, but each of whom wishes to abide by the law whatever it may he determined to be, from obtaining an adjudication of their controversy in the courts without one or the other first doing something that is illegal (in the case of the present defendant criminal) if he is mistaken in his view of the law.
The mere judicial determination that one party to litigation is right in his contentions and his opponent wrong accomplishes in some instances all that he seeks and in others at least a considerable part of it; it conclusively and finally settles the question of liability between the parties. This is recognized in various expressions of the courts and text-writers, of which the following are illustrative: “But in general the office of a judgment is fully performed when it declares and adjudicates the existence or nonexistence of the liability sought to be established; it is not concerned with the means of enforcing the liability declared.” (23 Cyc. 669.) “The first and most obvious consequence of a judgment is that it establishes an indisputable obligation and confers upon the successful party the right to issue execution or other process of the court for its enforcement. But this, it must be repeated, is not an integral part of the judgment. The judgment is merely the affirmation of a liability. The right to use the process of the court for its enforcement is a consequence which the law attaches- to it. . . . The judgment, after performing its office of declaring the existence of a certain liability, leaves the party to pursue the remedies which the law provides.” (1 Black on Judgments, § 4.) Where the plaintiff asks the recovery of money and his claim is held to be unfounded the defendant needs no injunction against its further prosecution. He is fully pro tected by a judgment explicitly or impliedly declaring it to be invalid. The maker of a note may sue before its maturity to have it canceled for fraud; a judgment declaring that it was fraudulently procured might answer the same purpose. In such an action the rendition of a judgment for the holder declaring the note valid would be an unquestioned exercise of judicial power. It would seem that if the holder, learning of a claim on the part 'of the maker that his signature was procured by fraud, should bring an action authorized by statute to have that matter determined, a decree in his favor declaring the note valid ought not to be a nullity on the ground of being nonjudicial.
Probably the strongest statement of the view against merely declaratory judgments is to be found in an opinion written by Chief Justice Taney where in arguing the invalidity of an act of congress authorizing an appeal to the supreme court from a decision of the Federal court of claims, he said:
“The award of execution is a part, and an essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into elfect. Such is not the judicial power confided to this Court, in the exercise of its appellate jurisdiction; yet it is the whole power that the Court is allowed to exercise under this act of Congress.” (Gordon v. United States; Appendix to 117 U. S. 697, 702.)
This opinion was not that of the court, nor does it appear to express correctly the grounds of the court’s decision. The case to which it applies was first submitted in December, 1863, and was reargued at the December term, 1864, when it was decided. (Gordon v. United States, 69 U. S. 561.) In the meantime Chief Justice Taney had died, and the copy of the opinion from which the publication in the appendix referred to was made was produced years afterwards by the son of his executor. The actual grounds of the decision as shown by the language of Chief Justice Waite in announcing it (quoted in United States v. Jones, 119 U. S. 477, 478) seem to have been the same as those upon which The United States v. Ferreira, 54 U. S. 40, was based, namely, that under the statute as it then existed a decision of the court of claims was merely advisory — was not intended to amount to an adjudication, was not a judicial act, and therefore the provision undertaking to allow an appeal to a court therefrom was invalid. The Jones case just cited held that (the statute having been amended) an appeal to the supreme court of the United States could then be given from a decision of the court of claims allowing a demand against the government. That necessarily involved a ruling that such a decision may be a judicial act,, notwithstanding the tribunal rendering it is without power to enforce it, because no money can be drawn from the Federal treasury but in consequence of appropriations made by law, and for that reason a court cannot enforce a money judgment against the government. “Hence the party who gets a judgment must wait until Congress makes an appropriation before his money can be had.” (Railroad Co. v. Alabama, 101 U. S. 832, 835.) Congress can refuse to pay a claim which has been judicially determined to be valid, but this is a very different thing from having the power to set aside an award against the government, the reservation of which in congress or any other legislative or executive body would under the Ferreira case prevent the award from being final unless appealed from and therefore cause it to be nonjudicial.
In a case where the enforcement of an order of the interstate commerce commission requiring a carrier to cease a certain practice for two years from a stated time was enjoined, an appeal from the injunction was decided after the lapse of that period, over an objection that there was no longer anything upon which the decision could operate, the court saying:
“In the case at bar the order of the Commission may to some extent (the exact extent it is unnecessary to define) be the basis of further proceedings. But there is a broader consideration. The questions involved in the orders of the Interstate Commerce Commission are usually continuing (as are manifestly those in the case at bar) and their consideration ought not to be, as they might be, defeated, by short term orders, capable of repetition, yet evading review, and at one time the Government and at another time the carriers have their rights determined by the Commission without a chance of redress. . . .
“In Boise City Irr. & Land Co. v. Clark, supra, [131 Fed. 415] the period for which a municipal ordinance fixed a water rate expired pending the litigation as to its legality, and it was contended that the case had.become moot. The court replied: ‘But the courts have entertained and decided such cases heretofore, partly because the rate, once fixed, continues in force until changed as provided by law, and partly because of the necessity or propriety of deciding some question of law presented which might serve to guide the municipal body when again called upon to act in the matter.’ ” (So. Pac. Terminal Co. v. Int. Comm. Comm., 219 U. S. 498, 515, 516.)
In this jurisdiction the question at issue may be regarded as having been settled in The State v. Allen, 107 Kan. 407, 191 Pac. 476. There an appeal on the part of the state in a criminal case was sustained which was brought to determine the correctness of an instruction where no verdict had been reached, the jury having been discharged upon failure to agree. The difficulty resulting from the fact that no specific mandate for the doing or omission of any particular act could accompany the reversal was fully appreciated and considered but was held not to prevent the determination of the issue presented. The bearing of that case is not avoided by the fact that the state constitution (Art. 3, § 3) gives the supreme court “such appellate jurisdiction as may be provided by law” for the quoted clause does not contemplate its exercise upon appeal of any but judicial powers. (Auditor of State v. A. T. & S. F. Railroad Co., 6 Kan. 500.)
A typical situation is presented for the application of the declaratory judgment act. There is a present controversy between the parties, the defendant claiming the right to perform the duties of the office to which he has been elected, and the plaintiff denying that right. The controversy is actual, not moot; concrete, not abstract. An interpretation of the statute concerning ineligibility is not the ultimate object of the suit but is a necessary step in determining whether the defendant is entitled to act as city commissioner. That question under the ordinary procedure could only be judicially decided after the defendant had assumed the duties of the office, thereby exposing himself to punishment by both fine and imprisonment. Even if injunction would lie to prevent his acceptance of the office, such relief would be unnecessary. In the remote contingency of his desiring to occupy the office after his ineligibility had been determined, the statutory penalty would exercise a sufficient restraining influence. The decision when announced is not merely advisory. It is a final adjudication having the binding force of any other judgment. If after its being adjudged that the defendant is disqualified he should undertake to hold the office, and the state should bring a proceeding to oust him, the only matter open to inquiry would be whether he was actually holding it; he could not be heard to raise any issue of either law or fact going to the question of his eligibility — and this results from the principle of res judicata and not from that of stare decisis.
The statute which the plaintiff regards as rendering the defendant ineligible reads as follows:
“No officer, employee, agent or servant or stockholder in any corporation, firm, company or person holding or operating under any franchise granted by such city, including street and other railways, telephone companies, electric-light companies or gas companies, or having any contract with such city, shall hold any city office; and no officer or employee of such city shall accept or hold any office in or employment by any such corporation, firm, company or person seeking to acquire' any such contract or franchise; and any person violating any of the provisions of this section shall thereby vacate his office and he fined not less than five hundred dollars nor more than one thousand dollars, and imprisoned in the county jail not less than six months nor more than one year.” (Gen. Stat. 1915, § 1556.)
The Missouri Pacific Railroad Company uses certain streets and alleys in Wichita under ordinances granting it the right to occupy them with its tracks on condition of its conforming to certain requirements. The defendant is employed by the company as a boilermaker. He contends that the rights acquired by the company under the ordinances referred to- are not franchises within the meaning of the term as used in the statute, and that the relations between the city and the com-' pany with respect thereto are not contractual.
It is said that legislative disqualifications to hold office are strictly construed against the claim of ineligibility. (29 Cyc. 1380.) Whether that be true otherwise than where the statute is penal or adds to requirements of the constitution need not be determined. The primary rule of construction is to ascertain and give effect to the reál purpose of the legislature, and that will prove sufficient here.
The word franchise is often used in such sense as not to include the grant by a city to a railway company of a right of way over its streets. (M’Phee & M’Ginnity Co. v. Union Pac. R. Co., 158 Fed. 5.) This court, however, has held that “franchise” in the quo-warranto statute is to be interpreted as cover ing a right of that character acquired in that manner. (Olathe v. Railway Co., 78 Kan. 193, 96 Pac. 42.) The statute now under consideration refers explicitly to franchises granted by a city to railway corporations. The rights ordinarily given by a city to such companies are of the kind granted by the ordinances here involved. And inasmuch as the term “franchise” is a proper one by which to describe them the fair conclusion is that they are the sort of rights the legislature had in mind when it used the word.
The defendant also argues that if the rights granted by t1 - ordinances referred to are regarded as franchises they are vol ’ because of the provision of the statute limiting the duration of franchises granted by the city to twenty years, and making other requirements which have not been met. (Gen. Stat. 1915, § 1661, subdiv. 2.) The limitation appears to apply to contracts, grants, rights and privileges as .well as franchises. The statute, however, contains a provision expressly excepting from its operation grants of “side-track or switch privileges to railway companies for the purpose of reaching and affording ra'lway connections and switch privileges to the owners or users of any industrial plants.” (Id., subdiv. 7.) Several of the ordinances in question contain express recitals showing that their grants are of that character, and in others that inference may reasonably be drawn.
Most of the ordinances by their terms required an acceptance by the railway company before becoming effective. The defendant, however, argues that no contract resulted because no obligations were imposed on the company and there was a want of mutuality. Provisions to the following effect are made in one or more of the ordinances. Under certain conditions the railway company is to pave the right of way in accordance with plans made by the city engineer; the company is to furnish such protection to the traveling public as the board of commissioners shall from time, to time direct; the company is to maintain a driveway for the traveling public and a cement sidewalk by the side of a certain track or spur; the company is to hold the city harmless from claims for damages occasioned by its occupancy of the street; the city may compel the observance of the conditions laid down at any time it may elect. Some of the provisions relating to the conduct of the railway company may be mere expressions of legal obligations that would in any event be implied. But others are quite clearly contractual.
The defendant’s disqualification results from the plain and unambiguous language of the statute. It is also as clearly within the purpose and spirit of the act. The legislature obviously proceeded upon the assumption that a corporation holding a franchise from or contract with the city, was likely by reason thereof to be drawn into controversy with it, and that a city officer who was required to take some action in relation to the matter, if he were an employee of the company in any capacity, might be influenced in his conduct by that circumstance. The provisions of the ordinances described are of such character that a dispute might readily arise out of conflicting interests, and the connection of a member of the commission with .the company might prove an embarrassment. Whether that probability is strong enough to render it expedient to make such relationship an absolute disqualification is of course a matter for the legislature to determine.
For the reasons stated the judgment of the court has been rendered declaring the defendant disqualified to hold the office of city commissioner. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for rent due on an oil and gas lease. Judgment was rendered for plaintiffs on defendant’s answer and admissions, upon the ground that these constituted no defense.'
Plaintiffs’ petition alleged that they were the owners of certain lands which they leased for purposes of gas and oil development under a written contract signed by them and by defendant, in which among other matters it was provided—
“The party of the second part agrees to complete a well on said premises within one year from the date hereof, or pay at the rate of one hundred dollars for each additional three months such completion is delayed from the time above mentioned for the full completion of such well until a well is completed; and it is agreed that the completion of such well shall be and operate as a full liquidation of all rents under this provision during the remainder of the terms of this lease.”
Plaintiffs alleged that defendant did not complete a well on the premises within one year, and that he had never drilled for gas or oil, and that the rent due under the lease had not been paid. They prayed judgment for the rent'.
Defendant’s answer admitted the execution of the lease, but alleged that he never had any personal interest in the transaction; that in November, 1915, the defendant and others were engaged in an effort to procure development of gas and oil in the vicinity of plaintiffs’ land, and that they induced certain parties, McGinnis & Company, to survey -the territory thereabout for gas and oil, and that McGinnis & Company agreed that if defendant and his associates would secure a block of leases in that neighborhood, including a lease of plaintiffs’ land, they, McGinnis & Company, would put down a test well; and that pursuant thereto the defendant and his associates went about securing leases, including the one in controversy, which were all taken in the name of defendant, in trust or as agent, to be held by him until the test well should be commenced by McGinnis & Company, when “it was understood he would make and deliver said leases” to McGinnis & Company. Defendant alleged that this arrangement was fully explained by letter and orally to plaintiffs; and that defendant’s brother—
“At that time explained to the plaintiff that said David Chaffin did not have any interest in said oil and gas leases whatever and would not have any interest whatever in the oil and gas leases which the plaintiff was executing to him, except that he was to hold them (as trustee) and in his name until a test well was commenced on this block of leases.
“That with this understanding the plaintiffs executed and returned said oil and gas lease, a copy of which is set out in plaintiffs’ petition.”
Defendant also alleged that these arrangements had been carried out and that a test well had been drilled within a half mile of plaintiffs’ land; and—
“That defendant never at any time had any interest in and to the oil and gas lease sued upon in plaintiffs’ petition, except that he was intrusted by the plaintiffs to hold the same for the protection of plain tiffs until such time as a test well was commenced on the block of leases in which plaintiffs’ lease was included and then to transfer and deliver the same.
“That with the transfer and delivery of said oil and gas lease to the said W. F. McGinnis and Company the defendant’s trust was fully carried out and complied with and that he has no further or other-legal liability.”
At the trial defendant admitted in open court that the rent specified in the lease had not been paid and that no well had been drilled on plaintiffs’ leased premises.
Upon this admission and defendant’s answer the court gave judgment for plaintiff.
Was this correct? When judgment is given on pleadings and admissions, such pleadings and admissions are entitled to most favorable consideration. In such a case, every fact well pleaded is taken as true, but no such effect is given to facts not well pleaded. Here the defense was a parol agreement at variance with the written contract. Such a defense is never permitted unless some species of fraud or mutual mistake is also pleaded and proved. Where there is neither plea nor proof of fraud or mutual mistake, it is conclusively presumed that the written contract contains the whole terms and the only terms of the contract; and a person who has thus obligated himself cannot defeat a recovery on such contract by parol evidence of matters at variance therewith. Were the rule otherwise the making of a written contract would be a vain and useless undertaking. This has always been the law in this state. (Fort Scott Coal Co. v. Sweeney, 15 Kan. 244; Sexton v. Lamb, 27 Kan. 426; Hopkins v. St. L. & S. F. Rly. Co., 29 Kan. 544; Miller v. Edgerton, 38 Kan. 36, 15 Pac. 894; Willard v. Ostrander, 46 Kan. 591, 26 Pac. 1017; Brown v. Trust Co., 71 Kan. 134, 80 Pac. 37; Fontron v. Kruse, 103 Kan. 32, 38, 172 Pac. 1007; Insurance Co. v. Whitney, 105 Kan. 237, 182 Pac. 645. See, also, 13 C. J. 524, 525.)
Appellant seems to think that the force of this proposition can be avoided by arguing that he took the lease merely as a trustee without any personal interest in the contract. The contract is simple and unambiguous in its terms'; it gives no hint or intimation of the creation of a trust; nor within its terms can there be discerned any qualification or limitation of the defendant’s obligation to pay the quarterly rent. While defendant’s brother may have fully explained to plaintiff the project to collect a number of leases for the purpose of prospecting for and developing gas and oil and that defendant should hold the leases until a well was developed by McGinnis & Company and then assign the leases to them, the written contract between plaintiffs and defendant is unqualified and unencumbered by any reference to those arrangements or those conditions. If these facts were pertinent to the contract, defendant should have incorporated them in the written instrument to which he attached his name. If he did not intend to pay rent after the first year until a well was commenced on plaintiffs’ property he ought not to have signed his name to a contract binding himself to pay such rent. It should be borne in mind that courts do not make contracts. They merely enforce the contracts to which the contracting parties have voluntarily bound themselves.
Nor does- the fact that defendant assigned this lease to McGinnis & Company discharge defendant’s obligation to pay the rent. The text of the lease indicates that its possible assignment was contemplated by the parties, but there is no agreement therein on the part of plaintiffs to look only to such possible assignee for their rent. If some such assignee had paid, doubtless that would be a sufficient payment to discharge the defendant; but it would be a queer doctrine to declare that the grantee' of an oil and gas lease — any more than any other lessee, could avoid his obligation to pay rent by assigning his leasehold to another tenant. In Harris v. Strickler, 86 Kan. 266, 268, 120 Pac. 343, it was said:
“An assignment does not annul the lessee’s obligation on his covenant to pay rent, although the lessor has consented to the assignment and collected rent from the assignee. (24 Cyc. 11776; Grommes et al. v. St. Paul Trust Co. et al., 147 Ill. 634, 35 N. E. 820, 37 Am. St. Rep. 248.)”
The record contains no error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This lawsuit arose over an exchange of two farms. The plaintiff traded a farm in Allen county, Kansas, to the defendant for a farm in Carroll county, Missouri. The contract covered certain details which will not need our attention ; but one of the stipulations to which the defendant bound himself was that the Missouri farm was “frée and clear of all incumbrance” except a $6,000 mortgage. The deeds were deposited in a bank to await completion of the abstracts and other incidental matters, but the parties at once entered into possession of the farms so exchanged. Some months later the plaintiff discovered that the Missouri farm which he had re-received in the exchange was included in a drainage district, all the property of which, including this farm, was subject to a statutory lien for the payment of the construction cost of drainage ditches. This construction cost had been determined and charged against the property, and when that had been done there was a short interval of time when any owner of property bound to the payment of such construction cost could have paid his pro rata share, and could thus have relieved his property of the burden of special assessments for such improvement. After the lapse of such brief interval, no such privilege was available. Thereafter special assessments, payable annually, and not otherwise, for twenty years, were imposed upon all the property in the drainage district, and such special tax burden could not be discharged by present payment. Thenceforward the annual special assessments were to become due and payable' at the same time and in the same manner as ordinary taxes. Prior to the exchange of farms between plaintiff and defendant, some three or four of such annual assessments had been paid, but no annual assessment was due at the time the contract of exchange was made, and the plaintiff had not paid any such annual assessment at the time this action was begun.
The plaintiff’s action was for specific performance, etc. After an extended trial, all of the matters in controversy, with one exception, were determined and acquiesced in by both parties. The one exception, upon which this appeal is based, relates to the trial court’s finding and judgment that the statutory lien for the annual assessments to become due throughout the remainder of the term of twenty years constituted an incumbrance in breach of the contract for the exchange of farms. The aggregate of all these future annual assessments, as computed by the trial court, was $1,301.34, and judgment for that amount was rendered against the defendant. He appeals.
Curiously enough, neither party cites our own case, Armstrong v. Trust Co., 96 Kan. 722,153 Pac. 507, where this court considered this question. Speaking for the court and with its unanimous approval, Mr. Justice Porter said:
“The courts have not hesitated to adopt ‘the rule of reason’ in construing covenants against incumbrances, and have often recognized a distinction between incumbrances which are such in a strictly literal exactness, and those which, from the nature of the contract, the situation of the parties, and their evident intent at the time it was made, appear not to have been in contemplation. . . . Every day contracts are made for the conveyance of real estate which is liable for future payments of assessments for special improvements already constructed. The assessments are payable in annual installments running usually in ten-year periods. These assessments constitute, in a strict sense, incumbrances on the land to the extent of the installments unpaid. The vendor, in the absence of any agreement, is liable of course for the payment of all overdue installments.' He is also liable for the installment of the current year, provided the conveyance is made on or after November 1, because the maturing installment has ripened into a tax. But his covenant of warranty against incumbrances would not oblige him to rebate the purchase price to the extent of future installments. Those payable in the future, though strictly incumbrances on the land, are not such as diminish the value of the subject of the contract. The vendee who is to enjoy the benefit of the improvements during the remainder of the installment period ought to pay them,, and therefore, though incumbrances in a strict sense, they are not so within the fair and reasonable construction of the covenant.” (pp. 724, 726.)
(See, also, White v. Immenschuh, 106 Kan. 333, 336, 187 Pac. 667; Jacobs v. Union Trust Co., 155 Mich. 233; Sharpe v. Dick, 22 Queb. L. R., Sup. Ct., 527.)
The appellant places his principal reliance upon Missouri decisions which are to the effect that until a grantee of a deed conveying property free and clear of incumbrances has paid off such incumbrance or has suffered loss on account thereof, he cannot maintain an action for breach of covenant. This seems to be a correct statement of the Missouri rule. Of course, in Missouri as elsewhere, taxes and special assessments which are due and payable, and which can be discharged, are incumbrances (Blossom v. Van Court, 34 Mo. 390), but a diligent search of the Missouri reports fails to disclose a case of close analogy to the one before us. In Everett v. Marston, 186 Mo. 587, 599, the court approvingly quoted the doctrine of Judge Cooley that “where a lien (for taxes) is expressly created by statute, it cannot be enlarged by construction, and the statute creating it must be strictly construed.”
In Walker v. Deaver, 79 Mo. 664, syl. ¶ 4, it was held that until a grantee under a conveyance warranting the property against liens and incumbrances had suffered an actual loss on account thereof, the damages recoverable were only nominal.
In Patterson v. Yancy, 81 Mo. 879, it was held that without first paying the taxes encumbering the property at the time of its conveyance the grantee could not maintain a suit to recover such taxes. To the same effect are Taylor v. Priest, 21 Mo. App. 685; Winningham v. Pennock, Ex’r, 36 Mo. App. 688, 694.
From this it follows that if the law of Missouri wholly governs this action, the plaintiff, having paid nothing on the special assessments and having suffered no loss, cannot recover.
Under our own law, it must be held that a statutory lien on property for special improvements to be paid in the future by annual assessments running for a term of years, and which lien is not capable of being discharged by present payment, -is not an incumbrance in breach of an ordinary contract for the exchange of farms within the fair, reasonable, and common meaning of the expression “free and clear of all incumbrance.”
The judgment of the district court is reversed, and the cause remanded with instructions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a landlord to recover from his tenant the value of prairie hay grown on the leased premises and appropriated by the tenant. The judgment was for the defendant, and the plaintiff appeals.'
The lease was of a described half section of land. The rent reserved consisted of shares of crops, with the exception of rent for the pasture; one-third of the wheat; two-fifths of the corn; two-fifths of the Kaffir corn; one-hálf of the alfalfa; one-third of the prairie hay if baled, and two-fifths if stacked. Specific, portions of the land from which these crops were to be produced were not described. It seems, from an agreed statement of facts on which judgment was rendered, that there was a meadow on the farm, from which twenty-two tons of hay were cut. The pasture land was not described, but appears to have been fenced. The tenant agreed to procure stock for the pasture, not exceeding four head to the acre, and the landlord was to receive six dollars per head for the season, stock not to be removed until pasture bill was paid. The acreage of the pasture was such that the tenant was not allowed to pasture more than thirty-one grown animals. He placed thirty head in the pasture, and kept them there until some time in August, when he sold nineteen of them. The remaining eleven head were in the pasture for the full season. After the removal of cattle in August, the grass was not eaten down, and in late September the tenant cut from the pasture forty-six tons of hay, worth fifteen dollars per ton. He paid $180 for the pasture, or at the rate of six dollars per head for thirty head. The parties stipulate that if the plaintiff is entitled to recover, he should recover the value of one-third of the hay.
The tenant admits he cut forty-six tons of prairie hay from the pasture, but he says the prairie hay referred to in the lease was hay on the meadow land; he has paid in full for the pasture, and shares of crops having been delivered or accounted for, all rent for the half section has been paid. The landlord says the word “meadow” does not appear in the lease, and the term “prairie hay” was not restricted to hay from the meadow. The tenant was obliged to procure stock for the pasture. That was one of the conditions of the lease, and the landlord’s share of wheat, corn, Kaffir corn, alfalfa, and prairie hay, wherever cut, together with the sum received for pasture of stock, formed the entire consideration for the lease.
When the lease was executed, the parties doubtless understood the rent provisions to refer to known subdivisions of the land and established uses of those subdivisions. Doubtless, mowing* the pasture was not thought of, and “prairie hay” was understood to mean hay from the meadow of native grass, as distinguished from alfalfa. Both parties understood that the tenant was to furnish as many cattle for the pasture as it Would sustain without overstocking. There is nothing in the lease, however, which permits the tenant to convert the pasture into meadow. To do so would ordinarily constitute waste. A portion of the herbage of pastured land is returned to the soil in manure, uneaten grass returns to the soil and protects and enriches it, and mowing pasture land soon renders it unfit for pasture. This being true, the tenant should not be allowed to profit through a violation of his contract resulting in waste and, but for the stipulation relating to amount of recovery, he might be required to account for all the hay taken from the pasture. If the tenant had plowed up the pasture land and planted it to corn, he could take none of the corn and would be accountable for pasturage as such, and damages for waste. When the tenant delivered proper shares of the wheat, corn, Kaffir corn, alfalfa, and meadow hay, and paid for the number of cattle the pasture would sustain, he discharged his obligation in full, provided his handling of the pasture constituted good husbandry. While the facts adverted to are generally true, they may not be pertinent in this instance, considering the character of this particular pasture, the season, and other circumstances. Therefore, the district court should determine the question of good husbandry as a question of fact and, in the event the tenant’s use of the pasture was not an approved usé, he should account for the pasture hay according to the stipulation; otherwise the same judgment should be rendered as before.
The judgment of the district court is reversed, and the cause is remanded with direction to proceed as indicated. | [
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The opinion of the court was delivered by
Mason, J.:
E. H. Johnson appeals from a conviction upon four counts charging him with embezzling money of the Railroad Men’s Refining Company, a corporation of which he was the president.
The defendant introduced no evidence. The evidence of the state tended to show these facts: The charter of the corporation provided that its general offices should be located in El Dorado. It carried a deposit in its own name in a bank situated there. Checks upon this deposit were drawn from time to time signed with the name of the corporation by E. H. Johnson, president. These checks were paid by the bank and charged against the deposit. In four instances — to which the four counts corresponded — in which such checks were drawn their proceeds, or a part thereof, was used by the defendant for his own purposes and not for the benefit of the corporation.
Each count of the information alleged that on the date therein named the defendant had received and taken into his possession and under his care money to a certain amount— that of the check involved. The defendant asserts that the allegation was fatally defective in not setting out when and how the defendant received the money, and cites in support of the contention The State v. Griffith, 45 Kan. 142, 25 Pac. 616. There the information alleged the embezzlement of property by one to whom it had been delivered as bailee, without describing the terms and character of the bailment, and was held insufficient on that account. The rule of that case is founded upon the generality of the term bailee and the different kinds, of responsibility that may grow out of that relationship; it has no application where the embezzlement is charged to have been committed by an officer of a corporation.
The information alleged that the defendant was president and general manager of the corporation and had received the money embezzled, and had it in his possession and under his care, by virtue of his employment and position as such. The defendant asserts that there was no competent evidence that he was general manager and therefore the charge as made was not sustained. Witnesses testified (over objection) that the defendant was general manager as well as president, but the source of their information was not shown. The by-laws contained no provision for such an office or position, but in the enumeration-of the duties of president included that of having “general supervision over the affairs of the corporation and over the other officers.” The evidence tended to show that he performed services of the character suggested by the term general manager. In this situation the fact that the information gave him in addition to the title of president that of general manager, which was not recognized by the by-laws, can have had no prejudicial effect and is not a ground of reversal.
