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The opinion of the court was delivered by
Benson, J.:
These actions were commenced by creditors of the telephone company against that company and A. F. Eby, as garnishee. The plaintiffs will be referred to in this opinion as the bank, the Western company and the North company, respectively. All the actions are upon promissory. notes made by the telephone company. The indebtedness to the bank accrued in April, 1907; to the Western company in February, 1908, and to the North company on May 29, 1908.
The action of the bank was commenced July 27, 1909. The garnishee answered on August 20, stating that he had sold property of the telephone company to J. A. Middlekauff, under a chattel mortgage given by that company to him to secure a debt of over $10,000, and that $2711.88 remained in his hands, the balance of the proceeds of the sale after satisfying the mortgage, which amount , was claimed by F. H. Perkins under a second chattel mortgage. This amount in the hands of the garnishee will be referred to as the fund. The validity of the Eby mortgage is not questioned.
Perkins and Middlekauff filed interpleas, each claiming the fund. Perkins claimed it under a chattel mortgage dated and recorded March 11, 1908, given to secure a promissory note purporting to be made by the telephone company for $2000 held by him as endorsee of F. L. De Pew, payee. Middlekauff claimed the fund under a chattel mortgage dated September 3, 1908, given to secure notes made on March 7, 1908, in consideration of an indebtedness accruing earlier. The answer of the bank to the Perkins .interplea alleged that the note and mortgage pleaded by Perkins were given in consideration of money loaned to O. B. Walker personally to purchase stock in that company for Walker, and that the company received no consideration therefor, although Walker, as president, issued the note and mortgage in its name to Perkins, who took the note with knowledge of these facts, De Pew being only a nominal payee. In answer to the Middlekauff interplea, the bank alleged that the notes secured by the Middlekauff mortgage were executed for the benefit of Walker personally, without consideration to the telephone company. The Western and the North companies made the same objections to the claims of the intervenors as the bank.
Two substantial controversies are presented: (1) Is the Perkins mortgage a valid obligation of the telephone company prior in right to the Middlekauff mortgage and the claims of the several plaintiffs as creditors? (2) Is the Middlekauff mortgage a valid obligation prior in right to the claims of the plaintiffs?
The evidence tends to prove the following facts: Sometime before any of the transactions already referred to, Walker and Middlekauff became the owners of a telephone plant, as partners at first, but a corporation was formed under the name of the O. B. Walker Telephone Company, in which each owned half of the capital stock. Middlekauff then loaned to the corporation $3600 to buy another telephone plant, which was accordingly purchased and merged with that already owned by the company. The note of the corporation— the telephone company—was given for this loan. The amount due on this note on March 7, 1908, was a little over $2900. At that date fifteen other notes for $500 each were issued by the telephone company to Middlekauff, in renewal of the balance due upon the $3600 note and in payment for his stock, which was thereupon transferred by him to O. B. Walker. Middlekauff, learning of the Perkins mortgage, obtained the chattel mortgage before referred to, purporting to be made by the telephone company, signed by O. B. Walker, president, to secure these fifteen notes. This mortgage was made and placed on file September 3, 1908. At that time he knew that the telephone company owed other debts and that Walker was insolvent. Early in March, 1908, O. B. Walker and C. A. Ewing were the . owners of the capital stock of the telephone company, except one share held by F. L. De Pew. Ewing became dissatisfied and desired to retire from the business. De Pew, as the friend of Walker and Ewing, undertook to obtain $2000, the amount agreed upon between Walker and Ewing for that interest, and solicited Perkins for a loan with which to make the payment. After examining the chattel-mortgage records Perkins made the loan, understanding that Ewing was to receive the money to satisfy his interest in the corporation so that he might retire from the business and leave the country. A note and mortgage were then made in form to De Pew, dated March 11, 1908, signed by O. B. Walker, as president of the telephone company, which were indorsed and assigned to Perkins, who thereupon paid over the money. His knowledge of the facts connected with this transaction is best shown by quoting from the testimony. He testified :
“Well, he (Ewing) said that he wanted to get his money out, what he had in there and that he was going to leave the country. That is about all there was to it. That he had sold his interest and was going to get his money out.....
“Q. And you knew that the O. B. Walker Telephone Company was a corporation did you? A. Well, not only that I had heard it was. . . .
“Q. You knew that Ewings and Walker were the principal owners in the Company did you ? A. I think that I did. I understood who was the company but I did not understand who was the principal one. . . .
“Q. And you knew that Walker was buying it, whatever interest Mr. Ewings had there. That he had bought it out and that he had given this note and mortgage in payment of it? A. I did not know as he bought them out altogether, but he said that he (Ewings) wanted to get his money out of there, what Walker owed him. Wanted to get his money.
“Q, And in that conversation he (De Pew) told you that this note was given him for Ewings ? A. Yes, sir.
“Q. And that Mr. Ewings was selling out.his interest in the Plant-to Walker? A. Yes, sir.”
De Pew testified:
“Q. You say that you told Mr. Perkins at or about the time these papers were transferred that Ewing was selling? A. Yes, sir.
“Q. Who to? A. He was selling to O. B. Walker,
“Q. 0. B. Walker, or Telephone Company. A. Well I do not know, but supposed to be Walker.
“Q. Just tell us exactly what was said? A. I can not tell exactly what was said. I do not know.”
After saying that he supposed the Ewing stock was transferred to Walker, his examination proceeded:
“Q. You did not see any transferred? A'. No, sir.
“Q. You did not know then whether Walker was buying the stock individually, or whether the corporation was buying it? A. No, sir; I did not know.
“Q-. And you did not tell Mr. Perkins whether Walker was buying it or the corporation was buying it? A. I told Mr. Perkins that this note was given to me by Mr. Walker to Mr. Ewing to satisfy Ewing’s interest in the plant.”.
The witness also testified that he .told Perkins that O. B. Walker was buying Ewing’s interest. Being further asked if he knew to whom the Ewing stock was going, he said:
“If you will allow me to explain, I do not understand corporation business as well as these gentlemen, possibly. I did know that this was to go to satisfy Mr. Ewing’s interest, whether it [was] corporation stock, or whatever it may be.”
The contention of Perkins is that it must be presumed that the sale was to the telephone company, the note and mortgage appearing to have been issued by that company, and that he had no notice or knowledge to the contrary. While upon his whole examination it may be claimed that he did not actually know who the real purchaser was, it will be seen that there was evidence from which the court might find that Walker was the purchaser, and that Perkins had knowledge of that fact. The books of the company were not produced, nor was any further evidence given to show who the purchaser was. On the general finding for the bank, it should be presumed, if necessary to uphold the judgment, that the court found that Walker was the purchaser; that the mortgage was without consideration moving to the telephone company, and that Perkins took the mortgage with notice of,these facts. If the sale of the interest in the corporation represented by Ewing’s stock was to Walker an indebtedness from Walker necessarily arose, and a payment of that debt out of the assets of the company would have been a misappropriation which could have been recovered by the company. (Hier v. Miller, 68 Kan. 258, 75 Pac. 77.) A mortgage or pledge of the property of a corporation as security for such individual debt falls under the same principle, since, if enforced, it reaches the same end.
“It is as much beyond the power of the officers or directors of a corporation to pledge its property to secure the personal debt of its president as it is to use it in pledge for the payment of the obligation of a total stranger. In either case the stockholders are equally wronged.” (Cattle Co. v. Loan Co., 65 Kan. 359, 361, 69 Pac. 332.)
Section 1742 of the General Statutes of 1909 provides :
“No corporation created finder the provisions of this act shall employ its stock, means, assets, or other property, directly or indirectly, for any other purpose whatever than to accomplish the legitimate objects of its creation.”
One who receives from an officer of a corporation the securities of the corporation, either in payment or as security for the personal debt of such officer, does so at his peril; prima facie the act is unlawful. (Wilson v. M. E. R. Co., 120 N. Y. 145, 150, 24 N. E. 384, 17 Am. St, Rep. 625; West St. L. Sav. Bk. v. Shawnee, etc. Bk., 95 U. S. 557, 559.) The fund here arises from the sale of the property of the corporation and takes its place. The mortgage having been given for the private advantage of Walker, the mortgagee, with notice of that fact, acquired no right to the property. It was, therefore, subject, like other corporate property or funds, to be applied to the payment of debts of that company.
It is not certain that a different result would follow if we should adopt the theory of intervenor Perkins that there is no evidence of a sale of the Ewing interest to Walker, and that it should, therefore, be held that the sale was to the telephone company. The power of a bank to purchase its own stock, except to secure a previously existing debt, was denied in Savings Bank v. Wulfekuhler, 19 Kan. 60, reference being made to the statute above quoted. The purchase by a corporation of its own capital stock has been the subject of much judicial consideration, and the decisions are at variance, some holding that such a power exists, in the absence of a statüte denying the right, provided the transaction is in good faith, causing no injury to creditors. (10 Cyc. 1109.) Others hold that, in the absence of a statute granting the power, it does not exist. (Coppin v. Greenlees & Ransom Co., 38 Ohio St. 275, 43 Am. Rep. 425.) .A collection of authorities upon this question is contained in a note following the opinion in Hall & Farley, Trustees, v. Henderson, 126 Ala. 449; 28 South. 531, 61 L. R. A. 621. The general power was denied in that case. It is not necessary,however, to decide in this case whether the authority exists, nor the circumstances in which it can be drawn in question, since the judgment against Perkins must be sustained for the reasons before stated.
Appellant Perkins insists that it was erroneous to enter a judgment against him before one was rendered against the principal debtor, and cites section 289 of the civil code, which provides that “no trial shall be had of the garnishee action until the plaintiff shall have judgment in the principal action, and if the defendant have judgment (in the principal action) the garnishee action shall be dismissed.” This provision was probably intended to save time and expense in trying a collateral proceeding when a failure of the principal action would make such proceeding useless. But the parties may, in this as in other like matters of practice, waive the right to such postponement. The court tried the contested issues between the creditors, the intervenors, and the garnishee, without objection or request for delay, and after due consideration a judgment was entered against the principal defendant and the garnishee at the same time, all parties being represented except the telephone company, which was in default. If the garnishee or the intervenors had any objection to a trial before the formal entry of judgment against the telephone company, they should have presented it. It is further contended by appellant Perkins that a summons had not been served on the telephone company, and therefore the judgment entered against that company is void. This contention rests upon the absence of the summons from the files, and the fact that the appearance docket does not contain an entry of the return. The judgment contains a finding that the telephone company “had been duly and legally served with a summons by personal service upon the pres. O. B. Walker,” and that the company is in default. This adjudication can not’ be held for naught merely becausé the summons was not found on file after the judgment had been rendered, and the clerk failed to enter the return upon the appearance docket. This case is easily distinguishable from Mickel v. Hicks, 19 Kan. 578, where the recital in a judgment was held to be limited to the notice found on file. Here the summons is not found, and in view of the recital it must be presumed that it was lost or misplaced after the judgment.
It appears that by a proceeding before the judge at chambers the judgment against the telephone company was corrected so as to show that it was, in fact, rendered at a prior date. An objection is made to this proceeding because taken before the judge instead of the court, although the hearing at chambers was with the consent of the party now objecting. It is not necessary to decide this question, however, for the judgment as it appears upon the journal, without the amendment, is sufficient.
The district court found that the Middlekauff mortgage was invalid. If valid, it is prior to the rights of the bank and the other plaintiffs. It was not asserted for any amount beyond that of the balance due upon the original $3600 note, the proceeds of which were received by the telephone company. It is not disputed that this was a valid debt for which a mortgage could have been rightfully given by the. company if Walker’s individual debt had not been included in it.
It was held in Rathbone v. Boyd, 30 Kan. 485, syl. ¶ 2, 2 Pac. 664, that a chattel mortgage purporting to secure in part a valid debt and in part securing advances upon an illegal contract, might be enforced to the extent of the valid debt. In The State v. Wilson, 73 Kan. 343, 84 Pac. 737, the Boyd case was reviewed and the syllabus referred to was disapproved. The Wilson case arose upon a mortgage given to secure in part charges made for acts done in violation of a statute punishable by fine. The court distinguished considerations founded upon such illegal contracts from considerations which are .merely insufficient. It was said:
“Where one of two considerations, or a distinct part of one consideration, is for any reason not capable of sustaining a contract, but is not otherwise obnoxious to the law, the courts universally recognize the situation as a partial failure of consideration and permit a pro tanto recovery.” (p. 351.)
In this case there was nothing illegal in the sale of the stock by Middlekauff to Walker. A valid indebtedness was thereby created against Walker, but not against the company. A note and mortgage by the company to secure it was founded upon an insufficient consideration. It is not invalid because of illegality of consideration, in the sense in which that term is understood in its application to contracts void in toto because of this vice, but is invalid for want of a consideration moving to the mortgagor.
Although the mortgage should not be held fraudulent as a matter of law, still if the individual debt of ' Walker was so included in it with intent to hinder and delay creditors of the telephone company, then it was void for that reason. If there was any evidence tending to prove that it was taken with that intent, the finding of the court that the mortgage is invalid must be sustained. The evidence upon this issue was the testimony of the mortgagee. He testified:
“Q. And those other notes that are here outside of the thirty-six hundred dollars, these .fifteen $500 notes were given to you for selling out your own interest to Mr. Walker? A. Over and above the $3600, those notes represented my interest in the plant.
“Q. Now, you took this chattel mortgage to protect yourself against the outstanding creditors at the time, did you not? A. I took it up to secure the payment of - this note.
“Q. You knew that there were a good many outstanding debts and that Walker was insolvent? A. Yes, sir; I did. ...
“Q. And this mortgage was given you to protect you against what claims there were outstanding at the time? A. They were given to secure the payment of these notes.
“Q. Well, you knew that there were other creditors at the time and a good many of them? A. I had heard that there were debts owing.
“Q. Well, you didn’t take this mortgage immediately after you heard that Mr. Perkins had put a mortgage on this plant? A. Yes, sir.
“Q. But that was some time subsequent to the taking of the note ? A. It was six months after taking the note.
“Q. You did not hear of such a claim as represented by the Perkins mortgage? A. Never had.
“Q. And as soon as you heard that, you took mortgage securing these notes ? A. Yes, sir.”
It will be observed that Middlekauff asserted no claim upon his mortgage except for the balance due upon the $8600 note, which, in its inception, was a valid obligation of the telephone company. The fact that he knew of other indebtedness of that company when he took the new notes and the mortgage did not preclude him from taking security for this valid claim. Nothing is found in .this evidence to sustain a finding that the mortgage was invalid because of an intent to defraud, hinder or delay other creditors of the company. As it was not void, either in law or fact, the conclusion of the district court against the validity of the Middlekauff mortgage can not be sustained.
After the service of the summons on Eby, the garnishee, and before the trial, he paid the fund over to Perkins, taking indemnity therefor. Afterwards, when the garnishee summonses were served upon him in the actions of the Western company and the North company, he answered that he had no funds in his hands. Thereupon Perkins was also garnisheed, and answered denying any liability to the telephone company. ' Notices that the answers were not satisfactory were filed. Issues were made up and tried with issues already referred to in the action of the bank, and upon the same evidence. The court found that the Western and the North companies should not participate in the fund, for the reason only that Perkins should be sued direct and could not be held liable in garnishment proceedings. In Johnson v. Brant, 38 Kan. 754, 17 Pac. 794, it was held:
“Garnishment proceedings do not lie to enforce preexisting equities or liens in favor of the plaintiff and against the intended garnishee or some third person who may file an interplea in the case, claiming the attached property, money or credits.” (Syl. ¶ 1.)
It will be observed that the statutes relative to garnishment have been changed since that decision. (Civ. Code, §§ 229-231, 239.) However, nothing in that case should prevent a recovery by these creditors, if anything is left in the fund after satisfying the Middlekauff mortgage and the judgment of the bank. As already said, the proceeds of the property mortgaged to Eby, after satisfying that mortgage, belonged to the telephone company. In the hands of Eby, they were properly garnisheed as its property. The payment over to Perkins only changed the custody of the fund. It still belonged to the company, in the hands of Perkins, when he in turn was garnisheed. The court, therefore, erred in holding that other actions were necessary to reach it.
It is concluded that the judgments-entered in these several cases should be modified by holding the Middlekauff mortgage -a valid security for the amount due on the original $3600 indebtedness of the telephone company, and directing that the fund in the hands of the garnishees be paid into court, and applied, first, to the payment of the balance found due upon the original debt of $3600, secured by that mortgage; second, to the payment of the judgment of the bank; third, to the payment of the amount due the Western company; fourth, to the payment of the amount found due to the North company. As the amount of the indebtedness to Middlekauff, for which his mortgage is now held to be a valid security, was not found by the district court, such a finding should be made upon the evidence already heard, or upon further evidence, as that court may direct. If it is found that nothing will be left in the fund after satisfying the Middlekauff mortgage, or that mortgage and the amount found due the bank, the garnishment proceedings of the Western, and the North companies should be dismissed.
The several causes are remanded to the district, court with directions to modify the judgments in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In 1890 the owner of a tract of land in Greeley county mortgaged it to secure the payment of a note due in 1895. No part of the principal of this debt or the interest thereon was ever paid and no steps were taken towards keeping the debt alive or to enforce its payment, although the mortgagors were and continued to be residents of the state. The present owner, Edna Shepard, is in possession of the land, and she and her grantors have held possession of it for the last twenty years. Charles E. Gibson claims some rights by virtue of the note and mortgage re ferred to, although the statute of limitations, it appears, has run against them. For more than ten years before this controversy arose, the bar of the statute had fallen and the remedy of the mortgagee to foreclose the mortgage had been lost. Edna Shepard brought this action, alleging the recited facts, and asking for judgment quieting her title as against any claim of Gibson under the barred mortgage, and enjoining him from setting up any claim or right under it. The case was submitted on a demurrer to the petition and judgment as prayed for was rendered by the court.
The appellee was seeking to avail herself of the provisions of “An act providing for suits to quiet title to real estate in certain cases, and establishing a rule of evidence therein,” being chapter 232 of the Laws of 1911. Section 1 of the act reads:
“"‘When any mortgage on real estate has been in default for more than fifteen years, or the lien thereof has ceased to exist, or. when action to enforce such mortgage is barred by the statute of limitations, the owner of the land may maintain an action to quiet his title and have the cloud removed.”
The contention of appellant is that the act operates to deprive the owner of the mortgage of an existing right which entered into the obligation of the mortgage contract, and is therefore unconstitutional. An act which in effect destroys the legal power to enforce a contract, or deprives a person of any remedy on it, would impair the obligation of the contract and be invalid. It is competent, however, for the legislature to enact a statute shortening the period within which an action for the enforcement of a contract must be brought, if a reasonable time is allowed after the passage of the act in which to bring an action. (Morton v. Sharkey, [Dass. ed.] 1 Kan. 535; Myers v. Wheelock, 60 Kan. 747, 57 Pac. 956; 25 Cyc. 986; 6 A. & E. Encycl. of L. 951; Cooley’s Constitutional Limitations, p. *366; Buswell, Limitations and Adverse Possession, §14; Wood on Limitations, §11.)
In this instance there was no shortening of the period of limitation, as the debt was barred and the mortgage, which was only an incident of the debt, was likewise barred and unenforceable before the statute was enacted. The legal obligation of a contract is the right of either party to have it enforced against the other, and so far as the right to foreclose the mortgage was concerned nothing was taken from the mortgagee. The adequate remedy that was given to him had been lost by his own neglect long before the statute was passed. If any other rights or remedies under the mortgage remained to him, they could not be summarily taken awaj^ by legislation. Assuming that there were existing rights in the mortgage, and that the act operated to deprive him of any remedy on these, it would be inoperative. However, it is the view of the court that it was not in the mind of the legislature to extinguish any cause of action existing on the mortgage, nor to deprive a mortgagee of a remedy to enforce an existing right. By the act the legislature intended no more than an adjudication of the status of the mortgage, that is, whether or not it had been barred by the statute of limitations. Many mortgages given upon lands a long time ago stood on the record unsatisfied and uncanceled. Some of them had been paid, but a satisfaction or discharge, was not entered on the record; some of them had been abandoned, and although barred and the right of action thereon dead, they stood on the face of the record as subsisting obligations and seriously interfered with the conveyance of the land. When an owner undertook to transfer the land he was put to the trouble and expense of proving to the purchaser that the note was barred and the mortgage nonenforceable. If he brought an action to obtain an adjudication that the mortgage was barred, he was met with the contention that the statute of limitations does not constitute a cause of action and is only available as a defense. This court has held, in a series of decisions, that under the existing law the statute might be used as a shield of defense, but not as a weapon of attack, and could not be made the basis of affirmative relief. (Corlett v. Insurance Co., 60 Kan. 134, 55 Pac. 844; Thompson v. Greer, 62 Kan. 522, 64 Pac. 48; Burditt v. Burditt, 62 Kan. 576, 64 Pac. 77; Johnson v. Wynne, 64 Kan. 138, 67 Pac. 549; Gibson v. Johnson, 73 Kan. 261, 84 Pac. 982; Updegraff v. Lucas, 76 Kan. 456, 93 Pac. 630; Salter v. Corbett, 80 Kan. 327, 102 Pac. 452; Capell v. Dill, 82 Kan. 652, 109 Pac. 286.)
Where the holder of the mortgage undertook to recover the debt or foreclose the mortgage, the landowner could plead the statute of limitations and procure an adjudication that a right of action on the mortgage was dead, and to that extent his title would have been quieted. To avoid the “sword and shield” rule declared by the court, and overcome the disability of the landowner to ask for affirmative relief, the act in question was passed. Under its provisions the owner of the land need not wait the institution of an .action by the holder of the mortgage in order to have the vitality of the mortgage adjudicated, but may take the affirmative of the question and obtain from the •court a determination whether a right of action exists on the mortgage or has been lost by lapse of time. There is undoubted power in the court to make such a determination, where the mortgagee institutes an action and undertakes to enforce the mortgage obligation, and by the aid of this act the landowner is afforded the same opportunity, and the judgment which he may obtain will go as far, but no farther, than would have been awarded in an action brought by the mortgagee. Nothing will be taken from the mort gagee by such an action, nor is he deprived of any remedy existing in his favor. The act only authorizes an adjudication as to the status of the mortgage when the action is begun, and the determination whether it is a live or a dead security. So interpreted, it can not operate as an impairment of the obligation of the mortgage contract, and the judgment rendered herein does not, therefore, cut the appellant out of any rights which he may have under the mortgage.
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The opinion of the court was delivered by
Benson, J.:
The appellant .presents fifty-six assignments of error. Eight of these assignments are upon rulings made on challenges to jurors. Several jurors stated their belief that the bank had been robbed. This was a notorious fact that citizens of the county must necessarily have believed, accompanied as it was by a fusilade and explosions. It was not disputed in the evidence and was proved beyond possible doubt. An opinion that the burglary had been committed did not, therefore, disqualify. (The State v. Spaulding, 24 Kan. 1; The State v. Stewart, 85 Kan. 404, 409, 116 Pac. 489; The State v. Olsen, ante, p. 136, 141, 127 Pac. 625.)
The examination of the jurors concerning their «opinions upon other incidental matters showéd that, while they had read newspaper reports and heard considerable talk, they were not disqualified within the principles stated in The State v. Morrison, 67 Kan. 144, 72 Pac. 554; The State v. Truskett, 85 Kan. 804, 118 Pac. 1047; and more fully in The State v. Stewart, supra. It does not appear that there was any settled conviction of mind or opinions of a fixed and positive character upon a material disputed fact or issue to be determined, or that there was any bias or prejudice against the defendant, or that the court did not exercise'a just discretion.