It is contended that the evidence does not show that the defendant ever received or had possession or care of the money he is charged with embezzling. The by-laws provided that the treasurer should have custody of all money of the corporation, and that its funds should be deposited in such bank as the directors should designate and withdrawn only upon the check or order of the treasurer “or other person designated by the management,” the president being required to countersign all checks. The evidence sufficiently shows that the practice was for the defendant to sign checks drawn against the corporation’s deposit and for the bank to pay them. Whether1 or not this was in strict accordance with the by-laws the conduct of the defendant is to be judged by the practical rather than the technical aspect of the matter. The funds of the company being on deposit subject to checks signed by the defendant were in his possession and under his care in such sense as to make his appropriation of a part of them to his own use an act of embezzlement. (People v. Britton, 118 N. Y. Supp. 989.) It was not necessary to a conviction that his possession or care of the corporation’s money deposited in the bank should have been exclusive. (State v. Kortgaard, 62 Minn. 7; Reeves v. The State, 95 Ala. 31.) In a somewhat similar situation it has been said:
“There is no more reason why courts should allow themselves to be misled by mere names and shadows in the administration of justice in criminal, than in civil cases. Calkins, under and by virtue of his employment, had the wheat in the warehouse of his employers so far under his care and in his possession and control as to give him the power to make an efficient transfer of title to any part of it to any person -who should become the bona, fide purchaser of a grain order issued by him in the name of Baldwin — a transfer of title effective in favor of the holder of such order, and against his employers. This power he used to divest his employers of their property, and to put the proceeds of it into his own pocket. We think he had all the care of the property which the statute contemplates, and that when he clandestinely transferred the title of wheat from the railroad company to an innocent holder of a grain order and appropriated the proceeds thereof to.his own use, the act of embezzlement was complete.” (Calkins v. The State, 18 Ohio St. 366, 371.)
“The secretary of a corporation cannot escape liability under said statute by the fact that, under the by-laws of the company, the treasurer was the custodian of its funds, where such by-laws were disregarded in the conduct of the business, and the funds converted actually came to the possession of the secretary.” (People v. Butts, 128 Mich. 208, Syl. ¶ 3.)
“Nor have we any doubt that the money converted was in their [the defendants’] possession, and in the possession of each of them, within the meaning of the statute. They were directors of the company charged with the control of its property, and the checks of each, when drawn upon its'funds, were honored without question.” (People v. Lay, 193 Mich. 476, 489.)
“Funds payable upon money orders drawn by a postmaster or clerk having authority to issue the same in the regular course of his official duty may be deemed to be intrusted to such postmaster or clerk in the sense that, if wrongfully converted by him to his own use, he is guilty, of the crime of embezzlement. Such funds are in fact subject to his official order; that is, they are set apart by the government for the payment of money orders issued by him, and are thus intrusted to his official care, although they may not be in his actual custody.” (United States v. Royer, 122 Fed. 844, 845.)
“The defendant'was the general manager of the elevator in which the grain was stored. He had complete control of the grain. He had power to cause it to be transferred from one elevator to another, and must he held, we think, to have had the wheat in his possession, custody, and control as the agent or officer of the elevator.” (People v. Sherman, 16 N. Y. Supp. 782, 784.)
The fact that the business was not handled in the way provided by the written regulations on the subject does not give the defendant immunity. A city clerk has been held guilty of embezzlement with respect to money paid to him which should have been paid to the city treasurer instead (The State v. Spaulding, 24 Kan. 1), and a city treasurer, with respect to money illegally collected from violators of the liquor law {The State v. Patterson, 66 Kan. 447, 71 Pac. 860). Inasmuch as the defendant had and exercised the actual power to get the money out of the bank by signing checks he cannot be heard to say in defense to the charge against him that authority to do so had not been legally conferred upon him. (See notes, 23 L. R. A., n. s., 761; 3 Ann. Cas. 844.)
It is argued that the evidence is insufficient to support a conviction because it does not show to whom the corporation’s money was paid by the bank, or that it was paid to any one. It was shown that the checks signed by the defendant, the proceeds of which were by him in whole or in part appropriated to other uses than for the benefit of the corporation, ultimately reached the bank on which they were drawn, where they were marked paid and charged against the corporation’s account. This was a conversion of the money of the corporation although no cash was at the time handed out over the counter, upon the reasoning already indicated; and it rendered the defendant guilty of embezzlement irrespective of whether he derived any personal benefit from the transaction. (20 C. 'J. 428.)
It is contended that the evidence did not show the commission of a crime in Butler county — that no conversion was shown to have taken place there. Not all of the four checks with respect to which the defendant was found guilty were given in that county. One of them was given in Joplin, Mo., to a dealer in jewelry for a diamond pin. The cases are not entirely harmonious as to the considerations that determine the venue in embezzlement. The general rule is that the venue may be laid in the county where the act of appropriation, or conversion, took place. (See note, L. R. A. 1918 E, 744-749, where the cases on the subj ect are fully collected and classified, among those having especial application to the situation here presented being Carter v. State, 143 Ga. 632, Mangham v. State, 11 Ga. App. 427, and those cited in a group on page 747.) One who being without the state commits or consummates an offense by an agent or means within the state is liable to punishment here (Gen. Stat. 1915, § 7930) ; and “When a public offense has been committed, partly in one county and partly in another, or the act or effects constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in either county.” (Gen. Stat. 1915, § 7932.) When the defendant, wherever situated at the time, drew a check against the corporation’s deposit in the El Dorado bank and exchanged it for money or property not for the benefit of the corporation, the presentation of the check at the bank through whatever hands it had come, resulted in a reduction of the corporation’s funds there on deposit by its amount; and this may fairly be regarded as the consummation of the offense of embezzlement such as to fix its venue, the conversion being complete when the bank makes an effective charge against the corporation’s account, thereby diminishing its assets that much. This is in effect a conversion of the corporation’s money, whether the bank pays the check in cash over the counter to the payee it names, or merely gives credit on its books to the holder from whom it receives, it: In a strict technical sense the depositor has of course no actual money in the bank — he has no ownership of any specific currency or specie. But in a practical sense, Under ordinary conditions, in the case of a solvent bank operated as a going concern, the depositor may be regarded as owning money to the amount of his deposit, and an agent who has a right to check upon it for his principal’s benefit and Wrongfully does so for his own advantage, embezzles the amount of money represented, although the check itself may have left his hands before being presented for payment. In a prosecution of a state treasurer for embezzling public funds, where legal questions of a somewhat similar nature were involved, it was said;
“For the purposes of this case, we shall assume that the construction of the statute contended for by the defendant is the proper one, namely, that the term 'money’ was used by the legislature in a specific sense. In other words, it means legal-tender coin, and also paper issued by the government, or by banks by lawful authority, and intended to pass and circulate as money. It is insisted on behalf of the accused that, under the foregoing definition, he did not embezzle money — actual coin or currency — belonging to the state. It is true the state had no specific coins or currency in the possession of the Omaha National Bank, as it had made no special deposit of money in said bank. The state, at the time of the delivery of the check in question to the bank, had on deposit therein, under the depository law, money in excess of the amount found by the jury to have been embezzled, which constituted the bank the debtor of the state to that amount. ... To constitute embezzle-, ment it was not necessary that the defendant himself should have acquired the physical or manual possession of the money. He, by his cheek, authorized and directed the bank tp pay the money called for therein. . . . The bank was thereby empowered to select and transfer the money to the payee, which in contemplation of law it did, although there was’ no actual handling of a dollar in the entire transaction.” (Bartley v. State, 53 Neb. 310, 337, 338.)
“The several acts and matters elemental, directly or indirectly, of the purposed conversion of the state’s money were but means to the end, and had reached their final accomplishment when, pursuant to the order of the check, the moneys of the state were paid out or transferred, not for its use or uses, but to perfect, to close and render entirely effectual the misappropriation of the money to the use or uses of the plaintiff in error.” (Same case on rehearing, 55 Neb. 294, 297.)
Complaint is made of the overruling of a motion made by the defendant to require the state to elect as to what evidence it would rely upon for conviction as to each count. The date of each check served to show with reasonable clearness to which count it was intended to apply. Moreover, the county attorney in his opening statement sketched the evidence upon which he would ask conviction upon the several counts respectively, and the defendant in his brief indicates separately the evidence offered in support of each. It is evident, therefore, that no prejudice can have resulted from this ruling.
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The opinion of the court was delivered by
Horton, C. J.:
In this case, it appears from the agreed statement of facts that the plaintiff’s cattle escaped from his pasture and wandered from the public highway upon the uninclosed land of one Alva Clark, through which the defendant’s railway runs; the railway was not fenced, and the cattle entered upon it and were run over by a train; their escape had not been discovered, and there was no one in pursuit; the herd law of 1872 was in force in the county. It is claimed on the part of the railway company, defendant below, that the plaintiff was bound at all events to restrain his cattle; that the killing of the cattle was the result of concurring wrongs, and as the law can neither apportion the damages nor attribute the result to defendant’s default, disregarding that of plaintiff, no recovery can be had. Railway Co. v. Lea, 20 Kas. 353, and Sherman and Redfield on Negligence, § 39, are cited. In Railway Co. v. Lea, the owner permitted his cow to run at large in violation of the herd law, and while so running at large the animal strayed upon the track of the railroad and was killed. In this case, the owner of the animals kept them confined on his farm in a pasture inclosed with a good and lawful fence, and, without his fault, they escaped in the night-time from the pasture into a public highway, and wandered thence into uninclosed lands upon the defendant’s railway, which railway was wholly unfenced. Therefore the case of Railway Co. v. Lea is not controlling.
On the other hand, the agreed statement of facts brings the case within the following decisions of this court: Railway Co. v. Wiggins, 24 Kas. 588; Railway Co. v. Bradshaw, 33 id. 533; Railway Co. v. Roads, 33 id. 640.
In Railway Co. v. Wiggins, it was held that even in herd-law counties the rigorous doctrine of the common law does not prevail, and that an animal cannot be said “ to be allowed to run at large” where the owner has taken reasonable precautions to confine the same. In Railway Co. v. Bradshaw, it was held that under the railway stock law of 1874, a railway company is required to inclose its road with a good and lawful fence as against all animals against which such a fence would be a protection; and it was further held in the case, that where an unfenced railway passed through a farm and a hog belonging to the owner of the farm escaped, without fault on the part of the owner, and strayed upon the railway within the limits of the farm and was there killed by the railway company in the operation of its road, that the railroad company was liable. In Railway Go. v. Roads, it was said that where hogs escape, by mere accident, from a pen in which they are inclosed, no negligence can be properly attributed to the owner therefor; and it was further said that the mere fact that the animals were trespassing upon the land from which they went upon the unfenced railroad track where they were killed, will not, where the plaintiff is without fault, defeat a recovery.
Upon these decisions, the judgment of the district court must be affirmed.
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The opinion of the court was delivered by
Johnston, J.:
This is an action for the conversion of a quantity of hay belonging to the plaintiff. After the plaintiff’s reply had been filed, the court, upon motion of the defendant, rendered judgment against the plaintiff upon the pleadings in the cause, and this is the ruling complained of here. The only question for our decision, then, arises upon the interpretation and effect of the pleadings. It was alleged in the petition that on November 14, 1882, the defendant, J. S. Mize, wrongfully carried away and converted to his own use sixty tons of hay belonging to the plaintiff, which was of the value of $3 per ton. The defendant answered that the hay was seized as the property of one Henry J. Tucker, under an attachment issued in an action brought by C. F. Brandner against the said Tucker, in which action a judgment was rendered in favor of Brandner, and the attached hay was ordered to be sold as the property of Tucker to satisfy the judgment. In pursuance of that order and the direction of Brandner, the defendant advertised for sale the ■ sixty tons of hay of which he had possession, and on November 9," 1882, sold the same to Brandner; but when the hay came to be delivered to the purchaser on November 14, 1882, there remained but about thirteen tons thereof. The remainder of it, as was alleged, had been hauled away and used by Westbrook, the plaintiff in this action. As a further defense, the defendant alleged that on November 14, 1882, C. E. Westbrook began an action against Brandner to recover for thirty tons of hay of the alleged value of $3 per ton, claimed by Westbrook to have been wrongfully carried away by Brandner, and which was the same hay in controversy in this action; that the cause was tried on March 7, 1883, and resulted in a judgment in favor •of Westbrook and against Brandner for the sum of $81, damages, with interest from the 14th day of November, 1882, and the costs of suit; that on April 14th, 1883, Brandner paid that judgment in full, and on April 17th, 1883, the amount thereof was accepted and receipted for by the plaintiff West-brook. The plaintiff replied that the hay mentioned in defendant’s answer was, at the time of the pretended levy and sale thereof by the defendant in his capacity as constable, the property of the plaintiff, of which fact he had full knowledge when the levy and sale were made, and he averred that the defendant and C. F. Brandner, who also knew that the hay was the property of the plaintiff, colluded together for the purpose of injuring the plaintiff and depriving him of his property, and so colluding together, caused the levy and sale of the hay as the property of Henry J. Tucker. In further reply to the answer of the defendant, the plaintiff alleged that the judgment mentioned in his answer against said C. F. Brandner was rendered “under chapter 113 of the Compiled Laws of 1879, for treble the actual damages sustained by said plaintiff on account of the wrongful act of said Brandner in carrying away from section one, township twenty-two, range four, in Marion county, nine tons of hay in controversy in this suit, and no- more, the same being only a portion of the hay which said Brandner and said defendant had, as hereinbefore alleged, wrongfully levied upon and sold and converted to their own use,, and by reason of said fact, was not-a payment for the full amount of damages which the said plaintiff sustained by the wrongful and tortious act of the said Brandner and said defendant.”
We are of opinion that the acts of the plaintiff, as stated and admitted in the foregoing pleadings barred the further prosecution of his suit. By his- reply it appeal’s that the defendant and C. F. Brandner conspired together to wrongfully deprive the plaintiff of his property. The tortious taking of the sixty tons of hay was the joint action of both Brandner and the defendant. It being a joint wrong, either or both of the parties were liable to the full extent of the injury, as the law holds any one of such joint trespassers responsible for the misconduct of all. The plaintiff was therefore at liberty to sue them jointly, or to bring separate actions against each, but he can only have one satisfaction for such injury. . The bringing of a suit against Brandner would not bar the institution of a separate suit against the constable, but if a recovery was had • in the ease against Brandner for the joint liability, the satisfaction of that judgment would preclude the further prosecution of the action against the constable. That is the case made by the pleadings. The present action' was brought on the 12th day of March, 1883; and in the reply filed by the plaintiff, he admits that on November 14/1882, he sued Brandner for taking and carrying-away a portion of the hay in controversy in this;áction, and obtained a judgment -therein' which ~has been fully satisfied. That the hay involved in that suit is the same for which a recovery is sought in this action, is quite clearly stated. He first charges that the defendant and Brandner wrongfully converted sixty tons of hay 'by the unlawful levy and sale' thereof" as the property of Tucker, and then states that the judgment which he recovered against Brandner in the former action was for “nine tons of hay in controversy in this suit,” “ the same being only a portion of the hay which said Brandner-and said defendant had/ as -hereinbefore alleged, wrongfully levied upon” and sold, and cohVerted' to their own use;” and then he follows with the statement that the amount of recovery in that action <f was not a payment for the full amount of damages the said plaintiff sustained by the wrongful and tortious act of said Brandner and said defendant.” ■ It is thus s.een that the wrongful taking charged against Brandner; for which a recovery and satisfaction hás been had, is embraced in the joint injury committed by the defendant and Brandner. It is now claimed by the plaintiff that as the.recovery against Brandner was for but nine tons of the hay, a separate action can be maintained against him for the injury done by his co-trespasser, providing the damage done by one can be ascertained and separated from 'that committed by- the other. The responsibility cannot J # * thus he apportioned'. The entire quantity of the hay was levied upon under a single attachment and sold at a single sale in pursuance- of the alleged conspiracy between Brandner and the defendant. -The levy, and sale under the circumstances alleged constituted -a single tortious act, and the injury thus jointly committed is an entirety. It is immaterial who removed and used the hay, or whether nine tons were actually used by Brandner--and the other -fifty-one by Mize, because, being a joint trespass, each is responsible’ for the whole, and-a release of one is a-release of’all. From the ■pleadings it appears that the injury inflicted, and the claim of damages therefor, constituted a. single and . entire ■ .demand, which the law does not permit to be severed or divided up into several causes of action. If in the former action the plaintiff demanded less than he was entitled to, or if he • sued for all and recovered less, he will not be permitted after the payment and acceptance of the amount recovered, to maintain an action against the other trespasser for the balance to which he.was entitled, or which he might have demanded in the first instance. (Turner v. Hitchcock, 20 Iowa, 310; Cooley on Torts, 133, et seq., and cases cited:)
Nor will it avail the defendant that the former action' was brought under, chap ter .113 of. the. General Statutes. Under the averments of the plaintiff in the; present action, both Brandner and the defendant might have been proceeded against in the action brought under that statute. In that action the .plaintiff could have recovered treble the value of the hay taken and carried away, which is all and more than all sought to be recovered in this action. It is immaterial which remedy he pursues; he had but a single demand, and can only have a single satisfaction.' Either remedy was open to him, and having elected to pursue the special statutory remedy, the other is not now available.
The assessment of all the costs against the plaintiff was, however, erronéous. The judgment in the first action’ was not paid until April 14, 1883, and the present suit was begun on March 12, 1883, and the answer therein was filed on ^prp g^ 1883. The plaintiff, as we have seen, had a right to bring and maintain separate suits against each of the wrongdoers at the same time, and therefore, had a right to recover all costs, in both suits up to- the time when satisfaction was made in either one. The plaintiff was therefore entitled to recover the costs which had accrued in this action until the judgment in the first action was fully satisfied, while all costs which subsequently accrued should be assessed against the plaintiff.
The judgment will be so modified, and the costs in this court will be divided.
All the Justices concurring. | [
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The opinion of the court was delivered by
Yalentine, J.:
This was an action brought by the state of Kansas in the district court of Lyon county against the Endowment and Benevolent Association of Kansas, to oust it from the exercise of certain alleged corporate powers, and to dissolve the corporation. The case was tried before the court, without a jury, upon an agreed statement of facts, and upon such agreed statement of facts the court rendered judgment in favor of the plaintiff and against the defendant; and the defendant, as plaintiff in error, brings the case to this court for review.
The plaintiff, defendant in error, claims that the defendant, plaintiff in error, is exercising the powers and functions of a mutual life insurance company, in violation of chapter 131 of the Laws of Kansas of 1885. The defendant admits that it has not complied with any of the terms or provisions of said chapter 131; but claims that it is not required to do so, and this for the following reasons, among others: First, the act does not apply to the defendant; second, but if it does, then it is unconstitutional and void to that extent. Does the act apply to the defendant? The defendant claims that it does not, for two reasons: (1.) It claims that the act applies only to mutual life insurance associations, and that the defendant is not such an association. (2.) It claims that the act can apply only to such mutual life insurance associations as have been or may be organized since the act took effect, and that the defendant’s organization dates from January 7, 1885, while the act did not take effect until March 14, 1885. The whole question as to whether the act applies to the defendant, or not, we think depends entirely upon the question whether the defendant is engaged in the business of life insurance, or not. That it is an incorporated association, doing business on a mutual and coSperative plan, with mutual rights, privileges and obligations among its members, it admits; but it claims that it is not engaged in any kind of life insurance business. Indeed, it claims that it is not engaged in an insurance business of any kind, and is not an insurance company or association of any kind. It claims that it takes no risks which may with any degree of propriety be called insurance risks; and that it makes no difference to it or to any of its members whether persons joining the association are old or young, in good health or in bad health, or whether they are likely to live long or to die soon; and, indeed, it claims that the association is nothing more than “a loaner of money.” On the other hand, the plaintiff claims that the defendant is a mutual life insurance association, and nothing else. In our opinion, if the defendant is not engaged to any extent in the business of mutual life insurance, then the act will not apply to it; but if it is engaged in any such business, then the act will apply. The title to the act reads as follows: “An act providing for the organization and control of mutual life insurance associations in this state,” and, of course, unless the defendant is engaged.in the business of “mutual life insurance,” within the meaning of this title, the act itself cannot apply to the defendant. But if the defendant is engaged in this kind of business, then we think the act will apply, and not only by the terms of this title, but also by the express provisions of the act itself. It will be seen from an inspection of the body of the act that it was the intention of the legislature that the act should apply to all mutual life insurance associations organized on the assessment plan, with a few exceptions, whether the associations were organized before the act took effect, or afterward. (See § 30 of the act.)
For the purpose of determining whether the defendant is engaged in the transaction of a mutual life insurance business, or not, we shall now proceed to consider the nature and character of its organization and the kind of business which it does in fact transact. The association is a corporation, and was organized on January 7, 1885. The charter is broad enough to authorize it to transact a mutual life insurance busi ness upon the assessment plan, and also upon both an endowment plan and a death or mortuary plan, if it so chooses; but of coui’se its charter is not conclusive as to the kind of business which it does in fact transact. But the kind of business which it does in fact transact is as follows: Its general laws make all white persons, male or female, between the ages of 18 and 55, of good moral character and temperate habits, eligible to become members of the association, and the association receives such persons as members. There are two funds provided for: (1.) The expense fund. (2.) The endowment or benefit fund. The members are divided into two classes as to the amounts of the endowments or benefits; one class receiving a $3,000 certificate, the amount thereof to be paid to the member in five equal installments, if he or she lives, and in case of his or her death, as hereafter stated; and the other class receiving a $5,000 certificate, also to be paid in five equal installments, or otherwise as above mentioned for the $3,000 certificate, and all these installments are represented by coupons attached to the certificate. The membership fees, annual dues and assessments, are made larger or smaller to correspond to some extent with the amount of the endowment or benefit certificate. The members are also classified as to age, those becoming members at an earlier age paying a less amount on assessments than those becoming members at a more advanced age, and the amounts to be received by the members as endowments to become due at more widely separated periods of time. It is scarcely necessary for us to say anything further with regard to the membership fees or annual dues, or other items of the expense fund, for those items furnish but little proof as to whether the association is an insurance company, or not, or whether it does an insurance business, or not. That fund is used merely for the purpose of paying the expenses of the association. We shall therefore confine our investigation principally to the manner of creating and using the endowment or benefit fund. This fund is created by assessments upon the members, and may possibly be augmented in some rare instances by interest received on loans made from such fund. These assessments may be made at any time, and are made upon all the members of the association; but not less than fifteen nor more than twenty-four assessments are permitted to be made in any one year. We might take any class of the members for the purpose of illustrating what we wish to say; but taking the class of youngest members—those between the ages of 18 and 25 years — and taking those whose certificates of membership authorize them to participate in the endowment fund to the extent of $5,000, and the assessment on each member will be $1.50, and each member will be entitled to receive from the endowment fund every ten years from the date of his membership $1,000, until he receives the entire sum of $5,000; that is, five coupons of $1,000 each are attached to each certificate of membership, and one of such coupons becomes due and is payable by the association to the member evéry ten years from the date of membership for the period of fifty years. If the member dies, however, before receiving the entire amount, his beneficiary named in his certificate of membership will be entitled to receive, not the full face value of the remaining coupons or the full face value of any one of them, but will be entitled to receive the actual value of the then-maturing coupon, to be calculated from the date of the issue thereof to the date of death, less such amounts as may possibly have been previously received by the member as a loan on such coupon. In other words, such a member, if he or she lives, will 'pay into the endowment fund every ten years from $225 to $360, and will be entitled to draw out of such fund within the same period of time the sum of $1,000, and will pay into such fund during the fifty years which his or her certificate of membership runs from $1,125 to $1,800, and will be entitled to draw out of the fund the sum of $5,000. If it be asked how the association can pay these large sums from such assessments, we would answer that it is not a ques- • tion of law, and we cannot answer it. It would seem to us, howeyer, that it cannot be done. It would seem to us that all possible receipts of money by the association, including payments of all kinds made by the members, and all possible interest received from loans, would not be anywhere near sufficient to pay the maturing coupons. And we would further think that if the members of the association entertain even the slightest hope of receiving such wonderful gains upon their investments as the foregoing figures would indicate, there would be but few lapses or forfeitures of memberships to assist in saving the association from insolvency. But there is no probability that every member will live for the period of fifty years from the date of his first becoming a member, or for the period of time during which his certificate of membership is to run; and if he should die before that time, then what will his beneficiary be entitled to receive? The agreed statement of facts answers this question, as follows:
“Upon the death of a member who has complied with the rules of the association and has paid all lawful charges, assessments and dues against him on the books of the association, the association settles with his beneficiary by paying to him the actual value of the then-maturing coupon, calculating from date of issue to date of death, less any amount already received on said coupon, that being the actual amount earned by said coupon, and no more than that amount.”
Is this amount which the beneficiary is to receive more or less than the amount to be paid in by the member? Generally, it will be very much more. Take again, for illustration, those members who became such at an early age, and who hold certificates for $5,000, and the most that any one of them can ever be assessed for any one year is $36, while the first-maturing coupon will earn during that same year the sum of $100; for the amount of each coupon attached to his or her certificate of membership is just $1,000, and the first-maturing coupon is payable in ten years. Hence if the member die at almost any time after the last half of the first year and before the first coupon becomes due, his beneficiary will be entitled to receive more than he or she has paid into the endowment fund; much more, indeed, than the amount of the money which he or she has paid into such fund, with interest, and much more even than all that he or she has paid to the association for all purposes, with interest. If the member dies at any time after the first coupon has become due, substantially the same result will follow. If, for instance, the member die at the end of forty-five years, and if the value of the maturing coupon is to be estimated from the date of issue to the date of death, and this is the agreement, then the beneficiary should receive forty-five fiftieths of the amount of the coupon, or $900; while the member could not possibly have paid into the beneficiary or endowment fund more than $360 since the last payment of a coupon, and at that time he or she had drawn out of such fund at least $3,200 more than he or she had paid in, if indeed, he or she was able to draw out of such fund all that he or she was entitled to draw. Under such circumstances, can it be supposed that the member has received anything as a loan or otherwise on the maturing coupon? And as loans are made, if ever made, upon the security of the maturing coupon, it would seldom if ever happen that a deceased member would have received at the date of his or her death all that such maturing coupon had earned up to that time; and hence, practically, in every case of the death of a member the beneficiary would be entitled to receive something, and in almost every instance to receive much more than had been paid in by or for the member, over and above the amount that had been received by him or her. But even if the value of such coupon should be calculated from the date of the payment of the last coupon, then what we have already said in connection with the death of the member during the maturing of the first coupon will apply.
What we have said with respect to the youngest members entering the association and to the $5,000 certificates, will apply with about the same force to all the other members and to both classes of certificates. Persons from fifty to fifty-five years of age becoming members of the association are assessed at each assessment $5.60, and one of their coupons becomes due every four years, and the last one becomes due at the end of twenty years. Now a member may die at any time, and if he or she dies, his or her beneficiary would in almost every instance receive a larger amount of money than the member had paid into the association over and above what he had received, and in many instances a very much greater amount. And this amount so received by the beneficiary would go, like all benefits paid in cases of insurance, to the beneficiary as his absolute property, and would not belong to the estate of the deceased member, nor be any part of the assets thereof, nor could his or her executor or administrator control it or use it for any purpose whatever. If this is not insurance, what is it? The counsel for the association claims that the association is a mere “ loaner of money.” But where will it get the money to loan? It agrees to pay out to its members and their beneficiaries very much more than it can possibly receive. For instance, it assesses its members who enter the association while they are less than twenty-five years of age not to exceed $36 a year each, while it agrees to pay them at the rate of $100 a year each. It assesses its members who enter the association at the most advanced age at which the association will receive members, not to exceed $134.40 a year each, and agrees to pay them at the rate of $250 a year each. And the first coupons of this last-mentioned class of members become due and are payable in four years after such members join the association. Now can such an association have money to loan at any time after its coupons begin to fall due? And when any large number of its coupons have fallen due, must it not forever afterward be hopelessly insolvent? Of course the association-might do a thriving business for four or five years and until the time when its coupons begin to become due, and perhaps it hopes that from and after that time, and just before any payments or loans are made on such of the coupons as.-are due or will soon become due, there will be such a vast number of forfeitures or lapses of memberships, and such a vast number of accessions of new members, that the association will be saved from the utter insolvency that would otherwise necessarily follow. But this hope of the association would probably prove illusory. Forfeitures and lapses are within the control of the members themselves, and so long as it is profitable for the members to remain in the association there will be but few for feitures or lapses. It is not at all probable that members will retire from the association only at a time when it is profitable to the association for them to retire. They will probably retire from the association, if they retire at all, only at time when they have just received the full payment of their matured coupons, or loans to the full amount which their maturing coupons have earned, and at times when they have nothing to lose by retiring from the association, but probably much to gain. Besides, no society should be founded upon the theory or hope of forfeitures, and lapses. No society should be founded upon the theory that those who have long been members, and have paid large sums of money into the society, shall then be crowded out and deprived of all the benefits for which they have paid their money, and new members taken in to supply their places, and possibly to undergo the same process of payments, forfeitures, lapses, and losses of benefits. We think it is clear that the money paid on the coupons, either to the members themselves while living and after the coupons have become due, or to their beneficiaries after their death, and on maturing coupons, cannot be called loans. Such payments are merely the payments of money in satisfaction of liabilities. Also, the following language from the charter and the laws of the association tends to show that the association is an insurance company and does a life insurance business, to wit:
“Charter.—The objects of the association are: First, to guard its members, to a great extent, against the ills of pecuniary want during life, and especially "during the period of infirm old age, and at their death to make provision for their families and friends, which latter is supposed to be the only physical anxiety of dying man.”
“ Genéral laws, Article IV:
“Section 1. Any applicant who shall make any false statement, conceal or evade any fact, in regard to their personal history, or present condition of health, shall forfeit all benefits they may appear to have gained by becoming a member of this association.
“Sec. 2. Each applicant for membership, must sign the application furnished by the association, state age and residence, and answer truthfully the questions propounded by the association in his or her application in regard to health and habits; and any false statement in regard to age, habits or character/ or any evasion or deception whatever, will debar such applicant from any of the privileges or benefits of this association.
“Sec. 3. All applicants must be persons of sound health, good moral character, sober, and competent to gain a livelihood.”
We suppose that the contracts to pay benefits to the beneficiaries of deceased members are unquestionably insurance; , but are not the contracts to pay endowments to living members also insurance? The amount agreed to be paid to living members is much more than they have paid into the association, including interest, and must come, partly at least, if it ever comes, from assessments paid by other members, whose memberships have been forfeited and have lapsed; and this amount agreed to be paid to living members is in such a condition that it could not be sold or seized in execution or attached or garnished while it is maturing, nor at any time before it has become absolutely due; and if the member should die at any time while it is maturing, nothing would go to his or her executor or administrator, or become a part of the assets of his or her estate. Said chapter 131, § 9, recognizes such endowments as insurance; so, also, do the decisions of courts and the elementary authorities on insurance. In the case of Briggs v. McCullough, 36 Cal. 542, 550, 551, the following language is used:
“The term ‘life insurance’ is not alone applicable to an insurance for the full term of one’s life. On the contrary, it may be for a term of years, or until the assured shall arrive at a certain age. It is simply an undertaking on the part of the insurer that either at the death of the assured, whenever that event may occur, or on his death, if it shall happen within a specified term, or before attaining a certain age, as the case may be, there shall be paid a stipulated sum. In either form it is, strictly speaking, an insurance on the life of the party. . . . The fact that the company is to pay the agreed sum at the expiration of ten years, even though- McCullough shall not have died in the meantime, does not divest it of its' character of life insurance.” (See, also, Charter v. John Han cock Mut. Life Ins. Co., 127 Mass. 153; Bliss on Life Ins., § 6; May on Ins., §3446.)
We also understand that contracts to pay endowments to the living members of an association, company or society, are generally at the present time recognized by persons having connections with life insurance business and others as insurance contracts; and if such is the case, it would seem to follow that the title to chapter 131 is broad enough to permit the legislature to insert in the act, as it did, provisions relating to such endowment contracts, although under the old definitions of life insurance these endowment contracts' might not be considered as coming strictly within the business of life insurance. But taking the clearly-expressed intention of the legislature as found in the act itself, the decisions of the courts relating to endowment insurance, the opinions of authors on life insurance, and the prevailing opinion of people connected with life insurance, and of people in general, we think the contracts in the present case to pay certain sums of money as endowments to living members are insurance, as well as the contract to pay certain other sums oi money as benefits to the beneficiaries of deceased members. And this being our opinion, we think that chapter 131 is not unconstitutional or void, so far as it has application to this case, for the reason that its title is too narrow, limited, or circumscribed. But it is claimed, however, that the act is unconstitutional for other reasons than that the title to the act is not broad enough to include contracts for the payment of endowments. It is claimed, for instance, that the act is unconstitutional and void, so far as it applies to the defendant, for the reason that it changes or abrogates some of the provisions of its charter. Now such legislation is permissible in this state under our constitution. The defendant in the present case was organized as a corporation on January 7,1885, under the general incorporation laws of the state of Kansas, and chapter 131, which took effect March 14, 1885, is also a gen-' eral law; and the legislature clearly has the right by general law to change, alter or repeal any portion of the general laws of Kansas, whether they relate to corporations, or not. Section 1, article 12, of the constitution of Kansas, provides as follows :
“Section 1. The legislature shall pass no special act conferring corporate powers. Corporations may be created under general laws; but all such laws may be amended or repealed.”
And under these provisions of the constitution, the legislature undoubtedly has the right to do all that it has done in the 'present case. (Greenwood v. Freight Co., 105 U. S. 13, and cases there cited.)
It is further contended that the act is unconstitutional for still other reasons, but we do not think that any of such contentions can be maintained. ( The State, ex rel., v. National Association, ante, p. 51.)
The judgment of the court below will be affirmed.
Johnston, J., concurring.
Horton, C. J.:
I confess I cannot understand the workings of the endowment and benevolent association, if it is only a “loaner of money” and intends to be fair and honest in all of its representations and dealings. Why there should be so many lapses or forfeitures in the business of merely loaning money in a sound and solvent corporation, as is estimated by its officers, is difficult to conceive. If the theory of its counsel is correct, the association lives upon the misfortunes of its members, rather than upon the safe and successful investment of its funds. If the purpose of the company be interpreted by its charter and by-laws, it is nearer an insurance company than a loan company. A person to become a member must be of sound health, good moral character, temperate habits, and competent to gain a livelihood. Every applicant for membership must answer truthfully all questions propounded by the association in his or her application in regard to health and habits, age and character; and any member forfeits all benefits in the association if he or she makes any false statement, conceals or evades any fact in regard to his or her personal history or condition of health. If an early death is no more disastrous to the corporation than one more remote, why must an applicant, to become a member, be of sound health and endowed with all the qualities for a long life?
I concur in the judgment rendered, with some doubts, however, whether the business of the association comes strictly within the provisions of chapter 131, Laws of 1885. | [
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case, as they appear from the record, are substantially these: The legislative assembly of the territory of Kansas incorporated,.in 1859, “The Atchison & Topeka Kailroad Company.” The company was authorized to survey, construct and operate a railroad, with one or more tracks, from Atchison, on the Missouri river, to Topeka, and to such point on the southern or western boundary of the territory, in the direction of Santa Fé, New Mexico, as might be most convenient and suitable for the construction of the road; and it was also authorized to build a branch of the road to any point on the southern boundary of the territory of Kansas in the direction of the gulf of Mexico. On November 26, 1863, the name of the company was changed to “The Atchison, Topeka & Santa Fé Railroad Company.” After its organization t]ie company proceeded to build its line of railroad, so that it was put in operation from Topeka to Newton, April 15, 1872; from Newton to Dodge City, September 15,1872; and from Dodge City to the western boundary of the state, in the direction of Santa Fé, New Mexico, January 1, 1873 — making a distance altogether of over 470 miles. From the terminus of the railroad on the western boundary of Kansas to the boundary line between Colorado and New Mexico, the Pueblo & Arkansas Valley Railroad Company built a line of railway, and completed the same on July 10, 1879, a distance of about one hundred and seventy miles. From the terminus of the Pueblo & Arkansas Valley Railroad to San Marcial, N. M., the New Mexico & Southern Pacific Railroad Company built a line of railway, a distance of over 353 miles, which was put in operation October 1, 1880. From San Marcial to Deming, a point on the Southern Pacific Railroad, distant from San Marcial a little over 129 miles, the Rio Grande, Mexico & Pacific Railroad Company built a road, which was finished March 20, 1881. The Sonora Railway Company Limited is a corporation organized to build and operate a railway from the boundary line between the United States and Mexico to Guaymas, on the Gulf of California, 262 miles in length. In 1881 this company had completed only ninety miles of its railway from Guaymas, extending in a northerly direction toward the said boundary line. It was the intention of the directors of the Atchison company to build an independent road from Deming to the Mexican boundary to connect with the Sonora road, but in 1881, a satisfactory proposal having been made by the Southern Pacific Railroad Company for the joint use of so much of its track as might be required, an agreement was made between the two companies, -subject to termination by either party giving two years’ notice to the other, by which the Atchison company was permitted to run its trains, with the same-rights as the Southern Pacific trains, over the Southern Pacific road from Deming to Benson, a distance of 174 miles. From Benson the Atchison company built a road called the New Mexico & Arizona Railroad, about 97 miles long, to connect with the Sonora road at or near Los Nogales, on the Mexican border. The Sonora Railway, extending from G-uaymas to Nogales, was completed on November 25, 1882. In 1881 the directors of the Atchison company entered into a contract with the Sonora company by which the capital stock of the Sonora company, amounting to $5,248,000, was transferred to the Atchison company in consideration of the issuance and delivery of $2,700,000 of the capital stock of the Atchison company to the Sonora company and the guarantee by the Atchison company of the interest, at seven per cent, per annum, of $5,240,000 of the first-mortgage bonds of the Sonora company. Of the bonds so guaranteed, $4,050,000 have been marketed, and $1,190,000 of the bonds are in the treasury of the Atchison company. Ever since the purchase of the Sonora stock and the guarantee of the interest on its bonds by the Atchison company, the Sonora road has been operated by the Atchison company, and its expenses have been borne by that company. The annual interest on the bonds of the Sonora company, so guaranteed by the Atchison company, amounts to the sum of $283,500 a year, and is payable in July and January of each year.
On December 16, 1885, John W. Fletcher, of the city of Detroit, Michigan, claiming to be the owner of 200 shares of the capital stock of the Atchison company, of the value of $17,000, commenced this action in the district court of Wyandotte County, in this state, for the purpose, among other things, of canceling the contract between the Atchison company and the Sonora company by which the Atchison company agreed to guarantee the interest on its bonds ; to discharge the Atchison company from all liability in respect to the guarantee; and to enjoin the directors and agents of the Atchison company from any further payment of interest on the bonds. The petition was presented to the district judge in vacation, who, without notice to defendants, or either of them, granted' a preliminary injunction as prayed for, against the Atchison company, its directors, officers and agents, from paying any interest on the bonds of the Sonora company. The amount of the undertaking fixed by the district judge upon allowing the injunction was $1,000 only. The Atchison company subsequently appeared before the judge and excepted to his ruling, and at once brought the case to this court upon petition in error, for the purpose of raising the question, whether the injunction was properly granted.
The most important inquiry is, whether the petition, taking all of its allegations to be true, shows that the contract of guarantee complained of was ultra vires. Upon the part of plaintiff below, it is'contended that this contract was entirely unauthorized by the charter of the Atchison company, and beyond the power of the directors of that company to consent to or to execute, and therefore wholly void and of no binding-force upon the corporation or its stockholders. On the part of defendants, the claim is that under the powers conferred upon the Atchison company by its charter, the subsequent legislation of this state, and the general principles of law applicable to corporations, the contract was and is valid in every respect.
The petition alleges that during the years 1882, 3-4 and 5, the operating expenses have been greater than the earnings, and but for the guarantee of the Atchison company, that the Sonora bonds would be worthless. The petition further alleges that if the Atchison company continues to operate the Sonora road and keeps the guarantee of its bonds good, it will be at the cost of the depletion of its treasury, and will render the dividends upon its stock less in amount than they otherwise would be. The question before us, however, is one of power. If the Atchison company had the authority to accept the stock of the Sonora company and guarantee its mortgage bonds, it is liable on the guarantee, whether the Sonora road be a sucker, sapping the very life of the Atchison. company as a consumer of its earnings, or a feeder, filling to overflowing a plethoric treasury. Common honesty will forbid a corporation, as it will a private individual, from evading the terms of a contract upon the ground merely that it has been unexpectedly expensive, and therefore not remunerative. In this connection, perhaps, it should be said that the directors of the Atchison company still insist that the contract with the Sonora company will prove very desirable and profitable in the end. They go farther, and say that the Atchison company and its stockholders have already received benefits from the contract by the acquisition of connecting roads and the extension of their line, so as to make a through route, which was absolutely necessary to the financial success of their company, and that thereby the earnings and profits of the line, as a whole, have been largely augmented. As to the wisdom or expediency of the execution of the contract between the Atchison and Sonora companies as an original proposition, we have nothing to do. Whether the contract between these companies be a productive or an unfortunate one for the Atchison company, is immaterial to our determination of this case. The question with us is, whether the contract was within the scope of the powers of the Atchison company to execute or perform, under any circumstances or for any purpose—not whether the Atchison company made a good or bad bargain.
Notwithstanding the terms of the charter of the Atchison company, the various provisions of the statute, and the unwritten law of comity that a corporation will be recognized and permitted to prosecute its lawful enterprises in every state which has not expressly refused its consent, the senior counsel representing the plaintiff insists that the Atchison company has no legal right by purchase, lease, or other arrangement, to operate its road or run its cars as part of its own system beyond the territorial limits of Kansas. The proposition of another counsel representing the plaintiff is, that while the Atchison company is not confined exclusively to the limits of the state, yet, that the road beyond the New Mexico line is operated with out legal authority. "Very able arguments were presented by the several counsel upon the hearing of the case, and very elaborate briefs have been filed with us. We have given all of these careful attention and examination, and have reached the conclusion, after much deliberation of the serious matters involved, that the proposition asserted by counsel of plaintiff limiting the power of the Atchison company in its operations wholly to the state of Kansas, or to adjoining states, is unsound and receives no support in the sections of the statute cited, or in the authorities controlling. The petition assumes that the acquirement by the Atchison company of the intermediate links between the Kansas line and the Sonora line was unauthorized, but the allegations are indefinite as to the actual relations existing between these intermediate links and the Atchison company. We think, however, it is sufficiently shown that the Atchison company is operating its line of road from Atchison and Kansas City to connect with the Sonora road at Nogales, on the Mexican border. It is a general rule that the allegations of a pleader shall be taken most strongly against himself, and therefore we are not to assume that the directors of the Atchison company, in their arrangements for operating their line from Kansas to Mexico, are acting coutrary to the purposes for which the corporation was created. The presumptions are, in the absence of allegations of facts to the contrary, that the Atchison company is acting under and in accordance with the provisions of its charter and the statutes conferring authority upon it. (A. T. & S. F. Rld. Co. v. Davis, 34 Kas. 209.)
It is a general rule that the corporations of one state will be permitted to carry on their business and extend their operations in other states and countries, so long as they do not depart from the terms of the charters under which they were originally created. Under the comity of states, or rather, we should say, under the comity of nations, the Atchison company can exercise all the powers granted by its charter in Sonora or in the other states of Mexico, as well as it can in Missouri, Colorado, or New Mexico, if its powers thus exercised are not repugnant to or prejudicial to the interests or laws of Mexico; therefore, that the Sonora road is in a foreign country does not, we think, affect the case. In fact, a corporation is clothed everywhere with the character . , .. , ■. , ,, 0 given by its charter, and the capacity of corporations to make contracts beyond the states of their creation, and the exercise of that capacity, are supported by uniform, universal and long-continued practice. (Land Grant Rly. Co. v. Comm’rs of Coffey County, 6 Kas. 245; O’Brien v.Wetherell, 14 id. 616; Bank of Augusta v. Earle, 13 Pet. 519; Cowell v. Spring Co., 100 U. S. 55.) Hundreds of corporations are created, not strictly local in their character, as in the instance of banks and insurance companies, all of which transact business in all sections of the country. To illustrate the frequency with which corporations exercise great powers in foreign countries, counsel for defendants, upon the argument, cited the East India Company, chartered in England, but doing business throughout the East Indies; the Pacific Mail Steamship Company, a New' York corporation, operating a line of steamers from New York city via Panama to.San Francisco; the Western Union Telegraph Company, a New York corporation, having its offices in almost every city of the Union; the Maxwell Land Company, a Netherlands corporation, owning vast estates in New Mexico; and it was asserted by the same counsel that the Sonora company, alleged in the petition to be a Mexican corporation, is in fact a corporation created under the laws of Massachusetts. We may also refer, among many others that might be named, to the following corporations: The Colt’s Patent Fire Arms Manufacturing Company, although an Ameriean-corporation, trades extensively in England; the Liverpool, London & Globe Insurance Company, the Eoyal Insurance Company, the Sun Fire Insurance Company (limited), the Phoenix Assurance Company, of London, are all English corporations, but they transact business in many states of the’Union; the North British and American Insurance Company, the Norwich Union Fire Insurance Society, and the Queen Insurance Company, and other English corporations, write risks in Kansas; the Western Assurance Company is a Canadian corporation, accepting fire risks in this state; the Panama Railroad Company was incorporated in New York, and built a road across the isthmus of Panama; the Wells-Fargo Express Company, one of the. greatest of the common carriers, is a Colorado corporation. It is a matter of general knowledge that many cattle companies recently chartered in England, now transact business, involving millions of dollars, in the western territories.
It is well settled that a railway corporation may contract to carry beyond the terminus of its own line, and such a contract will be valid, although requiring transportation in another state or country. (Mo. PaC. Rly. Co. v. Beeson, 30 Kas. 298; Plutchinson on Carriers, §§144, 152.) The Narragansett Steamship Company was and perhaps is now a common carrier between New York and Fall River; it receipted for a trunk to be delivered at Boston; the trunk failed to reach its destination, and in an action against the company by the owner for its value it was decided that the company was bound to carry the trunk to Boston, the same as if its vessels went to that city, and was therefore liable for the loss. (Berg v. Steamship Co., 5 Daly [N. Y.] 394.) And the weight of authority is, that a railway company, deriving its powers to engage in business from its charter, which by the very terms thereof is limited to the road between certain designated points, can bind itself as a common carrier beyond its designated line. (Perkins v. Railroad Co., 47 Me. 573; Bissell v. Railroad Co., 22 N. Y. 258; Hutchinson on Carriers, § 153, and cases cited.) If railway corporations may contract for the transportation of freight and passengers in other states, and beyond their chartered termini, why may not such a company convey, in its own cars and trains, freight and passengers over connecting and continuous lines in other states, if it can make arrangements with such connecting and continuous lines so to do?
It is the necessary deduction from the principles announced in the foregoing decisions, that if the Atchison company is empowered by its charter and the statutes of Kansas to lease or by any other arrangement to run its cars outside of the state, it can exercise that power everywhere — ancl as well in Mexico as in Colorado or Arizona.
This brings us to the construction of the charter of the Atchison company, and the legislation of the state conferring rights and powers upon railroad corporations. In interpreting the powers possessed by a corporation, we must look to the intention of the legislature in the enactment of the statute. It is manifest the legislative assembly of the territory of Kansas, in granting the charter to the Atchison company, anticipated that some day the road would become a part of a transcontinental line, and thereby that Kansas, by reason of its geographical location, would have passing over it the great traffic of the country, east and west, north and south, because it provided for building its road in the direction of Santa Fe, and also of the gulf of Mexico.
Section one of said charter reads :
“That C. K. Holliday, Luther C. Challiss, Peter T. Abell, . . . with such other persons as may associate with them for that purpose, are hereby incorporated, a body politic and corporate, by the name of the Atchison & Topeka Railroad Company; and under that name and style shall be capable of suing and being sued, impleading and- being impleaded, defending and being defended against, in law and equity, in all courts and places; may make and use a common seal and alter or renew the same; be capable of contracting and being contracted with; and are hereby invested with all powers and privileges, immunities and franchises, and of acquiring by purchase or otherwise, and of holding and conveying real and personal estate, which may be needful to carry into effect fully the purposes and objects of this act.”
Section 20 of said charter gives express authority—
“To make such contracts and arrangements with other railroads which connect with or intersect the same, as might be mutually agreed upon by the parties, for leasing or running their roads, or any part thereof, in connection with roads in other states, and to consolidate their property and stock with each other; . . . and to have all the powers, .privileges and liabilities that they may hold by their several charters.”
company. Then, the additional authority was granted by the first and second, sections of ch. 92, Laws of 1870, whereby the Atchison company could consolidate with a connecting road and a company of this or an adjoining state could lease the road of the Atchison company. The limitations in these sections providing for consolidation and extension wei’e, that the lines of the road consolidated should, when completed, form a continuous line of railroad, and when a company leased its road to another railroad company,, the line of the road should so connect with the leased road as to form' a continuous line. We think a fair construction of § 3 of that act to be that any railroad company may lease its road and appurtenances to any Kansas company, when the road so leased shall thereby become, in the operation thereof, a continuation and extension of the road of the company accepting such lease. The section is as follows:
“ That any railroad company shall have power to lease its road and appurtenances to any railway corporation organized under the laws of this state, or of any adjoining state, when the road so leased shall thereby become, in the operation thereof, . a continuation and extension of the road of the company accepting such lease.”
The only difficulty in the construction of this section arises from the words “or of any adjoining state;” but it may be that these words refer to a corporation of an adjoining state that has come into the state and leased a Kansas road, under the terms and conditions of the statute. If, however, the legislature was inadvertently legislating in said § 3 for a railroad company of another state to lease a road not touching Kansas, we do not think this would vary the construction ■we have given to the other portions of the section. In the second section, the law allows the road of an adjoining state to come in and lease a Kansas road, and a Kansas company to lease the road of another Kansas company; and then the broad authority is given in § 3 for any railway company organized under the laws of this state to lease the road and appurtenances of any other railway corporation, when the road so leased shall thereby become, in the operation thereof, a continuation and extension of the road of the company accepting such lease. If § 3 was intended merely to give a Kansas railroad company the power to lease another Kansas railroad, it is but a repetition of said § 2, and the whole of said section is meaningless and useless; but if the section be given the interpretation as stated, it. has full force and operation, and permits any Kansas railroad company to lease any other railway, whether in or out of the state, when the road so leased shall thereby become, in the operation thereof, a continuation of the Kansas company.
In 1873, the legislature passed a further act, which reads:
“That it shall be lawful for any railroad company created by or existing under the laws of this state, from time to time, to purchase and hold stock and bonds, or either, or to guarantee the payment of the principal and interest, or either, of the bonds of any other railroad company or companies, the line of whose railroad, constructed or being constructed, connects with its own.”
Under the construction we have given to its charter and the statute, the Atchison company had the right to lease- the road an<^ aPPul’tenances of toy railway company in Colorado, New Mexico, or Arizona, or elsewhere, when the road so leased, in the operation thereof, formed a continuation or extension of the Atchison road. Under this power, we think the Atchison company not only could lease a Colorado road, which is conceded by one of the counsel of plaintiff, but could go on and lease all the intermediate links between Kansas and Mexico; and when it came to the border of Mexico, it could also lease the Sonora road. Each road so leased would form, within the terms of the statute, in the operation thereof, a continuation and extension of the Atchison road. Having all this power, then clearly, under its charter and the laws of 1870 and 1873, the Atchison company had full authority to- purchase and hold the stock and bonds of the' Sonora company, and to guarantee the payment of the interest of the bonds of that company, because the line of that road, as constructed, connects with its own. There is no force in the proposition that there is a missing link between Deming and Benson, a distance of about 174 miles, and therefore that the Atchison road does not continue and extend via the New Mexico & Arizona Railroad to the Sonora. Rail way at Nogales. It is true the Southern Pacific built this link and may be said to be its owner, but the Atchison company has a general use thereof with the Southern Pacific, and has the same rights therein as that company. It virtually has a lease thereon, because it is in the possession of and operating it with such rights of ownership or as lessee as is necessary for all running or operating purposes. (Van Hostrup v. Madison City, 1 Wall. 291; Schuyler Co. v. Thomas, 98 U. S. 169; Mayor v. Railroad Co., 21 Md. 50.)
Something has been said about the contract between the Atchison and Sonora companies being void because the Atchison company was not actually connected at Nogales at the time of the execution of the guarantee. Even if there was anything in the proposition, in view of the terms of the statute of 1873, providing for the guarantee by one railroad company of the bonds of another company, whose road was being constructed so as to connect with its own, we are clearly of the opinion that as to the bonds marketed and. in the hands of bona fide holders, the contract between the companies is binding. “Where the statute confers express authority upon the company to guarantee the bonds of another company, a mere failure on the part of the guaranteeing company to pursue the mode specified in the statute, will not invalidate such guarantee in the hands of the bona fide holder.” (Wood’s Railway Law, §188; Arnot v. Erie Railway Co., 67 N. Y. 315; Parish v. Wheeler, 22 N. Y. 494; Thomas v. Railroad Co., 101 U. S. 86; Field on Corporations, §§ 263-267; Bradley v. Ballard, 55 Ill. 413; Field on Ultra Vires, 185; Town of Coloma v. Eaves, 92 U. S. 484; Peoria &c. Rld. Co. v. Thompson, 7 Am. & Eng. Rld. Cases, 101, 118; Gelpcke v. City of Dubuque, 1 Wall. 175; City of Lexington v. Butler, 14 id. 282; Supervisors v. Schenck, 5 id. 772; National Bank v. Globe Works, 101 Mass. 57.) The Sonora road was com pleted to Nogales in 1882, and the Atchison company, having been in connection with and operating' that road ever since, and having repeatedly paid interest on the Sonora bonds, has clearly ratified the contract of 1881, and therefore the guarantee of the Sonora bonds is not only valid in the hands of bona fide holders, but such contract of guarantee’ is valid for all the purposes for which it was executed.