Objections were made to the endorsement of names of witnesses upon the information after the case was called for trial. It is unnecessary to refer to the rulings in detail. They were all within the discretion of the district court, which was fairly exercised. The views of this court relating to this subject, recently stated in The State v. Tassell, 87 Kan. 861, 126 Pac. 1090, are applicable to this case, and are followed.
Error is assigned upon remarks of the prosecuting attorney in his opening statement, and others are predicated upon the admission of testimony relating to evidence showing the association of the defendant with Carney, Mulcahy and others mentioned in the preceding statement of facts. Ño error is perceived in these rulings. The burglary was committed by several. Two of these associates were identified by witnesses as being at Beattie three or four days before the crime was committed. A witness testified that the defendant himself was in Beattie at the same time that the others were seen there. The criminals escaped in an automobile, traced to the defendant’s possession afterwards. Several of these associates were seen with him, using and fixing this car, a short time before the burglary. He rented the chicken ranch and it was occupied just before the burglary by some of these men. The automobile top was found there. One of these men and the defendant entered into the transaction wherein the bill of sale was given with unusual formalities and accompanying suggestions as to the kind of money and the persons present, indicative of a purpose to prepare available proof for use when needed. In view of these and other circumstances, testimony showing the defendant’s close association with these men for a reasonable time preceding and continuing down to the date of the crime was admissible. It was proper to show the defendant’s employment, conduct, whereabouts and associations. It appears that some of these men were brought to Kansas and were in j ail at Marysville when they were identified by witnesses. This testimony is objected to as tending to prejudice .the defendant by showing their incarceration in jail and prosecution for crime. The objection can not be sustained. The evidence was admissible for purposes of identification. Their whereabouts is not of particular importance, but it is impossible to produce such evidence wholly apart from time and place. A witness was allowed, over defendant’s objection, to testify that defendant had' said that he was boarding the kind of men that had money. This occurred in this wise: After a trial of Mulcahy on some charge the defendant objected to having his name mentioned, as he said, “with a bunch of crooks.” The police judge remarked that he did not see him do any work, and thereupon the defendant said that he kept a boarding house 'and was boarding the kind that had money. The men or some of them already mentioned were among his boarders. In the light of the circumstances, and as part of the conversation, the remark objected to was admissible. It was the defendant’s own explanation of his associations.
Testimony is also objected to showing that along in August the defendant threw a flash light upon persons sitting at night in the rear of his premises, at the same time having a revolver in his hand. This is not very important evidence, but it shows the defendant’s possession of the instrumentalities referred to, and was admissible in connection with all the circumstances proven.
The conversation of the defendant concerning the manner in which nitroglycerine could be extracted from dynamite, although objected to, was admissible, as also was the evidence relating to the buried dynamite sticks, the dynamite found under the box car and in the stone quarry, the cap and fuse found at the chicken ranch, the receipt for groceries and price list of Oakland cars and other articles found at the same place, with the evidence of the other facts and events preceding the crime contained in the preceding statement. Some of these matters bear very remotely on the case, but are admissible when considered together to show a guilty combination tending to prove the defendant’s complicity in the crime charged.
Special reference ought perhaps to be made to the admission of evidence concerning the arrest of Black, Jackson and Watson, to which an objection was made. These men were arrested at Hoerr’s home in July, 1910, for stealing silks. Complicity of the defendant in the alleged theft was not shown, nor does any connection appear between the larceny then charged and the crime now under investigation. The evidence relating to that matter, however, did not close with the arrest. Hoerr went to the jail where the men were taken, offering to procure counsel for them, and after-wards, when they were taken to Concordia in this state, it appears that he went there on the same errand. While at Concordia, the next day after the arrest, he told the sheriff that he had written to Dan Carney in answer to a letter received by these men while in jail. This evidence was not offered to prove another crime or the defendant’s possible participation in it; for such purpose it was not admissible, but it was permissible in the discretion of the trial court to further show the defendant’s associations.
Matters of evidence of doubtful admissibility will now be referred to. Testimony was admitted of the sale of a coat and pair of trousers by the defendant in July, 1910.' It is not indicated how this circumstance is connected with anything material to the case.
On the cross-examination of the defendant, who was a witness in his own behalf, he was shown a promissory note made by him in Louisiana in the year 1903, and his letter to the payee promising payment, and was asked if he had received a letter from a bank in Wymore asking him to call and pay the note. The note and letter were received in evidence. Nothing in his testimony in chief referred to this note, or warranted ,the cross-examination. No reason is given for it .except the suggestion that it tended to rebut his statement that he had money to pay for the automobile which he claimed to have purchased.
Dan Carney was arrested in Oregon “recently,” the sheriff said in giving his testimony, but the time is not shown. The court admitted his statements to the officer that he went under various aliases and that skeleton keys in his possession were watch charms. These statements, made months after the burglary, were erroneously received. The keys were also erroneously admitted in evidence. These items of evidence which we have characterized as doubtful were improperly admitted, but we do not find that any of it was prejudicial. The transaction concerning the sale of clothing appeared to be entirely innocent, and we must presume was so considered. The cross-examination about the note revealed nothing except that the defendant was in debt, which was of no consequence, and it can not be presumed that a jury would draw any unfair conclusion from it. The statement of Dan Carney that he went under other names was not prejudicial for that fact had been proven already. The statement that the skeleton keys were used for watch charms was his little j oke, which could have no weight. The production of the keys was of no more consequence than his statement about them. Probably in producing the mass of evidence presented in this case these particular items of testimony were admitted upon the belief that some connection would be shown to make them entirely competent. The failure to do so can not be grounds for reversal under the code of criminal procedure, which requires this court to disregard errors which do- not affect substantial rights. (Crim Code, § 293; The State v. Morton, 59 Kan. 338, 52 Pac. 890; The State v. Connor, 74 Kan. 898, 87 Pac. 703; The State v. Hammon, 84 Kan. 137, 146, 113 Pac. 418.)
An objection that the cashier who testified to the. correctness of ledger entries showing the amount of' money in the bank when burglarized, based upon the fact that he did not personally make the entries, can. not be sustained. The evidence was admissible; besides, the amount is not material. Breaking with intent to steal is sufficient to sustain a charge of burglary.
The defendant took the deposition of one Owen biat did not read it as Owen was present and testified. His testimony was to the effect that a witness who had related the occurrences at the defendant’s house when the bill of sale was made out was not present there. His attention was called to his deposition in which he had stated that the witness was present, and on rebuttal that part of his deposition was read. Of this the defendant complains, but without cause. He could be thus contradicted by his written statements as well as by oral ones.
Some testimony offered in rebuttal purporting to-repeat statements made by Muenard concerning his possession of the automobile is objected to. It appears, however, that this testimony was received in rebuttal of Mr. Muenard’s statements as a witness for the defendant, and for this purpose it was admissible.
The defendant predicates error upon instructions given and refused. The subjects covered by the requests were fairly treated in the instructions given, and covered every correct proposition fairly. Instructions requested relating to the defense of alibi were properly modified in accordance with the statute, which provides that:
“Any person who counsels, aids or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal." (Crim. Code, § 115.)
The following instructions were given, which it is insisted were erroneous:
“2. You are instructed under the law of Kansas anyone who aids, abets, or assists another or others in the commission of any crime either by conspiring or confederating together, counselling and advising in the commission of such crimes and preparation thereof, or by counselling, aiding or assisting in the commitment thereof, or by knowingly cqncealing the crime and its results, is equally guilty with the one actually committing the crime, and you are therefore instructed in this case that should you find beyond a reasonable doubt that the defendant conspired and confederated with other persons for the commission of the crime alleged in the information, and that he did in any way aid, assist or abet in its commission, either by counsel or-concealment, then he is guilty as though he had himself, without assistance, committed the crime.
“3. Your attention to the last instruction stated leads to the understanding that the field of inquiry in this case divides itself in two sections, each of which should receive the careful and conscientious consideration of the jury:
“First: Did the defendant in person at the time and place charged beyond a' reasonable doubt, actually and physically break into and rob the Beattie State Bank in manner set forth in the information; and,
“Second: If you should fail to be satisfied from the evidence beyond a reasonable doubt that the defendant actually and in person was at Beattie at the time and place stated, and in person physically by himself or with the assistance of others, broke into and robbed said bank as charged, then the inquiry under the law would be whether or not the defendant, beyond a reasonable doubt, was guilty as charged by reason of the fact that he, though not actually present at the time and place of the commission of the crime, had guilty knowledge of the intent and plan and preparation to commit such crime, and did, though not present, actually help, plan, counsel, aid and abet others, conspiring and confederating of others in the plan and purpose, and in the preparation and carrying out of such common plan and purpose and knowingly concealing the crime, and aiding, assisting and facilitating the escape of the actual participants in the burglary.” . . .
It is argued that the parts of these instructions relating to concealment are erroneous. It should be observed, however, that in instruction No. 2 the jury were informed that one who aids, abets or assists in the commission of a crime by counselling and advising in the commission, or by knowingly concealing the crime, is equally guilty. Not that he is guilty of the offense .if he conceals it, but if he aids in its commission (among other things) by concealing it, he is guilty. No. 3 was given as an explanation of No. 1, informing the jury that one may be guilty if present in person, doing the deed alone or with others, or he may be guilty if he, having guilty knowledge of the plan, did actually help, plan, counsel, aid and abet others by aiding, assisting and confederating with them in carrying out such plan and purpose and knowingly concealing the crime and aiding and assisting the escape of the perpetrators. The instruction, it will be seen, not only required the state to prove that the defendant aided, counselled or abetted in the crime, but that he also concealed it, and facilitated the escape of the others. The instructions on this subject were unnecessarily full, and the references to concealment might have been omitted, but their inclusion placed upon the state a greater burden than was necessary, and if properly understood, as we must presume thej'- were, the defendant has no just ground for complaint.
The court was asked to give a general instruction that it is the policy of the law that it is better that a' guilty person should escape rather than that an innocent man should be convicted. It is doubtful whether juries are assisted by such general observations, after being fully instructed, as they were in this instance, upon the presumption of innocence and the necessity of proof of guilt beyond a reasonable doubt before a verdict of guilty can be found. The rights of the defendant were- fairly safeguarded in the instruction given.
Objection is made to the form of the verdict finding the defendant guilty of burglary and larceny in the second degree. If the defendant was guilty of burglary at all it was burglary in the second degree. The instructions in effect so stated. If also guilty of stealing any amount, the offense of burglary in the second degree and larceny was established. This must have been the finding of the jury, and their verdict was rightly so interpreted, and sentence pronounced accordingly (under the indeterminate sentence law) at imprisonment from five to ten years, as prescribed for burglary-in the second degree. (Gen. Stat. 1909, § 2559.)
It was not necessary to prove the personal presence of the defendant at the time and place of the crime. It. is sufficient if he counselled, aided or abetted in its commission. But the fact, if it be a fact, as testified to by several witnesses, that he was át Wymore at ten o’clock on the-evening of the 7th of November, and also at six or 6:30 in the morning of the 8th, does not prove that, he was not at Beattie between two and three o’clock in the morning when the bank was broken into. The distance is not shown, but it is approximately forty miles. It was in evidence that an automobile could make the run between Wymore and Beattie in an hour- and a half or two hours.
While the evidence is wholly circumstantial, its weight was for the jury. We find it sufficient to sustain the verdict. No prejudicial error being shown,, the j udgment is affirmed.. | [
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The opinion of the court was delivered by
Burch, J.:.
In the year 1893 John Ewing made his will. The fourth paragraph reads as follows:
“Fourth: I will and bequeath to my daughter, Mary .A. Nesbitt, nee Ewing, and to the heirs of her body, the south half (%) of the northwest"'quarter (%) of section No. twenty-one (21), township thirteen (13), of range twenty-four (24), in Johnson county, Kansas.”
Devises using the same language were made to the testator’s other children, four in number. Besides these the will contained four other devises, which were expressly stated to be “free and clear of all entailment,” thus clearly indicating the intention of the testator to create estates tail by the phraseology employed in paragraph 4 and those like it. In 1895 John Ewing died, leaving as his heirs the five children who were the beneficiaries of his will. The will was duly probated, the estate was administered and closed, and Mary A. Nesbitt entered into possession of the tract of land devised to her. In the year 1909 she died without having borne children and was survived by her husband, William J. Nesbitt, who continued in possession of the land. Soon after Mary A. Nesbitt’s death her brothers and sisters commenced an action of ejectment, and for rents and profits, against William J. Nesbitt, .claiming to be owners in fee simple. He answered claiming a one-fifth interest in the land and praying for partition. Judgment was rendered for the defendant and the plaintiffs appeal.
The will contained a residuary clause in which the testator gave to his children surviving him, share and share alike, “all other property, goods, chattels, moneys, stocks, credits, and effects” of which he might die seized. The defendant claims that his wife was the donee of an estate tail; that the donor retained a reversionary interest in fee simple expectant upon the estate tail; that if, by virtue of the residuary clause of the will, this reversion was not disposed of it descended, upon the death of the donor, to his heirs, one of whom was his daughter, Mary A. Nesbitt; and that upon her death the defendant, as her surviving husband, took her share of the fee, which was one-fifth. If, however, the residuary clause of the will was effectual to devise the reversion to the testator’s, children, Mary A. Nesbitt took a one-fifth interest which, upon her death, descended to the defendant. Under either theory the defendant’s claim to a one-fifth interest in the land is valid if the law of this state recognizes estates tail as they existed under the’ common law of England at the time of the colonization of this country.
Under the early common law a grant to a man and the heirs of his body was a grant of a fee on condition that he had heirs of his body. The fee so granted was designated a conditional fee. If the donee had no heirs of his body, the condition was not performed and the land reverted to the donor. If heirs of the donee’s body were born, the condition was regarded as performed and the donee was at liberty to make a conveyance which would bar him, his issue, and the donor’s reversion. He could likewise charge the land with rents and encumbrances which would bind his issue, and the estate was forfeitable for his treason. If the condition -were performed but the donee made no conveyance, the land descended, upon his death, to the specified issue, who were at liberty to convey. If they made no conveyance the land reverted to the donor. If the condition were performed but the issue died, and the donee then died without having made a conveyance, the land reverted to the donor. In order to bar the possibility of reverter to the donor and to restore the descent to its ordinary course under the common law, donees of conditional fees were in the habit of making conveyances as soon as issue was born and taking back warranty deeds. To stop this practice, which evaded the condition and defeated the intention of the donor, the nobility of the realm, who were desirous of perpetuating family possessions, procured the passage of the statute of Westminster II, known as the statute “de donis conditionalibus.” (13 Edw. I, c. 1, June 28, 1285.) This statute took away the power of alienation and declared that the will of the donor, plainly expressed, should be observed, and that tenements given •to a man and the heirs of his body should go to his issue, if there were any, and if not should revert to the donor. The judges interpreted this statute to mean that the donee no longer took a conditional fee capable of being disposed of as soon as issue was born, but that he took a particular estate, denominated an estate tail, and that instead of a possibility of reverter only remaining in the donor, he had a reversion in fee simple expectant upon the failure of issue. Some of the social consequences of this statute are thus described by Blackstone:
“Children grew disobedient when they knew they could not be set aside: farmers were ousted of their leases made by tenants in tail; for, if such leases had been valid, then under colour of long leases the issue might have been virtually disinherited; creditors were defrauded of their debts; for, if a tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by mortgaging it for as much as it was worth; innumerable latent entails were produced to deprive purchasers of the lands they had fairly bought; of suits in consequence of which our ancient books are full: and treasons were encouraged, as estates-tail were not liable to forfeiture, longer than for the tenant’s life. So that they were justly branded, as the source of new contentions, and mischiefs unknown to the common law; and almost universally considered as the common grievance of the realm. (2 Commentaries, *116.)
Notwithstanding these mischiefs, the statute forms one of the fundamental institutes of the land law of England which three and a quarter centuries later was transplanted in the New World.
Before the settlement at Jamestown, in the fourth year of James I (1607), a number of statutes had been passed whereby the privileges attending estates tail were much abridged. They were made forfeitable for treason. (26 Henry VIII, c. 13.) Certain leases by the tenant in tail not prejudicial to the issue were allowed to be good in law. (32 Henry VIII, c. 28.) The statute of fines (4 Henry VII, c. 24) was construed to permit the tenant in tail and his heirs to be barred by levying a fine (32 Henry VIII, c. 36). Such estates wére chargeable with the payment of certain debts due the king (38 Henry VIII, c. 39), and by construction of the statute, 43 Eliz. c. 4, an appointment to charitable uses by a tenant in tail was held to be good (2 Bl. Com. 117 et seq.). The most serious blow, however, to the evils fostered by estates tail under the statute de donis was struck by a bold piece of judicial legislation. In Taltarum’s case, reported in Year Book, 12 Edw. IV, 19 (1472), the judges, upon consultation, held that a common recovery suffered by a tenant in tail accomplished the complete destruction of the estate tail. This mode of barring estates tail is thus described in 1 Washburn on Real Property, 6th ed., § 186:
“This was a fictitious suit brought in the pame of the person who was to purchase the estate, against the tenant in tail who was willing to convey. The tenant, instead of resisting this claim himself, under the pretence that he had acquired his title of some third person who had warranted it, vouched in, or, by a process from the court, called his third person, technically the vouchee, to come in and defend the title. The vouchee came in as one of the dramatis personas of this judicial farce, and then without saying a word disappeared and was defaulted. It was a principle of the feudal law adopted thence by the common law, that if a man conveyed lands with a warranty, and the grantee lost his estate by éviction by one having a better title, he should give his warrantee lands of equal value by way of recompense. And as it would be too barefaced to cut off the rights of reversion as well as of the issue in tail, by a judgment between the tenant and a stranger, it was gravely adjudged, 1st, that the claimant should have the land as having the better title to it; and 2d, that the tenant should have judgment against his vouchee to recover lands of equal value on the ground that he was warrantor, and thus, theoretically, nobody was harmed. If the issue in tail or the reversioner, or remainder-man, lost that specific estate, he was to have one of equal value through this judgment in favor of the tenant in tail, whereas in fact the vouchee was an irresponsible man, and it was never expected that he was anything more than a dummy in the game. The result of this, which Blackstone calls ‘a kind of pia fronts to elude the statute De Donis,’ was that the lands passed from the tenant in tail to the claimant in fee simple, free from the claims of reversioner, remainder-man, or issue in tail, and he either paid the,tenant for it as a purchaser, or conveyed it back to him again in fee-simple.”
The precedent of fictitious suits as means of acquiring or conveying property was found in the Roman law, and the practice of resorting to them was supposedly introduced in England by the clergy to evade the statute of mortmain. (Spence’s Equitable Jurisdiction of the Court of Chancery, p. 141, note.) The solemn piece of jugglery already described later became more involved.
“Complex, however, as .the proceedings above .related may appear, the ordinary forms of a common recovery in later times were more complicated still; for it was found expedient not to bring the collusive action against the tenant in tail himself, but that he should come in as one vouched to warranty. The lands were, therefore, in the first place conveyed, by a deed called the recovery deed, to a person against whom the action was to be brought, and who was called the tenant to the praecipe or writ. The proceedings then took place in the_ Court of Common Pleas, which had an exclusive jurisdiction in all real actions. A regular writ was issued against the tenant to the praecipe by another person, called the demandant; the tenant in tail was then vouched to warranty by the tenant to the praecipe. The tenant in tail, on being vouched, then vouched to warranty in the same way the crier of the Court, who was called the common vouchee. The demandant then craved leave to imparl or confer with the last vouchee in private, which was granted by the Court; and the vouchee, having thus got out of Court, did not return; in consequence of which judgment was given in the manner before mentioned, on which a regular writ was directed to the sheriff to put the demandant into possession.” (Williams on Real Property, 17th ed., p. 108.)
In all cases there was an agreement or understanding that the person who acquired an estate tail by means of a common recovery should pay for it, or convey it to the original tenant in tail in fee simple, or dispose of it as such tenant might direct. The result was that estates tail and all remainders over and the reversion were effectually barred. As Blackstone said, by long acquiescence and use, these recoveries came to be looked upon as a legal mode of conveyance by which a tenant in tail might dispose of his land. (2 Com. *117.) This right of conveyance became, in contemplation of the law, an inherent and inseparable incident of an estate tail and covenants and conditions attempting to restrain the exercise of the right were held to be void. (1 Washburn on Real Property, 6th ed., § 188.) The same purpose was accomplished by the equally fictitious proceeding of fine.
In volume 4 of his Commentaries, 14th ed., p. *14, Chancellor Kent said:
“Estates tail were introduced into this country with the other parts of the English jurisprudence, and they subsisted in full force before our Revolution, subject equally to the power of being barred by a fine or common recovery.”
These estates are now very generally changed by legislation into fee simples, or reversionary estates in fee simple, or may be converted into fee simples by ordinary conveyance. (2 Bl. Com. 119, Cooley’s Note.) In the pages following the above quotation from Kent much of this legislation is referred to.
The territorial legislature of 1855 passed an elaborate act relating to conveyances. (Stat. of Kan. Terr. 1855, ch. 26.) Section 5 of this act reads as follows:
“That from and after the passage of this act, where any conveyance or devise shall be made whereby the grantee or devisee shall become seized in law or equity of such estate, in any lands or tenements, as under the statute of the thirteenth of Edward the first, (called the statute of entails) would have been held ah estate in fee tail, every such conveyance or devise shall vest an estate for life only in such grantee or devisee, who shall possess and have the same power over and right in such promises, and no other, as a tenant for life thereof would have by law; and upon the death of such grantee or devisee, the said lands and tenements shall go and be vested in the children of such grantee or devisee, equally to be divided between them as tenants in common, in fee; and if there be only one child, then to that one, in fee; and if any child be dead, the part which would have come to him or her, shall go to his or her issue; and if there be no issue, then to his or her heirs.”
This, of course, constituted a deliberate legislative modification - of the common law relating to estates tail. In 1859 the territorial legislature completely revised the act of 1855 relating to conveyances, making radical changes in its substance and content. (Laws 1859, ch. 30.) The subject matter of the section quoted was entirely omitted and nothing whatever was substituted for it either in the revision or in any other statute. The result was that section 5 was repealed by implication, and since the legislature had its attention specially directed to estates tail by that section the purpose evidently was to restore the common law on the subject. This intention is made more apparent by the passage of the following act at the same session:
“The common law of England and all statutes and acts of Parliament in aid thereof, made prior to .the fourth year of James the First, and which are of a general nature, not local to that kingdom and not repugant to or inconsistent with the constitution of the United States and the act entitled ‘An act to organize the Territory of Nebraska and Kansas,’ or any statute law which may from time to time be made or passed by this or any subsequent Legislative Assembly of the Territory of Kansas, shall be the rule of action and decision in this Territory, any law, custom or usage to the contrary notwithstanding.” (Laws 1859, ch. 121, § 1.)