Counsel for plaintiff object to any and to all powers granted the Atchison company subsequent to the creation of its charter in 1859, and in support thereof say that the relation between the corporation and stockholders is one of contract; that the stockholder subjects his interest to the control of the proper authorities, to accomplish the object of the organization, but does not agree that the purpose shall be changed in its character at the will of the directors or a majority of the stockholders, and that the contract between the corporation and the stockholders cannot be changed without the consent of the contracting parties by the legislature or any other authority. We concede that where the power is not reserved in the legislature to repeal or .amend a charter, that so far as the charter states' a compact between the corporation, it- cannot be changed or repealed by the legislature;' but it is settled that the legislature may authorize a body of corporators to exercise new powers or franchises without impairing those previously granted: and it the-new powers can x / ° t 3 x be exercised without a departure from the onginal contract between the corporators, there is no reason why they should not be accepted and exercised on behalf of the company by a majority of the stockholders. The special point was made in the case of C. B. U. P. Rld. Co. v. A. T. & SD. F. Rld. Co., 26 Kas. 669, that as the charter, of the latter company made certain provisions for exercising the right of eminent domain, the company could not proceed to exercise that right under the general railroad law. It was held that it could, and that the general law applied to all corporations. We said in that case: “If a company had no right of eminent domain given by its special charter, the state legislature could, by general law, endow it with such right; and if it had the right, the legislature could, by a similar law, enlarge its modes of proceeding.” All the legislation of the state that we have referred to is in harmony with the terms and provisions of the charter of the Atchison company. Therefore no franchises are diminished, no contract impaired. At most its powers are enlarged to carry out successfully the object of its incorporation. So to speak, auxiliary powers are added, but its charter not violated, or the benefits thereby granted infringed. (Clearwater v. Meredith, 1 Wall. 25; Sprigg v. Telegraph Co., 46 Md. 67; Green’s Brice’s Ultra Vires, 80, 84; Fry v. Railroad Co., 2 Metc. [Ky.] 314.) For many purposes, the Atchison company can receive, in the transaction of its legitimate business in this state, bonds and other negotiable paper; and having received such negotiable instruments, it may sell and dispose of the same; and in selling and disposing of ■, . . . tiie same, it may guai’antee that they are genuine, ' * 0 o ? and it may also guarantee the paymeut thereof. Therefore, if the Atchison company had no authority under its charter and the statutes to run its cars through Colorado, New Mexico, Arizona and Sonora to the gulf of California, and was wholly confined to the transaction of its business within the territorial limits of the state, we think, within the power conferred by its charier, its guarantee of the Sonora bonds would be binding upon the company in the hands of parties purchasing them with such guarantee in good faith and without notice. (Pendleton v. Amy, 13 Wall. 297; Railroad Co. v. Howard, 7 id. 392; Arnot v. Erie Railway Co., supra; Bigelow on Estoppel, 467; 16 Am. & Eng. Rld. Cases, 488.)
As to the equities in this case, nothing is disclosed beneficial to the plaintiff. If he was a stockholder of the Atchison company in 1881, at the time of the execution of the contract of guarantee with the Sonora company, he appears before the court as a participant, watching the venture, and, if successful, willing to enjoy the fruits thereof; but as the experiment, in his opinion, has failed, he turns to the court for assistance to repudiate its terms. If he is a recent purchaser of the stock, he ought to have known from the records of the company the terms and conditions of its contract, and hence was a purchaser with full knowledge of the guarantee of the Sonora bonds. Under such circumstances, he may be said to have purchased for the purpose of becoming a litigant, not merely to prevent a contemplated transaction, as in the case of Du Pont v. Northern Pacific Railroad Co., 18 Fed. Rep. 467, but to annul a contract guaranteeing bonds, already executed, at least so far as the innocent purchasers thereof are concerned. Millions of the bonds have gone upon the market, and have passed into the hands of - bona fide holders for value. "Very cogent reasons should appear before a court of equity should interfere. They do not so appear. (High on Injunctions, §1206; Thompson v. Lambert, 44 Iowa, 239; Gregory v. Patchett, 33 Beav. 595; Watt’s Appeal, 78 Pa. St. 370; Chapman v. Railroad Co., 6 Ohio St. 120; Terry v. Lock Co., 47 Conn. 141; Samuel v. Holladay, 1 Wool. 400; Goodin v. Canal Co., 18 Ohio St. 169.)
It was said upon the argument by counsel for plaintiff, that it is gross injustice to its stockholders for the Atchison company to plant its money or property in a foreign country. To this it may be answered: The stockholders control the company; the directors are elected or chosen by the stockholders; and it goes without saying that the stockholders, as well as the directors, should have at heart the highest interests of the company. Of course the dh’ectors must have some power to determine what is for the best interest of the company, and some discretion must always be left for them to exercise. Matters of policy and expediency, within the terms imposed by the charter and the statutes of the state, are for their consideration and determination, subject to the will of the stockholders, to whom they are responsible and by whom they are elected.
“Railroads, as all know, are things of growth. They enlarge with the development of the country.” (C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., supra.) And railroading is a business wherein progress is absolutely necessary. A railroad cannot stand still; it must either get or give up business; it must make new combinations, open new territory, and secure nfew traffic, or lose its business and reduce its revenues. The directors, as well as the stockholders, must consider all of these things in their management of the affairs of such a corporation.
In concluding this part of the subject, we may say further, that the petition nowhere charges the directors of the Atchison company with incapacity, collusion, corruption, or fraud. It attacks the integrity of the system of the Atchison company beyond the limits of the state, but not the integrity of its officials.
This disposes of the case. A few words, however, concerning the action of the district judge in granting the temporary injunction. It is unnecessary to decide whether he was guilty of an abuse of judicial discretion sufficient of itself to cause a reversal of this case, but the practice of granting injunctions without notice to defendants, except in case of extreme emergency, deserves condemnation: and the granting oi an injunction in such an important case as this, without notice, when it is within the general knowledge of every attorney and judge that the Atchison company has an officer or agent in every county of the state through which its road runs upon whom legal process may be served, is very censurable. The semi-annual interest upon over $4,000,000 of bonds was intended to be tied up by the order of the district judge, which bonds, according to the petition itself, have been marketed, and the holders thereof are very numerous. In addition to this, the order would naturally depreciate the value of the bonds in the markets of the world, and thus innocent purchasers thereof become the immediate and the greatest sufferers. The statute provides if a court or judge deem it proper that the defendant, or any party to the suit, should be heard before granting the injunction, it may direct a reasonable notice to be given to the party to attend for such purpose at a specific time and place, and may, in the meantime, restrain the party. If there was ever a case where defendants should have been notified and heard before the granting of a temporary injunction, this is one. Under the statute, instead of issuing a temporary injunction in the first instance, the judge, if proper facts had been presented to him, might have issued a restraining order and directed notice to be given. The granting of a temporary injunction, under the circumstances, was not in accordance with a fair and orderly administration of justice.
The order granting the temporary injunction will be reversed, the injunction will be wholly dissolved, and the case 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
Valentine, J.:
This is an original proceeding in the nature of quo warranto, to determine by what authority Malcolm Conn attempts to hold the office of county treasurer of Morris county. It appears from the pleadings and evidence that John R. Horner was the duly elected, qualified, and acting county treasurer of said county from July 1872 to July 1874. In November 1873 he was duly re-elected to said office, his second term to commence in July 1874; but he. never legally qualified for his second term of office; and as we find from the evidence, he never entered upon the duties of his second term of office. He continued however to hold the office until August 7th, 1874, when the county commissioners of said county declared the office vacant, and appointed Malcolm Conn to fill the vacancy. Malcolm Conn qualified by giving bond and taking the oath of office, and immediately took possession of the office, and has been in possession thereof up to the commencement of this action. On October 6th 1874 the county commissioners of said county again declared the office of county treasurer vacant, so far as Horner was concerned, and again appointed Malcolm Conn county treasurer. But Conn never qualified under this second appointment. At the November election in 1874 L. P. Rude was duly elected county treasurer of said county, provided however that any election should have been held at that time for that office. Rude afterward duly qualified, and now claims the office. Conn however claims that he has the paramount right to said office as against Rude, or any one else. Is he legally entitled to the office? This is the only question in this case. There is no theory upon which'it can logically be maintained that Conn legally holds said office. If Horner is still legally entitled to hold the office, then of course Conn is not. If both the appointments of Conn were void, then of course Conn is not now entitled to hold the office. But even if both of said appointments were valid, still Conn would not be entitled to hold the office. If the first appointment were valid, then it necessarily follows that there must have been a vacancy in the office when Conn was appointed, for a valid appointment can be made by the county commissioners only to fill a vacancy. (Gen. Stat., 269, § 64; Graham v. Cowgill, 13 Kas.,. 114.) No authority is anywhere given to the county commissioners to appoint a county treasurer where the office is already legally filled. Hence, if the first appointment was valid, the second appointment was void, the office being at the time of the second appointment already legally filled. And if the first appointment was valid — being an appointment to fill a vacancy — the appointee, Conn, wonld hold his office under the appointment only until the next general election, and until his successor (elected at such election,) should quality. (Gen. Stat., 269, § 64; id., pp. 418, 419, §§ 57, 58, 59; Bond v. White, 8 Kas., 333; Hagerty v. Arnold, 13 Kas., 367.) Hence, as L. P. Rude was duly elected as Conn’s successor at the general election held in November 1874, and as Rude afterward duly qualified, Conn is no longer entitled to hold the office, but Rude is. But suppose the first appointment of Conn was void, and that the second appointment was valid: still Conn would not be entitled to hold the office, for he never qualified under the second appointment. He forfeited his right to hold the office under that appointment. (Gen. Stat., 293, 294, §§ 173, 179; The State v. Matheny, 7 Kas., 327.) He allowed vastly more than twenty days to elapse after he received notice of his second appointment, and after his term commenced; without qualifying, and never ■qualified under said appointment.
Our theory of the case is as follows: John R. Horner was legally the county treasurer of Morris county from the time he first took possession of the office until the first Tuesday of July 1874, and for twenty days thereafter. (Gen. Stat., 268, §61; Constitution, art. 9, §3; Gen. Stat., 293, 294; §§ 173, 179.) Whether he could have continued to hold his office for a longer time than that, under his first election and qualification, we do not now choose to decide. And whether Conn was ever legally the county treasurer of said county we shall express no opinion. (But upon these two questions, see Constitution, art. 9, § 3; Borton v. Buck, 8 Kas., 302, 312, et seq.; Graham v. Cowgill, 13 Kas., 114; Bond v. White, 8 Kas., 333.) But we think it is certain that Horner forfeited his office for the second term- by not qualifying within the time prescribed by law. (Gen. Stat., ch. 25, pp. 268, 293, 294, §§ 61, 173, 179; The State v. Matheny, 7 Kas., 327.) He should have qualified by giving bond and taking the oath of office sometime after his election in November 1873, and between that time and twenty days after the first Tuesday of July 1874. But he did not do it, and hence his second term of office was forfeited, and the office became vacant. We shall assume, but without so deciding, that the first appointment of Conn was legal and valid. But whether it was so or not, Horner had forfeited that term; he had wholly abandoned the office; he made no claim to hold over under his former term, or under any other term, and the office was filled by a person holding it under an appointment only. Under such circumstances we think the election of Rude was legal, and that he is entitled to the office. But whoever may be entitled to the office, Conn is not.
Judgment will be rendered in favor of the state and against the defendant, removing the defendant from said office of county treasurer.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This case is in all essential particulars similar to that of Haug v. Gillett, recently decided by this court, (ante, 140,) except that in this case the vendor resided and had his place of business outside the state. Feiniman & Co. are wholesale liquor-dealers in Kansas City, Mo., in which place they have paid all taxes required by the state or national authorities for carrying on that business. Their store and stock of goods was in that place, and they had neither store nor stock in this state. The goods for which this action was brought were sold either by orders given to a traveling agent of Feiniman & Co. at the store of plaintiffs in error in Garnett, Kansas, by orders sent by letter or telegram to the house in Kansas City, or by contract made directly between the parties in Kansas City. Where orders were taken they were subject to the approval of the firm in Kansas City, and in all cases the goods were there selected and separated from the stock of Feiniman & Co., and delivered to the carrier in Kansas City. The charges for carriage therefrom were paid by the plaintiffs in error. Clearly, there was no complete sale, no transfer of title to the particular goods, until they had been separated from the entire stock. Before such separation there was at best only a contract to sell. Now the thing forbidden by the dram-shop-act is a sale, not a contract to sell. True, its penalties reach to any gift of liquors, or any other shift or device to evade the provisions of the act; but the case here presents nothing of that nature. It is an ordinary, straightforward business transaction, and if forbidden at all it must be because embraced within the plain prohibitions of the statute. But as we have seen, the_ thing forbidden is a sale, and no sale AVas completed until the goods were separated and delivered to the carrier. It is not claimed that there was any special agreement to deliver the goods at Garnett, and both the partners of Feiniman & Co. testify that they were to be delivered at the depot in Kansas City, and to be thenceforward at the risk of the purchaser. And indeed, it is the ordinary rule, in the absence of any special agreement, that a delivery to the carrier is a delivery to the purchaser, and completes the sale. 1 Pars, on Contracts, 3d ed., 445, and notes; Hilliard on Sales, 118; Smith v. Smith, 7 Foster, N.H., 244; Finch v. Mansfield, 97 Mass., 89; Kline v. Baker, 99 Mass., 253. The judgment therefore must be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
The plaintiff in error claims in his brief that the judgment of the court below should be reversed for, “ 1st, error of law at the trial,” and “ 2d, refusal to grant the motion for new trial.” He then elaborates these grounds for error, and we will notice his points in the order presented. The first is as follows:
“1st. — The court erred in ruling out the testimony of Weaver, Stinson, and others, in relation to the value of the land and timber. The statute of limitations was not pleaded, and failure to demur was a waiver.”
As the case is presented to us we do not think that the court below erred in excluding said testimony. It was not only not shown that the witnesses knew the value of the land and timber at the required time, but it was actually shown that they did not know such value. It is true, the witnesses were acquainted with the land, and with the neighborhood in which the land was situated, but they did not know the value of the land at the time material to the issues in this case. It is possible that if their testimony had been the best that could have been procured it would have been admissible; but there was no claim or even pretense that it'was the best that could have been procured. It does not appear but there.were many persons who knew the value of said lands whose testimony could have been procured. When testimony is offered which from its nature or character appears not to be the best the case admits of, it is the duty of the party offering it to show affirmatively that the evidence he is attempting to introduce is the best evidence that can be procured ; and if it is then excluded, it devolves upon such party to show affirmatively to the appellate court that the trial court erred.
This action was commenced in a justice’s court, and appealed to the district court, where the judgment complained of was rendered. Now we do not think that it is necessary in a justice’s court that the statute of limitations should be specially pleaded, or that the question should be raised by demurrer, but the question may be raised by objecting to evidence introduced on the trial for the purpose of proving a claim barred by the statute. And when a case is appealed from a justice’s court to the district court, it should be tried in the district court, so far at least as the statute of limitations is concerned, in the same' manner as it would be tried (if tried) in the justice’s court. (See §§ 71 to 74 of the justices act, Gren. Stat., 791, and §122 of the justices act as amended, Laws of 1870, page 184, §7.)
We now come to the next portion of the plaintiff’s brief, which claims that the court below erred in its instructions. The plaintiff claims that the court erred in the 3d, 6th, 7th, 8th, 9th, 10th, and 13th instructions which were given, and in refusing to give the 1st and 2d instructions asked by plaintiff in error. The exceptions to said instructions given, as shown in the record, were as follows:
“All these instructions excepted to by the defendant. To the giving of the 3d .paragraph of the foregoing instructions the defendant then and there excepted; also the 6th and 7th instructions.”
The plaintiff in error does not now complain of the 3d paragraph or instruction. And as to the 8th, 9th, 10th, and 13th instructions, there was no sufficient exception. (See Furguson v. Graves, 12 Kas., 39, 44, and cases there cited.) Whether there was a sufficient exception taken to the giving of either the 6th or 7th instructions, is doubtful. But suppose there was, then were such instructions erroneous ? As to the 6th instruction the plaintiff in error in his brief says :
“In the 6th instruction the court errs in saying the word ‘soon/ means, in a reasonable time. This leaves the jury to accept a wrong definition, and shifts the responsibility the law imposes upon the court.”
The instruction reads as follows:
“ 6th.-If there is no time specified for the performance of an act, or if it is specified that it is to be performed soon, the law implies that it is to be performed within a reasonable time.”
There is certainly no error in this sufficient to reverse the judgment. The 7th instruction reads as follows:
“7th.-If you believe from the evidence that at the time the defendant executed and delivered his deed to plaintiff for the Lyon county land, there was an agreement that the plaintiff was not at that time to convey to defendant the Wabaunsee county land mentioned in plaintiff’s reply, then and in that event a demand by the defendant and a refusal by the plaintiff prior to the commencement of this action would be necessary in order to entitle the defendant to recover the value of the laud by him deeded to the plaintiff, unless the plaintiff had placed himself in a condition that he could not convey said land to defendant.”
Upon which the plaintiff in error in his brief says:
“As to the 7th general instruction, it should have been given with the proviso that Shepard had a title at the time he was to convey. The conveyance was to be ‘soon.’”
We should hardly think that such a proviso should be inserted. Shepard did not agree to execute to Sanford anything more than a quitclaim deed for the Wabaunsee county land. There is no evidence that Shepard ever pretended that his title was perfect, and it was not necessary that he should have had a perfect title. It is not claimed that there was any fraud in the transaction; and in the absence of fraud it was not not necessary that Shepard should have had a good title. The transaction that called .forth this instruction seems to have been an exchange of lands held by the parties respectively under tax titles. Sanford transferred his title to the Lyon county land to Shepard, and Shepard in consideration therefor paid him $400, and agreed that he would “soon” transfer his title to the Wabaunsee county land to Sanford by a quitclaim deed. It seems however that' afterward, but before Shepard transferred his said title to Sanford, it was ascertained, that Shepard’s title to said Wabaunsee county land was not very good, and therefore Sanford now wants to recover from Shepard the value of said Lyon county land, less said $400. But Shepard wants Sanford to take said quitclaim deed for said Wabaunsee county land. And this is really all that Sanford is entitled to. The refusal to give the 1st instruction asked for by plaintiff in error raises the same question as the giving of said 6th instruction, and hence we need not say anything further with reference thereto.
The 2d instruction asked for by plaintiff in error, and refused, is as follows:
“ 2d.-As to the demand for the timber on the defendant’s land under the contract adduced on the trial, if the jury find that the-timber was to be first demanded, that the demand was not made for the whole or any part of said timber, the value of the recovery would be .the true value of so much of said timber as may be proven to be taken away from the defendant by the plaintiff without such demand.”
The only reference in the brief of plaintiff in error to this instruction is as follows: “ Likewise in refusing the 2d special instruction as to the demand for timber.” Was said refusal an error? And if so, why? Was there any evidence to found such an instruction upon? If the court erred in refusing to give it, the error is certainly not apparent, and the plaintiff in error has not taken the trouble to point out the error to us, or to state in what it consists.
The judgment of the court below is affirmed.
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The opinion of the court was delivered by
Valentine, J.:
On May 14th 1855 Isaac Turpin, of Jessamine county, Kentucky, made his last will and testament, and in the' same year died. On March 3d 1856 this will was probated in the county court of said Jessamine county. The will among other provisions contains the following, to-wit:
“Next, I give to my son Anderson Turpin one-fourth part of my estate, out of which one thousand dollars is to be deducted, as stated in this will, for the use of Miss Eliza Dearinger. It is understood that whatever falls to him shall not be subject to any debts owing by,him at this time, or may be owing hereafter, but my son Anderson is to have the proceeds of whatever sum may fall to him, but the principal is to be in the hands of a faithful trustee, who shall take charge of said estate, whatever it may be, and hold the same for the use and benefit of my said son Anderson Turpin; and, for the purpose of carrying out this gift, I make and appoint my son Wilkinson Turpin, trustee for my son Anderson, during his lifetime; and, at the death of my son Anderson, one-fourth part of the amount of said estate is to be given to my grandson William Turpin, and one-fourth to my granddaughter Mary Emily Turpin, and the balance to be equally divided between the other five grandchildren, Josephine Sparks, Genevieve Turpin, Alonzo Turpin, Clifton Turpin, and Irene Turpin.”
All the above-mentioned grandchildren were the children of said Anderson Turpin. The trustee accepted said trust, and on settlement of the estate there came into his hands, as such trustee, a considerable amount óf money. The trustee invested portions of this fund in the lands and lots in controversy, and took conveyances therefor to himself; one dated the 8th of March 1859, from one Collins; one dated the 6th of June 1860, from one Hill; and one dated the 16th of December 1858, from one William C. Turpin. The substantial portions of said first-mentioned deed, so far as it is necessary to state them in this opinion, read as follows:
Said Collins “ does grant, bargain, and sell unto said Wilkinson Turpin, trustee of said Anderson Turpin and his children, in fee simple, the land” (described in the deed,) “to have and to hold the said tract of land unto the said Wilkinson Turpin, as trustee for the said Anderson Turpin and his children, in fee simple forever, together with all the appurtenances thereunto belonging. And it is understood that the consideration-money for said tract of land is derived from the estate of Isaac Turpin, deceased, and that the said Wilkinson Turpin holds said land as trustee of the said Anderson Turpin and his children, as designated under the last will and testament of the said Isaac Turpin, deceased, of record in the clerk’s office of the Jessamine county court, for the state of Kentucky; and that the said fund has been applied and invested for the purchase of said land by the said Wilkinson Turpin, in pursuance of the judgment of the circuit court for the county of Jessamine, state of Kentucky, rendered in a suit of equity of the said Wilkinson Turpin and Jane Turpin his wife, against the said Anderson Turpin and others,” etc.
The other deeds to the said trustee are of like tenor and effect. The district court finds that there was thus invested in lands of such trust fund the sum of $5,000. Anderson Turpin lived upon this property, or at least a part thereof, from 1860 to June 1863, when he was compelled to leave the same, since which time he has neither occupied the 'property nor received any benefits therefrom. On August 5th 1870 Wilkinson Turpin, the trustee, died, and on the 15th of November 1870 the district court of Johnson county, Kansas, on the application of Anderson Turpin, appointed J. Henry Blake, the plaintiff below, the successor in said trust, with all the powers possessed by the original trustee, which appointment he accepted.
Three of the children of Anderson Turpin mentioned in the will, to-wit, Mary, Emily, and Clifton, died before the commencement of this suit. The defendant R. A. Collier married Genevieve Turpin, she also being dead at the commencement of this suit, and the defendants William Henry Collier and Emma Burgess are her children. At or about the time Anderson Turpin was compelled to leave said premises, to-wit, in 1863, he, as well as the trustee, authorized defendant R. A. Collier to take charge of the property as their agent, and to rent the same, which he did; and on the 8th of June 1865, the said trustee, Wilkinson Turpin,' by letter of attorney, constituted and appointed said Collier, at his request, agent, and thereby authorized Collier, in the name of the said Wilkinson Turpin, as trustee, to take possession of and rent out all the property in controversy. On the 4th of August 1865 Anderson Turpin made a deed of quitclaim of said premises to his children, William Turpin, Josephine Sparks, Irene Smith, Alonzo Turpin, and Genevieve Collier, she then being alive. On the 7th of October 1865, Alonzo Turpin, and on the 7th of June 1865, Sparks and wife, and on the 25th of February 1865, Irene Smith and husband, made to defendant Collier their respective deeds of quitclaim to said property. On the 23d of January 1865, defendant R. A. Collier caused to be made to him two tax deeds, both together covering the property, except house and lot, in controversy, which tax deeds recite that the lands were sold on the 7th of January 1862 for taxes of 1860 to Johnson county, and certificates assigned by Johnson county, one to one Gregg, and the other to one Ocheltree, and by them assigned to Collier on the 24th of December 1864. There is evidence not only that Collier was agent when he took these tax deeds, but also that he had received and then had money from Anderson Turpin to pay the taxes with. It is also found by the court that Collier himself procured the deed from Anderson Turpin to his children to be made through urgent solicitations and for the purpose that Collier himself might obtain the title, and that such deed was procured without consideration. The cause was tried on an amended petition, answer, and reply. The petition'sets out the will, trusteeship, investment of funds in these lands, and the terms of the trust, death of the old trustee, and appointment of the new trustee; that the property produces nothing, and attacks the deed from Anderson as-conveying nothing, and as having been fraudulently procured,, and asks that the property be sold and the principal sum be' set apart at interest, and the balance, if anything, be paid tct Anderson. The answer of defendant Collier claims a different construction to be put upon the trust, sets up the deed from Anderson Turpin to his children, and deeds from part of these to Collier, and claims title thereunder, sets up the tax deeds and claims title under them, and also sets out the power of attorney from the trustee, and claims that taxes paid by him amount to as much or more than rents received, and sets up the one, two, three, and five-year statutes of limitations. The reply denies all new matter, and states the agency of Collier, and sets out fully the fraud complained of in procuring the deed from Anderson Turpin.
The action was tried before the court without a jury, and the court made separate findings of fact and of law. We shall consider only the material and substantial questions involved in this case, and shall pass over the others without noticing them. The appointment of J. Henry Blake was valid. “Upon the death of a sole or surviving trustee of an express trust, the same shall vest in the court having jurisdiction thereof, and such court shall forthwith appoint a successor, in whom the trust shall vest.” (Gen. Stat., 1098, §10.) The district court of Johnson county unquestionably had jurisdiction to make the appointment, and the proceedings with reference thereto were unquestionably regular. Wilkinson Turpin was the trustee of an express trust. The deeds to him from Collins, Hill and William C. Turpin, made him so, and they referred to the will of Isaac Turpin, which explained the nature, extent and character of the trust, and which also made him the trustee of an express trust. Said deeds and said will are the common muniments of title of all the parties'. All the parties hold under them. And the rights of all the parties are derived from them, and are to be determined by their terms. Hence, all that we have to do, in order to determine the rights of the parties, is to construe said instruments. All the parties admit the existence of said instruments. All admit the character of their contents. All admit their validity. And hence it makes no difference whether the will was ever probated in Kansas or not. The sections of the statute referred to by the plaintiffs in error, with regard to probating wills, have no application to this case. None of the parties in this case are holding adversely to the will, but all are holding under it. Said sections probably apply only to property in this state upon which the will may operate at the time of the death of the testator so as to transfer the property in a different manner from what the law, aside from the will, would transfer it. But whether this is so or not, the deeds to Wilkinson Turpin, under which all the parties claim, referred to said will as showing the nature of the trust of which Wilkinson Turpin was the trustee, and referred to said will as being of i*ecord in the office of the clerk of the county court of Jessamine county, Kentucky, where said will was probated, and hence it was not error for the court below to allow proof of said will, or proof of the said,record of the same, to be introduced on the trial of the casé, although there was no proof that said will had ever been probated in Kansas. Even if said will and said record were void as against the heirs of Isaac Turpin deceased, still they are valid as against any party claiming under said deeds, as they show the kind of trust created by said deeds, its nature and extent. What then were and are the rights of the parties under said deeds and said will? The rights of J. Henry Blake are the same as the rights of Wilkinson Turpin thé original trustee would be if he were still living and still the trustee. (Gen. Stat., 1098, § 10.) And hence it must follow that at least the whole legal estate in the property in controversy is now in said Blake. We think the whole estate, legal and equitable, in said property is in Blake. He has the whole power, under the instructions and supervision of the court, to take care of it, to use it, and to dispose of it. Neither Anderson Turpin, nor any one of Anderson Turpin’s children, has any interest in the real estate as real estate. They have an interest in the trust fund, which is for the time being invested in real estate. They had that interest in the fund before it was invested in real estate; they have it now, and they will continue to have such interest in said fund, even if the real estate be sold and the fund invested in something else. Remotely they have an interest in whatever, the fund may be invested in, but they have no such direct interest in the thing in which the fund may be invested, as to constitute an estate, when the fund is invested in real estate. The right of Anderson Turpin, under the will, is to have only the proceeds of the fund, the increase thereof. He is not to have any of the principal of the fund; and he has never had any power to sell it or incumber it. The principal of the fund is to remain a permanent fund for the benefit of Anderson Turpin’s children. They are to have the fund after Anderson Turpin’s death. But their interest in the fund does not constitute an estate in the property in which the fund may for the time being be invested. Or at most, such interest can amount only to a contingent remainder therein. It cannot amount to any vested estate. Their interest will not pre vent the trustee from selling the property by order of the court, freed from all right, title or interest which they may have therein. And if the property is unproductive, so that no proceeds are procured therefrom for the benefit of Anderson Turpin, it ought to be so sold. They may therefore never have any estate in the property. If Anderson Turpin should die, while the title to the property is still vested in the trustee, his children would then have the right to have the title conveyed to them, if practicable, according to their respective interests in the trust fund, but their right at most can only amount to a contingent remainder. Neither Anderson Turpin nor his children had, at the time they executed said quitclaim deeds, any interest in the property in controversy which they could convey. Hence the quitclaim deed from Anderson Turpin to his children, and the quitclaim deeds from his children to Collier, were void. Even if procured and executed in good faith, still they were void as conveyances. And being void as conveyances, Anderson Turpin and his children could not defeat or terminate the trust by making them. They alone had no power, in any manner, to terminate the trust. Usually, where all the beneficiaries of a trust unite, and none of them are laboring under disability, they may with the consent of the court terminate the trust. But when they attempt to terminate the trust in contravention of the object of the trust, they certainly cannot do so, unless they have the consent of the court; and the consent of the court should generally not be given in such cases. In the present case it would be in violation of the object of the trust to terminate the same before the death of Anderson Turpin. It was clearly the intention of Isaac Turpin, when he created the trust, that Anderson Turpin should have the benefit of the increase of the trust fund during his lifetime, and that the trust should not during that time be terminated, diverted, incumbered, diminished or materially impaired. But whatever interest Anderson Turpin may have had in said property, still he was prohibited by statute from dis posiug of the same. The statute in force when said deeds creating the trust, and when said quitclaim deeds were made, reads as follows:
“Sec. 4. No person beneficially interested in a trust for the receipt of the rents and profits of lands can dispose of such interest, unless the right to make disposition thereof is conferred by the instrument creating the trust.” (Laws of 1858, page 402, §4; Comp. Laws, 1862, page 897, §4.)
Now this law was in force when Wilkinson Turpin as trustee purchased the land in controversy; it was in force when Anderson Turpin made said quitclaim deed to his children, and it was in force when his children made said quitclaim deeds to. Collier; and we suppose it will be admitted that Anderson Turpin was beneficially interested in the receipt of the rents and profits of said land. And will it be contended that a trust in lands in Kansas can be created, and the trust not be governed by the laws of Kansas?
It is not necessary to discuss any of the other questions supposed to be involved in this case.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendants in error brought an action on an account for merchandise sold' and delivered to plaintiffs in error. f The correctness of this account was not disputed, but plaintiffs in error claimed an offset as follows: They alleged in substance that Haas & Co. .(the defendants in error) sold and agreed to assign to one Joseph Wheat a note and mortgage of the value of $351.25; that the money paid by Wheat therefor was the money of H. D. Shepai’d & Co., and that all claims for the money and the note and mortgage were assigned to plaintiffs in error, and that defendants in error refused to return the money, or assign the note and mortgage. Upon the trial it appeared that these papers were executed at the time of the negotiations between Haas & Co. and Wheat:
“Burlingame, Aug. 13th, 1872.
“Rec’d of Joseph Wheat one draft at sight, dated August 13th 1872, for $200, on Messrs. Gregory, Strader & Co., Kansas City, Mo., which, if said draft of $200 is paid and promptly honored and be placed to the credit of Joseph Wheat, in full of the account of Craig & Wheat. Haas & Co. Otherwise this receipt to be of no effect, and void.”
“Which if said property is foreclosed to be bought by Haas & Co., and make a deed to Joseph Wheat. August 13th, 1872. Haas & Co.
The expense to be paid of foreclosing and costs by Jos. Wheat.”
Upon the presentation of these papers, (for they are spoken of as two exhibits,) the court ruled out all evidence tending to show any agreement between the parties other than as therein expressed, and this is the alleged error. The direct question was asked the witness Wheat, whether there was any other and further agreement between Haas & Co. and himself than is expressed in these writings — but the court sustained an objection to the question. It appeared from the evidence that the property referred to in the exhibits was a mortgage on some property in Newton, Kansas. The witness Wheat testified that the last clause in the second exhibit referred to the costs of foreclosing this mortgage. He was also asked at whose option this mortgage was to be foreclosed, and whether the mortgage was to be foreclosed without his request, and whether Haas & Co. were to do anything in case there was no foreclosure. All these questions were objected to, and the objections sustained. In these rulings we think the court erred. Doubtless these exhibits are something more than receipts. They are, in some parts at least, evidently contracts, and thus within the rule which forbids parol testimony to vary or contradict written agreements. But the existence of a written contract does not always exclude the possibility of a cotemporaneous parol agreement bearing upon the same general subject-matter, yet referring to some point or phase of it not expressed in the writing. And this written agreement, obscure and uncertain as it is, evidently does not reach to all the matters of ordinary consideration in a transaction like the one 'at bar. Without noticing others, it is enough to refer to the question at whose option the foreclosure was to be had. Upon this the written agreement is silent, and nothing can be implied from the language used concerning it, yet it was a proper matter of agreement, and one ordinarily determined in such an agreement. But whatever were the facts of the case, it is possible that there was some cotemporaneous parol agreement, not contradicting nor varying the written, and yet having some bearing upon the matters in issue. The court refused to let the witness testify whether there was or not, and in this erred. It is true, that the first part of the exhibits speaks of the receipt of the $200 as in foil payment of an account; but it is also evident from the remaining portion that either in consequence or as a part consideration of the payment, the witness Wheat had some rights in a note and mortgage in the possession of Haas & Co. What the extent of those rights was, is from the papers doubtful. Perhaps it would have been made clearer if the rejected testimony had been admitted.
But it is insisted by counsel for defendant in error that the assignment of error is insufficient. The assignment is — “that the said court erred in ruling out the evidence offered by the said H. D. Shepard and J. J. Playford, on the trial of said action, to which they at the time excepted.” And it is objected, that it does not specify the particular evidence whose rejection is assigned for error. Notwithstanding the authorities cited from Indiana, by the learned counsel, it seems but a necessary deduction from questions already decided in this court to hold the assignment sufficient. DaLee v. Blackburn, 11 Kas., 190.
The judgment of the district court will 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
Valentine, J.:
Jesse Newell was plaintiff in the court below and Abraham Newell was defendant. The principal object of the action was to obtain a judicial determination that the plaintiff had a better right to a certain piece of real estate than the defendant, and to obtain a decree in favor of the plaintiff for the title thereto. The plaintiff filed his petition setting up that he was in the possession of said real estate, that he held the equitable title thereto, that the defendant held the legal title thereto, but that he held it in trust for the plaintiff, and asked to have the defendant compelled to convey the legal title to himself. The defendant answered, and the plaintiff replied. The plaintiff then with leave of the court amended his petition so that the action was really converted into an action to quiet the title to said premises in favor of the plaintiff and against the defendant. The defendant excepted to the ruling of the court allowing said amended petition to be filed, and now assigns the same for error. We perceive no error however in such ruling.
The defendant afterward answered to said amended petition, and the plaintiff replied. The parties then proceeded to trial before the court without a jury. The court made special findings of fact and of law. The most of the findings of fact are unquestionably sustained by the evidence. All of them are sustained by some evidence. And not one of them so lacks evidence to sustain it that we can set it aside or grant a new trial therefor. It seems from the record that Jesse Newell the plaintiff is the father of Abraham Newell the defendant; that in 1361 the plaintiff was in debt; that he was about to enter the military service of the United States; and that he desired before doing so to make some provision for the payment of his debts. He finally conveyed some or all of his property, real and personal, to his son Abraham, with the parol understanding and agreement that Abraham would sell a sufficient amount thereof to pay said debts, and would then reconvey the balance thereof to his father. Some of said property was sold, and with the proceeds thereof and with money obtained by the plaintiff all of said debts were paid. The property.in controversy was a portion of the property conveyed by the plaintiff to the defendant. The property in controversy was at the time it was so conveyed, and has been ever since, in the possession of the plaintiff and occupied by himself and family as a homestead. No part of the same was sold to pay said debts, and the legal title thereto still remains in the defendant. And although the defendant should now reconvey the title to said property to his father, in accordance with their parol agreement and understanding, yet he refuses to do so, and claims the property as his own-. The court below, among other things found as follows:
“9th. That the defendant, Abraham Newell, fraudulently and designedly induced plaintiff, by false and fraudulent representations that he would faithfully act as agent of said plaintiff, to execute to him the said conveyance of the land in controversy, with the fraudulent intent not to reconvey said land to said plaintiff, as was then and there agreed upon between them as aforesaid.
“10th. That the defendant, Abraham Newell, at the time of the execution of the conveyance aforesaid by plaintiff to him said defendant, received said conveyance and accepted said agency, with the fraudulent intent and design of retaining said land as his own, and with the fraudulent intent not to reconvey said land to said plaintiff as was then and there agreed between them as aforesaid.”
Now as the defendant obtained said conveyance from the plaintiff by false and fraudulent representations, we suppose we should hold the same void as between the parties when asked to do so by the innocent party; for fraud vitiates everything it touches. Or at least we should hold that the party who obtained the conveyance fraudulently holds the legal title to the property in trust for the other party, and should surrender the same whenever called upon to do so by such other party. The defendant holds nothing but the bare naked legal title. He never had possession of the property. He never paid anything for it. The debts of the plaintiff have all been paid. And the defendant has been amply paid for all his services for the plaintiff. It is true, the defendant gave his promissory notes for the property at the time the conveyance was made. But it was understood and agreed between the parties that the notes should never be paid, and they never have been paid, but on the contrary they have been surrendered to the court below for the benefit of the defendant. The notes were probably given by the defendant as a partial covering for the fraud he was then intending and attempting to perpetrate. The defendant has lost nothing, and has been placed in as good a condition as he was before the conveyance was made, and in the same condition. We therefore think that the judgment of the court below, declaring that the title of the plaintiff was paramount to that of the defendant, and decreeing title to the plaintiff, should be affirmed.
This case differs from the case of Morrall v. Waterson, 7 Kas., 199, in at least two respects. In this case the deed was obtained fraudulently;. in that it was not. And in this case the deed was executed for the purpose of enabling the grantee to sell the property, and thereby to pay certain debts; in that case no such purpose was disclosed. It is possible that the judgment of the court below might be sustained even if said deed had not been procured by fraud; but we do not now wish to so decide. The consideration of any deed may be inquired into, not for the purpose of invalidating the deed, but for the purpose of ascertaining rights founded upon the particular consideration, and upon other and extrinsic circumstances. Thus, the real consideration along with other circumstances may be inquired into and may render a deed absolute upon its face a mortgage. (Moore v. Wade, 8 Kas., 381, 387.) Or, such consideration and other circumstances •connected with a deed absolute upon its face, given to a surety, may give a co-surety, or the creditor, an equitable lien on the property conveyed, and render said surety a trustee for his co-surety and creditor. (Seibert v. Thompson, 8 Kas., 65; Seibert v. True, 8 Kas., 52.) Or, such consideration and other circumstances connected with a deed given to one person may create a resulting trust in favor of another person not mentioned in the deed. (Franklin v. Colley, 10 Kas., 260.) And •such consideration and other circumstances may be shown by parol evidence.
Judgment affirmed.
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By the Court,
Kingman, C. J.
In October, 1862, the defendant in err.or shipped on the road of plaintiff in error, at St. Louis, Mo., a lot of mules, to Macon city, the termination of said road, for further transportation westward. The evidence is- contradictory, whether the plaintiff in error was to deliver the mules at Macon city to the Hannibal & St. Joseph railroad, or'not.
When the mules reached Macon city they were put in the stock pens of the road, and on the afternoon of the day of their arrival, as the proofs differ^ the mules were taken out to water, and, while out, stampeded, and Sixteen of them got away, ten of which were never-recovered. Six were recovered by Akers. In April, 1865, Akers brought suit to recover the value of the mules lost, and for money and labor expended in the recovery for the six that were recaptured and recovered a judgment for $1,200. This judgment the road, seeks to set aside, and alleges various errors in the proceedings of the court below, which we will notice in their order.
It is claimed that the defendant, being a foreign corporation, having its existence by virtue of the laws of another state, and having its office there, and doing its business there, it cannot be sued here otherwise than by attachment proceedings against the property of said corporation. The service in this case was made upon the president of the road, in Leavenworth. The defendant, in answer to the summons so served, made his appearance and answered to the merits. No question was raised as to the jurisdiction over the person, nor was any such point made in the court below, save as a ground for a motion for a new trial. It is not one of the causes mentioned- in the code for which a new trial should be granted, and it is doubtful whether such a. question could ever have been raised in that way. We might well leave this point as settled by this suggestion; but, inasmuch as many authorities were cited, and our convictions clear, we may as well state them here. In doing that, it is not necessary to determine that the service of process on an officer or agent of a foreign corporation, outside the territorial jurisdiction creating it, is binding on such corporation. There seems to be some conflict on this point in the decisions of the various states, arising, perhaps, more from the method of pleading than from any general misapprehension of the law. In the case of McQuin v. Middletown Man. Co. (10 Johns., 5), Spencer, C. j., in delivering the opinion of the court, says: “If the president of a bank of another state were to come within this state, he would not represent the corporation here. His functions and his character would' not accompany hiin when he moved beyond the jurisdiction of the government under whose laws he derived his character.” This was a dictum merely, and not necessarily involved in the case before the court; but it has been approved and cited in various cases since. Even this dictum is not applicable to this case. By the comity universally acknowledged in the states, and acted upon by the Supreme Court in the case of Bank of Augusta v. Earl (13 Peters, 519), corporations may send their officers and agents into other states, transact their business and make ■ contracts there. If corporations avail themselves of this privilege, itis but justice that they be subject to the action of the courts of the state whose comity they thus invoke. They ought, so far as suits are concerned, to be regarded as voluntarily placing themselves in the situation of citizens of that state.
A natural person, who goes into another state, carries along with him all his personal liabilities, and if a corporation chooses to exercise its powers in another state, it ought of necessity to become amenable to its laws ; and so far, it must be admitted that the dictum ■in the case of McQuin v. Middleton ought to be modified, and undoubtedly would be when a proper case was made. It would then appear that there are cases where a foreign corporation may be sued in a. state other than the one which created it, upon general principles of law. Our code specially authorizes it. The thirteenth clause of the act of February 11, 1859, . concerning the construction of statutes, applies as well to the code as to any other part of the statutes. It was passed on the same day as the code, and is part of the legislative will, authoritatively expressed upon the various matters of which it treats. Applying, then, the word person to bodies politic and corporate, and such bodies are as much the subjects of suits as persons, while section 59 expressly mentions foreign corporations as liable to suit, by pointing out in what county they may be sued. Such was evidently the purpose of the code. In another section the manner of attaching their property is pointed out. Now, in this case we need not decide that the president of a foreign corporation, being accidentally in this state, could be served with process that would bind the corporation, because it nowhere appears in the record that such were the facts. And, further, the corporation appeared and answered to the claim, and had a trial on the merits; The court had jurisdiction of the subject niatter. It was a breach of contract, as entirely within their jurisdiction as though it had been a suit on an unpaid note. Either would be a breach of contract, and that only. The court thus having jurisdiction over the subject matter, and the parties appearing and submitting their case to the decision of the court, cannot now complain that the jurisdiction of the person was not rightfully ob tained. Says Mr. Justice Story: “If a person who is out of the jurisdiction chooses to appear and defend the suit without objection, there is nothing to prevent the courts of the United States from entertaining the suit, if otherwise unobjectionable; for his appearance without process is a waiver of the objection of the non-service of the process within the district.” (See Clark v. New Jersey Steam Navigation Company, 1 Story’s Reps., and cases therein cited.) This is not only decided law, but good sense. A court having jurisdiction of the subject matter would be open to serious charges if it permitted a party to try a cause upon its merits, without in any way raising a question as to the parties being rightfully before it, and then allow such party, upon a decision adverse to him, to call in question the service of the process rightfully upon him. He is not estopped from setting up such claim. If he is not rightfully in court, he should first raise that question, before he goes to trial on the merits.
It is further alleged that there was error in admitting testimony. In the progress of the trial the plaintiff below was asked this question: . “ What were your services in hunting those mules worth per day?” This was a proper question. It went to support one of the issues on trial, viz: Compensation for plaintiff’s services in and about a business in which he had a direct interest. The rule of damages is undoubtedly what such services were worth. If there was anything in the pursuits of the plaintiff that made his time more valuable than the average of men, and the answer showed that he had based his answer upon such unusual estimate, it would be proper to present such facts upon cross-examination.
Another question objected to is this: “How much did you pay out in recovering the six mules?” We can perceive no error in this question. It led directly to support a proper issue in the case. The rule of compensation is the necessary, reasonable expenditure; but you must, first ascertain what the actual expenditure was, and then show it to have been necessary and reasonable, or otherwise.
A third question objected to is this : “How many hands would be necessary to drive two hundred and fifty mules, supposing they were broke mules, and driven under the circumstances detailed by the witnesses in the case?” The witness had already shown his knowledge of the subject matter of the inquiry. The jury must be informed in some way as to whether the number of men employed by the railroad company to take the mules to water was sufficient to show care and diligence. New men, selected as jurymen, would be qualified, either by observation or experience, to form an opinion as to how many men would be necessary to drive two hundred and fifty broke mules. To determine whether there was a want of due care in the driving of the mules to water, was one of the points on which the jury were to pass, and without testimony, unless the question could be asked. • I find the books full of cases on this subject, as .to the admission of opinions, and am totally unable to reconcile them. “It is every day’s experience that witnesses in .'the trial of causes on the circuit are called upon to state their judgment or opinion upon questions of value, of quantity, of size, of time, or the like, when there has been no test applied by measurement or otherwise. And this species of evidence has been found absolutely necessary to even a tolerable administration of justice; indeed, to refuse it would, in very many cases, operate as a complete denial' of justice. (37 Barb., 288.) But this exception to the rule that the witness testifies as to the facts and not as to his opinions, is generally limited to the case of experts in matters of art and skill, and is not enlarged so as to admit opinions in ordinary cases, when the jury may "be supposed competent to form their judgment from the statement of the facts.” (Sedg. on Meas. of Damages, 634;
So a mason may be asked how long it would take to dry the walls of a house, so as to render it fit for a habitation. (4 Barb., 615.) So also may experienced gardeners give opinions as to the amount of damages done to plants, trees and shrubs by the smoke, heat and gas proceeding from the defendant’s brick kiln. (13 Metc., 288.) Now we think this is one of the exceptions made in the rule as laid down by Mr. Sedgwick, when the jury may not be supposed competent to form their judgment from the statement of facts. They would not be likely to know whether two men were enough to drive the mules or not. Not one juryman in a hundred would have any knowledge on this subject. And it would seem better to admit the testimony of a witness skilled in that business than impose the task of forming opinions upon the jury without the previous necessary knowledge. In this case we think the testimony was properly admitted.
As further error, it is alleged that the instructions refused were law, and should have been given, and those given were not law. Some of the instructions refused are statements of law not applicable to the case, because they took from the jury the power of determining whether the railroad company were acting as common carriers, or were acting merely in the. capacity of warehousemen, when the loss occurred. This was a fact necessary to "be determined "before the suitable measure of care and diligence — proper in either state of the case — could be applied, greater responsibilities attaching in the former than in the latter case. This distinction is fairly made in the instructions given by the court. Now, if the contract was to transport the mules to Macon city and deliver them to the Hannibal & St. Joseph railroad there, the liability as carriers did not end unless the mules were delivered.of offered to be delivered to the latter road. The plaintiff in error could not change its liabilities, nor diminish the measure of its responsibilities, by any neglect of its own duty. It was the province of the jury to determine what the contract was, and whether the plaintiff in error had failed to keep it. On these points the testimony was conflicting, and all the instructions asked by the plaintiff in error, and not embraced in the instructions of the court, proceed upon the hypothesis that the contract of the North Missouri railroad was only to transport the mules to Macon city; while the testimony was such as would authorize the jury to find that such was the contract, or that it went further, and was also to ship them on the Hannibal & St. Joseph railroad; and for not giving the right of determining what was the real contract, to the jury, the most of the instructions were not applicable to the facts, and were rightfully refused.
It is not insisted here that the instructions given were not the law of the case. One of the instructions asked by the plaintiff in error is not embraced in the remarks above made, and will receive a separate consideration. It is as follows : “ That the defendant having set up the statute of limitations as a bar to the plaintiff’s right to recover, and the plaintiff having failed to plead or prove an avoidance, the jury must find for the defendant.” The reply to the plea of the statute of limitations was that the defendant was a foreign corporation, created and existing under the laws of Missouri, and having no corporate existence under the laws of Kansas. And there was testimony absolutely proving these allegations. So that the assumption of fact in the instruction is hardly sustained by the record. ■ But we have already attempted to show that a corporation is a person under the code and within the meaning of sec. 28 — an artificial being, a corporate body, confined to the State of Missouri, where it remained until this suit was brought, for aught that appears from the record, and is subject to the exceptions enumerated in sec. 28 of the code. To hold otherwise would be to say that the legislature intended to discriminate in favor of a foreign corporation, without any just grounds for such a conclusion. We think the principle of this instruction was settled by the court in. the case of Bonifant v. Doniphan (3 Kas., 35), and against the plaintiff in error.
We therefore find no error in the record, and affirm the decision of the court below.
All the justices concurring, | [
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Per Curiam,
Safford, J.
The case of Kimball against Brown and Finn, the cause of action of which, -it is conceded, arose in the county of Cherokee, was commenced in the' district court of Bourbon county, upon the assumption that at the time of such commencement the county of Cherokee was attached to Bourbon for judicial purposes. Service of summons was had upon Brown in said Bourbon county, and he appeared and answered the petition of plaintiff, as for himself. Finn was served with a copy of the summons by the sheriff of Cherokee county, of which county the case shows he was a resident; but Finn failed to appear.
The case was proceeded with, in the county of Bourbon, to trial and final judgment against both of the defendants, at the July term, of court, A. D. 1867. But, previous to the rendition of the judgment, defendant Brown moved in arrest thereof, on the ground that the district court of Bourbon county had no jurisdiction to try said cause.
Such objection to the jurisdiction was based upon the provisions of chapter 54, laws of 1867, which were passed and went into effect a long time prior to the said trial, although subsequent to the commencement of the suit.
The first and second sections of chapter 54, referred ■ to, read as follows :
“That the counties of Crawford, and Cherokee aré hereby detached, for judicial purposes, from the county of Bourbon. All cases pending in the district court of the county of Bourbon, the cause of action of which arose in the county of Crawford or Cherokee, or in which county the parties reside, are hereby transferred from the district court of Bourbon county to the district court of the counties of Crawford or Cherokee.”
Section 3 provides for the transfer of the papers, transcripts of proceedings, collection of costs, &c.
It will be seen that by section 2 all cases like that of Kimball against Brown and Finn, the cause of action of which arose in Cherokee county, were absolutely transferred and taken away from the district court of Bourbon county, to the district court of Cherokee, to be there disposed of. Such is the effect of the language used, which could not well be more explicit. '
’It is plain, then, that after the- taking effect of said chapter 54, laws of 1867, the district court of Bourbon county had no jurisdiction whatever to try the cause and render the judgment it assumed to do in this case. The motion in arrest should have been sustained, and no other action had in the premises, in said court, except to carry out the transfer to the district court of Cherokee county.
The counsel for plaintiffs in error has raised the question as to whether or no this case was one which could have been brought at all in Bourbon county, and in support of the position that it could not legally have been so brought, urges that the cause of action is local in its character, and made triable in the county in which it arose, by section 54 of the code ; and further, that the assumption by the plaintiff below, that at the time of the commencement, of the suit, and by the legislature at the passage of chapter 54, laws 1867, said Cherokee county was attached to Bourbon for judicial purposes, was in fact without foundation in law, and untrue.
These questions were not in any manner presented to the court below, and we shall not discuss them here ; but, without referring to the several other points made, which will not probably arise in the further progress of the case, shall rest the disposal of the case here upon the question of jurisdiction, as determined by the provisions of chapter 54, laws of 1867, above referred to.
Judgment reversed.
All the justices concurring. | [
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By the Gotort,
Kingman, C. J.
At the instance of counsel for relator, this court allowed an alternative writ of mandamus in. this case, without argument, in order, inasmuch as grave and complicated questions were involved, that full argument might be heard on both sides. The respondents appearing move to quash the alternative writ, bécause—
1. The writ is defective in matters of substance.
2. The relator has a plain and adequate remedy in the ordinary course of law.
3. There is no liability on the part of tire respondents, or any of them, to the relator, as the bonds he owns are invalid and void.
The writ must be quashed. While we think the writ is defective in some respects, we shall not stop to ex amine the form of it, but rest our decision on the second ground, which finally disposes of the case. The facts, as they appear in the writ, and so far as the statement of them is necessary to understand our views on this point, are briefly these:
The relator is the owner of certain bonds and coupons attached, amounting to the sum of $1,811.25, of the county of Leavenworth, which bonds became due and payable on the 1st day of March, 1867.
The county board of Leavenworth county, in 1866, assessed and levied a tax on the taxable property of Leavenworth county, to pay off these bonds and coupons, and others of the same class. The county treasurer collected said tax, so levied and assessed, sufficient to pay said bonds and coupons, and others of the same character. The relator presented his bonds, with coupons attached, to the county treasurer, and demanded payment thereof, which said treasurer refused to make.
He also presented them to the board of county commissioners and demanded payment, but was refused, and the said board also refused to order them to be paid. The county board, at an earlier period, made an order, directing the treasurer not to pay them, and they still remain unpaid. Under this state of facts, and for the purpose of this case, considering the liability of the county to the relator as undoubted and established, is the relator entitled to the writ ?
The law is that this writ shall not be issued when there is a plain and adequate remedy in the ordinary course of law. Qornrp. L., p. 226.
The facts, show that the money is now in the hands of the treasurer; that it is due to the relator, and he refuses to pay it over. Is there not a plain and adequate remedy in the ordinary course of law ? ' An ac tion against the treasurer on bis bond is as plain a remedy as a suit upon a note against a delinquent debtor, and if, as was suggested by the counsel on both sides, the question of the validity of the bonds is to be raised, such an action is a more appropriate one to try that question than is afforded by this writ. It is, however, urged that the county commissioners have ordered the treasurer not to pay over the money. As a defense to an action against the treasurer, this would amount to nothing, as it would be no valid answer to the claim to say that the board had directed him not to do that which the law had enjoined upon him as a duty to do. This seems to us conclusive as to the treasurer. As to the county commissioners, the case is still more decisive. The law requires them to levy the tax in 1886 to pay the bonds and interest, and to continue to do so as the bonds mature, till all- are paid. This they have done, as is shown by the writ. But they went further — they ordered the treasurer not to pay-over the money. This order was beyond their authority, and as it would be no justification to the treasurer not to do it, remains as though it had never been made.
The county board had no more to do with that matter than anybody else. The order was as binding as though made by a merchant of Leavenworth upon his books.' The bonds are ascertained claims, not in any wise depending on the action of the board for their validity. They have no power to audit or allow them, or to disallow them. This power over them was ended when they passed into other hands for a valid consideration. Their duty was ended when they levied a 'tax to pay them off. They are not to be paid on the warrant of the board, but upon presentation to the treasurer, and they -will, after payment, be vouchers for the disbursement of the money. It is either his duty to pay them, or not, without any reference to the action of the county board ; so that this action in making the order was simply in law a nullity, and if we ordered them to rescind it, the same condition of things would exist.