The constitution adopted in July 1859, under which the state was admitted to the Union on January 81, 1861, contains nothing which bears upon the subject either directly or remotely, and the legislature has not since dealt with it. Nothing is to be found in the acts relating to conveyances, descents and distributions, or wills, incompatible with the existence of such estates, and in their unfettered form such estates are not out of harmony with the conditions and wants of the people of Kansas. On the other hand, they exactly meet the requirements of testators in the situation of John Ewing. He desired to give his daughter an estate for life, in order to secure to her a home and some measure of comfort and welfare while she lived. After that he desired that the remainder should go to her children in fee. But he did not desire that his son-in law should take the whole gift should she die childless, to be enjoyed by him and perhaps a strange second wife and their children. The court knows of no reason in law, morals, or public policy why these sentiments should not be respected, and they were clearly and fully expressed by the language of the will, interpreted by the common law. The overweening propensity to perpetuate family name and family property which made estates' tail so obnoxious in the middle ages is fairly curbed by the right of a tenant in tail to convert his tenancy into a fee simple, and is not a menace to the general welfare of the people of this state; and it will be remembered that this right became one of the characteristics of the estate. Fines and recoveries, however, are not adapted to any of our needs, are inconsistent with the code of civil procedure and consequently can not be resorted to, as portions of the common law, in aid of the general statutes of this state. (Gen. Stat. 1909, § 9850.) The effect of these indirect, fictitious and operose proceedings was merely that of a. deed of record, and the same end may now be accomplished by an ordinary conveyance. The fiction and the form alone are obsolete. The substance of the proceeding—a conveyance—and the essential character of the estate tail—the right to convert the estate into a fee simple by a conveyance—are preserved. If, therefore, Mary A. Nesbitt had chosen, in her lifetime, to make a conveyance' of the land, devised to her, she would thereby have barred herself, her issue, born and unborn, and her father’s reversion.
While the mere possibility of a reverter such as attended conditional gifts under the ancient common law is not a subject of disposal by will, reversions in fee under the statute de donis may be' devised. The result is that Mary A. Nesbitt was given by the will an estate tail in the land in controversy. She also took by virtue of the residuary clause of the will, one-fifth of the reversion in fee expectant upon her death without issue. Upon her death this interest passed to her husband, the defendant.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
A petition for rehearing has been carefully considered, but the court remains of the opinion .that the case was rightly decided. Supplementary to the original opinion it may be said that we do not determine that the action in Kansas on the Missouri judgment could not have been revived in the name of the Missouri administrator, nor is the decision based upon the view that technically the title to that judgment was vested in the Kansas executrix rather than in the Missouri administrator. The domiciliary representative, however, has in a sense a title to all the property of the testator, wherever situated. (18 Cyc. 1228, 1229.) The executrix can not be regarded as a stranger to the action brought by the testator in this state upon the Missouri judgment. A payment to the executrix would be a complete protection to the defendant, and under the circumstances of the case we hold that he can not defeat the action on the ground that the revivor could only have been lawfully had in the name of the foreign representative.
The statements made in the original opinion as to the contents of the petition on which the Missouri judg ment was based were derived from the recitals of the judgment—a source which we regard as sufficient for the purpose of indicating the character of the judgment. The statement as to the character of the plaintiff’s cause of action was not entirely accurate. It read: “In each instance the plaintiff asked to have the court annul on account of fraud a contract which he had made with the defendant for the purchase of real estate.” {Ante, p. 720.) From the recitals of the judgment it in fact appears that in most instances what the plaintiff charged was, not that the defendant sold him property directly, but that he induced him to join in buying property from others, overstating the price, and defrauding him of the difference. In these instances the court annulled the-contract between the plaintiff and the defendant, giving the plaintiff judgment for the amount he had paid, and requiring him to deed his interest in the property to the defendant. The correction is made for the sake of accuracy, but is not thought to affect the legal question involved.
We realize that the defendant is exposed to an apparent hardship by the Kansas court undertaking to enforce the foreign judgment, inasmuch as it has no power to compel the delivery of the deeds deposited with the clerk of the Missouri court for his benefit.. We remain of the opinión, however, that inasmuch as the judgment by its terms is payable without condition, the plaintiff is entitled to sue upon it in this state, where its justice or'injustice is.not a matter of inquiry. If collection is made here it must be presumed that the defendant, upon showing that fact to the Missouri court, can obtain his deeds, just as he might do if the judgment had been satisfied in any other manner, and just as he might procure a discharge of any judgment against him, the amount of which had been collected hy suit thereon in another state. | [
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The opinion of the court was delivered by
Johnston, C. J.:
G. W. Riley and his wife, Drucilla K. Riley, had two children named Haida Clothier and Allie G. Day. Haida Clothier adopted a child named Gertie McCaffrey. In 1907 Haida Clothier died intestate and left surviving her parents, her sister and the adopted daughter. Later Drucilla K. Riley, who owned a tract of land, died intestate leaving as her survivors her husband, G. W. Riley, her daughter, Allie G. Day, and the granddaughter, Gertie. G. W. Riley and Allie G. Day each claimed one-half of the real estate mentioned, while Gertie claimed the share that her foster mother, Haida Clothier, would have inherited if she had survived the decedent, Mrs. Riley.
These were the respective claims of the parties in a proceeding brought to determine the ownership of the decedent’s land. The question then is, Will the property of Mrs. Riley descend to the adopted child of her deceased daughter? The validity of the adoption of Gertie is not questioned, and there is no doubt that she does inherit from her adopting mother, but the contention is that she does not inherit the property of the parent of the.adopting mother. After prescribing the steps necessary to the adoption of a minor child the statute declares that the person adopting the minor is entitled to exercise all the rights of a parent and is subject to all the liabilities of that relation, and as to the status and rights of the adopted child it provides that:
“Minor children adopted as aforesaid shall assume the surname of the person by whom they are adopted, and shall be entitled to the same rights of person and property as children or heirs-at-law of the person thus adopting them.” (Gen. Stat. 1909, § 5066.)
According to this provision, which has been in force-since 1868, the minor so adopted is not only given the position of a child, but is placed on an equality with, the other children and heirs of the adopting parent as-to all personal and property rights. It is claimed, however, that a provision of the act concerning descents, and distributions limits the rank and rights thus conferred on an adopted child. After defining the rights and portions of a widow in the estate of her deceased husband, and of the surviving husband in the estate-of the deceased wife, it is provided that:
“Subject to the rights and charges hereinbefore contemplated, the remaining estate of which the decedent, died seized shall, in the absence of other arrangements by will, descend in equal shares to his children surviving him, and the living issue, if any, of prior deceased children; but such issue shall collectively inherit only that share to which their parent would have been entitled had he been living.” (Gen. Stat. 1909, § 2952.)
This is an amendment of two sections of that act which had been in force unchanged from the enactment of the act in 1868 until the amendment of 1891. The sections amended read:
“Subject to the rights and charges hereinbefore-contemplated, the remaining estate of which the decedent died seized shall, in the absence of other arrangements by will, descend in equal shares to his children.
“If any one of his children be dead, the heirs of' such child shall inherit his share, in accordance with the rules herein prescribed, in the same manner as though such child had outlived his parent.” (Gen. Stat. 1889, §§ 2609, 2610.)
All agree that under the law as it existed prior to the amendment an adopted child took all the rights of a natural child, and if it had remained unchanged Gertie would have inherited the share that would have descended to her adopting mother, Haida, if Haida had outlived her mother, Mrs. Riley.. It is contended that the legislature, by the use of the words “living- issue” in the amendment, intended to make a distinction between adopted and natural children, and that only natural children of a deceased parent should inherit from the ancestors of that parent, In the amendment no reference is made to the adoption statute which gives the adopted child the status and rights of a child by blood, and there is nothing in the amendment except the words “living issue” which looks towards limiting or repealing the adoption act. It has been said that the adoption act, which is of recent origin, “is founded upon a wise and beneficent purpose, which should be sustained and promoted by giving the law a liberal construction.” (Boaz v. Swinney, 79 Kan. 332, 334, 99 Pac. 621.)
It is hardly conceivable that the legislature intended to abrogate the provisions of the adoption act, or to cut out the rights expressly conferred upon adopted children by that act, in such an indirect, blind way. In fact the words “living issue” are frequently used interchangeably with “living children,” a phrase which fairly includes adopted children. It is true that in its strictest sense the word “issue” applies to those who are of the blood, but in common parlance the meaning of the word is children, but when the term is used in legal documents its prima facie meaning is descendants. (Webster’s New International Dictionary; 23 Cyc. 359.)
In the act concerning the construction of statutes it is provided that “the word ‘issue,’ as applied to the descent of estates, includes all the lawful lineal descendants of the ancestor.” (Gen. Stat. 1909, § 9037, subdiv. 7.)
But the term “descendants” is sometimes used synonymously with “children” (Schmaunz v. Göss, 132 Mass. 141), and lineal descendants has been held to include adopted children (Warren v. Prescott, 84 Maine, 483, 24 Atl. 948, 17 L. R. A. 435). It does not appear that the word is used in its strictest sense in other sec tions of the statute concerning descents and distributions. In the section following the one under consideration the word means child or children. It is there provided that:
“If the intestate leave no issue, the whole of his estate shall go to his wife; and if he leave no wife nor issue, the whole of 'his estate shall go to his parents.” (Gen. Stat. 1909, § 2953.)
This provision has stood unchanged since the act was passed, and yet it would hardly be claimed that if an intestate left an adopted child that the whole of the estate would go to the widow. It has been the generally accepted interpretation of this provision that issue is used as the equivalent of children, and that an adopted child of an intestate would share in the estate with the widow, and that if no wife was left a surviving adopted child would take the estate rather than the parents of the intestate.
Authorities are cited wherein the word “issue” is given a stricter and narrow meaning which excludes adopted children. (Phillips, Exr., v. McConica, Guardian, 59 Ohio St. 1, 51 N. E. 445, 69 Am. St. Rep. 753; Van Derlyn v. Mack, 137 Mich. 146, 100 N. W. 278; Wallace v. Noland, 246 Ill. 535, 92 N. E. 956; Hockaday v. Lynn, 200 Mo. 456, 98 S. W. 585; Burnett’s Estate, 219 Pa. St. 599, 69 Atl. 74.)
The word is used in different senses in the various statutes, and its interpretation depends largely on the connection in which it appears and the sense in which it is used in the same act or in others on related subjects. A case somewhat like this one was decided in Massachusetts. There a statute provided that an adopted child should inherit as if born in lawful wedlock. In a statute of descents, which was enacted after the adoption statute was passed,- it was provided that when a husband dies intestate and “leaves no issue living” the widow shall receive a certain share. It was there contended that by the use of the words “issue living” in the later statute, it was intended and had the effect to exclude adopted children. The court held, however, that the adopted child is “issue” within the meaning of that statute, and saying that if the statute was given a stricter meaning it would operate to repeal, pro tanto, the adoption act wherein the adopted child had been placed on an equality with a natural child. It was also said that as an adopted child was expressly given the status of a natural child it was not supposable that the legislature intended, by the use of the term quoted, to take from an adopted child the rights so explicitly given, and that therefore the words “issue living” should be construed in the sense of child or children, and when so treated the term fairly included adopted children. (Buckley v. Frasier, 153 Mass. 525, 27 N. E. 768.)
Other authorities in which the word was held to include adopted children are: In re Newman, 75 Cal. 213, 16 Pac. 887; Estate of Wardell, 57 Cal. 484; Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321; Warren v. Prescott, 84 Maine, 483, 24 Atl. 948, 17 L. R. A. 435; Shick v. Howe, 137 Iowa, 249, 114 N. W. 916; Virgin v. Marwick, 97 Maine, 578, 55 Atl. 520; Rowan’s Estate, 6 Pa. Co. Ct. Rep. 461.
We think that the legislature did not intend to repeal the provisions of the adoption act which fixed the status of an adopted child and gave it the inheritable rights of a natural born child, and also that the words “living issue” in section 2952 of the General Statutes of 1909 were used in the sense of living children. It is said that this interpretation, if adopted, will leave the amendment of 1891 without effect and operate to reinstate the statute as it existed before the amendment. The appellee inquires, what possible purpose could the legislature have had except to restrict the descent of property to the natural children of any prior deceased child of an intestate? There are good reasons to infer that the amendment was enacted to cut out the right of the husband or wife of the intestate and of the deceased child to inherit a share of the estate of the ancestors of such child. After Delashmutt v. Parrent, 40 Kan. 641, 20 Pac. 504, was decided there was some surprise at the interpretation there given to the word “heirs” under which the surviving husband or wife of an intestate could take the share that a prior deceased child would have taken if he had outlived his parent. An agitation was at once started for the enactment of a measure that would give the remaining estate of an intestate to the surviving children, and to the living children of a prior deceased child, so as to cut out the right of the surviving husband or wife .of the intestate to inherit the share of a deceased child, and also to exclude the husband or wife of such deceased child from inheriting any part of that share. At the succeeding legislature the amendment was made to meet this demand and which, as we have seen, gives the remaining estate of an intestate to his surviving children and the living children of a prior deceased child, instead of to the heirs of such child. This, we think, was the purpose of the amendment, rather than to nullify the principal provisions of the adoption act or to discriminate among the children of a deceased child of an intestate.
The judgment will, therefore, be reversed with the direction to enter judgment awarding to Gertie Mc-Caffrey a one-fourth interest of the real estate involved in this proceeding. | [
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Per Curiam:
These cases follow the judgment in Olson v. Peterson, ante, p. 350, and the judgments are affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This is an action in mandamus to compel the defendant school board to install a primary reading' chart in the district school and to pay the plaintiff $12 therefor.
It is alleged that the state textbook commission, in pursuance of the uniform textbook law, has adopted the Arnett primary reading chart for use in the public schools and also “adopted the price therefor of $12 per chart.” It is further alleged “that said chart is filed and prescribed . . . for use by a class and not for individual pupils, for class instruction and not for individual study. . . . That . . . plaintiff . . . purchased from Anna W. Arnett, the holder, this contract with the state to supply Arnett primary reading charts to the public schools of Kansas.” There is, however, no allegation of the execution of a contract, unless the adoption of the chart and the price should be construed as a contract. It is also alleged that the plaintiff is the manufacturer of the article in question, which is described in plaintiff’s brief as a large chart supported on an iron stand with large characters that can be read across a room.
The petition contains averments that the district has pupils for instruction in the primary course of reading, writing and orthography, and until a short time. before this suit had used a similar chart. A demand by the plaintiff and refusal by the board to purchase one of the charts is also alleged.
On this appeal from an order quashing the alternative writ the only question is whether the school board should be compelled by mandamus to install one of these charts and pay the plaintiff $12 therefor.
The statute authorizes the textbook commission to adopt a uniform series of school textbooks in the following branches:
“A primer, a primary reading chart, and a graded series of drawing books' or drawing portfolios, geometry, . . . Latin grammar, Latin exercises, Caesar, Cicero, Virgil, general history, history of Kansas, English history, rhetoric, English literature, botany, zoology, chemistry, word analysis, geology, German exercises, German grammar, and descriptive astronomy.” (Gen. Stat. 1909, § 7833.)
This provision is followed by others prescribing standards of quality and maximum prices for the books named, but primary reading charts are omitted from the regulations concerning maximum prices. Other sections relate” to bids and contracts for such books to be furnished to the.patrons of the schools at prices fixed by contracts awarded upon competitive bids.
Another section of the statute following those just referred to provides:
“It shall be unlawful for any school-district board or board of education of .any city of the first or second class to purchase or contract for any chart, map,'globe, or other school apparatus, except scientific apparatus for high schools, unless the same shall have been submitted to the school textbook commission at a regular or special session, and by them approved, and a maximum price therefor fixed by said school textbook commission.” (Gen. Stat. 1909, § 7836.)
While a reading chart is included among textbooks in the section first quoted, it is manifest from the nature of the article that it is not intended for individual purchase and use as an ordinary textbook. This distinction is not only apparent from its adaptation to class instruction rather than individual use by pupils, but is recognized in its omission from the regulations prescribing maximum prices which apply to books to be purchased by patrons of the schools under contracts awarded by the commission. It will also be observed that charts are classified with maps, globes, and other school apparatus, and can only be purchased when approved by the commission and a maximum price is fixed therefor.
It seems from all these provisions that books which are to be purchased by patrons for individual use are the subject of competitive bidding and contract, and that approved charts may be purchased by school boards when a maximum price has been fixed therefor.
No statutory provision is found compelling the pur chase of charts, maps, globes or other apparatus from any particular dealer or manufacturer, nor the payment of' the maximum prices. The use of the term maximum implies a right to purchase for less if that can be done. In obtaining supplies of ordinary textbooks, the maximum price is a statutory limitation. The price, not exceeding this maximum, is fixed by the contract. (Gen. Stat. 1909, § 7834.)
We do not understand that the textbook commission has entered into any contract to supply charts under the provisions of the statute regulating the purchase of ordinary textbooks for individual use, but has merely adopted this chart and fixed the maximum price as authorized by statute.
If this chart is to be treated as an ordinary textbook it should be the subject of contract by the textbook commission and sale to patrons as a reader or speller is treated. Considered in the classification with maps, globes and other apparatus, such a contract is not authorized. In either case the court has no authority to compel a school board to buy or install this chart in the public school and to pay the manufacturer the maximum price therefor.
The judgment is affirmed. | [
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Per Curiam:
Upon the showing made the court is of the opinion that the order made by the district court did not amount to a disbarment or suspension of the attorney, or to a denial of his right to be heard upon a formal application for a change of venue or for the selection of a judge pro tem. to try his cases. It can not be known at this time when a judgment will be reached in the disbarment case, but it is evident that the interval will be so considerable that no proceedings in the district court should be held in abeyance to await the result in that matter.
The application for a writ of mandamus is denied. | [
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The opinion of the court was delivered by
West, J.:
J. W. Barker, a fireman on a switch engine of the defendant, sued to recover damages for injuries received by him upon the turning over of such engine while on a trip on the main track between Clinton and Altus, Okla. He alleged that on or about December 17, 1909, he was ordered to go to Clinton, Okla., where he was ordered to return to Altus on the 18th; that his engineer was ordered to take back nine carloads of coal and a water car from Clinton to Altus, and while the switch engine was drawing this load it turned over and injured him; that wooden blocks had been placed under the engine to relieve the strain and friction on certain bearings and springs in lieu of proper appliances, and that it was also defective in that it had no pony trucks or pilot and was constructed for switching in yards and not for use on the main line; that the track where the injury occurred was rough and uneven, and unballasted except by dirt lying on the track which was insufficient. The defendant, after a general denial, pleaded contributory negligence and assumption of risk. The jury returned a verdict in favor of the plaintiff. Error is assigned on overruling a demurrer to the evidence, refusing certain testimony, admitting certain testimony, refusing certain instructions, giving certain other instructions, and overruling a motion for judgment upon the special findings and a motion for a new trial.
The right of recovery is based upon the violation of the federal employers’ liability act. It is claimed by the plaintiff that the cars in the train at the time of the injury were transporting interstate commerce. The court expressly limited this, question to the facts concerning one car which the plaintiff asserts was destined for Sweetwater, Tex.
The court charged the jury that the plaintiff was guilty of contributory negligence, but failed to charge as to assumption of risk.
The defendant insists that the train in question was engaged exclusively in intra-state work; that the court erred in refusing to charge as to assumption of risk; that the testimony showed that the plaintiff in fact assumed the risk, and that the verdict was excessive.
Two of the cars had been diverted from their original destinations and rebilled. The two waybills from the point of diversion appear to have been in the possession of the engineer, who was killed, and the de» fendant offered proof of their loss and sought to introduce letter press copies thereof in order to show the destination of the car already referred to. This evidence was competent and it was error to reject it. (Civ. Code, § 384; Darling v. Railway Co., 76 Kan. 893, 94 Pac. 202; Richolson v. Ferguson, 87 Kan. 411, 124 Pac. 360; Glass Co. v. Pierce, 87 Kan. 548, 125 Pac. 108; Bourquin v. Railway Co., ante, p. 183, 127 Pac. 770; Railroad Co. v. Thirlwell, ante, p. 275, 128 Pac. 199.)
The evidence tended to show that the plaintiff was familiar with the engine in question, with the fact that it was not proper for service on the main track, and the fact that the track was bad where the injury occurred, and there was nothing showing or tending to show that he made any complaint or hesitated to carry out the orders to bring the train from Clinton to Altus. Testimony was introduced showing that the defendant had a rule, of which the plaintiff had knowledge, requiring conductors and engineers to show their train orders to the brakeman- and fireman, who must read and return them, and should there be cause to do so they are to remind the conductor or engineers of their contents; that in going to Clinton the- conductor had a slow order which he showed to' the plaintiff, but the plaintiff did not call his attention thereto at any time. Whatever of utility or futility a reminder would have had, he failed to follow the rule, but as the jury were in structed that he was guilty of contributory negligence the defendant can not complain.
There was testimony showing that it was customary. for train men to mark on cars the number or name of the station to which they were destined. The plaintiff testified that there were marks on cars of this train; some of them were marked Altus and some Sweet-water; that as nearly as he could remember one car was marked Sweetwater; that Sweetwater is in Texas and a division point. He further testified that he did. not know which one had this marking on, but he. thought one of them did; that it was made with chalk,, but he did not know when. On being recalled he testified that switchmen put chalk marks on the cars practically all the time at Clinton; that he noticed a chalk mark on one of these cars.
“It looked as though it had n’t been on many days' could not say exactly. That the name of the point on that car was Sweetwater, Texas.”
That he should judge the chalk mark was a foot or eighteen inches in size.
“Very often put the number of the trains on the cars- or write it—something like that.
“That when at work weighing coal cars the yardmasters would call how much the car weighed.
Q. “What would you put on the car then?
A. “I would put Altus, sometimes Clinton, sometimes Sweetwater.
Q. “What would that mean?
A. “It would mean that it was going to that place.
Q. “Do you know who put that mark on that car?'
A. “I don’t, not that coal car.
Q. “Do you know when it was put on?
A. “No, I say I don’t know exactly what date.
Q. “Answer the question yes or no.
A. “I say no, sir.” ’
Another witness said that he had seen the names of points at which cars had been left marked on the cars being the same town at which they were left. Com plaint is made that the court nine different times in the instruction used the expression “the car on which was marked in chalk the words Sweetwater, Texas,” as it' assumed a matter not proved and it was left to the jury to find whether one of the cars was thus marked and to determine from this and all the other facts whether it was engaged in interstate commerce. An examination of the plaintiff’s testimony in chief and upon cross-examination when first upon the stand and when recalled taken together was not clear and satisfactory, and in view of the fact that the court had refused to permit the introduction of the letter press copies of waybills, one of which was supposed to' have given the destination of the car in question, it was hardly proper for the court in instructing the jury repeatedly to refer to the car as the one on which the words “Sweetwater, Texas” were marked, because they might naturally believe that this amounted to an expression of opinion by the court that it was thus marked, although in two instructions it was left for them to say whether or not such was the fact. But assuming that at some time not shown and by some person unknown these words were put upon the car in qúestion, it can hardly be said that the natural, fair and reasonable inference to be drawn therefrom is that at the time in question this car was actually in process of transportation to a point in another state, and especially so when this was made the vital and determining question in the case.
The act (35 U. S. Stat. at L. p. 65) provides:
“That every common carrier by railroad while engaged in commerce between any of the several States or Territories shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce.” (§ 1.)