• These are, briefly, the reasons why the writ ought to be quashed and the action ended.
All the justices concurring. | [
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By the Court,
Safford, J.
The plaintiff in error brought suit in the district court of Marshall county, to foreclose a mortgage, executed to him by the two first named defendants. The petition was in the usual form.
Yelruvious C. Poor answered, and substantially admitted the facts of the petition, but claimed an off-set of two hundred and ten dollars, for taking care of the timber on a tract of land in said county, for plaintiff, under authority from one Fields, who represented himself to said defendant as the agent of plaintiff.
Plaintiff, in reply, denied the allegations of the defendant, as to the off-set, and also denied that Fields was his agent, either general or special. Upon trial being had, the jury found for the defendant, on his claim of off-set, in the sum of one hundred and forty dollars, and judgment was rendered by the court accordingly.
Plaintiff then moved for a new trial, and alleged among other things, the following ground: “3. Because there was error of law accruing at the trial, and said error was excepted to by the plaintiff, at the time of said trial.” This motion was denied, and plaintiff brings the case here for review. One error complained of as occurring at the trial, was the admission of certain testimony on the part of the' defendants, for the purpose of establishing the allegation or claim that Fields was the agent of plaintiff, and authorized to employ Yelruvious O. Poor to guard the timber, as it is alleged he did.
The bill of exceptions recites all of the evidence which was submitted to the jury in the case, and an examination of it shows that the portion of it relied upon as proving the authority of Fields to employ Y. O. Poor to guard timber for plaintiff, consisted of his (Fields’ s) declarations that he was the agent of plaintiff, coupled with the fact that at the time of making such declarations he had with him the note given by Poor to plaintiff for collection. . We are clearly of the opinion that Fields’s declarations should not have been allowed to go before the jury as evidence of his agency over the objections of the plaintiff. The rule of law bearing upon this question is “that neither the declarations of a man, or his acts, can be given in evidence to prove that he is the agent of another.” 3 Cowan & Sill’s notes to Phillips’s Ev., 412; 6 Minn., 484; 21 Mo., 404.
From these authorities it would appear that' the agency of Fields, and his consequent power to contract for and in behalf of plaintiff, should have been established by other testimony.
It may be said that the fact of Fields being in pos session of the note of defendant, Poor, tended to show that he was authorized to act for plaintiff. This is true ; hut only so far as the collection of the note was concerned. His power to collect the note did not give authority to make a contract for the guarding of timber. We therefore think that there was no proper evidence given to the jury to sustain the defendant’s alleged off-set to plaintiff’s claim.
It is further claimed on behalf of the plaintiff in error, that the court erred in refusing certain instructions to the jury, which were asked by his counsel. It seems probable, from the bill of exceptions, that such may have been the case; but still we are unable to say that other instructions, substantially embodying those that were asked for, were not given, as the bill does not purport to set forth the charge of the court as actually given to the jury.
The judgment of the court below is reversed, and. the cause remanded, with instructions to grant a new trial.
All the justices concurring. | [
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By the Court,
Safford, J.
The defendants were indicted in the county of Jefferson, for riot. No objection appears to have been made to the proceedings, other than that the indictment was signed, “Azel Spaulding, Co. Attorney for Jackson county, Kansas,” instead of “Azel Spaulding, Co. Attorney for Jefferson county, Kansas.” For this reason, one of the defendants, William Lawless, moved the court to quash the indictment, as to himself, which motion was sustained. In this, we think the court erred, inasmuch as it is shown that at the time the motion was made, the defendant who made it appeared in open court and consented that it should be entered of record that Azel Spaulding was, at the time of filing said indictment, the county attorney of Jefferson county, which was done, thus acknowledging that there was no mistake as to the officer himself, but only as to his description. Therefore, taking the whole record together, it clearly appeared that the indictment was, in fact, signed [by the proper prosecuting officer. Under such circumstances, it was sufficient in this respect.
It is a matter of much regret that cases are so often brought to this court upon such questions as arise in this one, when it is- apparent that by proper care on the part of the officers of the law, all necessity for so doing might be avoided. And it is to be hoped that for the future, the course of justice and law may not be hindered or defeated in this manner.
The judgment of the district court is reversed, and the cause remanded, with directions to overrule the motion to quash.
All the justices concurring. | [
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By the Court,
Safford, J.
This cause was originally brought before a justice of the peace in the county of Jackson, and judgment was rendered' therein in favor of the plaintiff, for the snm of one hundred and thirty dollars and costs. Thereupon the defendants filed in the district court of said Jackson county their petition in error, together with a transcript of the proceedings before the justice. Such transcript contained a bill of exceptions allowed by the justice, and reciting in detail the incidents of the trial, and the rulings of the justice therein.
A hearing being had upon the said petition in error, transcript and bill of exceptions, the district court reversed the judgment of the justice of the peace, and thereupon the said plaintiff brings up the proceedings of the said district court for review. It is contended on behalf of the plaintiff in error, that the bill of exceptions, taken before the justice of the peace, ought not to have been considered by the district court; and the reason assigned is, that the same was not allowed until four or five days after the return day of the summons, and trial of the cause. It does not seem to us that this objection is well taken, and besides, it would seem that the plaintiff claims too much on this behalf. The transcript does not show that any other action was had by the justice, than such as would operate in effect to continue the proceedings for the purpose of allowing a bill of exceptions to be made out, from the 25th to the 30th of November, 1867, and that such was the understanding of the justice, himself, is deducible from an inspection of the record. In his . docket he narrates the several steps taken in the case, beginning with the filing of plaintiff’s petition, and issuance of summons thereon, which summons was made returnable on a day certain; on the return day, all the proceedings are noted in their proper order, up to and inc] uding the j udgment and award of execution. Then immediately following, but'under date of five days later, comes the entry showing the allowance of a bill of exceptions — the bill of exceptions itself, and that time had been given by the justice for the purpose of preparing the same, without objections from any one. Then follows the certificate of the justice, as to the correctness of the transcript, having reference to the whole of it, bill of exceptions and all.
We think that a fair and liberal construction of this record justifies us in holding that the justice’s court was open for the filing of the bill of exceptions until the expiration of the period given in which to reduce it to writing, and especially so, there being no objection made to such order. Besides, we know of no law which prohibits a justice from so continuing his proceedings in a case, as to cover a bill of exceptions, filed as in this instance; and generally, as to all inferior courts, time may be given in which to reduce exceptions to writing, though not beyond the term at which trial is had; but a term of court may be continued for such purpose.
Taking this case, then, as it appears upon the transcript and bill of exceptions, was the district court justified in reversing the judgment of the justice % The case shows that at the time set'for trial, the parties duly appeared, and that the defendants moved the court for a continuance for thirty days, on the ground of absent testimony. In making this application, the defendants offered proof, fully complying with the provisions of §62, p. 627 Comp. L. ’82. Having done so, and no counter-showing having been made or attempted, it was not a matter of discretion with the justice, to either grant or refuse the application ; but it "became and was the right of the- defendants to have such continuance. It was error, therefore, for the justice to refuse it.
We also think that, under the facts and circumstances apparent' in the case, the justice committed a farther error in refusing the application of the defendants, for leave to file an answer, such being the force and meaning of the motion made by defendants, as shown by the record. The justice might well have required such 'answer to be filed without delay, or within a very limited period of time, but to refuse it altogether, does not seem to us as calculated to promote justice.
In cases like the one presented in the record, the law as it now stands (§2, p. 77, L. ’67), requires a defendant to file a demurrer or answer to the petition of the plaintiff, on or before the day of trial. Now, a fair construction of the language used, -would seem to indicate that if such defendant saw fit-to claim it, he would be entitled to file his demurrer or answer at any time on the trial day, before the trial should actually commence.
He might, however, expressly waive such right; and he might and would do so by allowing the plaintiff to proceed with" his case without any pleading having been filed, or attempted to be filed, on his part.
The judgment of the district court is affirmed.
All the justices concurring.
Are we to infer from this» that counter-affidavits would be admissible ? — Rep. | [
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By the Cotort,
Bailey, J.
We have carefully examined the very able argument of the counsel for the plaintiff in error in this case, and have been forcibly impressed- with the similarity of his views with those of the learned counsel, in the reported case of Simpson v. Mundee et col. (3 Kas., 172), and for the reasons given at length, in the opinion of the court, in .that case, the judgment of the court below, in, this case, will be affirmed.
All the justices concurring. | [
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By the Court,
Safford, J.
The petition of the relator shows upon its face that he is not entitled, under the law, to the relief sought. It appears that on the 11th'day of July, 1866, he made his application to the respondent, as treasurer of Shawnee county, for an assignment and delivery to him, of a certain tax certificate held by Shawnee county, said application being based upon the provisions of sec. 9, chap. 37, laws of 1864, and secs. 74 and 88, chap. 118, laws of 1866. He tendered to the respondent, as such treasurer aforesaid, the amount of taxes, costs, and penalty due on the land covered by the certificate in question, for the years 1863, 1864 and 1865. This was not a sufficient tender to entitle him to demand and receive the tax certificate. The penalty of ten per cent., which, was added to the amount of taxes due on the 12th day of January, in each year, as by law it was provided should be done, in case the taxes of the previous year should remain unpaid on that day, when so added, became, and by operation of law, was a part and parcel of the taxes due. § 24, Chap. 60, Laws of 1863.
The amount, then, of the tax and penalty, in each year, would constitute the principal, as the term is used in sec. '88, chap. 118, laws of 1866, above referred to. Therefore, in addition to such amount for each year, it was necessary for the relator to tender to the treasurer the amount of the costs of sale, and ten per cent, on the amount of principal, as we have held that word to mean as above, which, in this instance, would amount in the aggregate, to a larger sum than was tendered. Failing, therefore, to bring himself within the meaning and provisions of the law governing the terms of his application to the treasurer, as shown in the record, the relator must be denied the relief prayed for. Other questions raised by counsel will not be considered.
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By the Court,
Safford, J.
The record shows that Albert Hagan was indicted in the district court of Morris county, for selling liquor without a license.
The body of the indictment is as follows:
“That Albert Hagan, on or about the 18th day of November, A. D. 1865, a certain frame building used and occupied by tbe said A. J. Hagan as a store, in Council Grove, in the county of Morris aforesaid, did, without taking out and having a license as grocer, dramshop keeper, or tavern keeper, sell spirituous, vinous, and other intoxicating liquors, to- John Schmidt, contrary,” &c.
The defendant moved to quash the indictment, insisting as the principal ground, that it was not sufficiently certain as to the place where the liquor was sold. The court overruled the motion, and the defendant was tried and convicted. .
Had the allegation as to the place been in this form, to wit: “ That Albert Hagan, in a certain frame building used and occupied by the said Albert Hagan as a store, in Council Grove, in the county of Morris aforesaid, did sell,” &c., this case might have come within the scope of the decision of this court in the case of the State v. Muntz. But as the place, is in fact, described in this indictment, that case can have no application in this respect.
Here the offense is charged as having been committed by Albert Hagan, a certain -frame building used and occupied by the said A. J. Hagan as a store, &c. Did the pleader mean to say that the store was used and occupied by the said Albert Hagan ? Or can we say that he so meant to be understood, if indeed such were the case? .Would it not be more reasonable to conclude that the words; “the said A. J. Hagan,” referred to some other party than Albert Hagan ? It is a well settled principle that, in all cases of this kind, and arising under similar statutes, the place of the alleged offense must be so described in the indictment as that au officer executing process would he able to identify it; and the reason for requiring such particu- ■ larity' as applicable to this case, will become obvious, when we call to mind the fact that under the provisions of our so-called dramshop act, all places where intoxicating liquors are sold in violation .thereof, may be shut up and abated as public nuisances.
Now, could an officer having a process describing the place as in this indictment, identify it with certainty ? In fact, could he act at all without doing violence to, and disregarding some portion of it?
We think such a description must be held bad.
But it is claimed that the court below erred as to another point material in this case. Upon the trial the defendant asked that the following instruction be given .to the jury, which was refused: “ 4th. The jury must believe horn the evidence that the place where the liquor was sold, was the same place described in the indictment, before they can convict.”
This action of the court was clearly erroneous; since there is no better settled rule in criminal jurisprudence than that the place where the offense is charged to have been committed must be proved as laid.
Other alleged errors need not be considered. The judgment of the district court is reversed.
All the justices concurring.
3 Kans. R., 383. | [
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By the Court,
Kingman, C. J.
The appellant was charged with larceny in Shawnee county; and, having been convicted, appeals to this court, alleging, as errors in this trial, the admission of improper testimony, the giving and refusing instructions, and the overruling of a motion for a new trial, because the verdict was not sustained foy the evidence. The information was for stealing a set of double harness from John W. Surfis, of the value of fifty dollars. The testimony shows that the harness was stolen from Surfis, early in October, 1867, and was found, late in that month, in a haystack'on the north side of the river, in Shawnee county. The testimony shows further, that the appellant, with his two sons, son-in-law, wife, daughter and daughter-in-law, and some children, thirteen in all, squatted on the place sometime in August, 1867, occupying a cabin about twelve by fourteen feet, with a garret without stairs, most of them sleeping in wagon-beds near the house. The appellant was arrested, with his two sons and son-in-law, at -the same time Surfis’s harness was found. At that time there was, about fifteen rods from the house, a stable with haystacks on the north and south sides, so constructed as nearly to surround the stable. About one-half mile from the cabin was another haystack. The stacks were all so constructed that there was ready though hidden access to the interior of them, which was hollow. The cabin was half to three-fourths of a mile from any other habitation. Surfis’s harness was found concealed in the haystack north of the stable; and on the day of arrest, and immediately afterwards, property was found concealed in each of the haystacks, under the manger of the stable, in the garret, in a. wagon-bed, in the brush a short way off, and apparently wherever a hiding place could be devised. Most of this property was proved to have been stolen from citizens of the county. It was a curiously varied and motley assortment. To the introduction of all the evidence relating to property other than that charged in the information, the appellant objected. The testimony is voluminous. Its general character and tendency is stated above sufficiently to enable us to understand the objection.
The counsel for appellant insists that the evidence, improperly admitted, tended to prove a number of other distant offenses, committed by somebody, and that the State thereby attempted to charge the defendant with the larceny of the goods described in the information by incompetent testimony, because there was no connection whatever between the larceny ■charged and the several other larcenies proved. The ■defendant’s counsel cite Roseoe’s Criminal Evidence, and numerous other authorities, as laying down this rule: “ It is a general rule, both in civil and criminal cases, that the evidence shall be confined to the point in issue. In criminal proceedings, it has been observed that the necessity is stronger, if possible, that in civil cases, of strictly enforcing the rule; for while a prisoner is charged with an offense, it is of the utmost importance to him that the facts laid before the jury should consist exclusively of the transaction which forms the subject of the indictment, which alone he. can be expected to come prepared to answer. ” We do not think the case at bar comes, necessarily, within this rule, as we shall show hereafter; but the same author, on the same page (81), makes this modification, which is also found in all of the other treatises we have examined: “But where the evidence is referable to the point in issue, it will not be inadmissible, although it may incidentally apply to another person or to another thing, not included in the-transaction in question, and with regard to whom or do which it is inadmissible.”
In reference to these two rules, Mr. Wharton says : “It is important not to confound the principles on which these two classes of cases rest. On the one hand, it is admissible to produce evidence of a distinct crime, to prove a scienter, or to make out the res gesta, or to exhibit a chain of circumstantial evidence, in respect to the act charged. On the other hand, it is necessary strictly to limit the evidence to the exceptions, and to exclude it when it does not legitimately fall within their scope.” Wharton's C'rim. L., §650.
The testimony objected to was necessary to make out the chain of circumstantial evidence in respect to the act charged. (Possession of the stolen property was shown to be. in or among the four men arrested. Clearly, this was not enough to convict the appellant. Possession of stolen property, to authorize a conviction on that alone, must be recently after the theft —must be exclusive and unexplained. The State offered, as corroborating circumstances, the evidence to show the guilt of the appellant, as well as the others accused. They all came and Squatted on the place together, all assisted in cutting the hay and forming the haystacks. Their relationship, their means of life, the variety of articles found secreted in various places on the premises, all tended to show a combination of effort on the part of all four to accomplish this purpose, and create in the mind a conclusive certainty that the possession of the property charged in the information could not have been innocent, and that the guilt was general. One reason would be the general knowledge men have that such an assortment would not be innocently gathered and secured,' as that was in this case; and that general conclusion was only made a certainty by the proof that almost all of this property was identified as the property of many different persons — gleaned from a wide field. These were facts all throwing light upon and explaining the fact of possession, and render it morally certain that such possession can be referable only to a criminal origin, and cannot otherwise be rationally accounted for. It is one of the recognized marks of a guilty possession, that “other stolen property or pick-lock keys,” or other instruments of crime, be found in the possession of the accused. Wills on Crim. Ev., 74.
The testimony all showed a guilty knowledge and combination between the appellant and the others, to carry on a general stealing business, .and was admissible to prove the appellant an accessory before the fact— counseling, aiding and abetting the others in the felonies, if not himself the actual perpetrator of the act charged.
As accessory before the fact, he was equally guilty under our statute, and might be found so on this information. Comp. L., 252, §101; 341, §276;
The testimony was competent, not to prove another offense, but as circumstances to show the prisoner’s guilt and guilty knowledge, in this case.
Another alleged error in admitting testimony is this: A short time before the trial, three of the persons escaped. Tracy, who was on guard at the time of the escape. was introduced for the defense. His testimony tended to show that the appellant had refused to flee at the time the other prisoners escaped, and that he had the same facilities for escaping that'the others had. On cross-examination, he testified that he' did not -recollect having told Whiting, on the night' of their escape, that appellant was sick and could not get out. Subsequently, Whiting was introduced as a witness by the State, and, against objection, testified that Tracy had, on that occasion, told him that defendant was sick and could not run.
It is contended that as Tracy had not denied making such statement to Whiting, the testimony of the latter was improperly admitted. We think otherwise. Tracy’ s testimony was intended to raise an inference of conscious innocence, by showing that the accused would not escape when he had an opportunity, and was positive that he had the same facilities that the others had. This would not be true if he were sick; therefore the testimony was relevant and admissible.
Had Tracy answered, “Yes,” that would have been an end to the matter, for the state could only have proved what was admitted; had he answered, “No,” then the counsel admit that Whiting’s testimony was proper. In order to lay the foundation for introducing proof, the witness must be asked whether he ever said so'and so, with particularity as to time and place, and occasion.
The object of this question is to give the witness an opportunity to explain, before he is impeached; this is the only reason he is asked the question. If he answer affirmatively, the necessity for further testimony is superseded. If he says he does not recollect, then you may give evidence on the other side, to prove that he did say what is imputed to him; and to that extent, the force of his testimony is weakened. If the rule were not so, you could never contradict a witness who said he could not remember. 2 Phil. Ev., 435; 1 Greenl. Ev., 606, note.
The case referred to in 5 Ind., is not very satisfactory. The facts are not fully stated, nor is any reason given or authority advanced for the decision. It was, perhaps, based upon the peculiar phraseology of the bill of exceptions. At any rate, the rule and the reason are both against that decision, as the counsel understand it.
The next point in error is, in instructions refused and given. The instruction refused, referred to, is in the exact language of the first part of § 33, vol. 3, of Green-leaf on Evidence, and is to the effect that to raise a presumption of guilt from the possession of stolen property, or the fruits of crime, they must be in the exclusive possession of the accused. That if others, as well as the prisoner, had access, it would not be right to permit such presumption on proof of possession alone. This is, in our opinion, good law. But the appellant has no right to complain of its refusal because the court instead instructed the jury on this point, that the law does not infer guilt from the exclusive possession of the articles alleged to have been recently stolen, but that that fact must, with others, go to the jury, under the rules governing circumstantial evidence; but before the jury are authorized to presume the fact of guilt, from the possession of said articles alleged to have been stolen, they should be satisfied from the evidence that the said articles were recently stolen, and that the defendant was found either in joint or exclusive possession thereof. This instruction given was quite as favorable to the accused as the one refused, and was more applicable to the case, because the State had not, by any means, rested the case on possession of the stolen property alone, but had added a long array of- corroborative testimony.
If the prosecution rests the case on possession of the fruits of crime alone, then the possession should be absolute and exclusive, when one alone is charged with the offense; but when others are charged with the same offense, and other proof comes in, as in this case, proof of a joint possession may be sufficient. It is but one among the many items of testimony, and it was proper to refuse an instruction, although it was law, that was not applicable to the facts proved, and substitute one that did apply. The jury were substantially told that possession was a fact, like any other fact to'be weighed by the jury, and in this case, that was a proper instruction.
Another cause of error is that the jury were allowed to separate during the progress of the trial, and before the cause was submitted to them. As the law authorizes such separation, upon proper admonition, we cannot interfere. It is not like the case in 1 Kans., 351-4. (Madden v. The State.) There the separation was after the cause was submitted, and the separation prohibited by law.
We are of opinion that the verdict was abundantly sustained by the evidence, as has been indicated in previous portions of this opinion.
We find no error in the record that will justify us in disturbing the judgment of the court below.
All the justices concurring. | [
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By the Court,
Kingman, C. J.
This was an action for the recovery of real property, brought by the defendants in error, to recover the east part of lot 7, in block 12, in the city of Atchison. The (cause was tried by the court, who found the right of possession in the defendants in error. The plaintiffs in error claimed the benefit of the statute entitled “An act for the relief of occupying claimants of land,” which demand the court refused, and the plaintiff in error brings the case to this court for review.
The court found and stated the conclusions of fact, and from them deducted the conclusion of law, that the ■ applicants were not entitled to the benefit of said act.
The facts found are substantially these: On the 27th day of April, 1865, Yates was owner of the property in controversy, which he had bought from McCubbin. There was a mortgage on the property for something over $1,200, made by Yates to McCubbin.
Stebbins & Porter on that day bought the mortgage for the amount due thereon. On the 29th day of the same month, they bought of Bartholow & Brother a judgment which was obtained against Yates by an attachment on this lot, for two hundred and twenty-seven dollars, under which judgment'the property was sold on the 19th day of May, 1865, and Stebbins and Porter became the purchasers. This sale was confirmed on the 13th day of July, 1865, and a sheriff’s deed made September 3, .1866.
On the 27th day of April, 1865, Stebbins & Porter bought a tax sale certificate of the same property, certifying that the premises had been sold for taxes on the 24th day of May, 1864; and on the 14th day of July, 1866, a tax deed was made to them therefor.
The judgment under which the sale was made was, upon proceedings duly had, declared null and void, at the December term, 1866, of the district court of Atchison county. The tax deed and certificate were, at the same term this case was tried, in proceedings duly had, declared null and void.
In the tax certificate the lot was described as “lot Ept. 7, block 12, in old Atchison, in Atchison city, situated iu Atchison county, Kansas. ’ ’ In the tax deed it was fully described.
Stebbins & Porter took possession of the premises about' the 1st day 'of June, 1865, and commenced building, and by the middle of August thereafter had completed lasting and valuable improvements thereon, costing them .$7,500, and had remained in possession ever since.
These are briefly all the facts necessary to state for a full understanding of the only points we shall decide in the case. The mortgage cuts no figure in the case, as it was not foreclosed.
We shall abstain from any consideration of the judgment, and the sale, and sheriff’s deed thereunder, as the view we take of the occupying claimant act is decisive of this case on the tax sale.
The occupying claimant law of this state is copied from that of Ohio, with some additions, not affecting the case before us. This law, enacted many years ago in that state, has been passed upon' by its highest courts in almost every conceivable aspect of it, and received a judicial construction, so uniform and consistent, and in such entire harmony with the language of the statute, and the equitable objects sought to be attained by its enactment, that it'will relieve this court from any difficulty in its application to the case before us. In the. case of Bemis v. Becker and others (1 Kan., 248), this court held:
Where one state adopts a law from another, the judicial construction given to the statute in the state where it originated, follows it to the state of its adoption. This well known principle stands upon the ground that the legislature of the state is presumed, in adopting the law, to take it with the construction pre viously placed upon it, and such will he considered the legislative intent, unless the language of the law manifestly indicates another construction. There is no such trouble with the case under consideration.
One of the conditions pointed out in the first section is: being in possession of, and holding any land under any sale for taxes authorized by the laws of the state, entitle the occupant to the benefit of the provisions of the statute, if his possession has been obtained without fraud or collusion.
It will be seen that in this section it is only made' necessary that the occupant holds under any sale for taxes; but lest it should be contended, as it was in this case, that no sale was perfected until the deed was made, thus leaving property unimproved and unproductive for two years, it is further provided in section two, which is a legislative construction of section one, that if the claimant holds a certificate of sale of the lands from a collector of taxes, or county treasurer, &c., he shall be deemed to have sufficient title to said land to demand the value of improvements made under provisions of the first section.
Now, the plaintiffs in error had such certificate at the time they made the improvements for which they demand compensation, and that, by the obvious terms of the law, entitled them to its benefits; but the defendants in error object that the tax certificate was void, because it was declared so by the court. The findings do not show for what cause the court declared it void. It was declared in proceedings duly had, wherein these defendants were plaintiffs and the claimants were defendants. Why was such a suit brought ? The defendants in error are men learned in the law, and it would seem that they had some idea that there was some show of title in the tax certificate, or they would not have sought to set it aside. The decision of the court in that case was, that the tax certificate should be held null and void. We are to presume that that judgment was right. It only imports, however, that for some cause, henceforth they are so held. And the experience of other states has shown that most titles held in that way would, upon proper proceedings had, be likewise declared void. Such a conclusion must be reached in some way, before the unsuccessful party can 'claim the benefit of the occupying claimant law. If the tax title was good, then the claimant under it would hold the property in litigation. A defective title only will enable a party to claim. The defendants in error preferred to test each claim of the plaintiffs in error, separately. They set aside the judgment in one suit, the tax certificate and title in another, and the right of possession was determined by a third. They take nothing by this. The law does not favor a multiplicity of suits. The case here is, as to this claim, as though but one suit had been brought, and the tax title held an insufficient defense. Then, nothing further appearing, the claimants were clearly entitled to the benefits ■ of the law, both by its plain language, its manifest objects, and a long train of decisions in the state from whose statutes we adopted it. But it is further urged that, till the expiration of two years, no title is acquired, and therefore no rights can attach save that of a right to a deed, if the property is not redeemed. This is á misconception of the law. The purchaser at a tax sale buys the property then, becomes the owner then, the title only being defeasible by redemption for two years. But if we are wrong in this, the law we are considering makes the tax certificate such a title as authorizes one holding under it to make improvements, and, if evicted, to get pay for them.
Again, it is said the tax certificate was void on its face, and so put the holder on his guard that he could not, in good faith, make any improvements thereunder ; that the description was so vague and uncertain that it ought, at once, to have impressed the conviction on the mind of the buyer that it was void for uncertainty. And yet the counsel, who insists that the holder should perceive its worthlessness from its face, made an elaborate argument to this court, and cited many authorities, to show that it was void upon its face. Now, we have already said that it must be' held in some way or other to be void, before a case can be made where the claimant can even ask the benefit of this act. But here the counsel insists that it was so apparently worthless on its face, that to make improvements under it showed a fraudulent purpose on the part of parties unlearned in the law. We might well pi ace the counsel’s acts, against his arguments. A defect so patent that not to notice it is evidence of fraud — proof of a purpose to commit a flagrant trespass when out of court — might well have been left to the decision of the court without extended argument, if the counsel’s convictions on that point had been as strong as his assertions. By our view of the law of this case, it is unnecessary to decide whether the description in the tax certificate was sufficient or not. We only find it necessary to say that it was not so defective as would make the holder of it guilty of fraud by pretending to hold under it and making improvements on his holding. . While the writer of this opinion has no doubt on this matter, he purposely leaves his views unexpressed, so that the uncertainty of each lawyer, who has not given the subject a care ful examination, may "be our reason, for holding that the point is not well taken in this case.