In Colasurdo v. Central R. R. of New Jersey, 180 Fed. 832, a track walker was injured while assisting in repairing a switch in a railroad yard. The track was used both for state and interstate commerce and it was held that this brought the case within the act. Lamphere v. Oregon R. & Nav. Co., 196 Fed. 336, involved the question whether a fireman in the employ of a road engaged in interstate commerce, who was ordered to report at a station to be transported with others to another station to relieve the crew of an interstate train, was within the act and it was held that he was. It was held in Pedersen v. Delaware, L. & W. R. R., 184 Fed. 737, that at the time of the injury both the carrier and the employee must be engaged in interstate commerce. The plaintiff was engaged in bridge construction and was injured while carrying material from one-part of the work to another by a local train running-between two points in New Jersey, and as this business was held to be wholly intra-state the plaintiff was. not permitted to recover. This ruling was affirmed by the court of appeals. (Pedersen v. Delaware, L. & W. R. Co., 197 Fed. 537.) Behrens v. Illinois Cent. R. Co., 192 Fed. 581, was a case in which it appeared that a fireman on a switch engine was ordinarily employed in interstate commerce, though mingled with employment in commerce wholly within the state. He usually reported for duty at Chalmette, a terminal below New Orleans, not on defendant’s road, to maké up a train of empties and other cars for various destinations and going over its road, and also of empty cars to be returned to other roads. The crew would take such train to Harrahan, a terminal above New Orleans on defendant’s road, and then take another train back. When the accident occurred the train being moved was composed of cars all originating in Louisina and destined for Chalmette, also in Louisina. It was held that the fireman was engaged in interstate commerce within the meaning of the statute and could recover. In Dorr v. Baltimore & O. R. Co., 197 Fed. 665, it was held that one employed in making running repairs, who was sent to replace a bolt which had been lost from the brake shoe of a tender, was within the act. The engine and tender used by the' company in moving interstate trains between two points, having reached the end of their run, had been placed on a fire track to await the time for starting on a return trip. It was decided in Northern Pac. Ry. Co. v. Maerkl, 198 Fed. 1, that an employee working in repair shops connected'with an interstate track, engaged in repairing a car used by the defendant indiscriminately in both interstate and intra-state commerce, was employed by the defendant in interstate commerce within the meaning of the act. The supreme court held in Interstate Comm. Comm. v. Ill. Cent. R. R., 215 U. S. 452, that the equipment of an interstate railroad, including cars for. transporting its own fuel are instruments of interstate commerce; that coal received from the tipple of a coal mine into cars by a railway company intended for its own use, and transportation by it, is a matter within the control of the interstate commerce commission. In Second Employers’ Liability Cases, 223 U. S. 1, the validity of the act was settled, but the question now under consideration was not involved. However, in speaking of the power to regulate commerce among the several states, it was said:
“Among the instruments and agents to which the power extends are the railroads over which transportation from one state to another is conducted, the engines and cars by which such transportation is effected, and all who are in any wise engaged in such transportation, whether as common carriers or as their employees.” (p. 47.)
The court quoted with approval from the brief of the solicitor general:
“ ‘The act of interstate commerce is done by the labor of men and with the help of things; and these men and things are the agents and instruments of the commerce.’ ” (p. 48.)
The safety appliance act as construed in Southern Ry. Co. v. United States, 222 U. S. 20, embraces all locomotives, cars and similar vehicles used on any railway that is a highway of interstate commerce, and is not confined to vehicles actually engaged in such commerce. In the opinion just quoted from, it was further said:
“The present act, unlike the one condemned in Employers’ Liability Cases, 207 U. S. 463, deals only with the liability of a carrier engaged in interstate commerce for injuries sustained by its employees while engaged in such commerce. And this being so, it is not a valid objection that the act embraces instances where the causal negligence is that of an employee engaged in intra-state commerce; for such negligence, when operating injuriously upon an employee engaged in interstate commerce, has the same effect upon that commerce as if the negligent employee were also engaged therein.” (223 U. S. 51.)
The court of appeals of the third circuit quoted part of this expression in Pedersen v. Delaware L. & W. R. Co., 197 Fed. 537, and said that the object of this act was “to broaden the right to relief for damages suffered by railroad employees in interstate transportation, for the power of Congress to create such liability to such employees rests on the fact and acts of interstate transportation work which are being done both by the company and by the injured employee at the time of the injury.” (p. 539.)
It was pointed out that, like the safety-appliance act, the statute in question has for one object the lessening of dangers to employees during interstate transportation, and in pari materia to broaden the relief for damages so sustained; also, that by the wording of the present act it is plain that liability was imposed, not for every injury done an employee of an interstate road, but for one done to him while he “ ‘is employed by such carrier in such commerce.’ ” (p. 540.) It was further suggested that in border-line cases the difficul ties can be met by bearing in mind, not only that the carrier must be engaged in interstate commerce, but the employee must at the time of the injury “ ‘have a real and substantial connection with the interstate commerce in which the carriers and their employees are engaged’ ” (p. 540) ; the relation of the employee’s particular work to interstate transportation at the time-the injury is sustained being the test; that the same kind of act may at one time be a part of interstate transportation and at another time have nothing to do with it; that one in helping to move interstate trains is within the act, but not when helping to move one purely local. This appears to be the latest, as well as the clearest, statement of the rule found in the federal decisions, and we adopt it as correct.
Whether the plaintiff comes within this rule depends on the facts shown. If the engine at the time was engaged in moving an interstate load, then the company and the plaintiff were doing interstate commerce work. The plaintiff testified that in 1909 the Orient was operating in Kansas, Oklahoma and a part of Old Mexico; that Altus is about 260 or 265 miles from Wichita; that he -had been up and down ¡the line in Kansas, Oklahoma and Texas; that he had seen this water car before, and that he knew it was up and down the line; “wherever they wanted it that is where they got it”; that it was used on the main' line; that once when he went to Chillicothe, Tex., with a trainload of water this same car, as nearly as he could -remember, was taken. Another witness testified that he had noticed a car of water being hauled up and down the line—all over the line. The plaintiff swore that at Clinton the defendant road connected with the Rock Island and Frisco, both of which roads were engaged in interstate traffic; that at Clinton cars were taken from and left for these roads; that the water car in question was got at Clinton. Another witness stated that he had been over the road from Wichita to Sweet-water, Tex., which was the division point, south of Altus, Fairview being the next division point, south of Altus, and Wichita, the division point next north of Fairview; that the road is engaged in interstate traffic; that the water car in the train at the time of the injury was used for hauling water up and down the line for supplying the engines. There was considerable testimony showing that the nine other cars were loaded with San Bois smokeless coal, a semianthracite used along the line of the road; that while there is a slight change in the name of the company running from Altus into Texas, it is one continuous line. Seven of the cars of coal, from McCurtain, Okla., were consigned to the vice-president of the Kansas City, Mexico. & Orient of Texas, whose office was at Sweetwater, Tex., and were being taken to Altus for delivery to that road; that the two other cars were billed to Aline, but by instructions they were being taken to Altus. The water car was being moved without waybill. These facts, with all the others, should have been submitted to the jury for such inference and findings as they felt convinced were warranted. The principle announced in the interstate commerce commission case already referred to (215 U. S. 452) seems directly applicable in case the jury should reasonably believe that the coal and water were being transported for use “up and down the line” in more than one state.
Section 4 of the act (35 U. S. Stat. at L. p. 66) provides :
“That in any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injury to, or the death of, any of its employees, such employee shall not be held to have assumed the risk of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”
The natural méaning of this language is that assumption of risk would be a defense when there was no violation by the common carrier of such statute. If contributory negligence and assumption of risk are not different, it is passing strange that congress in its second enactment should expressly declare in section 3 that:
“The fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”
And in section 4:
_ “That in any action brought against any common carrier under or by virtue of any of the provisions of this act . . . such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.”
Such expressions are meaningless unless a clear distinction between contributory negligence and assumption of risk were recognized and intended. We should suppose that congress meant'that contributory negligence should never be a matter of defense, but should be provable in mitigation of damages in all cases save those in which the carrier had also contributed to the injury by'violating some safety statute; and that assumption of risk should be a complete defense except in case of such disregard of a safety requirement by the carrier. There is nothing to indicate an intention to hold the carrier liable ordinarily for an injury arising out of a risk assumed by the employee. In Northern Pac. Ry. Co. v. Maerkl, 198 Fed. 1, decided by the court of appeals of the ninth circuit, the question of ■assumed risk was thus lightly touched:
“In respect to the defense set up of assumption of risk by him, it is sufficient to say that a risk arising out of the carrier’s neglect, and of which the employee had no knowledge, was not one which can be held to have been assumed by him.” (p. 6.)
In Schlemmer v. Buffalo, Rochester, etc., Ry., 305 U. S. 1, a case under the safety-appliance act, the clause under consideration was that in section 8, that any employee injured by any car in use contrary to the provisions of the act shall not be deemed to have assumed the risk thereby occasioned, although continuing in the employment of the carrier after the unlawful use had been brought to his knowledge. It was said that the phrase as used in this clause extended to dangerous conditions, as of machinery, premises and the like, which the injured party understood and appreciated when he submitted his person to them; that in this class of cases the risk is said to be assumed because a person who freely and voluntarily encounters it has only himself to thank if' harm comes, on a general principle of our law; that “probably the modification of this general principle by some judicial decisions and by statutes like section 8 is due to an opinion that men who work with their hands have not always the freedom and equality of position assumed by the doctrine of laissez faire to exist.” (p. 12.)
Assumption of risk in this broad sense was said to shade into negligence as commonly understood, and the differences between the two to be more of degree than of kind, and that “when a statute exonerates a servant from the former, if at the same time it leaves the defense of contributory negligence still open to the master, . . . then, unless great care be taken, the servant’s, rights will be sacrificed by simply charging, him with assumption of the risk under another name.” (p. 12.) This was said to be especially true in Pennsylvania (where the actions arose), where some cases at least seemed to have treated assumption of risk and negligence as convertible terms. Justices Brewer, Peck-ham, McKenna and Day dissented and said that there is a vital difference between assumption of risk and contributory negligence, and quoted (p. 19) from Judge Taft in Narramore v. Cleveland, C., C. & St. L. Ry. Co., 37 C. C. A. 499, that:
“Assumption of risk and contributory negligence approximate where the danger is so obvious and imminent that no ordinarily prudent man would assume the risk of injury therefrom. But where the danger, though present and appreciated, is one which many men are in the habit of assuming, and which prudent men who must earn a living are willing to assume for extra compensation, one who assumes the risk can not be said to be guilty of contributory negligence if, having in view the risk of danger assumed, he uses care reasonably commensurate with the risk to avoid injurious consequences.” (p. 505.)
The court of civil appeals of Texas held in Freeman v. Powell, (Tex. Civ. App. 1911) 144 S. W. 1033, that assumption of risk is available to the defendant, and after quoting the provision of section 4, said:
“It thus appears that under the federal statute a complaining employee to whom the act applies is not relieved from the operation of the ordinary rule of assumed risk, except in cases where there is a violation by the carrier of some statute enacted for the safety of an employee which has contributed to his injury or death, and of this there is no contention in this suit.” (p. 1034.)
In Railway Co. v. Loosley, 76 Kan. 103, 90 Pac. 990, it was decided that if an employee with knowledge of the facts and appreciation of the danger voluntarily accepts the situation without complaint or promise of change he assumes the risk of a dangerous work. After reviewing many decisions it was said:
“If the master fail to make the employment reasonably safe, and the danger takes on the aspect of a con- , tinuing condition which the servant knows about and understands or which is so patent that ordinary care would bring it to his attention and appreciation, he may accept the situation and continue to work without complaint. If he does so he assumes the risk.” (p. 114.)
Assumption of risk as- distinguished from contributory negligence was recognized in Manufacturing Co. v. Bloom, 76 Kan. 127, 90 Pac. 821; Railway Co. v. Quinlan, 77 Kan. 126, 93 Pac. 632; Railway Co. v. Click, 78 Kan. 419, 96 Pac. 769; Iron-works Co. v. Green, 79 Kan. 588, 100 Pac. 482; Smith v. Railway Co., 82 Kan. 136, 107 Pac. 635; Lewis v. Barton, 82 Kan. 163, 107 Pac. 783; Caspar v. Lewin, 82 Kan. 604, 109 Pac. 657; Cloud v. Railway Co., 82 Kan. 851, 109 Pac. 400; Murphy v. Edgar, 83 Kan. 627, 112 Pac. 109; Lupher v. Railway Co., 86 Kan. 712, 122 Pac. 106, and Karns v. Railway Co., 87 Kan. 154, 123 Pac. 758.
Moreover, since the decision in the Schlemmer case, (205 U. S. 1), the United States supreme court has put the question beyond doubt. In Butler v. Frazee, 211 U. S. 459, it was held that the common-law rule of assumption of risk has never been modified by statute in the District of Columbia and must be enforced. And in the Schlemmer case when again before the court (220 U. S. 590) it was unanimously decided that “there is a practical and clear distinction between assumption of risk and contributory negligence.” (Syl.) The latter was stated to be the omission of the employee to use those precautions for his own safety which ordinary prudence requires, and the former was said to arise, In the absence of a statute taking away the defense, or such obvious dangers that no ordinarily prudent person would incur them, when the risk of the ordinary dangers of the occupation into which he is about to enter are known, or are so plainly observable that the employee may be assumed to know them, and he continues in the employ without objection.
(See, also, Miller v. Monument Co., 141 Iowa, 701, 118 N. W. 518, 18 A. & E. Ann. Cas. 957, and note 960, and note to. Scheurer v. Rubber Co., 227 Mo. 347, 126 S. W. 1037, 28 L. R. A., n. s., 1215.)
It must be held, therefore, that assumption of risk was a good defense, and there being evidence to support it the trial court erred in refusing to instruct thereon.
As the case must go back it may be well to notice the defendant’s complaint that the verdict was excessive.
The plaintiff alleged that he suffered permanent injury to his back, spine, hips and limbs; that he received a great, nervous shock which caused great mental and physical pain and suffering, and that he believed such injuries were permanent. Practically all the medical testimony was confined to a burn on the shoulder and an alleged injury to the back. The only testimony touching any injury to the hip was that of W. C. Irwin, who said that plaintiff complained of injuries in his back and hips after the occurrence. To the question “What injuries, if any, do you. find that plaintiff sustained by reason of the derailment?” the answer was: “Scalded shoulder and bruised back.” The jury allowed $1000 for mental pain and suffering; for injuries to his back and spine, $2000; for injuries to his hip, $500, and for permanent injuries, $4520. After finding these sums, amounting to $3500 for mental suffering and injuries to the hip, back and spine, they were asked:
“Q. 50. Do you allow plaintiff anything for any other injuries? If so, for what injuries and for what amount? A. Yes. (See question No. 51.) Yes, for permanent injuries. Yes, for permanent injuries $4,520.00.
“Q. 51. Do you allow plaintiff anything on account of permanent injuries, if so, what amount? A. $4,520.00.
“Q. 52. Do you allow plaintiff anything on ac count of loss of earnings in the future, if so, what amount? A. No.”
We find nothing in the evidence sustaining the allowance of damages for injuries to plaintiff’s hip, ánd the allowance therefor should have been set aside. The answers as to the other items are somewhat confusing, but giving them the interpretation evidently intended by the jury, we take it that they deemed the plaintiff damaged by his suffering and permanent injuries in the sum of $8020, including the $500 which should have been deducted, and we are unable to say from all the evidence that, laying aside any mitigation for contributory negligence and the alleged assumption of risk, the remainder—$7520—would be excessive. This-method of attempting to separate the injury into constituent parts, when carried to the extent shown in this and in many other cases, is not in accord with the-spirit and purpose of the statute requiring the jury, when requested, to “find upon particular questions of fact.” (Civ. Code, § 294.)
(See, also, Williams v. Withington, post, 129 Pac. 1148.)
Complaint is made that the jury were instructed that the burden was upon the defendant to show contributory negligence, and also, that the- plaintiff was guilty of such negligence, because of the conflict and incongruity of such instructions. Ordinarily such burden is upon the defendant, and if removed by admission or by determination of the court, so that, the defendant has the benefit of such admission or removal, an instruction of the ordinary kind can not be materially prejudicial.
The judgment is reversed and the cause remanded with directions to grant a new trial. | [
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Per Curiam:
Upon a reconsideration of the original as well as the supplemental abstract, the court adheres to the judgment of affirmance originally rendered and to the views expressed in the former opinion. (Kroenert v. Sawyer, 87 Kan. 374, 124 Pac. 418.) | [
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The opinion of the court was delivered by
Porter, J.:
Action to recover taxes alleged to be illegal which the railway company paid under protest.
Under the provisions of chapter 409 of the Laws of 1907 the county commissioners of Harper county were authorized to make a general levy of ten mills on the dollar for general purposes for that year. By the provisions of chapter 78 of the Laws of the Special Session of 1908 they were authorized to make the same levy for general purposes as in 1907 plus two per cent thereof. In 1907 they made a levy of ten mills for general purposes. It appears that the county board fixed the value of taxable property in Harper county for 1907, outside of railroad property, at $2,995,206. The state board of equalization raised it to $3,609,653. In 1908 the county board levied for general purposes a tax of 1.6 mills, which the appellant claims was excessive to the extent of .269 mill on the dollar. . In order to determine the extent of authority in the local board to levy a tax for general purposes in 1908 it is necessary as a basis to ascertain' what they might have levied lawfully for that purpose in 1907. The question directly involved is whether the local board had the right in 1907 to use the valuation fixed by the state board of equalization as a basis, or was confined to the valuation fixed by the local board itself. In Geary County v. Railway Co., 62 Kan. 168, 61 Pac. 693, it was decided and ruled in the syllabus that:
“Whenever the valuation of taxable property in any county is changed by the state board of equalization, the board of county commissioners of such county are authorized to use the valuation so fixed by the state board as a basis for making their levies for all purposes, but are not bound so to do.” (Syl. ¶ 1.)
The same thing was decided again in Railway Co. v. Miami County, 67 Kan. 434, 73 Pac. 103. The contention of the appellee is that it is wholly immaterial what basis was in fact used by the local board in 1907 if it was authorized to use the basis fixed by the state board of equalization; We think the contention is sound. The tax levied in 1907 is not involved here. The tax complained of is that of 1908, and the legislature at the special session of 1908, by chapter 78 of the Laws of that year, authorized the boards in all counties to make the same levy for general purposes which they were authorized to make in 1907 plus two per cent thereof. The legislature if it had seen fit to do so might have authorized only a levy for general purposes the same as actually made in 1907, but it used broader language and fixed as a basis for 1908 the maximum levy authorized in 1907. It is true, as appellant contends, that it has been frequently held that the valuation fixed by the state board of equalization does not affect local taxes, but relates solely to the tax for state purposes. (See Railway Co. v. Sumner County, 76 Kan. 618, 92 Pac. 590, and cases cited.) And yet, as repeatedly decided, the appellees were authorized to use the valuation fixed by the state board if they deemed it advisable to do so. (Railway Co. v. Miami County, supra.)
It should be observed, however, that the legislature has changed the law, and it is now the duty of the local boards to use the valuation fixed by the state board as a basis for all levies. (Laws 1908, ch. 79.)
The.law as it formerly existed controls this case, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
On December 12, 1908, the petitioners, having been tried and convicted of the crime of robbery on a railway train, were each sentenced to confinement and hard labor in the state penitentiary'• for a period of hot less than ten years. Section 1 of chapter 375 of the Laws of 1903 (Crim. Code, §272u), known as the indeterminate-sentence law, provides that the court in imposing such sentence shall not fix the limit of duration of the sentence. The failure of the district court to follow the provisions of the statute, however, is not relied upon by the petitioners. Obviously if that were the only ground it could not avail them, because the court would simply direct that the' petitioners be returned .to the district court to be resentenced. (In re Howard, 72 Kan. 273, 83 Pac. 1032.)
The point relied upon for their release is that by the enactment of the indeterminate-sentence law the legislature repealed the penalty for the crime of robbery on a railway train provided by section 1 of chapter 174 of the Laws of 1901 (Gen. Stat. 19.09, § 2888). In the last-mentioned statute the penalty for the crime is “confinement in the penitentiary for a term of not less than ten years, or for life.” It was passed in 1901. Two years later came the indeterminate-sentence law, which provides that every person convicted of a felony or other crime punishable by imprisonment in the penitentiary, except murder or treason, shall be sentenced to the penitentiary, but that the term shall not exceed the maximum nor be less than the minimum term provided by law for such offense, the release of such person to be afterwards determined under other provisions of the act. It is not claimed that the penalty clause of the act of 1901 is expressly repealed, but that it was repealed by implication, and that since the former law provided a determinate sentence for the offense the term can not become indeterminate under the act of 1903. Repeals by implication are not favored, especially where they result in overturning the manifest intent of the legislature or produce absurd consequences. Courts are required to construe statutes and to uphold their plain and obvious provisions; and when necessary it is their duty to reconcile apparent inconsistencies and ambiguous provisions. Courts were not created to defeat the legislative will nor to seize upon the technical meaning of phrases in order, to declare a statute void or in conflict with some previous enactment. In The State v. Knoll, 69 Kan. 767, 77 Pac. 580, this same statute was held to have repealed by implication a section of a former statute; The title to the act showed an express intention to repeal section 5685 of the General Statutes of 1901 (Crim. Code, § 240, Gen. Stat. 1909, § 6819), but the body of the act expressly repealed another section and made no reference to the section mentioned in the title. A consideration of the entire scope and purpose of the statute satisfied the court as to the real intention, and that was allowed to prevail. Courts always proceed with great caution before deciding that a statute has been repealed by implication. (Stephens v. Ballou, 27 Kan. 594, 601; Randall v. Butler County, 65 Kan. 20, 68 Pac. 1083.)
We find no difficulty in reconciling both statutes and giving force to both. ' It would be absurd to conceive of the legislature intending by the adoption of the indeterminate-sentence law thereby to repeal all penalties for the crime of robbery on a railway train. It does not follow by any means that the sentence imposed by the terms of commitment deprives the petitioners of the benefit of the indeterminate-sentence law. The termination of their imprisonment is left with the prison board, under the provisions of the act of 1903.
The writ is denied. | [
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The opinion of the court was delivered by
Benson, J.:
It is contended that the information is not sufficiently direct and certain wherein it charges, poisoning by the administration of “cyanide of potassium and hydrocyanic acid, and also other drugs and poisonous substances to this county attorney unknown.” It is argued that allegations such as the one. italicised are allowed only upon the ground of necessity, and that the necessity did not exist in this case because the results of the autopsy were known before the information was filed.
“It is sufficient to allege that a murder was committed in some way and by some means, instruments, and weapons to the grand jury unknown, when the circumstances of the case will not permit of greater certainty of statement.”' (Wharton on Homicide, 8d ed., § 563; Commonwealth v. Webster, [5 Cush.] 59 Mass. 295; Olive v. The State, 11 Neb. 1, 7 N. W. 444.)
The information was good upon its face. There was no evidence (if that were admissible) that the county attorney had knowledge of the names of other drugs and substances designated as unknown, and the court, instructed the j ury that under the evidence a verdict of guilty could' not be returned unless cyanide of potassium or hydrocyanic acid was administered. It can not be held either upon .the face of the information or the evidence that the charge was fatally defective.. Even where the giving of one kind of poison is alleged,, and another kind proven, the indictment is maintained for the kind of death is the same. (2 Hale’s Pleas of the Crown, 185; 2 Bishop’s New Criminal Procedure,. §514.)
Complaint is made of the admission of the declaration of Mrs. Buck that the doses given to her by the appellant in the last three days of her life burned her stomach. These exclamations of present pain and suffering were accompanied by a wry face, sudden sickness, and vomiting, and were admissible within the principles stated in Betterment Co. v. Reeves, 77 Kan. 111, 93 Pac. 627, and 3 Wigmore on Evidence, §§ 1718, 1719.
It is contended that there was érror in allowing the brother and sister of the deceased to testify concerning the doses of dark thick liquid causing nausea referred to above, and especially in admitting evidence by comparison of odors tending to prove that this consisted of ergot and other drugs. These doses were administered by the appellant himself at intervals for two days preceding the day of her death, at times when, to ordinary appearances, she was not greatly indisposed. The acts of the appellant in this sequence of events were admissible as parts of a connected transaction. It is suggested that this testimony tended to prove a crime different from the one charged, but even if it did that would be no reason for its exclusion- if it also tended to prove the charge of' poisoning, or to show intent or motive. It is sufficient if the testimony is referable to the point in issue or tends to exhibit the res gestee or to establish a chain of circumstantial evidence in respect to the act charged. (Lewis v. The State, 4 Kan. 296; The State v. Adams, 20 Kan. 311, 322; State v. Ames, 90 Minn. 183, 96 N. W. 330; People v. Harris, 136 N. Y. 423, 33 N. E. 65.)
The testimony of the druggist that appellant requested him not to file the prescription presented and filled on August 23 is not too remote in connection with the treatment administered afterward and the attendant circumstances. Evidence tending to show the poisonous effects of ergot in large doses or in repeated small doses was properly received to show the prop erties of the drug. This tended also to answer the suggestion of the appellant that the testimony was offered to prove another offense.
An interesting question of evidence is presented upon the comparison of odors. A compound the same as that prescribed by Dr. Buck on August 23 was prepared during the trial, and witnesses who had noticed the smell of the doses given to Mrs. Buck were requested to smell of this compound and were asked how the odor compared with that of the doses so given, and whether the smell was the same. It is insisted that the admission of this testimony was erroneous.' How may an odor be described by a witness and communicated to the jury? Wharton says: “Opinion, so far as it consists of a statement of an effect produced on the mind, becomes primary evidence, and hence admissible whenever a condition of things is such that it can not be reproduced and made palpable in the concrete to the jury. Eminently is this the case with regard to noises and smells.” (1 Wharton’s Criminal Evidence, 10th ed., § 459.) If one is asked to describe an odor the answer ordinarily is by comparison, for example that it was like vinegar, or smoke, or other article supposed to be familiar or better known. In Conner v. The State, 6 Tex. App. 455, evidence of a witness that he smelled chloroform in a room was held admissible although the objection here made was not discussed. Similar rulings have been made respecting the smell of spirituous liquor, extending even to vomit wherein the odor appeared. (Marschall v. Laughran, 47 Ill. App. 29.) The principle upon which such evidence is allowed is stated in State v. Shinborn, 46 N. H. 497, that is:
“On the ground that it came within that class of cases where evidence is received from necessity, arising from the impossibility of stating those minute characteristics of appearance, sound, and the like, which, nevertheless, may lead the mind to a satisfactory conclusion, and be reasonably reliable in judicial investigations. Among instances of this class, forming an exception to the general rule, is the proof of identity in a great variety of cases; such as the identity of person, handwriting, animals, and inanimate obj ects; and so where the identity is detected by the ear, or by the sound of the human voice, of a musical instrument, the discharge of a pistol, and the like. . . . In these and an infinite variety of other cases, the conclusion is drawn from evidence addressed to the 'eye or ear or both, and which, from its very nature, can not be described to another.” (p. 501.)
The same reasoning applies here. Although sight may be considered more reliable, evidence afforded by other senses is not excluded. (17 Cyc. 81.) Its weight must be left for the jury.
Hypothetical questions addressed to professional witnesses were objected to on the ground that they invaded the province of the jury. A question to Dr. Trimble, a pathologist, after including a statement of material facts which the evidence tended to prove, concluded with the following:
“Q. Considering that these were her symptoms and conditions on Saturday, Sunday and Monday, immediately prior to her death, and considering further in the same connection that the facts revealed by the postmortem examination were those testified to by you to-day, have you an opinion as to what caused her death?”
In support of an objection to this question it is said that an expert witness can not be permitted to testify to a.matter which is directly in issue; that the judgment of witnesses can not be substituted for that of the jury. If this be the rule it has no room for operation here. The issue to be decided was whether the death of Mrs. Buck was caused by poison administered by the appellant. To sustain the charge the state was required to prove the fact of death by poison, but that alone would not prove the guilt of the accused. It must also be shown that he gave the poison. It seems to be argued that while the witness might properly give his opinion as to what could or might have been the cause of death, it was error to allow him to say what the cause really was. This distinction made by some courts was referred to in Commercial Travelers v. Barnes, 75 Kan. 720, 90 Pac. 293. Comments on this .question in that opinion are deemed pertinent but repetition is not necessary here. A question asking for an opinion upon the cause of death based upon a given hypothesis or upon personal knowledge of the conditions, or both, is one that a properly qualified witness may answer. (The State v. Hatch, 83 Kan. 613, 112 Pac. 149; Simon v. The State, 108 Ala. 27, 18 South. 731; Everett v. The State, 62 Ga. 65; State v. Smith, 32 Maine, 369; Eggler v. The People, 56 N. Y. 642; Commonwealth v. Crossmire, appellant, 156 Pa. St. 304, 27 Atl. 40; Gran v. Houston, 45 Neb. 813, 64 N. W. 245; Rogers on Expert Testimony, 2d ed., p. 49.)
Brief criticisms of opinions holding otherwise,' based upon the distinction between what caused and what might or could have caused death, will be found in 5 Wigmore on Evidence, under section 1976.
Objections to other hypothetical questions asked by the county attorney are sufficiently answered by what has just been said.
On cross-examination a hypothetical question was asked embodying only a part of the facts and symptoms embraced in the question asked by the state, and an objection that the hypothesis did not include all the material facts in evidence was sustained—we think‘erroneously. Great latitude is allowed in such cases to test the intelligence, discernment and capacity of the witness, that the jury may determine the value of his testimony. (The State v. Reddick, 7 Kan. 143.) To this end it has been said that questions may be asked leaving out facts assumed on direct examination. (2 Elliott on Evidence, § 1124.) A careful examination of the abstracts, however, has convinced the court that no prejudice re- suited from this ruling, since upon the Whole cross-examination, conducted at great length, the witness testified upon the matters in detail embraced in the question, and admitted that he did not know whether death would have been possible from hydrocyanic poisoning without any of the symptoms named. Error in such rulings is not necessarily fatal. The statute provides:
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial fights of the parties.” (Crim. Code, § 298.)
The court in substance instructed the jury that a verdict of guilty could not be' returned unless they found that cyanide of potassium or hydrocyanic acid, or both, were actually administered by the defendant, knowingly and willfully, with intent to take the life.of Mrs. Buck; that these substances were poisons; and that the deceased came to her death by means of one or both of these poisons, or by means of one or both of them and also ergot or cotton root or both. Error is alleged because the court did not in this connection inform the jury that it was necessary to find that ergot or cotton root were poisons, nor direct them in what manner the evidence relating to these substances should be considered. The effect of ergot or cotton root alone is not very important if one or both of the preparations of cyanide, taken alone or together with these drugs, caused death; and the court stated that unless cyanide in one of the forms named was given there could be no conviction. If there was any error-in these instructions it is one of which the appellant has no cause to complain.
An objection to the verdict because it did not state the kind of poison is without merit. Such a finding is not required.
It is argued that the evidence was insufficient to convict. This argument is based largely upon the fact that only a trace of cyanide was found in the body, and that the pathologist produced by the state testified that death might have resulted from other causes.
The failure to produce further proof of the finding of cyanide in the body, although sulpho-cyanide, as we have seen, was found in excess quantities, is accounted for by the decomposing process referred to in the statement. The possibility that death resulted from some other cause did not require an acquittal if upon all the evidence the jury were satisfied of his guilt beyond a reasonable doubt. (Cox v. The People, 80 N. Y. 500, 516.) Neither is proof of motive indispensable when the jury is so satisfied of guilt without it. (The State v. Dull, 67 Kan. 793, 74 Pac. 235.)
There was competent evidence tending to prove every material fact necessary to support the charge. A further review of the evidence would necessarily be lengthy and is believed to be unnecessary. The verdict approved by the district court must stand.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This appeal involves the question whether a plaintiff must have a residence in the state for the period of a year prior to the bringing of an action in order to confer jurisdiction upon a court to grant a divorce. The appellant, a resident of Nebraska, brought an action in Dickinson county against the appellee, a resident of that county, asking for a divorce, alimony and the custody of a minor child. The court refused a divorce, holding that residence in the state for a year prior to the filing of the petition was essential to her right to maintain the action.
Under the statute as it existed prior to the enactment of the new code no one doubted that actual residence in the state by the plaintiff for a year was a prerequisite to the maintenance of an action. That statute provided :
“The plaintiff in an action for divorce must have been an actual resident in good faith of the state for one year next preceding the filing of the petition, and a resident of the county in which the action is brought at the time the petition is filed.” (Gen. Stat. 1901, § 5133, Old Civ. Code, § 640.)
The section as amended by the legislature of 1909 reads:
“The plaintiff in an action for divorce must have been an actual resident in good faith of the state for one year next preceding the filing of the petition, and a resident of the county in which the action is brought at the time the petition is filed, unless the action is brought in the county where the defendant resides or may be summoned.” (Civ. Code of 1909, § 664.)
It is argued that the added clause changed the section so that a nonresident plaintiff may bring an action in any county of the state where the defendant resides or may be summoned. Under that interpretation a divorce might be granted although neither of the parties were domiciled in the state because the amendment makes service of the summons in a county the equivalent of a residence in that county. From the beginning it has been the policy of the state that only those who were actual residents in good faith for a considerable period of time could maintain an action for divorce. It seems to be the policy of nearly all of the states, in-' eluding even those which appear to encourage divorces, and the bringing of divorce proceedings therein, that a residence in the state by the plaintiff for some time before the commencement of the action is essential. From the well-known sentiment which exists in this state against easy, quick, clandestine and collusive divorces it is impossible to conceive that the legislature intended to establish an agency or system for dissolving marriages between parties all of whom reside in other states or countries. Such an intention can not be imputed to the legislature unless it is expressly declared in the act in terms entirely free from doubt. It may well be doubted whether a decree granted under such a statute would be valid, but fairly considered the amended statute does not require such an interpretation. The original section provided that the plaintiff should have been a resident of the state for a year before the action was instituted, and then provided the added requirement that the plaintiff should be a resident of the county within which the action was brought at the time the petition was filed. The section contained two distinct requirements as to residence of the plaintiff, one relating to residence in the state for a fixed period and the other the residence in the county,, which, however short in duration, was sufficient if it was bona fide when the petition was filed. Then the amendment was added, as we have seen, to this second provision of the section—the part relating to residence in the county—and it refers expressly to that kind of residence and does not naturally refer to the more remote subject relating to residence within the state. The natural interpretation is that the clause qualifies the nearest subject and that part of the section to which it is appended and not the remote one relating to residence within the state. This is disclosed not only by the subject matter of the section but also by the manner in which it is punctuated. The sentence is divided by a comma after the word “petition” at the end of the provision requiring a residence in the state. The compiler of the General Statutes of 1909, it appears, omitted the comma, but it was in the original bill and is in the session laws (Laws 1909, ch. 182, § 664), and so the structural division of the section comports with the division of the thought of the legislators when they separated the subject of residence into two branches and treated them as distinct requirements. The two provisions relating to residence are as distinct as if each constituted a separate section, the first making a domicile in the state for a year a prerequisite to the beginning of an action, and the second providing that the plaintiff shall not only be a resident of the state for a year but he must also be a resident of the county where and when he begins his action except that he may bring it in some other county of the state if the defendant resides or may be summoned there. (Howell v. Herriff, 87 Kan. 389, 124 Pac. 168.) Evidently the legislature undertook to introduce the personal element into the action for divorce by authorizing and encouraging the bringing of the action in a county of the state wher.e the personal attendance of the defendant at the trial may be obtained. Under the code, therefore, the plaintiff may bring an action for divorce either in the county of his residence or in the county in which the defendant resides or may be summoned, but in any case the plaintiff must have been an actual resident in good faith of the state for one year before the filing of his petition.
The judgment of the distinct court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
March 30,1901, the plaintiff, D. T. Dennis, married Hattie G. Perkins, a widow who had two sons, the defendants, by a former marriage. Their conduct worried their mother, and she was heard to complain that they wotild not see her or accept her presents and to say that she did not want any of her property after her death to go to them. The plaintiff had been married before, and the answer alleged that trouble arose by reason of his solicitude for his iirst wife and her children. Certain it is that he and his second wife failed to live harmoniously, and in August, 1909, they executed a marriage settlement, which was duly acknowledged and recorded. This instrument was in the following terms :
“We, D. T. Dennis and Hattie G. Dennis, husband and wife, of Reno County, Kansas, fully realizing that we are incompatible and cannot live together and have any peace of our minds and that the conditions of our bodies and the state of our health have made' it necessary for us to separate, and inasmuch as we have also heretofore agreed upon a separation, we now agree further, and as follows: The title of all the property herein mentioned stands.in the name of the husband, D. T. Dennis, and the wife, Hattie G. Dennis, does not own any property in her own separate right, but for the love and affection that he yet has for his wife and-for other good and valuable consideration herein mentioned he hereby grants, sells and conveys to Hattie G. Dennis the dwelling house, lot 48 feet wide and 150 feet long, and all the appurtenances thereon, the said property being in the city of Hutchinson, Reno county, Kansas, and known as Number 120 B. West in said city, and he further agrees that he never will at any time claim any further interest in and to said property, nor in any other property that she may hereafter acquire, and he here agrees to abide by any will that she has or may hereafter make, and that she is hereby released of any claims that he might make to any of her property at any time by reason of being her husband, and she is hereby authorized to dispose of the said property or any other property she may have at any time free from all claims by descent or otherwise upon his part, and that she may do this without consulting him. He further agrees that he will'sign any and all conveyances made by her at any time when called upon and do so without remuneration. He further gives to her in consideration of what she does herein $500 in cash, the receipt of which is hereby acknowledged, and all her clothing, jewelry and such other articles as she may choose from the household goods. And Hattie G. Dennis hereby accepts the above property as her equitable and fair division thereof, and releases her husband, D. T. Dennis, from all further obligations towards her support, and in consideration of the above Hattie G. Dennis, the wife of D. T. Dennis, hereby grants, sells and conveys to D. T. Dennis all her right, title and interest in and to Lots One, Twó, Three and Four in Block Five in Handy's East Side Addition to the city of Hutchinson in Reno county, Kansas, and all the appurtenances thereto, the said property being known as Numbers 501 and 503 East Sixth street in Hutchinson, Kan. The foregoing described properties being all the real property owned by either party hereto. And in consideration of the relinquishments herein madé by D. T. Dennis and the payment of the said $500 in cash, Hattie G. Dennis, hereby agrees that she never will at any time claim any interest in and to any portion of the said property above conveyed and relinquished to D. T. Dennis, nor in or to any other property, real or personal, that he may hereafter acquire and she here agrees to abide by any will that he may hereafter make, and that he is hereby released of any claims that she might make to any of his property at any timé by reason of being his wife, and he is hereby authorized to dispose of his property above described, or that he may hereafter acquire, free from all claims by descent or otherwise upon her part, and that he may do this without consulting her. She further agrees that she will sign any and all conveyances for the said property or other property he may acquire at any time when called upon by him, and that she will sign and acknowl edge the same without remuneration. This is intended as a fair, full and complete settlement of all the property now owned by us or either of us, it being underr stood that the personal property which consists mostly of household goods and not taken by Hattie G. Dennis is to remain the separate property of D. T. Dennis, and that neither party shall ever make any further claim of any kind on each other after this is signed and acknowledged, and this is done also to avoid the expense of litigation. Given under our name this-the 2d day of August, 1909. D. T. Dennis,
Hattie G. Dennis.”
On the same date a deed was executed conveying to Hattie G. Dennis the land set apart to her in the settlement, reciting $500 and “other considerations mentioned in a certain post nuptial contract of even date herewith.”
Mrs. Dennis had suffered from ill health before the separation, and thereafter she went to her sister’s in Indiana. Her health continued bad and she suffered both physically and mentally, and grew worse until in January when her condition became such as to require her removal to a hospital, where she passed away February 1. November 28 she wrote Mr. Dennis, apparently in answer to a letter received from him, expressing sorrow for what she had done, declaring her love for him and insisting that'he let her come back to him or she would lose her mind. December 19 another letter still more, affectionate and intense was written by her, and this was followed by one on the 26th evincing great concern for him and expressing the wish that they were living together, and another on the 29th of similar import. On January 1 Mr. Dennis wrote to a relative of his wife, recounting some of the troubles of the former relation and stating that he thought it better for his wife to remain where she was as he could not live there and could not bring her to Hutchinson; that he was planning to leave the state, and that if he should ever live with her again it would not be in Kan sas or Indiana, but when he should find a new place, if she still desired to live with him the matter could be considered. He asked for definite information as to her health and condition. January 14, in response to a telegram from this relative, having refused to come as suggested by letter, he went to Indiana and joined his wife. They stayed together one night at her sister’s, and the next day, Saturday, went to a house which she had rented and remained there until a week from the following Sunday, when she was taken to the hospital. They occupied the same room and bed and he cared for her, she being unable to dress herself or to prepare food. During the first Sunday evening she said to him: “You have always been good to me and treated me nice, and I want you to live with me and be man and wife.” One witness testified that when he came he said he was going to take care of his wife, and- if she got well they were going back to their home in Kansas; that she said, “the property that they had, they had bought it and worked for it, and when she was done with it, it should go back to him.” When she was taken to the hospital he went to visit his sister, being gone about forty-eight hours, and then returned and was with her while she lived. He attended the funeral and made all the arrangements and paid all expenses, using money which she had on deposit, and a small balance remaining after the expenses were paid he retained. This action was brought by Mr. Dennis to quiet his title in the land deeded to his wifé against her children, the defendants. It was alleged that the marriage settlement became void upon the resumption of marital relations which he alleged took place in Indiana and continued during the remaining days of her life, that thereupon the consideration for the contract failed and it should be set aside. The answer averred that when the plaintiff reached Indiana his wife was in a state of semi-unconsciousness and mental collapse, totally unable to care for herself, and that immediately upon his arrival she became uncontrollable; that the property descended to the defendants, and prayed that théir title be quieted. The jury returned a verdict in favor of the plaintiff, and in answer to special questions found that Mrs. Dennis had sufficient mental capacity to understand the contract when made and to resume her marital relations with the plaintiff. Judgment was returned accordingly and the defendants appeal.
It is frequently said that reconciliation and resumption of the marital relation will render a contract void. This is a loose and inaccurate statement of a supposed rule. Courts can not make or unmake contracts, but can only determine the effect of express or implied agreements made by those competent to act for themselves. Rescission or abrogation is as volitional as the act of contracting. And as the words used may be judicially construed to constitute a contract, so conduct may be so significant and conclusive as to justify conviction and determination that rescission was actually intended. When husband and wife united for life find it in their hearts to agree to a separation and arrange their property matters accordingly, and after' having experimented for a time with the conditions so brought about are found living together to all intents and purposes as if no trouble had arisen, the courts endeavor to ascertain how the parties themselves regard the agreement formerly made and apparently set aside, and as the conduct indicated naturally signifies an intent to deem the separation agreement ended and the courts have so many times taken this view it has become usual to say in effect that the law makes a perfect equation between resumption and abrogation. The truth is, and the law is, that having entered into a valid separation agreement the courts can not and will not deem such contract avoided unless the conduct of the parties impels to the conclusion that they themselves so regarded it. (O’Malley v. Blease, 20 L. T. Rep. 899; Rowell v. Rowell, 81 L. T. Rep. 429; Nicol v. Nicol, 31 Ch. Div. 524; Carson v. Murray, 3 Paige’s, Ch. 483; Heyer v. Burger et al., 1 Hoff. Ch. 1; Hughes v. Cuming, 36 N. Y. Supr. Ct., App Div., 302; Hitner’s Appeal, 54 Pa. St. 110; Zimmer v. Settle et al., 124 N. Y. 37, 26 N. E. 341; Roberts v. Hardy, 89 Mo. App. 86; Kefauver v. Kefauver, 22 Ky. Law, 386, 57 S. W. 467; Sackman v. Sackman, 143 Mo. 576, 45 S. W. 264; Smith v. King, 107 N. C. 273, 12 S. E. 57; James v. James, 81 Tex. 373, 16 S. W. 1087; Luttrel v. Boggs, 168 Ill. 361, 48 N. E. 171; Knapp v. Knapp, 95 Mich. 474, 55 N. W. 353; Bülke v. Bülke, [Ala. 1911] 55 South. 490; Walker v. Walker, 76 U. S. 743; Kehr v. Smith, 87 U. S. 31; Daniels v. Benedict, 97 Fed. 367; Wells v. Stout, 9 Cal. 479.
A necessary corollary to this principle is that when the contract contains provisions for the wife which might with equal propriety have been made had no separation been contemplated, and others which would have -otherwise been idle, the coming together again of the parties and their conduct may be such as to show an intention to avoid the latter and not the former. This principle is illustrated by such cases as O’Malley v. Blease, Sackman v. Sackman, Luttrel v. Boggs, Bülke v. Bülke, and Walker v. Walker. In the Nicol case it was said by Bowen, L. J.:
“I think that the true principle is that a renewal of cohabitation would put an end to all or any of the provisions of a separation deed, so far as the language of the deed, properly construed by the light of surrounding circumstances, shews that its provisions were only intended to take effect whilst the separation lasted. . . . Separation deeds are often very complicated, and some provisions may be intended to apply even in the case of a reconciliation, while others may be quite inapplicable to such a state of things, and I should prefer to construe' each deed by the light of its surrounding facts rather than to lay down a crystallized rule.” (31 Ch. Div. 529.)
In the Walker case, in holding that a trust remained regardless of the reconciliation the court said:
“There is no good reason why effect should not be given to the intention of the parties on the subject. . . . It is clear, then, that this trust was operative during the life of the wife, and that a court of equity will enforce it.” (76 U. S. 752, 753.)
If the contract and circumstances be such that the permanent resumption of the relation of husband and wife would naturally and presumptively imply the abrogation of certain of its terms only, there is no reason why such effect should not be given.
The court instructed the jury in substance that they should find for the plaintiff if the parties became reconciled and resumed their marriage ’ relations and duties toward each other and continued to live together as husband and wife for a time prior to the death of the wife. That this was the theory on which the trial court acted appears more plainly from instruction No. 7, which was to the effect that if the wife was mentally competent tó execute the contract and receive the deed “then your verdict should be for the defendants, unless you further find that said contract was subsequently revoked and annulled either by the agreement of the parties or their reconciliation to each other and the resumption of their marital duties and relations as husband and wife.”
In their brief plaintiff’s counsel say:
“There remains but one question in the case—that is a question of law—whether the resumption of the marital relations . . '. avoids the written contract.”
When this relation was resumed—if it was—she was the owner of the property in question, not only by contract but by deed which with perfect propriety might have been made had no separation been had or contemplated, and we think it clear, upon principle and upon authority, that the effect of the relations and conduct of the parties depended upon their intention, which intention is to be ascertained from the conduct and circumstances as a question of fact, and that mere reconciliation and resumption do not as a matter of law avoid such contract. The common-law doctrine of coverture with all its incidents has been relegated to the past by modern legislation and decisions and no longer stands in the way of permitting husband and wife to deal with each other as they see fit regarding their real or personal poperty. (Butler v. Butler and Austin, 21 Kan. 525; King v. Mollohan, 61 Kan. 683, 693, 60 Pac. 731; Harrington v. Lowe, 73 Kan. 1, 84 Pac. 570.) It is suggested by counsel for the defendants that at most the plaintiff could claim a' right to inherit. If it should be determined that the -contract was not avoided this right would depend upon its provisions, and under the rule deduced from former decisions in order to preclude such right an intention so to do should be expressed or clearly inferable from the terms of the instrument. (Kistler v. Ernst, 60 Kan. 243, 56 Pac. 18; King v. Mollohan, 61 Kan. 683, 692, 60 Pac. 731; Rouse v. Rouse, 76 Kan. 311, 91 Pac. 45; Casey v. Casey, 84 Kan. 380, 113 Pac. 1047.)