But whatever defect may have existed in the description of the property, "by abbreviations in the tax certificate, or whether the certificate was evidence of ownership or not, still, when the case was tried, the defendant was in possession, under a tax deed, describing the land fully; and this was sufficient to authorize the parties to claim the benefit of the law.
In the case of the Lessees of Davis v. Powell (13 0., 320), the court held that a defendant, holding possession under claim of title, will be allowed, under the occupying claimants law, as well for improvements made by him before his title commenced, as for those made after; and the learned judge, who delivered the opinion, very justly observed:
£ £ The equity of the statute embraces all improvements made in the honest belief of ownership, if at the time of rendition of judgment, the occupant is in possession under such title as brings him within the meaning of the statute. If such a state of facts exists as to call the statute into action, it never stops until it has worked out complete equity and justice, and embraced the en- ■ tire improvement, beneficial to the successful claimant, and honestly made. Any other construction would permit an honest purchaser of land, buying from one without color of title, who sells from mistaken belief of ownership, to be swept out of the hard toil of years, expended in improvéments made' for the provision of Ms family or the repose of age. The statute is to be construed, whenever a case comes within its letter, that the person receiving the benefits and advantages of improvements shall make compensation. It rests on the broadest equity, and may justly claim a liberal construction.”
In the case of the Lessees of Shuler v. Majin (2 O. JR., 236), the same doctrine is held. Apply these principles to this case, and the tax deed alone would have been enough to justify the plaintiffs in error in claiming the benefit of the act. So that their claim, under the tax certificate — which they held when the improvements were made — or under the tax deed, was good, and should have been allowed by the court.
We do not refer to the numerous cases decided in Ohio, for they are found in almost every volume of the reports, and are not only accepted as constructions of our statute previous to our adoption of it, but also as fair and just applications of the provisions of the statute to the purposes for which it was enacted. We have examined with care the numerous decisions to which we were referred by the counsel for the defendant in error, but they are in explanation of statutes so wholly unlike ours, and so much more limited in their scope and application, as to throw little or no light upon the act we are considering.
Besides the main question which we have examined, the defendants in error claim there are other points which will preclude the plaintiffs in error from having the benefit of this act.
1. It is insisted that they made their claim at the wrong time. The claim was first made in a supplemental answer to a supplemental petition, a short time previous to the trial; and it seems, from the findings of the court below, was persisted in all through the proceedings, and is again insisted on here. We think the objection not well taken.
2. It is urged that there were no witnesses to the tax deed. We do not think, where a deed is acknowledged, any witnesses are necessary; hut if it were otherwise, of what avail would it be % It would show a defective title, and it is only under such that the provisions of this act apply.
Again, it is urged that the findings of the court do not show good faith on the part of Stebbins & Porter. To this we answer, that the statute requires that the holding of the claimant should be without fraud or collusion. Now, in the absence of any finding or any fact showing fraud, the presumption is, none existed ; but as we followed the counsel beyond the facts found to the testimony in the case, we -were strongly impressed that, instead of fraud or collusion, the contrary appeared.
The judgment of the court below is reversed, and the cause remanded for further proceedings.
All the justices concurring. | [
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By the Court,
Safford, J.
This case was tried in the district court of Bourbon county, without the intervention of a jury, and as required by §291 of the code when either party requests it. The court found the conclusion of fact separately from the conclusion of law, and so stated them. The finding of the court, as to the law, was in favor of the defendant in error, and judgment was rendered accordingly. The plaintiffs in error, who were the defendants below, duly excepted to such finding and judgment, and now bring the case here for review.
Reference being had to the facts, as found by the court, and which are all set out in the record, it will be seen that there is really but one question in the case. It is this: Was the property for which suit was brought appurtenant to any part of the premises sold by Barker to Eedlon, Eowley and Jones? If it was, then the judgment in this case should be reversed ; but if otherwise, the judgment must stand. Let us suppose, for a moment, that the hotel sign — the property in dispute — had been in some way actually attached to the building at the time of. the sale by Barker to Eedlon, Eowley and Jones, could it be maintained for a moment that it did not pass to the grantees under the terms of the sale as set forth ? In that case it would have been a part of the building itself, requiring force to remove it, and appurtenant thereto. Besides, taking into consideration the purposes for which the building was used, it was something very necessary to a successful carrying on of the business. The building was “Barker’s Hotel,” and these words were on the sign at the time of the sale. The grantees purchased it for a hotel, with all the appurtenances thereunto belonging, and intending to keep it as such.
They did so keep it, and for three months under the name of “Barker’s Hotel.” Under such a state of facts, and under the supposition above stated, can it be doubted that the sign would have passed with the premises to the grantees? We think not. But the sign, instead of being attached to the building itself, was fastened to a sign-post in front of and within seven or eight feet of it — a sidewalk being between the post and the hotel. The post was sunk firmly into the ground, and the sign attached to it so as to require force to remove it. Does the fact of its being so placed render it less a part of, or'less appurtenant to, the hotel premises than it would have been if actually attached to the building, as aboye supposed ? It performed the same office, and was just as necessary to the business carried on, ándito be carried on, in the building in the one case as in the other. And we- think that if the terms of sale would have passed the property in the sign to the grantees in'the first instance, it would also pass it in the last. But it is claimed that when Barker demanded the sign from plaintiffs in error it was detached from the sign-post, and was without doubt a chattel, and no part of the real estate. This may all be true; but how can the rights of the parties be thereby affected ? It having passed to the purchasers of the hotel once, they most certainly had the right to remove it, or let it alone, as they pleased. Supposing Redlon, Rowley and Jones had seen proper to remove some of the doors or windows, or other parts of the building, to a carpenter’s or paint shop, for the purpose of being repaired or painted, would that act of theirs have given Barker any right to claim them as his own? None will assert this for a-moment. And yet their acts in relation to the sign were of the same character precisely. But it is further objected to the rights of the plaintiffs in error to have a reversal of the judgment against them, that the sign and sign-post were in the public highway, and that therefore they belonged to defendant in error; anything in the bond for a deed, to the contrary, notwithstanding. Such a conclusion does not necessarily follow, and it cannot be so held.
In this connection,' counsel have raised the question as to where the title to the highways, streets and other portions of cities and towns devoted to public uses vests. We do not think it necessary to pursue this discussion here, it being immaterial to the issue. But say that the title to the street, where the sign-post stood, was in the county, in trust for the public ; this will not help the defendant in error. He had put it there, and made it a fixture, for the purpose of giving notoriety to his hotel. The public had acquiesced in his so doing, and thereby recognized his right. It was necessary and appurtenant to the uses and purposes to which the building was dedicated, viz: The accommodation of the traveling public. And when he sold to plaintiffs in error, he most certainly parted with whatever right he had in the sign, sign-post and the ground on which it stood; and especially so since the bond for a deed shows that no reservation was made of it, and that the vendor advanced no claim to it for at least three months after the sale and delivery of possession of the premises.
We have carefully examined the cases in the first and fourteenth Ohio State Reports, to which we have been referred by defendant ’ s counsel, but we do not there find anything which especially militates against our views, as above expressed.
The opinion in the first O. S. is a very elaborate and exhaustive one, and, after an examination of many cases, the author arrived at the conclusion that the united application of certain requisites furnishes the safest criterion by which to determine whether any particular piece of property is a fixture or not. These requisites he states as follows: 1. Actual annexation to the realty, or something appurtenant thereto. 2. Application to the use or purpose to which that part of the realty with which it is connected is approximated. 3. The intention of the party making the annexation to make a permanent annexation to the freehold. We have before remarked that this sign was appurten ant to thfe building, as a hotel; it was applied to the use and purpose to which the realty to which it was. appurtenant, was applied; and lastly, it was most evident from all the acts of the defendant in error, that his intention in erecting and using the sign was to make it a permanent accession to the hotel. As to his acts, showing his intentions in this respect, let us repeat. He owned and occupied the premises as a hotel; he kept it as such, and when he sold it he did so with the understanding and knowledge that it was . to continue to be kept as such. In a word, in all his acts relative thereto he seemed to treat the premises as being dedicated to the purposes of a hotel, and he, at least, contemplated no change in this respect. If so, his intent in placing the sign as he did is clear, and this case therefore comes within the rules quoted. It may be remarked here that very many,'and indeed a large proportion, of the cases involving questions as to whether particular articles were fixtures, or not, have arisen between landlord and tenant. And from the very nature of the relation between these parties, as well as from the widely different circumstances attending each case, has come the difficulty of- settling and establishing an universal rule. But the cases between vendor and vendee are. less difficult, as well as less numerous, and the rule is better settled.
We are of the opinion that the court erred in rendering the judgment in this case. It is therefore reversed, and cause remanded, with instructions to render a judgment in accordance with this opinion.
All the justices concurring. | [
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By the Court,
Kingman, C. J.
This was an appeal to the district court from the judgment of a justice of the peace.
The petition was filed on the 10th day of April, 1866, and no answer filed till the cause was called for trial at the October term, and then, by consent, an answer was filed, which was a general denial. Upon the trial, the plaintiff in error offered proof of payment of counter-claim and of set-off, which was rejected, and he then moved the court for leave to amend his answer so as to admit such proof, which motion was denied, and judgment rendered against the plaintiff in error.
He brings the case to this court to correct the sup posed errors in the rulings of the court above specified.
We are not disposed to disturb the decision of the court below, in refusing to permit an amended answer to be filed. The party complaining, had brought the suit into the district court, and the petition had been filed six months before the trial, and he was still in default. To have permitted an amended answer, setting' up new matter, without any showing of surprise or explanation of his laches, would perhaps have wrought great injustice by driving the plaintiff to a continuance, as he had no notice that any matter would be litigated save what was set up in his petition.
If the defendant had an off-set or a counter-claim, it was his duty to have availed himself of his rights at the proper time, so as to put the other party on his guard, before the trial — not wait till he had drawn out his adversary’s proof, and then, force him.to a continuance.
He certainly knew of his defense, if he had one, when the answer was filed ; and had he made his motion then, and shown the merits of his defense, and the cause of his default, he would have presented himself before the court in a better attitude.
To determine whether the evidence was- properly rejected, it is necessary to examine the pleadings in the case. The petition is as follows:
“ The said plaintiff alleges that at the commepcement of this action, to wit, on the 28th day of November, 1865, the said defendant was indebted to the said plaintiff, in the sum of seventy-five dollars, on an account, a copy whereof is hereto annexed, marked exhibit ‘A.’ That the same is still due and unpaid; wherefore the plaintiff prays judgment against said defendant; for said sum of $74, and interest thereon from Nov. 28, 1865.”
The answer denies each and every material allegation of the petition.
Under these pleadings it is obvious that neither proof of set-off or counter-claim can be admitted. And if the question was free from embarrassment, growing-out of decisions and commentaries, it Avould seem equally obvious that payment could be proven under the issue as made up. The petition avers that at a certain time the defendant was indebted to the plaintiff, and that the indebtedness still continues. This is denied, and to sustain the denial, proof of payment is offered. Can any fact be plainer than, if payment was made, the indebtedness does not last ? Can a man owe a debt that he has paid ? Can he be indebted when he has extinguished the indebtedness by payment ? -There can be but one answer to these questions, and this answer shows that, logically, and without any straining upon such a petition and answer, the proof of payment could be legitimately made. Whether proof of payment could be made under a general denial, has been a vexed question, that has been decided both ways in NeAv York, but has finally been settled by the court of appeals of that state, in the case of McKyring v. Bull (16 N. Y. R., 297). In that case, the court held that such proof was inadmissible under the general issue, but the reasoning of the learned judge who delivered the opinion of the majority of the court, would sustain the admissibility of the evidence under such pleadings as are before us. He admits that in an action of debt, the plea of nil debit would properly and logically admit of such proof, but insists it would not, in assumpsit under the general issue, which is, literally, that defendant did not promise, as alleged, and that the practice of admitting proof of payment under the plea of non-assumpsit, had crept into the law, and was not founded in reason, and had no application to the code. Admitting this to be true, and further, that the code requires tbp pleader to state the facts on which he relies, and not the conclusion of law, and applying the principles to the case before us — and what is the only conclusion to be reached ?
The petition does not state the facts constituting the defendant’s liability. It merely declares the defendant’ s indebtedness. If the learned pleader chose to rely on such a statement of his case, he must be prepared to receive proof of facts showing that such indebtedness does not exist.
The court therefore erred in refusing to permit the defendant to introduce proof of payment under the pleadings, and for that reason the decision must be reversed, and the cause sent back for new trial.
All the justices concurring. | [
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By the Court,
Safford, J.
The decision of this court just rendered.in the case of Commissioners of Shawnee county v. O. C. Whiting, involves, substantially, the points raised in the one now before ns, and in effect, determines them. The law bearing upon the two cases is the same, excepting §22, chap. 99, Comp. L., which does not touch this case; and in the discussion of -the one, we naturally follow the same line of argument proper to be pursued ‘in the other. Such being the case, we have only to refer to the decision mentioned as furnishing grounds for our action in this case.
The judgment of the district court is reversed and the cause remanded, with instructions to disallow the fees upon which it was based..
All the justices concurring. | [
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By the Court,
Kingman, C. J.
The appellant was tried and convicted of horse stealing, at the June term, 1866, of the district court of Miami county.
It appears by the record that the only charge against the appellant, at the time the trial commenced, was an affidavit of one Baptiste Peoria, who had no official character.
The' defendant’s counsel objected to any evidence' being received under that affidavit. The court allowed the county attorney to then sign the affidavit and introduce his evidence; to which, appellant excepted. And the question raised by this exception, is the only one we shall consider in the cause.
The criminal code (§95) designates as one of the necessary requisites of an indictment, that it must appear “that the indictment was found by the grand jury of the county where the court is held.” The law of 1864 applies the provisions of the code of criminal procedure to prosecutions on- information, as far as may be.
The same law declares that the information shall be presented by the prosecuting attorney of the county, as informant, who shall subscribe his name thereto. Jjntil such an information is filed, there can be no trial, and to receive evidence without such information, or an indictment, is so clearly erroneous — so manifestly against all just ideas of the administration of justice, that it needs no elucidation.
The court below undoubtedly must have held that the paper filed, was such an information. Is it % It purports to be done by Baptiste Peoria, and commences as an affidavit; declares that he is the prosecuting witness in the case, and gives the information to the court that Jackson, with others, is guilty of the crime of larceny. The affidavit is signed by him, and he also again signs the certificate to.the oath. It nowhere appears that the county attorney had anything to do with the case, or knew of its existence till the trial began. It purports on its face, and by its attestation, to be the accusation of Baptiste Peoria; and the subsequent signing of the same by the county attorney, in no way changes the character of the paper. No doubt that by the act, the county attorney intended to give it an official character, but he fails to do it, for it only makes it officially known to the court that the charge is brought, the accusation made, and the prosecution conducted by a private person.
A trial under such a paper could not be plead in bar of another charge for the same offense, and even if he could be said to have sufficient notice of the particular offense charged, still he had a right to have it so made that he could not be twice tried on the same charge.
It is urged that the objection to the paper should have been by motion. There was nothing to move against. As an affidavit, it was good ; as an information, it was nothing, and the defendant took the first legal occasion to present his objection.
With every desire to construe the code so as to avoid the technicalities that had grown into the common law, and make it serve the purposes of substantial justice in the spirit of its makers, we are unable, by any construction, to hold that the trial upon such a paper is right or just. A person accused has not only a right to know “the nature and cause of the accusation against him,” but to have it made by the proper authorities, before he shall be held to answer. We have purposely omitted to consider the propriety of permitting the signing of the paper after the trial had commenced, because, in our view, it did not change the nature of the indictment, and therefore it is not necessary to inquire whether it was rightly done, or not.
The judgment of the court below must be set aside, and the case sent back for further proceedings.
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By the Court,
Bailey, J.
The appellant was charged by information filed in the criminal court of Leavenworth county, with larceny, and filed a plea to the jurisdiction of the court, setting up that the offense, if committed at all, was committed within the military reservation of Fort Leavenworth, within the exclusive jurisdiction of the United States. To this plea the prosecuting attorney for Leavenworth county (H. W. Ide, Esq.) demurred, and the court sustained the demurrer.
The appellant duly excepted to the ruling of the court, and, by leave, filed a plea of not guilty, where upon the defendant was tried by the jury, and convicted.
Motions in arrest of judgment, and for new trial, having been made and overruled, the appellant brings his case to this court upon the single question of jurisdiction.
• An elaborate and able argument is made by the learned counsel for appellant, to prove that the jurisdiction of the military reservation at Fort Leavenworth vested in the United States exclusively, by virtue of the original cession of the territory from France, and its early and continuous occupation for military purposes, which argument is supplemented by the citation of numerous authorities, none of which, however, it is believed, cover or sanction the claim- in support of which they are advocated.
A brief statement will, we apprehend, be sufficient to show that the claim made in behalf of the appellant cannot be sustained.
I. And, first, we remark that it is not sustained by the letter of the constitution of the United States. Article 1, section 8, clause 17, of the constitution of the United States, defining the legislative powers of the government, provides that congress shall have power to exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may by cession of particular states and the acceptance of congress become the seat of government of the United States, and to exercise like authority over ail places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings.
We say the letter of this provision does not sustain the claim of the appellant, because—
First. The military reservation at Fort Leavenworth was not purchased by the consent of the legislature of the State of Kansas, but long before the State of Kansas had an existence.
Second. It was not purchased for the erection of forts, but as a part of the vast territory of Louisiana. The argument of purchase proves too much.
II. If it should be said that the whole territory now constituting the state of Kansas was, prior to the organization and admission of the state, subject to the exclusive legislation of congress, and the jurisdiction of the United States courts, and that it was competent for congress to reserve its control over the tract in question, it is cheerfully granted; but the reply is inevitable. Congress has not seen fit to make any such reservation; neither the organic act which gave existence to the new territory, nor the act admitting the new state into the Union, affords the slightest tracetof any intent on the part of congress to make such a reservation.
On the contrary, while carefully excepting out of the limits of Kansas, the territory occupied by certain Indian tribes with whom treaties existed, providing that they should not be included within the limits of any state or territory, the act of admission, after defining the boundaries of the new state, so as to include the reservation in question, emphatically declares the State of Kansas to be one of the United States of America, and admitted into the Union on an equal footing with the original states, in all respects whatever. See § 1, Act of Admission.
In section 3 of the same act, clause 6, careful pro vision is made against taxation Tby the state, of the lands of the United States; but not a -word is said of any reservation of jurisdiction or legislative powers, in any portion of the territory comprised within the limits of the new state.
This omission to take guaranties against the action of the state, in a matter of so vast importance, must be deemed utterly irreconcilable with the hypothesis of the counsel for appellant.
III. If it be conceded, as we think it must be, that there is no express authority for the claim set up in behalf of the United States, to exclusive jurisdiction, it can hardly be pretended, we think, that the rights of a sovereign state, admitted to the Union before, on an equal footing .with the original states in all respects whatever, can be taken away by implication. Such a proposition need only be stated. It needs no argument, yet it may not be superfluous to show that a case standing thus clear upon reason and principle, is not less strong upon authority.
In the case of The People v. Godfrey, 17 Johnson’s R., 225, where the defendant was charged and tried for murder committed within the limits of Port Niagara, while that fort was occupied by U. S. troops, the accused being a corporal of the guard, and the man he was charged with killing a fellow soldier in his custody within the walls of the garrison, at the time of the homicide, the court, Spencer, C. J., held that the right of exclusive legislation or jurisdiction within the limits of any of the states, can be acquired by the United States only by purchase of territory from the states for the purpose, and in the mode prescribed in the constitution of the United States.
In relation to the claim set up in that case, as in the one at bar, tbat tbe place in question had been occupied solely for military purposes, tbe learned judge remarked tbat the occupation of Fort Niagara by tbe troops of tbe United States, since its evacuation (by tbe British) in pursuance of tbe treaty of 1794, cannot be considered as evidence of a right in tbe general government to tbe post itself. It was a friendly occupation, not in derogation of our rights, &c.
Tbe same doctrine is held by Chief Justice Marshall in the case of the United States v. Bevan, 3 Wheaton, 388; and by Chief Justice Parsons in Commonwealth v. Clay, 8 Mass. R., 75.
Finally, the same doctrine is authoritatively stated by Judge Story in bis Commentaries on the Constitution, in the following decisive language. After stating that the state courts could not take cognizance of any offense committed within any places ceded to the United States, nor could the inhabitants of such ceded places claim any rights in the state as citizens, be says: “But, if there has been no cession by the state, of the place, although it has been constantly occupied and used, under purchase or otherwise, by the United States, for a fort, arsenal or other constitutional purpose, the state jurisdiction still remains complete and perfect.” 2 Story on Const., % 1227.
In tbe case before us there has been neither a cession by tbe state, nor its equivalent; if there could be an equivalent, a reservation by tbe United States in tbe organic act or tbe act of admission, or elsewhere, tbe U. S. government, owning tbe soil, has reserved tbe same from' sale and settlement out of tbe mass of tbe public lands, and has occupied it for military purposes, and will do so as long as it may be necessary. If tbe doctrines contended for by tbe appellant were true, the State of Kansas, as well as several other frontier states, would be speckled and spotted all over, like the patriarch’s flocks, with reservations exempt from state jurisdiction without the consent of the state legislature, with no warrant for the anomalous existence except perhaps an order from the war department and actual occupation for military purposes.
We know that in many cases throughout the west, such fort reserves have, with the progress of settlement, become unnecessary and been abandoned.
It is only in a comparatively few instances, where extensive and permanent government establishments were contemplated, that it has been deemed necessary or expedient to acquire jurisdiction to the exclusion of that of the state.
The judgment of the court below must stand affirmed.
All the justices concurring. | [
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By the Court,
Safford, J.
Reference being had to the bill of exceptions, and the facts as they appear in the record, we will proceed briefly to examine the several alleged errors presented by the defendant below, and plaintiff here. It is contended by the plaintiff in error that the verdict of the jury in this case was not responsive to, nor a sufficient finding of, the issues therein as-made up by the pleadings. The verdict is in these words : “We, the jurors in the above entitled cause, find a verdict in favor of the plaintiff, of four hundred and eighty dollars and twenty-seven cents, with interest after the 1st day of June, 1864.” This is a general verdict, and we think that it covers all of the issues in the case. Besides, if it was really objectionable on the grounds stated, it might have been modified before the jury separated, upon request of the party desiring that it should be differently or more clearly expressed. This was not done, nor was any request that it might be done, proffered to the court. It does not seem to us to be a good ground for reversing the judgment, that the verdict was entered and remained in the form in -which it appears in the record. It is claimed that the court erred in overruling the motion for a new trial. Such motion was based on the refusal of the court to continue the cause upon the ground of absent witnesses, and also on the ground of absence of a particular attorney. Without entering into any lengthy discussion of this matter, deeming it unnecessary, we are clearly of the opinion that the eonrt held correctly upon the motion. The affidavit, which was the foundation of the application, did not, in our view, make out a case for a continuance. It did not show due diligence on the part of the defendants in endeavoring to procure either the personal attendance of the witnesses or their depositions, the latter of which there is no reason to suppose might not have been obtained, if the proper steps had been taken in time. The affidavit showfe that the defendants did attempt to procure the deposition of one witness, but we think their show of diligence was too slight, and that the diligence itself came too late to avail them anything on such an application. It is very doubtful if, in a case like the one at bar, and under the circumstances surrounding it, the absence of a particular attorney ought to be held as á good ground for a continuance, though cases might, and no doubt frequently do arise, in which a court, in the exercise of a sound discretion, would feel bound to defer a trial for such reason, but we think that this whole matter is very greatly within the limits of, and should be held subject to, such sound discretion of the court to whom the application is addressed; and in such case a reviewing court would decline to interfere, unless it could be shown that the inferior court had abused its power in the premises. In this instance it does not seem to .us that the court was liable to a charge of this kind.
It is claimed that the court erred in refusing certain instructions, and in giving certain' others to the jury. From the condition of the record, we are unable to pass upon this question at all understandingly. '•
None of the evidence is set out, nor is it affirmatively shown that any evidence at all was offered to support the issues, though such is presumed to be the fact, from there having been a trial and verdict, as well as from the presumption of law, that a verdict having been found there was sufficient evidence to support until the contrary appeared. We are therefore unable to see whether the instructions are at all applicable to the case proved, or not. The court said by its refusal to charge as requested, that the instructions were not applicable, and we are bound to presume that the court was right, in the absence of a showing to the contrary.
The instructions might have embodied a sound principle of law, yet, if not applicable to the case before-the jury, it was not error to refuse to give them.
It is further claimed that the court rendered a judgment for a larger amount than was authorized by the verdict. We think this was the case. The jury found for the plaintiff in the sum of four hundred and eighty dollars and twenty-seven cents, and interest from the 4th day of June, 1864. It was the duty of the court'to instruct the jury as to the rate of interest, and then they might calculate it. Failing to do so, and the jury' failing to compute the interest, the court could not take such interest into consideration in rendering this judgment. The jury must assess the damages (Code, §289), and the court then renders the judgment. Besides, if the plaintiff desired, he might move the court to instruct the jury to so correct the verdict as to include the interest. But we do not think this error is a sufficient ground upon which to reverse the judgment, and especially since the difficulty could be remedied by a simple modification. The defendant in error consenting thereto, we will order the judgment so modified as that the amount shall be the same as named in the verdict of the jury, to wit: four hundred and eighty dollars and twenty-seven cents, and that being so modified, the judgment of the court below shall stand as the judgment in this case.
And it is further ordered that the costs of this court shall be equally divided between the said parties.
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By the Court,
Safford, J.
The first, and perhaps the most important question which is presented in this case, is as to the construction which should be given to §433 of the code, or rather, the first clause of said section ; and it may be stated thus ; Do the words “lands and tenements,” as there used, include any other lands than those to which a judgment debtor has, at the time of the rendition of the judgment against him, a legal title % The plaintiff in error contends that they do not, and cites as authority, 8 Q., 21. If there was no other provision of our statute bearing upon this point,.such a position might be held to be correct, and the authority cited made applicable. In that case, the clause referred to would not be held to include an equitable interest in real estate. But on turning to ch. 188, Comp. L. 1862, § 1, subdivision 8, we find the following: “The word land, and the phrasé's real estate and real property, include lands, tenements and hereditaments, and all rights thereto and interests therein, equitable as well as legal.”
The provision which is found contained in “Au act concerning the construction of statutes,” and applicable generally thereto, was passed by the same legislature which enacted the code, and both acts, the one containing this provision, and. the code, were approved on the same day, and took- effect at the same time.
It must therefore be presumed that the legislature deliberately considered the bearing which the provision last referred to would have on the former; and that it was intended so to bear, and to furnish an undoubted criterion or rule of construction, by which to determine what was meant when use was made in the statutes of the' words defined and construed. Giving, then, to these two provisions of law their proper effect, and construing the first as affected by the latter, it must be held to provide and mean that the lands, tenements and hereditaments, and all rights thereto and interest therein,' equitable as well as legal, belonging to the debtor and situate within the county where the judgment is entered, are bound for the satisfaction of such judgment from the first day of the term at which it is rendered. And here, it may be observed, is an instance where the rule contended for by plaintiff in error fails to be applicable or effective.