Complaint is made that the husband was permitted to testify concerning transactions had personally with the wife in violation of section 320 of the code. The abstract shows that he testified as to the fact of occupying the same room and bed, and it is stated in the brief without contradiction that he was permitted to state that he cared for her as a busband, and that the subject was gone into in detail concerning the days during which they were together. The tendency of this and other courts is to carry the terms of the statute no further than their necessary meaning. It can hardly be said that under the circumstances shown the mere fact that the husband occupied the same room and bed with his invalid wife amounts to a transaction ; it might more properly be said to be one item in a course of conduct possibly amounting to the general transaction of resuming the marital relation. But certainly to go to the extent stated in the brief of testifying in detail as to caring personally for the wife is beyond the letter and spirit of the statute, the philosophy of which is that generally, one in this sort of case can not be heard to give his version of a transaction or communication when the lips of the other party thereto are closed by death.
The judgment is reversed and the cause remanded with instructions to grant a new trial. | [
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Per Curiam:
This action was brought by the appellee to recover damages for personal injuries alleged to have occurred to him through the fault of appellant in failing to provide for appellee a reasonably safe place to work while the appellee was wheeling brick for, and as an employee of, appellant.
The first contention of appellant is that the evi dénce of the appellee was not sufficient to support the verdict, and that the court should have instructed the jury to return a verdict for the appellant. The appellee had been at work but a few hours for the appellant when the accident occurred, and, it appears, had little opportunity to observe whether or not the place over which he was required to cart the brick with a wheelbarrow was a reasonably safe place in which to do that work.
It does appear from the evidence, however, that other workmen had made complaint shortly before the accident, to the wheeling boss in charge of the work being done by the appellee, as to the condition of the runways, and that the boss would not permit the workmen to stop and adjust them. But the boss told complainants that if they did not like the job they could quit, or- simply laughed at the complaint, and asked one if he had life insurance; that the witness also made complaiht to the superintendent, and no change was made until after the accident to appellee occurred; that after the accident in question repairs and changes were made.
Again, it is contended that the court erred in instructing the jury that it was the duty of appellant to furnish appellee a reasonably safe place to work, but that the instruction should have been that it was the duty of appellant to use reasonable diligence to furnish the appellee a reasonably safe place to work. In the third instruction given by the court the exact language contended for is used as an express limitation upon the liability of appellant. It reads as follows :
“A corporation is only required to exercise reasonable and ordinary care and prudence in providing the employees places and instrumentalities reasonably safe to work with or at. And it will be presumed in the first instance, in the absence of anything to the contrary, that the'corporation has done its duty in that regard.”
This removes the basis of appellant’s criticism. (Kamera v. Boiler Works, 82 Kan. 432, 108 Pac. 806.)
The usual defenses in cases of personal injuries, viz.: assumption of risk, contributory negligence, and fault of fellow servant, have all been urged by the appellant. We have examined each of the claims and think there is no error in the proceedings or judgment.
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Per Curiam:
Plaintiff obtained a judgment against Kathleen Brown for $385 and costs on an account for merchandise sold to her while she was engaged in the-millinery business at Norton.
This is a creditor’s bill in which plaintiff seeks to-have certain real-estate conveyances and chattel mortgages executed by the judgment debtor to her codefendants declared void and the property subjected to-plaintiff’s judgment. The case was tried to the court and judgment was rendered in favor of defendants. Plaintiff appeals.
The only question the trial court had before it was. one of fact,' whether the conveyances were fraudulent. The fact that they were made to relatives, that some were made without a valuable consideration or for a merely nominal sum, were circumstances tending to establish plaintiff’s contention, but they were not conclusive. It is insisted that Kathleen Brown’s testimony was false and contradictory, ’but the trial court heard her explanation of each transaction, there was other-evidence tending to corroborate her testimony, and the-weight of all the evidence was for the trial court and not for this court. The authorities cited in appellant’s brief all concede that whether conveyances of the kind, involved are fraudulent is a question of fact.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant was, during the times referred to in the action, a grain merchant residing at Kansas City, Mo. During the years 1904-1906 he had places of business at Pine Bluff, Ark., and other places. W. p. Cook was in his employ and had charge of his business at Pine Bluff.
In 1904 one Nesbit, of Kansas City, was a solicitor of insurance employed by Mastín, Drennon & Schafer Company, who were agents for the appellee company. On June 9, 1904, appellee, through Nesbit', delivered to appellant a bond, No. 18,876, guaranteeing the fidelity of Cook. The amount of the bond was $10,000, the premium paid $40, and the term expired May 1, 1905. This bond, among other provisions, contained the following:
“This bond . . . will be invalid and of no effect unless signed' by the Employe. . . . And the said Employe does hereby for himself, his heirs, . . . covenant and agree . . . that he will save, defend and keep harmless the said Company, from and against all loss and damage . . . for, or by reason, or in consequence of the said Company having entered into the present Bond.”
The bond was signed by Cook and the appellee company. At the time of the making of the bond Cook signed an application containing interrogatories and the answers made thereto by him, and also the following agreement:
“I hereby agree for myself, my heirs and administrators, in consideration of the Title Guaranty & Surety Company becoming surety for me and issuing Bond applied for, or any renewal thereof, or any further or other Bond hereby issued by the said Company on my behalf in my present or any other position in this service, to protect and indemnify the said Company against any loss, damage or expense that it may sustain or become liable for in consequence of such guarantee on my behalf by said company,” etc. •
Under date of April 20, 1905, appellee executed a bond, No. 25,420, like the one above described, expiring April 1, 1906, but Cook did not sign in the blank left for his name. At the-same time the appellee company executed a number of other bonds, guaranteeing the fidelity of a number of other employees of the appellant, none of which was signed by such employees. Except for such signatures, all of these bonds were fully signed and on the same printed form. Under date of March 22, 1906, the appellee company executed the following continuation certificate:
“In Consideration of the sum of Forty & °%oo Dollars . . . hereby continues in force bond No. 25420 (the one issued on W. P. Cook of date April 20, 1905, as above set out) . . . for the period beginning the 1st day of April, 1906, and ending on the 1st day of April, 1907, subject to all the covenants and conditions of said original bond.”
Appellee also issued like renewal policies on other employees of appellant. .All of the premiums were paid by the appellant and received by appellee, and the bonds and renewal certificates delivered to appellant by Nesbit were put in his safe by appellant without being read by him. The appellee through its agents solicited appellant to secure such bonds, brought the documents to appellant, and said nothing to appellant on delivery thereof indicating that anything remained to be done with them' to perfect or complete them. Appellant received the same believing them to be completed contracts.
There is no evidence that any other application was asked from Cook except the one asked and given when the first bond was issued in 1904. It appears that appellee was notified promptly when the loss was discovered, and that appellee wrote its agent in Kansas City in November, 1906, as follows:
“I enclose you a copy of the employer’s statement which was furnished us with bond No. 18,876, which was issued, our bond No. 25,420 having been executed as a renewal of the first one.”
The court found as a legal conclusion that the instrument issued was not a valid,-binding contract for lack of the signature of Cook, and that such signature thereto was not waived by the appellee.
The transaction in question in this case does not differ in principle from fire insurance and perhaps other kinds of insurance. The appellee, through its agents, prepared a bond, which for comparison answers the purpose of a fire insurance policy, and also prepared all other papers, and delivered them to appellant as complete to meet the purposes of the transaction. The appellant received them, paid the money demanded therefor, and put them in his safe supposing that he had an indemnity bond. Had no loss occurred, the appellee might have- continued indefinitely to deliver, and the appellant to receive and pay for, indemnity contracts not signed by the employee, which, if the appellee is now correct, would have been absolutely worthless and would have imposed no obligation upon the appellee, and the appellee would probably not have offered to return the premiums as it also believed the contract valid and that it had fairly earned the premium. In short, the appellee, would be selling something supposed to be of value and to impose obligations on its part when in fact ther’e was no obliga tion created. However honestly intended, this would constitute a legal fraud. For the appellee to deny the validity of the contract after it has received the consideration for the reason only that the employee, Cook, did not sign the bond savors of fraud. The only purpose of his signing the bond was to indemnify the appellee from any loss suffered on his account. This Cook had done by signing the application at the issuance of the first bond as fully as if he had signed the second bond or the extension certificate thereto.
In a similar case, General Ry. Signal Co. v. Title G. & S. Co., 203 N. Y. 407, 96 N. E. 735, it was .said:
“While it might be argued that the authority of these agents of the defendant was sufficient to waive the condition of the bond, in question, in delivering it as it was and by receiving the premium, upon the same principle that insurers have been held bound by the acts of their agents in waiving conditions of a policy (McNally v. Phoenix Ins. Co., 137 N. Y. 389, 396), we have a broader basis of facts and circumstances in this case, upon which a waiver may securely rest. It might be said that the objection to the enforcement of this bond went a little further, in principle; in that it went to its completion as an instrument and waiver, therefore, needed fuller proof in the facts. However it may be, it is not necessary to decide the point; for a waiver by the defendant need not rest upon the fact alone of the delivery of the bond. The legal presumption of a waiver may rest upon the further fact that the defendant had in its possession, at the time of delivery, the agreement signed by Ellis, which was to the same effect as in the bond and quite as comprehensive, as an indemnification of the defendant against any loss by reason of going upon the bond. The application on behalf of the plaintiff was made a part of the bond; but that of Ellis was not. He was brought into it by supplementing the usual provisions of the bond by an agreement on his part. Acting for their principal, we must assume that the defendant’s agents had its interests in view and that they considered them as well protected by the separate covenant of Ellis, as_ if he had subscribed to it upon the bond. To have insisted upon such subscription by him had become un necessary; for the covenant in the bond had ceased to be of importance. All of the facts and circumstances, therefore, conclusively support the finding of a waiver. . . . While the defendant required the employe’s signature to the bond as a condition of its validity as an obligation, as it had the right to do, in holding it estopped from now insisting upon the condition, it loses nothing but a technical defense; which, if suffered to prevail in the face of the facts and circumstances of the case, would mean the lending of the aid of the court to the perpetration of a fraud. Jealous as the law is of the rights of a surety, the limit of its protection is reached when the surety invokes its aid to defraud.” (pp. 411, 413.)
The language is applicable to this case; the defense in this case is purely technical. The addition of Cook’s signature would give the appellant nothing that he does not possess under his original contract. The appellant correctly contends that by delivering the bond and extension certificate and collecting the price thereof the appellee waived Cook’s signature and can not now be heard to deny such waiver.
When a policy of insurance contains a condition which renders it void at its inception and this result is known to the insurer at the time of the delivery of the policy, as the appellee, through its agents, knew of the condition in this case, it will be presumed to have intended to waive the condition and to execute a binding contract rather than to have deceived the insured into thinking that he had a contract of indemnity, when in fact he had not, and to have taken his money without consideration. The knowledge of appellee’s soliciting agents of the conditions at the time of the delivery of the bond was the knowledge of the appellee. (Merchants Ins. Co. v. Harris, 51 Colo. 95, 116 Pac. 149; Athens Mutual Insurance Co. v. Ledford, 134 Ga. 500, 68 S. E. 91.)
The judgment of the court is reversed and the case is remanded with instructions to vacate the judgment and to render judgment in accordance with the finding of fact in favor of Fowler and against the company for $3002.24, with interest and costs. | [
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The opinion of the court was delivered by
Porter, J.:
On June 23, 1910, the appellees commenced three'separate actions against appellants. The pleadings in each were alike and asked for the recovery of one-twelfth- of a half section of land in Ellsworth county, and for the same proportion of the rents and profits for three years next preceding. The appellees are the children of Oliver W. Olson- and Alma Olson and their contention is that Alma Olson, who died intestate in 1902, was the owner in her lifetime of an undivided one-half interest in the lands and that they inherit from her.
The appellants answered in each action with a general denial, and a further defense, in substance, that if Alma Olson ever acquired any interest in the lands they were encumbered by a mortgage for thirty-two hundred dollars, which Oliver W. Olson, believing himself to be the owner of the lands, paid with his own money; and that thereafter .appelant John A. Peterson purchased the lands in good faith and for full value from Oliver W. Olson and received from the latter a warranty deed therefor, a copy of which was attached to the answer;'that the appellee thereupon abandoned the premises, and that John A. Peterson, believing that he had acquired full ownership thereof, made lasting and valuable improvements thereon, a particular description of which was set forth; that the appellee knew at the time that Peterson was purchasing in the belief that Oliver W. Olson was the owner of the lands and knew that Peterson was making the improvements, but made no objection and was therefore estopped to question .his title. The reply asked that if it should be adjudged that appellee Gerda P. Olson acquired any interest in the land she should be required to contribute her equitable portion of the incumbrance paid by Oliver W. Olson.
The reply in addition to a general denial set up a copy of the deed by which it was claimed the title to the- land in question passed to Oliver W. Olson and 'Alma Olson, and alleged that appellants were not entitled to any relief by reason of the payment of the mortgage for the reason that Oliver W. Olson had received and collected the rents and profits of the lands from the date of the conveyance in 1898 until 1906 and had never accounted for the same; further, that when Peterson purchased he was charged with notice of the record of the deed conveying a one-half interest therein to Alma Olson, as well as with notice of the recorded release of the mortgage; that any improvements made by him upon the land were made With notice of the existence of this deed and were fully compensated by rents and profits received by him prior to June,' 1907. The reply further alleged that at the time Peterson purchased the land appellee Gerda P. Olson was an infant and not familiar with her rights. The three-year statute of limitations and the five-year statute were also pleaded in bar of appellant’s right to subrogation.
On these issues the case of Gerda P. Olson was tried before a jury and a general verdict was returned finding her to be the owner and entitled to the immediate possession of an undivided one-twelfth of the lands. Appellants’ claim for subrogation was sustained, and from Gerda P. Olson’s share' of the rents and profits the court deducted $314.40 as her proportion of the mortgage and rendered judgment in her favor upon the general verdict.
The cases of Olive Olson and Mingnon Holmgren were consolidatéd and tried, with the same result. The appellants seek to reverse the judgments, and the appellees have prosecuted separate cross appeals in which it is contended that the court .erred in permitting appellants to be subrogated to the rights of the mortgagee.
The undisputed facts, as shown by the evidence and findings, are that Oliver W. Olson and Alma Olson were husband and wife and in 1898 resided upon the half section of land in question, which belonged to the husband. He became involved in litigation, .and for the purpose of defrauding creditors conveyed the land by warranty deed to his brother, Neis Olson. His wife joined in the deed which recited a consideration of $9000 without any consideration having been paid. Six months later, on the 30th of November, 1898, the litigation was compromised, and the next day Neis Olson by warranty deed conveyed the land to “Oliver W. Olson and Alma Olson, his wife,” the description of the grantees following exactly the description of the grantors in the first deed. There was no actual consideration paid for the second deed. Both deeds were duly recorded. Each deed was made subject to a mortgage for $3200, payment of which the grantee assumed. Neis Olson knew the purpose for which the first conveyance was made. Oliver continued in possession of the land and Neis never exercised any acts of ownership over the same. Alma Olson made no claim of any interest in the land during her lifetime, she and Oliver W. Olson continuing to treat the property the same as they had treated it before the deed to Neis. The lands continued to be assessed in the name of Oliver, who paid the taxes until he conveyed it to Peterson. Alma Olson died intestate in 1902, leaving as her heirs her husband and the three appellees. Oliver Olson paid the mortgage in 1904, and in 1906 placed a new mortgage on the land in his own name for $4000, and in 1906 sold and conveyed the land by warranty deed to Peterson for $13,000. Peterson paid $9000 in cash and assumed the mortgage. He purchased without actual knowledge of the claims of appellees, and with no notice of the deed in which Alma Olson was named as a grantee except the notice imparted by the records. He testified that Oliver Olson told him the title was good, but that he did not rely upon the statement and saw Mr. Putnam, one of the officers of the investment company that made the loan of $4000, and that Putnam told him Olson had a good title and that he, Putnam, had an abstract of title which had been obtained when the loan was made. This abstract was then held by parties in the East and was not available. Peterson further testified that he never obtained any abstract and never examined the records to ascertain the condition of the title. At the time of the death of Mrs. Olson, Gerda Olson was six years of age, Mingnon twelve and Olive fourteen. They testified that they knew nothing of their rights in the land until after the death of their father in 1910.
The main contention is that the appellees in these cases failed to show any right to recover, and that the court erred in overruling a demurrer in each case to the evidence, in refusing to direct a verdict for appellants, and in overruling motions for judgment on the special findings and for a new trial. All these claims of error are based upon the contention that the two deeds being shown to have been parts of the same transaction, the second was intended by the parties merely to restore to the grantors in the first such interest as each of them had conveyed by the former deed, and that no evidence was offered from which the court or jury would be justified in finding that the intent of the parties was to convey any interest in the lands to Alma Olson. It is argued that the fact that the grantors in the first deed are described as “Oliver Olson and Alma Olson, his wife,” while the second deed conveys the same lands to “Oliver Olson and Alma Olson, his wife,” together with the undisputed evidence and the findings of the jury that the land belonged to Oliver Olson originally, that the first deed was made for the purpose of defrauding his creditors, that Neis Olson, the grantee, knew this, that there was no change of possession under either deed, that both Oliver Olson and his wife continued after the second deed to treat the land in the same way they had formerly treated it, that the wife paid no consideration for the conveyance, that Oliver Olson paid the taxes and the wife never claimed any interest in or exercised any control or ownership in the lands, are conclusive as to the intent of the parties in the absence of any affirmative evidence showing the contrary. We concede the force of thesé facts and circumstances as evidencé tending to show that by the second deed the parties intended merely to restore the-same title and interest conveyed by the first; but we can not agree with appellants that they make a conclusive showing that such was the intent, or that their evidentiary force could be overcome only by what may be termed positive or affirmative evidence that the parties intended otherwise. Some force must be given to the express language of the instrument itself, which in plain terms grants and conveys the lands to the husband and wife in equal parts. Prima facie the intent was to convey to both. Nor is the force of the presumed intent destroyed by evidence that the wife paid no consideration. There were no creditors; no rights of third parties intervened. There was no rule of law or public policy to prevent the husband, if he so desired, from making a gift to the wife of the entire interest in the land or of a half interest therein. The husband having made a fraudulent conveyance by the first deed could not compel a reconveyance (Weatherbee v. Cockrell, 44 Kan. 380, 24 Pac. 417; Robinson’s Executors v. Blood’s Heirs, 64 Kan. 290, 67 Pac. 842, 20 Cyc. 617), but the law is well settled that Neis Olson was under a strong moral obligation to reconvey to Oliver or to any person to whom Oliver might request a conveyance made (Springfield Homestead Asso. v. Roll, 137 Ill. 205, 27 N. E. 184, 31 Am. St. Rep. 358), and that the moral obligation is a valuable and sufficient consideration for the second deed (Bicocchi v. Casey-Swasey Co., 91 Tex. 259, 42 S. W. 963, 66 Am. St. Rep. 875). Oliver Olson might have requested the conveyance to be made to his wife alone, and had Neis in compliance with such direction conveyed to her it can not be doubted that she would have become the owner in fee simple, there being no creditors and no rights of third persons having intervened. A husband may convey his property to his wife for the consideration of love -and affection when there are no creditors’ rights to be affected. If the husband is not in debt and there is no intent to defraud subsequent creditors a purchase in the wife’s name upon a consideration paid by the husband is valid. (Horder v. Horder, 23 Kan. 391; Tootle, Hosea & Co. v. Coldwell, 30 Kan. 125, 1 Pac. 329; King & Co. v. Wells, 106 Iowa, 649, 77 N. W. 338.) Such a conveyance is prima fade a gift. (Pitkin v. Mott, 56 Mo. App. 401; Building Association v. Reed, 96 Va. 345, 31 S. E. 514, 70 Am. St. Rep. 858.)
(See also, extended note to Adoue v. Spencer, 62 N. J. Eq. 782, 49 Atl. 10, in 90 Am. St. Rep. 484, 518.)
The acceptance by Oliver of the deed conveying the property in equal shares to himself and wife is some evidence tending to show that he was satisfied with the arrangement, and that he intended thereby to make a gift to his wife of a half interest in the land.
The appellants rely strongly upon the case of Carter v. Becker, 69 Kan. 524, 77 Pac. 264. There a wife inherited property from her father. In the settlement with her coheirs deeds were exchanged. The conveyance of her share was taken in the name of her husband as grantee. After her decease her children brought ejectment against the grantee of the husband, as in the case at bar. It was held that the question of whether the wife by consenting to the conveyance intended to make her husband a gift of her separate property was one of fact for the jury to determine; that the burden rested upon the plaintiffs to establish that the property was the separate property of the wife, but that when that fact was shown, it then devolved upon the defendant to show that a gift was intended and not a trust. A judgment in defendant’s favor respecting the interest conveyed by the deed to the husband was reversed and a new trial ordered because of an instruction which charged that prima facie the deed was what it purported to be on its face and was made to the person intended, that unexplained the transacr tion made the grantee the owner of the property because of the presumption that all transactions are fair and honest. The fault in the instruction was said in the opinion to be, that it “ignored the conceded fact that the property dealt with” (p. 528) was the separate property of the wife, and that in such cases the husband is presumed to hold the land in trust for her benefit.
That there is room for'distinguishing the cases seems apparent. While in the present case the land belonged to the husband, it could hardly be called his separate property. It was not his at the time of the marriage; it did not come to him by gift, descent, devise or bequest. The family had lived upon the land and occupied a part of it as the homestead from the time it was purchased. Presumably the wife performed her share in acquiring it and adding to its value. Where under such circumstances the husband conveys or consents that the title to the land shall be conveyed to the wife without the payment by her of a valuable consideration, is there a presumption that she is to hold the title in trust for his benefit?
The presumption of law that was held to be controlling in Carter v. Becker, supra, arose upon the adoption in this country of the married women’s property acts and because of the incapacities of the wife and the marital fights enjoyed by the husband at the common law. As said in the opinion in the Carter case (69 Kan. 524, 77 Pac. 264), the married women’s act “was designed to secure to the wife, without additional effort or precaution on her part, that which before, under the same circumstances, might have become her husband’s because of his marital rights, or because of her in-capacities.” (p. 529.) The presumption, which was lost sight of in the instruction in the Becker case, is one which the "courts created after the adoption of the statutes placing the wife on a level with her husband in her property rights, and was required in order to secure to her those rights. -Appellants insist that the principle is reciprocal, and that the presumption is of equal force where the title to property of the husband is taken in the name of the wife. The married women’s act defines the separate property of the wife as the property, real and personal, which she “may own at the time of her marriage, and the rents, issues, profits or proceeds thereof, and any real, personal or mixed property which shall come to her by descent, devise or bequest, or the gift of any person except her husband.” (Gen. Stat. 1909, §4872.) There is no express statutory provision, as in California and some of the other states, declaring that the husband shall enjoy the same rights in property similarly possessed or acquired by him. He was not at the common law under disabilities, as was the wife, and probably the legislature deemed him capable of looking out for himself. Whatever presumption would obtain in respect of property owned by him at the time of his marriage or which came to him by descent, devise or bequest, or by gift from some person other than his wife, no reasonable basis can be said to exist for a presumption that the wife holds in trust for the husband, where, as in the present case, the consideration is furnished by him and the conveyance is made to her of an equal share of property, which so far as the evidence discloses, was the fruit of their combined efforts and sacrifices for many years.