It is true that the legislature adopted section 433 from the Ohio code, but they did not adopt the construction given to it by the Ohio courts, as most clearly appears from a consideration of the other provision named above. The case, then, in 8 Ohio, is not in point.
Having arrived at the conclusion that Kiser’s equit-’ able interest in the real estate, as shown by the record, was bound for the satisfaction of the judgment against him, it is proper to inquire whether or no the rules prescribed by the code were followed in seeking to subject such equitable interest to the payment of the said judgment.
Referring to those sections of the code which regulate sales of land, tenements, goods and chattels, upon executions, we find that where an equitable interest is sought to be sold, it is not done in the ordinary way; but when this may be done, the course to be pursued is pointed out by §§ 470, 480, 481. It is clear, from § 470, that so long as the debtor is possessed of personal property, or of real property, other than an equitable interest therein, and subj ect to levy, sufficient to satisfy the judgment, such equitable interest cannot be sold; but when it is shown that he has no such property, which may be done by a return of executions indorsed “Noproperty,” or “Unsatisfied,” out of which to satisfy the judgment, then any equitable interest which it is shown he may have in real estate, and which may be ascer-. tained without controversy, or between himself and the person holding the legal estate or interest therein, or lien thereon, such interest may be sold by a receiver in accordance with the provisions of §481. Keeping in view the mode of procedure pointed out in ■these provisions, was the action of the defendant in error in accordance therewith'? We think an examination of the record will furnish an affirmative answer. He caused executions to be issued against the judgment debtor, which were returned unsatisfied, and indeed nothing was made on them. He then m’ade an application to the court, showing what he had done, and the result, and] asks for an order appointing a receiver (§ 480), and ordering the sale of an equitable interest in real estate, of which he makes proof to the satisfaction of the court, that the debtor was possessed of at the time of the rendition of his judgment, and which was, therefore, bound for its satisfaction, as we have before seen.
The record also shows that the court was able to ascertain such equitable interest of the debtor, without controversy as between him and the persons holding the legal estate, and that all the parties were before the court.
Thereupon the order asked for was granted, the sheriff was made receiver, and the equitable interest ordered to be sold. It is claimed, with much earnestness, by plaintiff in error, that such order was unauthorized until the judgment debtor, or other witnesses, had first been examined in regard to his property, and the discovery made by such means, of his interest in. the real estate. We do not think so. After the judgment creditor had discovered that his debtor had no other property out of which to satisfy his judgment, which he could do by the return of the executions he had caused to be issued “unsatisfied,” and after he had made the further discovery of the equitable interest of his debtor in real estate, we think he had the right to show such facts to the court, in any way which might be satisfactory to such court, and ask for relief.
This section 481 seems to be an independent one, and substantially complete within itself as to the remedy intended to be afforded by it. It provides that if it shall appear that the judgment debtor has any equitable interest in real estate in the county in which the judgment is entered, &c., the receiver may be ordered to sell and convey such real estate, or the debtor’s interest therein. How the fact of the debtor’s having such interest shall be made to appear, which fact is preliminary to the proceeding .in the section contemplated, is provided for in §472, viz: “Upon proof by affidavit of the judgment creditor or otherwise, to the satisfaction of the court.”
But it is further objected to this proceeding, that it ought to have been brought before a judge, and that such judge, while sitting as a court, could not entertain it. This can be no good reason, as it seems to us, for making such' a distinction. It certainly can make no difference as to results in such cases, whether the judge acts as a judge alone, or as a court. Besides, the court, the greater, includes the judge, the less.
The judgment of the court below, in making the order complained of, is affirmed.
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The opinion of the court was delivered by
West, J.:
The plaintiff sued under the Federal employer’s liability act to recover for an injury caused by being struck by one of the defendants’ engines. He recovered, but the court set the verdict aside and rendered judgment for the defendants. The plaintiff appeals and assigns as error certain instructions given, rendering judgment for the defendants on the findings of fact, and the refusal of a new trial.
He alleged that he was a trackman in the employ of the defendants, the railroad company and the director general, working upon the railroad tracks at Topeka, cleaning and repairing them, when one of the defendants’ freight trains carelessly, negligently and without warning to plaintiff was carelessly run against him, knocking him down and crushing his left leg so that it was amputated about four inches below the knee; that when the train was approaching, those operating it gave him no warning of any kind; that they knew or in the exercise of reasonable care should have known that he was working upon the track; and that they negligently failed to inform him that such train would pass along the track and negligently failed to provide means of notifying him thereof when they knew or should have known that in conducting his business he could not do the work required of him and at the same time watch in both directions for the approach of trains. He further alleged that they saw him in a place of danger, or by.the exercise of reasonable care should have seen him, and had an opportunity to warn him of their approach in time to avoid injury, but they carelessly failed to stop the train or reduce its speed when they knew, or by the exercise of reasonable care should have known, that if they continued to operate it at the rate it was going, it would strike and injure the plaintiff.
The plaintiff testified that he was fifty-two years old.
“My name is Carlos Quilantan. Was working in Topeka at the time I got hurt. Was cleaning yards and track. There were three tracks where I got hurt. Was north of the tool house. About twenty meters west of the Rock Island crossing. Had been working on the middle track before I got hurt, about a half hour. Moved from the main track to get out of way of the switch engine that was going to stop there. When the switch engine come we were all working around there and the others went to one side and I went to the. north side. Had been working at that place about a half hour before I was struck. Switch engine was just to one side of me when I got hurt. Switch engine was standing there making noise, blowing steam out. That was the reason I had not felt the other engine coming. The time I got hurt was working between rails on the north track.-
“Q. Which way were you facing? A. Towards the depot. The depot was towards Kansas City.
“Q. You were looking towards Kansas City? A. Yes.
“Q. Now, state to the jury what position you were in at the time you got hurt. A. I.was stooping over working when this happened. I didn’t know what it was. I was cleaning the inside of the track. The train that hit me did not give any signal or blow any horn, or whistle or ring any bell. If I had heard it I wouldn’t have been standing there. The trains always stop before they cross the Rock Island crossing. All trains blow whistles there.
“Q. Just tell the jury what happened to you. A. I was working there and the first I knew was when the train hit me. I just fell over and fainted. I didn’t know any more. I just made a jump to the side when I felt it hit me, when I felt bad. I didn’t know what happened then, as I fainted.”
On cross-examination he testified:
“Had been in railroad work before for one year more.
“Q. You knew that trains were supposed to run over those tracks and would run over them very frequently, didn’t you? A. Yes, sir.
“Q. You knew that you section men were supposed to watch out for them and not get in a position where you would not know of their coming, didn’t you? A. Yes.
“Q. The yards there at Topeka where you were working are busy yards and a great many engines going back and forth? A. Yes; daily they do, they pass.
“Q. Hearing and sight was good at that time? A. Don’t read and write. Was .hurt about 2 in the afternoon. Daylight and a clear day. Blowing a little. Was very hot. Switch engine had been there about a half hour. Just standing. Switch engine standing more or less about ten minutes. Had all been working on the middle track up to a few minutes before I was hurt. Was working between the rails with a Shovel. Had my face towards the station at Topeka. I had my back to where the train was coming from.
“Q. You understood that you were supposed to watch out for trains coming? Why weren’t you keeping a lookout in both directions? A. I was doing it, but at this particular time I straightened up and just as I straightened up I didn’t have time.
“Q. You straightened up; you mean you had quit working with your shovel and stood straight? A. Yes; I just straightened up and as I straightened up I didn’t know what happened.
“Q. What did you straighten up for? A. Because there is always a suspicion that — except when I straightened up it was too late.
“Q. You were thinking about trains and straightened up with the idea you would look around and watch for them, did you? A. Yes, sir.
“Q. But by the time you straightened up and got ready to look you had been struck? A. I didn’t have time then. I didn’t know how the engine threw me down then.
“Q. The details of just how it happened you don’t remember, do you? A. No, sir, I don’t remember more than just I received a blow, what happened. The switch engine was standing there even with me. It was blowing steam up. It was the motive or reason I did not hear.
“Q. You think the noise of this switch engine was the reason you did not hear the train coming from the west, do you? A. Yes, sir.”
Other witnesses testified that the plaintiff was standing not between the rails of the track but at one side. The jury found the defendants guilty of negligence consisting in “not sufficient warning and failure to stop the engine.”
“Q. 4. Was the plaintiff at the time of his injury an experienced section man? A. Yes.
“Q. 5. Did the plaintiff know, or in the use of ordinary care should he have known, the risks and dangers of being struck by engines passing over the track at the point where he was struck? A. Yes.”
They also found that the plaintiff was guilty of contributory negligence and that he was not aware of the approach of the engine in time to get off the track before it struck him. They found that he sustained $8,000 damages, but, on account of his contributory negligence, they returned a verdict for $4,000.
The trial court stated that the findings of the jury amounted to a finding that the plaintiff assumed the ordinary risks of the employment. The court was of the opinion that while he assumed the risk incident to the work, he did not assume the risk of being run down after he was seen in a place of danger and it became apparent that he would not or could not protect himself, and that the evidence did not warrant submitting to the jury the question of last clear chance.
Counsel say in their brief:
“The plaintiff did not assume the risk of being deliberately run down and maimed by an engineer running his engine at two or three miles an hour in broád daylight when the engineer saw the plaintiff stooped over in a position of danger and oblivious of his danger. The plaintiff did not assume the risk of the firem’an’s negligence, who testified that he saw the plaintiff looking in an opposite direction close to the track. . The plaintiff did not assume the negligence of the conductor in charge of the train, who got into the gangway 200 feet away from the plaintiff and who saw the plaintiff in the position of danger and peril and did not instruct the engineer to blow a warning or stop the engine before running over the plaintiff, the conductor having admitted that the plaintiff was looking in another direction at the time. The plaintiff did not assume the risk of the engineer running this engine over the Rock Island crossing without making the usual and customary stop or without sounding the usual and customary warning. The plaintiff did not assume the negligence of his foreman, Henderson, in not warning him of the approach of the engine in time to have avoided being struck, although Henderson testified that it was his usual custom to do so.”
Henderson testified that when the switch engine came by him about fifteen minutes before the accident he ordered the plaintiff and another off the track.
The engineer testified that when he first saw him the plaintiff was up near the left rail, probably twenty-five or thirty feet ahead of the engine; and that when he last saw him he was about a foot away standing close to the north rail — just standing there. The fireman testified that the train was going about five miles an hour and the plaintiff was standing on the track — clear up against it; but that he believed plaintiff was where the engine would clear him without striking him; he believed he was two and one,-half or three feet clear of the engine.
We agree with the trial court that there was nothing to justify submitting the question of last clear chance to the jury. Hackney v. Railway Co., 96 Kan. 30, 149 Pac. 421, is cited in support of the contention that an employee does not assume the risk of a coemployee’s negligence. That case involved contributory negligence, but no assumption of risk, although that defense was pleaded. Rockhold v. Railway Co., 97 Kan. 715, 156 Pac. 775, is referred to as disposing of the question of the assumption of risk, but that action was under the state act and not under the Federal employer’s liability act, a distinction with a very material difference as the defense of assumption of risk was eliminated by chapter 239 of the Laws of 1911. (Gen. Stat. 1915, §§ 8480-8485.)
The Federal rule as to assumption of risk is the one we must follow in this case. (Roebuck v. Railway Co., 99 Kan. 544, 162 Pac. 1163; Rask v. Railway Co., 103 Kan. 440, 173 Pac. 1066.) The Federal rule is to follow the common law. (Southern Ry. v. Gray, 241 U. S. 333.) In Aerkfetz v. Humphreys, 145 U. S. 418, the employee was familiar with the movements of the cars and of the switch engines and knew that the switch engine was busy making up trains and that cars were liable to be moved along the track where he was working at any time. He placed himself with his face away from the direction from which the cars were to be expected. Abundance of time elapsed between the moment the cars entered upon the track and the moment they struck him. The court said :
“There could have been no thought or expectation on the part of the engineer, or of any other employee, that he, thus at work in a place of danger, would pay no attention to his own safety. . . . They were not bound to assume that any employee, familiar with the manner of doing business, woul¿, be wholly indifferent to the going and coming of the cars.” (p. 420.)
In Land v. Railroad Co., 95 Kan. 441, 148 Pac. 612, it was held that the railroad company may rightfully assume that its section men, while at work upon the track will look out for. the approach of passenger trains at all times, and that ordinarily it owes no duty to warn them of the approach of the trains save when such employees are found in places of danger, and it becomes apparent that they will not, or cannot, protect themselves. It was there held that the crossing signals are not intended for the section men working upon the track, which disposes of that point in this case. It was also said:
“Railroads must operate their passenger trains and transport their passengers without impeding their progress or imperiling their safety by the necessity of making it a condition precedent to see if its section men, employed for the purpose of keeping the track safe while trains are running over it, are themselves looking out for their approach.” (p. 446.)
“Trackmen are employed for the very object of enabling the road to furnish such service and can not require the employer to impair its efficiency by acting as watchman for them.” (p. 448.)
In Waymire v. Railway Co., 107 Kan. 90, 190 Pac. 588, it was said:
“But the engineer had the right to assume that the section foreman and his men would continue to look out for their own safety. This was equally true of the rear brakeman. When he left the hand car and climbed upon the train, he had the right to assume that the section men, instead of relying upon his giving signals to the engineer not to back the train, would protect themselves.” (p. 98.)
Taking the plaintiff’s own story for it, he seems to have waited for the crossing signal which was not intended for his benefit, and on which he had no right to rely, and instead of looking out for the oncoming engine, took his chances, or in other words, assumed the risk of remaining on the track until it was too late. We all know that in railroad yards, and even along the lines of street railways and interurban roads tracks have to be kept in repair by section men and traffic is not to Stop on this account. Such repairs are made so that traffic need not stop, but may continue, and the only practical and possible way that such work can be done is for trackmen to watch for the approach of trains and take care of themselves by getting out of, the way in time. No one knows this better than trackmen themselves and none better than they how paralyzing it would be to railroad operation for the operators of trains to be required to stop every time a section man was seen on the track .until he saw fit in his own leisurely manner to get out of the way. The very fact that other trains and engines may be close by, emitting steam and making noises incident to such instrumentalities makes it the more necessary and sensible to require those whose very purpose is to keep the track in condition for the unimpeded operation of the trains, to see that this object is not subverted by compelling the cessation of such operation whenever a. trackman is seen ahead of an approaching engine. - •
It seems tp be beyond dispute that men working on skyscrapers take a pride in walking on the steel beams at dizzy heights and this leads one to suspect that trackmen take pride sometimes in seeing how long they can remain at work before stepping aside for an oncoming train. While there is nothing to justify that inference in this case .or the belief that the plaintiff was actuated by this sort of pride, it does seem perfectly apparent'that his unfortunate injury was brought about by his own assumption- of risk-which was plain to him-.when he remained upon the, track until the fatal moment.
The record does not show that the railroad company’s operators were negligent.
Finding no error in the instructions the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
On March 11, 1918, the board of law examiners filed an accusation against Fred S. Macy, an attorney at law residing in Seward county, and asked that he be disbarred from practicing law in this state. The accusation contained fifteen counts, and a supplemental accusation containing twelve additional counts was thereafter filed.
F. P. Hettinger of Hutchinson was appointed commissioner to take the evidence. After taking the evidence he made a report which was filed November 13, 1920. Briefly stated, that report shows —
That the accused, in May, 1916, in an action pending in Oklahoma wherein V. H. Grinstead, a reputable attorney of Liberal, Kansas, was plaintiff and J. R. DeLautre was defendant, filed an answer in which Grinstead was charged with having, while county attorney of Seward county, agreed with DeLautre that he might run a place for the sale of intoxicating liquors in Liberal in violation of law, which charge the accused knew or should have known was false and unwarranted.
That the accused appeared in court to try an action in which he was interested, in such an intoxicated condition that he was •.unable to proceed.
That in an affidavit for service by publication in an action commenced by the accused for other parties, he made state’jments that were not true, and on his attention being called thereto, after judgment had been rendered, withdrew from the affidavit the sheet containing the false statements and substituted another sheet therefor without leave of court.
That the accused was defending a party in Meade county, charged with arson; that the accused employed another person under the name of Jackson to go to Meade county and make a pretended investigation of the fire; that while there he made statements derogatory to the defendant in the arson case; that the person employed did as directed and returned and reported to the accused what had been done; that thereafter the accused commenced a fictitious action for that defendant against the person employed, asking $20,000 damages for slander based on the statements made by the person employed to others in Meade county; that in that action the accused took the depositions of the witnesses for the state in the arson case for the purpose of ascertaining what they knew, to be used by the accused on the trial of the person charged with arson; that the depositions were kept by him and were never filed with the clerk of the district court; that on the determination of the arson case, the action for slander was dismissed; and that the name Jackson, assumed by the employee of the accused, was fictitious and was known by him as such.
That the accused representing another party brought an action in Seward county against R. B. Hume and others to foreclose an old mortgage on real property, and on the appearance of R. B. Hume, dismissed the action as to him; that afterward the accused commenced another suit against R. B. Hume involving the same mortgage; that it was then discovered that the mortgage on which both suits were based had been barred in a former foreclosure action and was no longer of any validity, all of which was well known to the accused when he commenced the actions; that Hume again appeared and the action was again dismissed, but before dismissing the latter action, the accused tried to compel Hume to settle and pay him some money and threatened to bring other suits against Hume on the barred mortgage; and that to counsel for Hume, the accused stated that he knew the mortgage was not good, but he would continue to commence actions until Hume would buy the mortgage, or the accused would wear Hume out.
That the accused, for another party, commenced an action in Seward county involving the title to several pieces of real property, the title to a part of which was in one Chappie, a resident of Doniphan county, as shown by the recorded deed and by the records in the office of the county treasurer of Seward county; that service by publication was made, although the accused could have easily discovered that Chappie was a resident of this state; that Chappie learned of the action and employed an attorney who went to Liberal; that the accused there demanded $800 of Chappie’s attorney to compromise the case and finally compromised it by receiving $25; that the same land was involved in another suit in Stevens county; that in the latter case, the plaintiff had no interest in the land; and that both cases were fictitious and fraudulent and were commenced for the purpose of defrauding Chappie of his interest in the property.
That the accused commenced a number of fictitious actions for different parties to quiet title to real property or to foreclose mortgages thereon; that in some of them the accused knew that his clients had no substantial interest in the property, and that some of those against whom the actions were commenced were the actual owners thereof; that in those casés service was had by publication, and that in one action of this nature commenced in Seward county, one of the defendants lived in that county and was known to the accused, and another one lived in Pratt county and was well known throughout the southwest part of the state.
The evidence to sustain these findings of the commissioner is voluminous, and much evidence contradictory thereto was introduced by the accused,- but it will not serve any purpose whatever to detail that evidence here. It is enough to say that these findings of the commissioner were supported by ample evidence, and they are approved and adopted by the court.
The accused attempts to excuse himself by saying that in all instances he relied on the statements of his clients for the truth of the matters concerning which complaint is made and acted thereon. He argues that this is a complete defense in this proceeding. The difficulty with this excuse and with this argument is that the accused knew that some of the statements made by his clients were false, and he cannot justify the things that he did by basing his actions on the supposed truth of those statements. A further difficulty is that in some in stances, the accused acted on his own initiative and responsibility.
The oath administered to the accused when he was admitted to the bar was as follows:
“You do solemnly swear that you will support and bear true allegiance to the constitution of the United States and the constitution of the state of Kansas; that you will neither delay nor deny any man his right through malice, for lucre', or from any unworthy desire; that you will not knowingly foster or promote, or give your assent to, any fraudulent, groundless or unjust suit; that you will neither do, nor consent to the doing of, any falsehood in court; and that you will discharge your duties as an attorney and counselor of the supreme court and all inferior courts of the state of Kansas with fidelity .both to the court and to your cause, and to the best of your knowledge and ability. So help you God.”
An attorney at law who, to accomplish his own purpose or that of his client, files a pleading in an action, charging another attorney who is a party thereto with misconduct which if true -would subject the latter to criminal prosecution and to ouster from an office held by him, is guilty of such misconduct as shows him to be unfit to practice law if the attorney filing the pleading knew or should have known that the charge made was false.
In the third section of the syllabus, in In re Adriaans, 17 App. D. C., 39, this language is found:
“In a proceeding for the disbarment of an attorney for alleged false and scandalous statements made' by him concerning a fellow-member of the bar and contained in a paper filed in a cause, it is no defense that such statements did not constitute a technical or indictable crime, nor does the question of privilege arise. The only question to be determined in such a proceeding is as to the fitness of the respondent- to remain a member of the bar.”
An attorney should not file any pleading which he knows to be false.
It is an abuse of the privileges of an attorney to commence an action, which he knows is unfounded, for the purpose of taking depositions to secure the evidence of witnesses in another action in which he is interested, and does not file nor use the depositions in the action in which they were taken. The right to compel witnesses to attend and give their testimony should not be exercised in fictitious cases for the purpose of obtaining the evidence of those witnesses to be used by the attorney taking their depositions against them on the trial of another action.
When papers have been filed in an action pending in the district court, they must remain as they were when filed except that amendments may be made in proper cases by leave of court, or sometimes by consent of the parties. A lawyer who, to accomplish any purpose of his own, after judgment has been rendered, changes an affidavit filed by him for service by publication, practices a fraud on the court and shows himself unworthy to be an attorney at law. In In re Washington, 82 Kan. 829, 836, 109 Pac. 700, this language was used:
“The alteration of the return of an officer after it is duly filed in the clerk’s office, without any order or sanction of the court, is so dangerous to the rights of the parties and so perilous to public records that comment upon it seems hardly necessary.” .
(See, also, The People v. Moutray, 166 Ill. 630, and In re Nunn, 73 Minn. 292.)
An attorney who knowingly commences fictitious or unfounded litigation for the purpose of annoying the defendants, for the purpose of surreptitiously obtaining judgment against them, or for the purpose of fraudulently depriving them' of their property, if the attorney who commences the actions knows that they are unfounded and knows the purpose for which they are brought, is guilty of misconduct of a most reprehensible sort. Such practice should not be resorted to under any circumstances whatever; it is not only wrong, but it is a fraud on the opposite parties and on the court.
In Wernimont v. State, ex rel. L. R. Bar Assn., 101 Ark. 210, an attorney at law was disbarred for arranging with another party to purchase notes of insurance companies given by parties living in different parts of the state of Arkansas and then commencing actions in the county of the residence of his confederate, making him a party, and procuring service of process on the makers of the notes in the other counties.
In Ex parte Ditchburn, 32 Ore. 538, the court said:
“Unprofessional conduct on the part of an attorney involves a breach of the duty which professional ethics enjoin. It has been held that it mpy consist in betraying the confidence, taking advantage of or acting in bad faith towards his client; in attempting, by any means, to practice a fraud, impose upon or deceive the court, the adverse party, or his counsel; . . . and, in fact, any conduct which tends to bring reproach upon the legal profession, or to alienate the favorable opinion which the public should entertain concerning it.” (p. 543.)
In The People v. Hooper, 218 Ill. 318, the supreme court of that state said:
“Dismissing a justice of the peace suit for the purpose of inducing the defendants to believe it had been dropped, and afterward taking an appeal, obtaining judgment by default and causing executions to be levied upon real estate, all without notice to defendants and for the fraudulent purpose of getting title to the real estate, is ground for disbarring an attorny.” (Syl. ¶ 1.)
In In re Wilson, 79 Kan. 450, 455, 100 Pac. 75, this court said:
“It is, however, one of the requisites for admission to the practice that the candidate should present evidence to the court that he is a person of good moral character, and it would be a great stigma upon an honorable profession if the members of it were powerless to purge it of any who may have been improvidently received into its fold and whose after-life is offensively corrupt or whose business transactions, even outside of the courts, are characterized by dishonesty; in short, that the profession is compelled to harbor all persons of whatever character who have gained admission to it and are fortunate enough to keep out of jail or the penitentiary. This court, at least, is not prepared to say that persons of such character have a legal right to officiate as advocates of right in our courts, which ought to be and generally are temples of justice.”
The supreme court of Connecticut, in Fairfield County Bar v. Taylor, 60 Conn. 11, said:
“It is not enough for an attorney that he be honest. He must be that, and more. He must be believed to be honest. It is absolutely essential to the usefulness of an attorney that he be entitled to the confidence of the community wherein he practices. If he so conducts in his profession that he does not deserve that confidence, he is no longer an aid to the court nor a safe guide to his clients.” (p. 17.)
The supreme court of Illinois, in The People, ex rel., v. Beattie, 137 Ill. 553, 574, said:
“The lawyer’s duty is of a double character. He owes to his client the duty of fidelity, but he also owes the duty of good faith and honorable dealing to the judicial tribunals before whom he practices his profession. He is an officer of the court — a minister in the temple of justice. His high vocation is to correctly inform the court upon the law and the facts of the case, and to aid it in doing justice and arriving at correct conclusions. He violates his oath of office when he resorts to deception, or permits his clients to do so. He is under no obligations to seek to obtain, for those whom he represents, that which is forbidden by the law.”
The time was when a lawyer could appear in court in an intoxicated condition and not subject himself to public censure, but that time has passed. Any one at this time in this state that uses intoxicating liquor to the extent of producing intoxication is censured; generally no man can hold any responsible position in any worthy enterprise and use intoxicating liquors to excess. If any officer in this state, not subject to impeachment, shall be in any public place in a state of intoxication produced by strong drink voluntarily taken, he may be removed from office. (Gen. Stat. 1915, § 7603.) In such a condition of society, a lawyer who appears in court to conduct litigation in which he is interested and is in such a state of intoxication that the court is unable to proceed with that litigation, should not ask the state to continue his authority to practice law.
It is an attorney’s duty to protect the rights of his client, but it is likewise an attorney’s duty to refrain from doing an intentional wrong to the adverse party. In the United States of America, the attorney at law occupies a peculiar and very important position. Because of his integrity, his ability, and his learning, he is often called on to administer the executive departments of government, and he fills a large place in all our legislative bodies. He has taken a most important part in framing our form of government and in guiding its growth and development. Possibly democratic government cannot long exist without a strong, able, honest, conscientious and patriotic bar. If a lawyer is not honest, if he is not conscientious, or if he is not patriotic, he is not fit to represent others in the court room. Justice is administered almost wholly by and through lawyers. The administration of justice is one of the highest, if not the highest, of governmental functions. An attorney at law in the preparation and trial of an action in court represents his client, but he does more than that — he is there, not only as an advocate, but also as a person trusted and authorized by the state to assist the court in determining what is. right between the parties before it. He cannot excuse himself by saying that his duty to his client demands that he adopt a line of conduct detrimental to the interests of the public. The state is vitally interested in seeing that justice is done and goes to great expense and provides elaborate machinery for that part of its governmental -Work. If attorneys at law are permitted to resort to unscrupulous practice for the protection of the supposed rights of their clients, one of the purposes of the state will be defeated, its foundations will crumble, and life, liberty, property, and happiness wiil be at the mercy of lawyers who care for nothing except the advantage of their clients. The integrity of the courts and of all who assist in their work must be preserved, or the practice of law, as it is now known, will-cease.
The conduct of Fred S. Macy establishes that he is unfit to practice law in this state.
He is, therefore, disbarred. | [
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