Appellants contend further that ejectment will not lie to enforce a fraudulent contract, and that the heirs of Alma Olson can not maintain the action because of the fraud in the first conveyance. But there was no fraud in the second conveyance. Neis was,under a moral obligation to reconvey. This supplied a valuable and sufficient consideration. The fact that Alma was the wife of the fraudulent grantor in the first deed furnished a consideration for a conveyance to her if satisfactory to the husband. So far as the title is concerned, both parties must claim under the deed from Neis Olson. The deed in question in plain terms conveys the land to Oliver W. Olson and Alma Olson. There is nothing uncertain or ambiguous in its terms. We attach no importance to the fact that the granting clause of the deed conveys to “said party of the second part” and the warranty is to “said parties of the second part their heirs and assigns,” or that in the clause providing for the assumption of the mortgage “the grantee assumes and agrees to pay” instead of the “grantees.” Slight discrepancies of this kind are frequently found in instruments of conveyance drawn by careless or inexperienced scriveners, but in a case of this kind are insufficient in our opinion to indicate a different intention from that which would be apparent from the instrument if they were not present.
The court submitted to the jury the question whether it was the intention merely to restore to the original grantors the same title they formerly held, or whether it was intended to convey an absolute interest to the wife, and we find no error in the instructions given or in the refusal of those requested. The court instructed that the parties had the right to convey the real estate to Oliver Olson-and Alma Olson, and that a deed so made would vest half -the title in the wife and half in the husband if such was the intention of the parties; and that if the jury believed from the évidence that such was the intent of the parties they should find for the plaintiffs; that it was for the plaintiffs to show by a preponderance of the evidence that such was the intent ; further, that the payment by the husband of the consideration for a conveyance to the wife does not necessarily vest the title to the real estate in her and that the intention of the parties would control. It was obviously not error to refuse an instruction that before the plaintiffs could recover they must show by a preponderance of the evidence that Peterson had actual notice of the existence of the deed from Neis Olson. It was of record and imparted notice. The jury had before them all the facts in connection with, the execution of both deeds, the manner in which the parties treated the real estate after the conveyance, and all the circumstances, and have found the facts against the appellants’ contentions. The intention of the parties to the conveyance Was one for a jury to determine. (Carter v. Becker, 69 Kan. 524, 77 Pac. 264.) The fact, that the conveyance was not made by the husband directly would not affect the situation. If he consented or directed that the conveyance be made to her, the transaction would amount to a purchase of real estate in the wife’s name upon a consideration paid by the husband.
The only question presented by the cross-appeals is whether it was error to charge the appellees with their proportionate share of the mortgage paid by Oliver Olson. We think the court rightly held that the appellants were entitled to be subrogated to the rights of the mortgagee. “Subrogation is a creature of equity, invented to prevent a failure of justice.” (Safe Deposit Co. v. Thomas, 59 Kan. 470, 475, 53 Pac. 472.) In the case just citied (p. 475) an excerpt from Johnson v. Barrett et al., 117 Ind. 551, 19 N. E. 199, 10 Am. St. Rep. 83, was quoted with approval. It states the general principles which seem to cover the facts in the present case.
“Subrogation is the substitution of another person in place of a creditor, so that the person substituted will succeed to all the rights of the creditor having reference to the debt due him. It is independent of any merely contractual relations between the parties to be affected by it, and is broad, enough to include every instance in which one party is required to pay a debt for which' another is primarily answerable, and which, in equity and good conscience, ought to be discharged by the latter.” (p. 554.)
It is insisted, however, that Peterson never paid the mortgage and that it was paid years before he purchased the land. If Oliver Olson had been sued by the children to recover their interest as heirs of Alma Olson he could have claimed the right to be recompensed for their share of the mortgage. He was not a volun teer; he was a party to the mortgage; it was executed by himself and wife and both had assumed its payment. The satisfaction of the mortgage benefited the appellees and in equity their shares would have been chargeable with their due proportion in any suit brought by them against him. By his conveyance to Peterson the latter became the assignee of whatever rights Oliver had to subrogation. In Harris, Law of Subrogation, p. 327, the case of Jones v. McKenna, (72 Tenn.) 4 Lea, 630, is cited. There property of infants had been sold under foreclosure proceedings which were afterward held to be invalid because the infants were not made parties, and it was held to be the settled law in such a case that whether the sale was made to pay debts of the ancestor, or directly for the benefit of the infants, the latter will be required to refund to the purchaser so much of the purchase money as was appropriated in the payment of debts which were a lien on the property. The equity of the rule is said to be that all the parties are placed in statu quo. In Sheldon on Subrogation, 2d ed., p. 58, it is said (citing Weimer v. Porter, 42 Mich. 569, 4 N. W. 306, and Blodgett and another v. Hitt, 29 Wis. 169, 182 et seq.) respecting the right of the person claiming to be reimbursed:
“It is merely necessary that his payment should have been made in good faith for the protection of an interest which he believed himself to have in the estate, and in discharge of a burden actually resting upon the property, so that his payment has increased the value of -the estate for the benefit of those who turn out subsequently to. be entitled to the title.”
Whatever rights Oliver would have had to reimbursement from the appellees passed to Peterson. Applying the foregoing principles of equity to the facts, it follows that the heirs of Alma Olson, who subsequently turn out to be entitled to a portion of the lands, the value of which was increased by the payment made by the assignee of appellants, should reimburse the latter to the extent of their proportionate shares in the lands. The tendency of courts everywhere is to extend rather than to restrict the principle of subrogation, modifying it to meet the circumstances of each case where in accordance with recognized maxims it should be allowed in equity and good conscience. (37 Cyc. 373, and cases cited.) The answer set up a plea of subrogation. The reply averred that at the time the father of the appellees paid the mortgage he held rents and profits of the lands for which he had never accounted, and which were sufficient to satisfy the mortgage indebtedness. The burden upon this issue was upon the appellees, and not upon the appellants. The latter were not required to allege that when the payment was made there was not on hand rents and profits which should have been applied in satisfaction of the mortgage. The matters alleged in the reply were in the nature of a confession and avoidance which required evidence to establish. The petition or other pleading asking subrogation need not anticipate defenses. (Richards v. Yoder, 10 Neb. 429, 6 N. W. 629; 37 Cyc. 391.)
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The opinion of the court was delivered by
Porter, J.:
Wichita is a city of the first class having a population of more than fifty thousand and is governed by a commission. The state on the relation of the attorney-general questions the right of the city to exercise authority over two certain tracts of land adjoining the city. The facts have been agreed to.
The first of the two tracts in controversy consists of 40 acres known as the Tillinghast land. Sometime prior to 1890, it was platted as Tangney’s Fairmount Addition to the city of Wichita, but was never within the corporate limits of the city unless the ordinances which will be presently referred to made it a part thereof. In 1891 the board of county commissioners of Sedgwick county, upon proceedings instituted for that purpose, vacated this addition. It has ever since' been used for farming purposes, as part of a farm occupied as a homestead by the widow and family of F. L. Tillinghast, deceased. No streets or alleys were ever laid out or used through the tract, nor has the city ever exercised any authority over it before or since the vacation. The lands have been assessed for taxation in the township and all conveyances affecting it have since referred to it by its legal description. No contention is. raised as to the power of the board to vacate the plat, but the city contends that it was only partly vacated for the reason that it might have been conveyed by deeds following the description of the lots and blocks as shown by the recorded plat, and that therefore it falls within' the description of platted lands. We can not agree- with this contention. Upon the vacation of the plat the title to the streets and alleys reverted to the owners of the abutting lots and the lands became from that time unplatted lands. By chapter 190 of the Laws of 1877 authority was given the county boards upon the petition of' the owners of any unimproved town site to vacate the streets, alleys and other public reservations therein, and it was provided that upon the granting of the petition the record of such plat should be marked canceled, and that henceforth such streets, alleys and other public reservations should be vacated and that the title thereto should revert to the owners of the lots adjoining or abutting thereon. The act made provision for an appeal from the order. The authority of the board under this statute to vacate the plat of the addition in controversy seems never to have been' questioned, but on the contrary the proceedings appear to have been acquiesced in by the city, and, as before observed, the validity of the vacation is not assailed. Assuming its validity, we think the 40-acre tract was unplatted lands lying- outside the corporate limits of the city at the time the ordinances were passed. The power of the city to annex territory, it is conceded, is found in section 1220 of the General Statutes of 1909, which reads:
“Whenever any land adjoining or touching the limits of any city has been subdivided into blocks and lots, or whenever any unplatted piece of land lies within (or mainly within) any city, or any tract not exceeding twenty acres is so situated that two-thirds of any line or boundary thereof lies upon or touches the boundary-line of such city, said lands, platted or unplatted, may be added to, taken into and made a part of such city by ordinance duly passed. Said ordinance shall describe the platted lands by giving the name of the addition or subdivision as platted, and by giving the metes and bounds óf the unplatted lands, with the section, township, range and county in which the same are located: Provided, That in ' adding territory to any city if it shall become necessary for the purpose of making the boundary-line straight or harmonious, a portion of a piece of land may be taken into such city, so long as such portion of the piece taken in does not exceed twenty acres.”
There are four classifications of land which may be annexed. First, platted lands adjoining or touching the city limits. At the time the ordinances were passed by which the city attempted to take in this tract it was unplatted lands although it had been platted formerly. It can not fall within the first classification. Second, unplatted lands, which lie within or mainly within the city. The third class can only apply to tracts not exceeding twenty acres and has no application here. The fourth, which allows for taking in tracts when it is necessary to make the boundary-line straight or harmonious has no application for two reasons. First, such was clearly not the purpose of the ordinances ; and second, the proviso only permits the taking in for that purpose of tracts which do not exceed twenty acres. In addition to the claim that because this tract was platted once it remained forever after platted lands, the city makes á further contention which, if we understand the brief, is that this 40-acre tract lay wholly or mainly within the limits of the city on June 3, 1912, when ordinance No. 4491 was published which made the tract a part of the city; and to show that it did at that time lie wholly or mainly within the city limits ordinance No. 3439 is relied upon, which was published two years earlier, on December 16, 1909, and which it is said “brought in” this 49-acre tract along with Tangney’s Fairmount Addition. We quote from the brief:
“These limits having been once established, and having remained so for over two years, the city then, by Ordinance 4491 made this addition a part of the city, it lying wholly within the limits fixed by said Ordinance 3439.”
As before observed, the first, third and fourth classifications of lands in section 1220 of the General Statutes of 1909 clearly do not apply to the tract in question. The second can not be made to apply, for the reason that the tract does not lie wholly or mainly within the limits of the city unless, as is claimed, the city first extended its limits by ordinance No. 3439 so as to include this tract and afterwards “brought in” the same tract by ordinance No. 4491. The difficulty with this contention is that neither ordinance is valid; both are attempts to exercise powers beyond those expressly conferred, by the statute, and there is no implied power in the city to extend its limits or to annex adjoining property.
The second of the two tracts in controversy is known as the Schweiter land, a tract containing 81 acres and a fraction. It has never been platted or subdivided into lots or blocks, it lies outside the city, and the entire tract has been used for farming purposes, except a .strip one hundred and fifty feet wide which constitutes the right of way for the Wichita drainage canal. The city appropriated this in 1906 for the purpose of constructing a drainage canal and storm sewer. The owners of the tract,- Henry Schweiter and wife, .in December of that year by a quitclaim deed conveyed the strip to the city. The consideration for the conveyance was stated therein to be $2438.25. The deed described the strip by metes and bounds, and in the deed the portion conveyed is referred to as follows: “Being property appropriated by the City of Wichita in the condemnation of land necessary for the construction of the Wichita Drainage Canal and Storm Water Sewer.”
It is one contention that the deed conveys the absolute fee title to the right of way and that the strip which runs through the center of the tract north and south severs it into two tracts of about 38 acres each. We are not at all certain that the effect of the conveyance is involved in this case, but if it be, the question has been settled adversely to the city’s claim. (Abercrombie v. Simmons, 71 Kan. 538, 81 Pac. 208.) While there is a conflict in the authorities, see Pipe Line Co. v. D. L. & W. R. R. Co., 62 N. J. Law, 254, 41 Atl. 759, 42 L. R. A. 572, the doctrine is established here that in contracts of this particular character the interest conveyed is limited by the use for which the land is acquired. The third paragraph of the syllabus in the Abercrombie case reads:
“An instrument which is in form a general warranty deed, conveying a strip of land to a railroad company for a right of way, will not vest an absolute title in the railroad company, but the interest conveyed is limited by the use for which the land is acquired, and when that use is abandoned the property will revert to the adjoining owner.”
The opinion expressly confines the decision “to cases where the contract or conveyance shows that the land was sold and received for use as a right of way for a railroad.” (p. 547.) We think it applies with equal force to the case at bar where the conveyance or contract shows that a narrow strip of land was sold and received for use as a right of way for a drainage canal. The limitations of the decision in the Abercrombie case merely recognized that cases may arise where the principle would not apply, cases where by the terms of the contract the title to an entire lot or block or parcel of land was conveyed for a use which' might have been acquired by condemnation and when it was clearly not the intention that upon abandonment of the use the property should revert. The doctrine has full room for operation here, where a narrow strip is acquired for a particular use and similar in all respects to that of the right of way of a railroad.
Several of the ordinances by which the city sought to extend its limits and take in, first the tract lying west of the canal, and then the tract lying east, were invalid for another reason. Section 1219 of the General Statutes of 1909 reads:
“The corporate limits of any city shall remain as they now are and until changed by ordinance, as herein provided. Such limits shall be declared by ordinance, and upon any change being made therein the entire boundary as changed shall be declared in one ordinance.”
In ordinances Nos. 4300, 4323 and 4353 this requirement was not followed.
For the several reasons stated the proceedings by which the city attempted to bring in the two tracts in controversy were invalid and judgment is rendered for the plaintiff. | [
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The opinion of the court was delivered by
West, J.:
Main street in Cherryvale runs east and west and is intersected by Liberty street running north and south. At the intersection, and thence some distance east and west, Main street is paved with brick, the pavement being forty feet in width with a cement curb on each side six inches above the surface of the pavement. Liberty street is paved with brick for one block north, the pavement being thirty feet wide with a curb similar to the one on Main street. At about nine o’clock on the evening of June 26, 1910, the plaintiff was riding in a single-seated one-horse buggy driven by her husband, who sat on the right side. She held one child in her lap and another sat between her and her husband. As the buggy was coming west on the north side of Main street approaching the intersection the horse was driven diagonally across towards the south side as it approached Liberty street, and when within about fifteen feet therefrom the defendant, coming in his automobile down the east side of Liberty street, turned into Main and when the buggy was four or five feet from the south curb line of Main street the automobile struck the- right hind wheel of the same, injuring the buggy, throwing the plaintiff forward into the wheel and injuring her. Plaintiff sued for damages, alleging, among other things, that there was an electric arc light about twenty feet above the center of the intersection of the two streets which cast sufficient rays on and around the vicinity to enable the defendant to see for 150 feet what objects, vehicles or persons there were upon the streets; that he'recklessly and carelessly drove his machine south at a very high rate of speed, to wit, about twenty miles an hour, and along, the east side .of Liberty street at a reckless rate, to wit, about eighteen miles an hour, crossing the northwest corner of the intersection and then in a southeast direction crossing Main street, having his face turned towards the opposite side of the street and away from the direction in which he was running; that had he looked ahead he could have seen the buggy; that he gave no warning or signal of-his approach at any time, but while crossing Main street in a southeast direction was engaged in conversation with two ladies in the back seat of his car. The jury returned a verdict for $600. A demurrer to the evidence, a motion for judgment on the special findings, and a motion for new trial were overruled. The defendant appeals and plaintiff files a cross-appeal alleging error in the reduction of the verdict.
The jury found, among other things, that there was room to have driven the horse along the north side of Main street where the accident occurred, the condition of the street being such as to afford an easy and safe passageway for the horse and buggy; that the horse was driven across the center and over to the south side of Main street just prior to the collision, to which the plaintiff made no objection; that the automobile crossed the center of .the intersection toward the south side of Main,- coming down Liberty street at from ten to twelve miles an hour, which rate was not decreased when it crossed the intersection, or when the collision occurred; that there were four lamps on the front of the automobile lighted at the time and one on the rear; that plaintiff, had she looked, could not have seen the light before, it reached the intersection and prior to the accident, and that she did not see it and could not have seen it until on the south side of Main street; that when she could have first seen the light the horse and buggy were thirty or forty feet southeast of the intersection; that plaintiff could not have seen the auomobile when it approached and crossed, the intersection just prior to the collision; that the automobile was in the usual route of travel generally pursued in passing east on Main street and that the defendant did not see the horse and buggy before the light from his machine fell upon it; that there was not room between the horse and the south curb of Main street for the defendant to safely drive his automobile; that he.did not just before the accident turn to the left to avoid collision; that after the plaintiff and her husband saw the automobile just before the collision they continued to drive toward the south curb of the intersection, and were four or five feet from the curb and fifteen feet from the intersection when the collision occurred; that the plaintiff could not have seen the automobile before it reached the intersection had she been looking. They further found that she was in possession of all her faculties of sight and hearing and did nothing to avoid the collision after she saw or should have seen the automobile and just prior to the collision. The plaintiff’s husband testified that the defendant said it was all his fault and he would pay the damages. Another, witness testified that afterwards he had a talk with the defendant in which the latter said he guessed it was his fault and that he offered to pay what was right and would have sent for a doctor if they had wanted it.
There was no error in overruling the demurrer to the evidence.
Complaint is made of the rejection of certain evidence, but this does not appear to have been brought to the attention of the trial court on the motion for new trial, as required by section 307 of the civil 'code. Neither do we find any error in the refusal to render judgment on the special findings. It remains to be considered whether the motion for new trial was wrongfully -denied. Complaint is made that the instructions were not sufficient on the question of contributory negligence, although none was offered by the defendant. We have examined those given and find that they were as strongly in the defendant’s favor as he was entitled to. It is now argued, however, that the jury should have been, told that plaintiff’s failure to observe the law of the road by turning to the right, if without excuse, was a bar to her recovering; that if she -neglected to look when she should or could have seen the automobile approaching, this would prevent. her recovering. It is also argued-that she was either guilty of contributory negligence in these respects or else her husband’s negligence is to be imputed to her, although the jury found that she had no control over the buggy, the horse or the driver. The seventh instruction was to the effect that it was her duty to exercise ordinary care on her part and as far as she could control the vehicle and direct and control the driver, to observe the law of the road and keep to the right, and to use her senses and exercise the care of any ordinarily prudent person to avoid injury to herself. Her testimony was in substance that she was holding her child in her lap and paying no attention to the situation or circumstances. That she saw the lights of the automobile but it “was right into us before I saw it.” Common sense would dictate that when a wife goes riding with her children in a rig driven by her husband she rightfully relies on him not to drive so as to imperil those in his charge. The law does not depart from common sense by requiring her, under the circumstances shown here, to impugn her husband’s ability to drive and assume the prerogative to dictate to him the manner of driving. With one child on her lap and another sitting next to look after she might with human and legal fairness and propriety leave the driving in the exclusive care of the husband and father, at least until she actually saw some danger calling for warning or advice from her, which was not the case in this instance. She frankly testified that she was “scrooched down” holding her baby and “gawking around at things” but not paying attention to the situation or circumstances surrounding the place at the time. So far as imputed negligence is concerned she had a right to trust her husband to so conduct the ride that she could “scrooch down” and “gawk around” and rest, for very likely she was taken on the drive for real rest and relaxation. Although in Bush v. Railroad Co., 62 Kan. 709, 64 Pac. 624, it was held that when one is riding with another for their mutual pleasure, with equal opportunity to see and ability to appreciate the danger and is in fact looking out for herself, she is then chargeable with want of care if she makes no effort to avoid the danger. That was a case involving the crossing of a railroad track by a young cduple out driving. One train had just passed and they could have seen the other 1300 feet away had they looked. A similar ruling was made in Railway Co. v. Bussey, 66 Kan. 735, 71 Pac. 261. But in City of Leavenworth v. Hatch, 57 Kan. 57, 45 Pac. 65, it was held that a young woman riding in a carriage by invitation of the owner, she having no control over the carriage, the horse or the driver, was not barred from recovering for an injury caused by an obstruction in the street, even if the driver was negligent. It was there said:
' “We think the law well settled that where the person injured has no right tó control the movements of the driver, and does not, in fact, exercise any control, the' negligence of the driver can not be imputed to him.” (p.,61.)
Reading Township v. Telfer, 57 Kan. 798, 48 Pac. 134, was a case of a wife injured while riding with her husband in a vehicle over a defective highway. It was sought to impute to her the negligence of her husband, the driver, and although it was shown that the ride was taken at her solicitation it was decided that she was not to blame for his carelessness. After discussing the headship of the husband in spite of the equality of the sexes it was said:
“All sentiments and instincts of manhood and chivalry impose upon him the obligation to care for and protect his weaker and confiding companion; and all these justify the assumption by him of the labors and responsibilities of the journey, with their accompanying rights of direction and control.” (p. 802.)
Interesting discussions of the question will be found in 1 Thompson’s Commentaries on the Law of Negligence, §§ 502-504; also in Shultz v. Old Colony Street Railway, 193 Mass. 309, 79 N. E. 873, 118 Am. St. Rep. 502, 8 L. R. A., n. s., 597, and note; Note, 21 L. R. A., n. s., 672; 29 Cyc. 542, 543; Southern Railway Co. v. King, 128 Ga. 383, 57 S. E. 687, 11 L. R. A., n. a., 829; Louisville Ry. Co. v. McCarthy, 129 Ky. 814, 112 S. W. 925, 19 L. R. A., n. s., 230. In the note to the Shultz case in 8 L. R. A., n. s., 656, the cases are collated and abundant support is found for the doctrine announced by Mr. Justice Field in Little v. Hackett, 116 U. S. 366:
“But, as we have already stated, responsibility can not, within any recognized rules of law, be fastened upon one who has in no way interfered with and controlled in the matter causing the injury.” (p. 379.)
This was said, with reference to a hack case, but upon principle, the same principle, the wife can not be held responsible for her husband’s negligence unless he was in some degree acting under her authority or direction. True, she would still be liable for her own failure to exercise due care, but the jury found in her favor in this respect and we do not think her own evidence destroys such finding.
Some of the answers to special questions are apparently inconsistent, but no point seems to be made on that ground, and if it were, they can be reconciled with one another and with the general verdict without doing real violence to their verbiage.
In this case, free from unusual difficulty, to recover $2000, eighty-five special questions were submitted to the jury, and their very profusion necessarily tended to befog. The purpose of the statute providing for the submission of special questions was not to put the jury through a process of technical and microscopic cross-examination, and the trial court might well have refused three-fourths or more of the queries which cum ber this record. (Mo. Pac. Rly. Co. v. Holley, 30 Kan. 465, 472, 1 Pac. 180, 554; Mo. Pac. Rly. Co. v. Reynolds, 31 Kan. 132, 136, 1 Pac. 150; Railway Co. v. Lycan, 57 Kan. 635, 646, 47 Pac. 526; Evans v. Moseley, 84 Kan. 322, 332, 114 Pac. 374.)
The method so often indulged in of requiring the jury to separate the damages so as to distinguish between elements of injury which would puzzle the anatomist and the metaphysician is also vanity and vexation of spirit. Of course, under the present stat-. ute it is the duty of the court to submit proper and material questions to show the chief ultimate facts, but if the number and character were properly limited, much waste of time, confusion and prolixity would be avoided.
We find no material error of which the defendant can justly complain.
The plaintiff, by cross-appeal, seeks to reverse the action of the trial court in deducting $250 awarded for permanent injuries. The jury allowed $125 for injuries to the hip, $100 for injuries to the ankle and $125 for injuries to the back. We do not think the testimony indicates that the plaintiff received any permanent injuries, and therefore we find no error in deducting the sum awarded therefor.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
The defendant was convicted of maintaining a nuisance, contrary to the prohibitory law, under section 2493 of the General Statutes of 1901. The information was in three counts. The first and second counts charged illegal sales of intoxicating liquors on the 26th day of July, 1900, and the third count charged the defendant, on the same date, with keeping a place where intoxicating liquors were unlawfully sold, bartered, and given away, and a place where people resorted, and were permitted to resort, for the purpose of drinking intoxicating liquors as a beverage, and where intoxicating liquors were unlawfully kept for sale, and that the place was a common nuisance.
On the trial, the defendant was acquitted on the ■charges contained in the. first two counts, alleging unlawful sales ; that is to say, while the jury did not, in express terms, acquit him on the first two counts, he was found guilty under the third count only, being the charge for maintaining a nuisance, the legal effect of which was an acquittal of the charges of selling. The prosecution confined its proof of alleged illegal sales of beer made by Turner to Lee Anderson, Charles Rose, and Glenn Bennett, three boys who stopped at defendant’s resort while out hunting. 'They testified that they bought several bottles of liquor, which one of them, at least, supposed to be beer. The defendant made no denial of the sales, but defended upon the ground that, the liquor was not intoxicating. He introduced evidence that the liquor was labeled “Canadian Malt,” and witnesses who drank it said it had no intoxicating effect.
It is true, as contended by counsel for the state, that the maintenance of a nuisance is a separate and -distinct offense from that of selling intoxicating liquor. (The State v. Dugan, 52 Kan. 23, 34 Pac. 409.) Had there been testimony other than that showing sales of this particular kind of liquor, which was intoxicating, the conviction for maintaining a nuisance might be sustained. The keeping or sale of nonintoxicating liquors, or keeping a place where persons resort to drink the same, is not an offense against the prohibitory law.
As before stated, the question tried was whether-the liquor sold was intoxicating. The jury having necessarily found that it was not, by their acquittal of the defendant on the charge of selling, it is difficult to understand how a conviction resulted under the nuisance clause of the statute when there was no-more or different evidence to support that charge than there was to sustain the accusation of making illegal sales.
, The judgment of the court below will be reversed1 ’and the cause remanded for a new trial.
Doster, C.J., Johnston, Ellis, JJ., concurring. | [
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Per Curiam:
This was an action to partition a fourteen-acre tract of -land in Doniphan county formerly owned by Safford W. Trowbridge. He died intestate, and this and other real estate descended to his heirs, Ellender W. Trowbridge, his widow, and six children. A judgment was subsequently rendered against the widow in favor of Bridget Cunningham, and an execution was levied On án undivided half of the tract in controversy as the property of the widow. It was sold to the judgment creditor, who brought this proceeding to partition the tract, making' the widow and children parties defendant, and a partition was adjudged.
Objections to the methods of appraisement and other steps preliminary to a sale are not good. They did not render the sale void, and such irregularities can not be questioned in a collateral proceeding. (Paine v. Spratley, 5 Kan. 525; Pritchard v. Madren, 31 id. 38, 2 Pac. 691.)
The surviving wife inherited one-half of the real estate of the husband, and. the undivided share thus allotted to her by the law may be levied on and sold for the payment of her indebtedness. (Gen. Stat. 1901, §2510.) The answer of the widow stated that there had been no division of the estate among the heirs of the decedent, and that while Willis Trow-bridge alleged an arrangement for a division, it only included the children of full age, and was not assented to by all the interested parties. In view of these facts, the testimony rejected, and about which complaint was made, was not material.
The judgment is affirmed.
Doster, C. J., Johnston, Smith, Ellis, JJ. | [
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Error from Harper district court. | [
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The opinion of the court was delivered by
Cunningham, J. :
It will be seen from the statement of the case that the court below took the view that the use by Henderson Brothers of the funds derived from the sale of the mortgaged goods for purposes not authorized by the chattel mortgage rendered the transaction wholly void and annulled the security of the mortgage in favor of the execution creditor. It can hardly be claimed, since the decision in the case of Frankhouser v. Ellett, 22 Kan. 128, that the provision quoted above had the effect of rendering the mortgage void. Had that provision been carried out in good faith, no cqmplaint could have been made. The agreement itself was not contrary to law. Henderson Brothers were violating their agreement’ when they assumed to use the proceeds for any purpose other than as therein provided; but such violation, without the knowledge or consent of the mortgagee, would not make void the mortgage as to it.
The defendant in error contends that, as the mortgage contained the provision relative to the payment to the bank, and that the plaintiff in error might take possession of the goods at any time by paying to the bank any portion of its debt remaining unpaid, it was the duty of the plaintiff in error, if it desired to preserve its rights, to see that the agreement was carried out in good faith, and that therefore it was bound to know of any misappropriation of funds by Henderson Brothers. We cannot give our approval to this contention. Plaintiff in error was doing business 250 miles or more from Arkansas City. It had a right to assume that the agreement of Henderson Brothers was being honestly carried out. There is no presumption that it knew otherwise. Its first note had not yet become due. The time which had elapsed between the giving of the mortgage and the levy of the execution was not so great as to justify any presumption of laches on its part.
It may be that the burden of showing that it had no knowledge of the manner in which Henderson Brothers were conducting the business, and that it did not consent to the same, fell upon the plaintiff, and that it should have made such showing in the first instance. If this be so, the court ought to have permitted the introduction of such evidence even after it had rested. We do not understand that the court refused this because it would interfere with the orderly conduct of the case, but because such evidence would not, in the opinion of the court, help the plaintiff. In this we disagree with the. trial court. We think the plaintiff ought to have been permitted to show that it had no knowledge of the misappropriation of the proceeds of the sale of the mortgaged property, and that upon such showing the court should have held that its mortgage was not, as a matter of law, vitiated solely by the misconduct of Henderson Brothers.
The case will be reversed and remanded for further proceedings.
Johnston, Greene, JJ., concurring. | [
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Error from Reno district court. | [
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The opinion of the court was delivered by
Smith, J.:
In justification of the homicide the appellant relied wholly on the necessity for self-defense. The state was permitted to show at the trial that Jessie Doty was engaged to be married to Hoffman, and that appellant knew it; that the latter sought her company and invited her to attend certain entertainments with him, and that he told her that Hoffman did not intend to marry her but would deceive her. ‘ This testimony was admitted on the theory that Hoffman was an obstacle in the way of the motivo. consummation of appellant’s desire to maMiss Doty, which fact furnished a motive for the killing. The objection made by appellant to this testimony is an- attack on its weight rather than its competency. The conduct of the appellant towards Miss Doty in inviting her to accompany him to places of public amusement, and, failing in this, his attempt to prejudice her against Hoffman, were circumstances proper to go to the jury to aid in the discovery of a motive for the homicide. The testimony was not strong in the direction mentioned, but we cannot, say that it was inadmissible.
The appellant took the stand as a witness in his own behalf, and testified that on the Saturday before the homicide, in a conversation with Hoffman, the latter said: “If you will stand up before Jessie Doty’s face and tell us you didn’t tell her that, there will be a corpse and a funeral procession, if you can get anybody to bury you here in Marion.”
Further along the accused testified that when he fired the fatal shot he thought his life was in danger ; that when Hoffman entered the restaurant he made a motion of his right hand as if to draw a revolver ; that he put all the circumstances that had happened together and could n’t see how he coúld avoid taking Hoffman’s life ; that he considered and weighed the conversations held between them and came to the conclusion that Hoffman intended to kill him. The following questions, and the action of the court thereon, appear in the record :
“Ques. Mr. Burton, at any time were any other threats made by Fred. Hoffman conveyed to you ? Ans. At any time ?
“Q. Prior to that time. A. Yes, sir.
“Q. When were they conveyed to you? A. Saturday evening. (Counsel for the state objects to the witness stating that threats were conveyed to him as incompetent and immaterial.)
“By the court: Sustained. (To which ruling the defendant excepts.)
“Q. I will ask you if you was told that Fred. Hoff man made a statement at that cake-walk that if he could find you he would do you up ? (Objected to by the state as incompetent.)
"By the court: At this time the objection is sustained. (The defendant excepts.)”
It appears that the first question propounded was in fact answered by the witness, but immediately afterward an objection was made by the state that it was incompetent and immaterial, and the court sustained the objection on those grounds. The court instructed the jury as follows :
"Any evidence which has been admitted by the court should be considered by you in making up your verdict; and when any evidence heard by you has been afterwards struck out by the court, you should absolutely and entirely disregard and give it no consideration. Your verdict should be based alone upon the evidence which the court has permitted to stand, and upon the law as stated to you in these instructions.”
It is quite apparent that the court did not intend that the answer of the witness should be considered by the jury, and we regard it as having been stricken out.
It cannot be said in this case that the evidence of justification on the ground of self-defense, taking the testimony of appellant as true, did not raise a doubt as to whether the accused, when he fired shot, was in apparent danger of great bodily harm. He had a right to have his testimony weighed by the jury. (State v. Cushing, 14 Wash. 527, 45 Pac. 145, 53 Am. St. Rep. 883.) The defendant was justified in acting upon the facts as they appeared to him, and is not to be judged by the facts as they really existed. (The State v. Howard, 14 Kan. 173.) The "apparency” of the danger to the accused would be greatly affected by his knowledge of previous threats made against him by the deceased. It has uniformly been held that communicated threats against the prisoner, made a short time before the commission of the homicide, showing a revengeful spirit and determination to do him violence, are admissible. (Miles Wilson v. The State, 30 Fla. 234, 11 South. 556, 17 L. R. A. 654, and note.)
The court refused to permit the defendant to answer the following questions :
“ Q. I will ask you if, at the time of this tragedy, you had ascertained and knew the reputation of Fred. Hoffman for being a violent and turbulent man, and for carrying a gun ?
“ Q. I will ask you, Mr. Burton, if you knew what Fred. Hoffman’s reputation was at the time of the tragedy as a violent and turbulent man?”
We understand from these questions that, had defendant been permitted to answer them, he would have testified that he had been told by others that the deceased was a violent and turbulent man, and went about armed. The court sustained an objection to the first of the above questions on the ground of in competency, and to the'second because it was not the proper way to show the character of the deceased. Counsel for the state insists that the character of the person killed can only be attacked by evidence of his general reputation in the neighborhood, and cannot be proved by specific acts of violence or turbulence, or by isolated facts, nor by the individual opinions of those who are acquainted with him. We agree that this is the general rule, but we do not think it is applicable to the question involved in the objection to the testimony sought to be drawn out by the two questions above.
If the defendant was justified in acting on the ap pearances presented at the time of the killing, then the knowledge he had theretofore gained concerning the violent and dangerous character of the deceased tended to show his state of- mind and his good faith in the belief of his imminent danger when he fired the fatal shot. The effect on defendant’s mind would be the same whether he gained his information of the ■dangerous character of the deceased from his general reputation in the community or by personal observation of specific acts, or from persons who had knowledge of particular traits, but who knew nothing of the general reputation of the man. If defendant knew that deceased was a dangerous man, the influence of that knowledge on his conduct at the time of the killing could hardly be said to differ in whatever manner the information was derived, by hearsay or otherwise, and the same whether the fact was known by the community generally or not.
In the case of State v. Lull, 48 Vt. 581, 586, 11 L. R. A. 75, a prison-keeper was indicted for assault and battery on a prisoner. The latter had a hammer in his hand and appeared nervous and excited, though he made no attempt to strike, but the keeper .expected and feared a blow from him. It was held that the accused might show that the sheriff who committed the prisoner informed him that he- was dangerous and desperate. The court said :
“We think that the court erred in excluding the testimony offered to be shown by Mr. Tripp as to what he told the respondent at the time he delivered Kefoe to him at the state prison in respect to his being a violent and desperate man. It was an offer to show that Tripp told the respondent what the character of Kefoe was in respect to his being a violent and desperate man. The form of the words used is not so material as the idea conveyed. This evidence we think was fairly within the rule that the court laid down as governing the kind of testimony that was admissible, not particular acts of violence, but the character of the man in that respect. Such evidence would be material in determining how far the respondent was justified in inflicting the blow which he did, taken in connection with the surrounding circumstances and the evidence exhibited by Kefoe of an intention at the time to make an attack upon the respondent ; and such evidence is always admissible as bearing upon the question as to whether a respondent had good reason to fear an attack upon himself, and acted in self-defense.” ( See, also, People v. Powell, 87 Cal. 348, 25 Pac. 481, 11 L. R. A. 75.)
The judgment of the court below will be reversed ' and a new trial ordered.
Johnston, Greene. Ellis, JJ., concurring. | [
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Per Curiam:
This was an action to quiet title-to a tract of land in Sedgwick City, Harvey county, which was held to have been dedicated for a public-park in Hurd v. Commissioners of Harvey County, 40 Kan. 92, 19 Pac. 325.
In a demurrer, Shattuck alleged that plaintiffs had no legal capacity to sue, and that facts sufficient to' constitute a cause of action were not stated. The demurrer being overruled, an answer was filed alleging that defendant had a legal and 'equitable estate in the land and was entitled to recover the possession of the same. On the trial the plaintiffs prevailed, the court finding that the land had been dedicated as a public park, and that the tax deed under which Shattuck claimed was void. Judgment quieting title as against him was decided on April 5, 1898, when a motion for a new trial was heard, and which was overruled on February 14, 1899. The case was brought up for review on February 14, 1900, more than a year after the judgment was rendered, but just a year after the motion for a new trial was overruled. This leaves no questions for consideration except such as are available under the motion for a new trial. The testimony was not preserved, and, therefore, not many of the points made in the case are open for review. The pe tition stated a cause of action sufficient to sustain the judgment. The fact that' the plaintiffs, the county and the city, did not have the same kind of title to the land, and that only the city, had the possession and control of it., is not material to Shattuck and does not render the petition bad.
The claim that the special findings do not sustain • the judgment is not good. The general finding supplements the special findings, and, in the absence of evidence and of findings to the contrary, it -will be presumed that the facts disclosed in evidence were such as supported the general finding and judgment. (Briggs v. Eggan, 17 Kan. 591; Wilson v. Janes, 29 id. 246; Kellogg v. Bissantz, 51 id. 418, 32 Pac. 1090; Pennell v. Felch, 55 id. 78, 39 Pac. 1023.) Apart from this consideration, the question whether the special findings were sufficient to sustain the judgment was not involved in the motion for a new trial, and the action of the court on the motion did not extend the time in which such a question could be brought up for review. (Osborne, Ex’r, v. Young, 28 Kan. 769.)
The judgment of the district court will be affirmed.
Doster, C.J., Johnston, Smith, Ellis, ,JJ. | [
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The opinion of the court, was delivered by
Pollock, J.:
This is an action brought to recover from a railway company damages for the killing of nine calves, alleged to have been caused by negligence of the company in making a shipment of a car-load of seventy-two calves from the city of Chanute to the city of Burlington. On the day of the shipment, the calves were driven a distance of eleven or twelve miles over muddy roads, arriving in the city of Chanute about four p. m., were loaded in a car which left the city of Chanute on a special freight-train about five p. m., and arrived at the city of Burlington about 8 : 25 p. m. The pens of the defendant company being muddy, the calves were removed therefrom upon the evening of arrival, and were driven some distance that night. The shipment was made under a special live-stock contract, a copy of which was attached to plaintiff’s bill of particulars in justice’s court, where the action was instituted. This contract, among other things, provided :
“The shipper further expressly agrees that, as a condition precedent to his right to recover any damages for any loss or injury to said cattle resulting from carrier’s negligence as aforesaid, including delays, he will give notice in writing to the conductor in charge of the train, or the nearest station- or freight-agent of the carrier on whose line the injuries occur, before said cars leave that carrier’s line, or before the cattle are mingled with other cattle, or removed from pens at destination. In his notice he shall state place and nature of the injuries complained of, to the end that they may be fully and fairly investigated, and said shipper shall, within thirty days after the happening of the injuries complained of, file with some freight- or station-agent of the carrier on whose line the injury occurred his claim therefor, giving the amount. Shipper’s failure to comply with the requirements of this section shall absolutely defeat and bar any cause of action for any injuries resulting to said cattle as aforesaid. . . .No agent of this company has any authority to waive, modify or amend any of the provisions of this contract.” . . .
No notice of damages was given, or claim made, to the conductor in charge of the train at Burlington, or to the station-agent at said place, until the following day, and until the cattle had been removed from the pens at point of destination. Plaintiff had judgment in justice’s court and the railway company appealed. Upon a trial in the district court plaintiff had judgment, and the railway company prosecutes this proceeding in error. It was found by the jury that plaintiff overloaded the car; that sixty-five of the calves shipped were as many as could properly be loaded into the car in which they were shipped.
. The principal ground of error claimed is in the following instructions of the court:
“3. The contract entered into between the plaintiff and the defendant for the shipment of the calves is in writing, and is attached to the plaintiff’s bill of particulars in this case, and the conditions of such contract are binding upon the parties, unless for some reason the terms and conditions have been waived, or the performance of the conditions rendered impossible or unnecessary by the action of the parties or one of them.”'
“5. If you find that the said calves in question were killed by the carelessness and negligence of the defendant railway company, and that the plaintiff himself was not guilty of negligence in loading the calves, and that due notice of the claim for damages was given as required by the contract, or that the necessity for giving such notice was waived, then you will find for the plaintiff in the sum the evidence shows he was damaged.”
“9. If, when the car came into Burlington and the plaintiff discovered that the calves were dead, or that he wanted to claim damages for any reason, it was his duty to make a claim in writing for such damages of the conductor of the train or the station-agent. If the station-agent was not at the station when the calves were unloaded, and he could not, for that reason, give notice on that day and before mingling the stock with other cattle, and if he gave such notice, even though the cattle were removed from the yards of the company a short distance at the time of such notice, that would be sufficient. . ■ . . If the station-agent was at the station and saw the condition of the stock, and plaintiff at once drove them away, and then, on the next day, the plaintiff made the demand in writing, that would be sufficient as to the written notice, as required by the contract in this-case.”
Live-stock contracts similar in their nature to the. one here involved have received the consideration of this court, and, where fairly entered into by both parties, in the absence of fraud, have been held conclusive and binding on the parties. (Goggin v. K. P. Rly. Co., 12 Kan. 416; Sprague v. Mo. Pac. Rly. Co., 34 id. 347, 8 Pac. 465.) Hence, it must be held that the terms and conditions of this special contract were binding upon these parties and should have been so declared by the court.
This contract also expressly provides that “no agent of this company has any authority to waive, modify or amend the provisions of this contract.” In the face of this express provision in the contract which was binding upon the parties, neither the station-agent in charge of the company’s station at the city of Burlington, nor the conductor in charge of the train, had any authority to waive the notice in writing stipulated in the contract; and the instructions of the court above quoted, based upon a waiver of the conditions of the contract by the station-agent, on account of his knowledge of the death of the calves upon the arrival of the train, or upon any other waiver of the terms and conditions of the contract by the agent of the company, attempted to be shown in this case, were erroneous, for which errors the judgment is reversed.
Doster, O. J., Smith, J., concurring. | [
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The opinion of the court was delivered by
Smith, J. :
This was an action brought by plaintiffs below to enjoin the plaintiff in error from working at the barber trade in the town of Russell, in violation of the terms of a contract made by him with the plaintiffs. It is alleged in the amended petition that the parties entered into a written contract, a copy of which is set out, in which plaintiff in error, for adequate consideration, agreed as follows :
‘•I, H. C. Pohlman, do hereby sell and assign all my right, title and interest to the building now used by me as a barber shop, together with all'furniture, tools and materials in said shop, to G. F. Dawson. I also agi’ee not to engage in the barber business in any manner in Russell, Kan., while said G. F., E. E. or H. A. Dawson shall conduct the same.”
The petition avers that at the time the action was brought Pohlman was working at the barber trade in Russell, Kan., in a shop run by one Clarence Lester, in violation of the terms of the contract, to the great damage of plaintiffs; that he commenced work in said shop, in violation of his agreement, on or about the 21st day of July, 1898, and has worked ever since, and is now working at said barber trade. The defendant below demurred to this petition on the ground that it stated no cause of action. His demurrer was overruled, and, electing to stand thereon, a perpetual injunction was decreed against him, and he comes here by proceedings in error.
The principal contention is that the plaintiff in error was not violating the terms of the contract in working for the proprietor of another shop. We disagree with counsel in this claim. The contract is that Pohlman should not engage in the barber business in any manner in Russell, Kan. This means that he would not carry on said business' after the manner of either a proprietor or an employee. We think that by the comprehensive language used he contracted not to work as a barber for any other person in that town so long as defendants in error were in business. Engaging himself as an employee in a rival shop would result in greater harm to the defendants in error than if the parties had been carrying on a purely commercial business. The barber sustains personal relations with his customers, which are at least' quasi professional. Formerly by statute, 32 Henry VIII, C. 42 (5 Eng. Stat. at L., 58), in England, barbers were united with a company of surgeons, it being enacted that they should confine themselves to the operations of bloodletting and drawing teeth. While a barber no longer practices surgery or extracts teeth, his vocation de pends for success on the skilful sharpening of his blade and the dexterity of its use. It differs essentially from a commercial pursuit. The patrons of a mercantile establishment are generally indifferent concerning the ability and experience of a clerk or proprietor whose dealings with them are chiefly confined to quoting prices and separating from the stock such quantities of goods as the customer buys. The owner may sell out to another and set up again for himself in the same business near by, yet purchasers find what is suitable to their wants still exposed for sale by the new proprietor at the old stand. Like the surgeon or dentist, when the barber moves he attracts to himself those having' confidence in his ability, and the greater his professional skill the more difficult it is to alienate from him those to whom his services have given satisfaction.
The claim that the amended petition did not relate back to the time the action was commenced cannot be sustained. There 'is an express averment that it does so, and the verification states that the 'facts set out were true when the original petition was filed.
The judgment of the court below will be affirmed.
Cunningham, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J. :
Was the plaintiff entitled to an attorney’s lien on the funds in the hands of the defendants? or, Did the defendants render themselves liable to the plaintiff for the attorney’s fees by ignoring notice of the lien and by the payment of the entire amount in their hands to another? According to the facts stated, the fee was earned in the case in which notice of the lien was given, and the money in controversy, which was in the hands of Moffett Brothers, was money due to Mrs. Boydston, a client of the attorney, as determined in the proceedings in which the attorney was employed. The statute provides :
“An attorney has a lien for a general balance of compensation . . . upon money due to his client, and in the hands of the adverse party, in an action or proceeding in which the attorney was employed, from the time of giving notice of the lien to that party.” (Gen. Stat. 1901, §395.)
Mrs. Boydston intervened in an attachment proceeding, and it was in that case that her right to the attached property was determined. The property was sold and converted into money by virtue of an order made by the court in that case, and the judgment of the court was that the property or its value should be forthwith returned to her. When the j udgment was returned, Moffett Brothers had in their possession about $800, received from the sale of the property under the order of the court. It was the proceeds of the property in controversy, property which had been converted into money, and was held by the defendant subject to such order as the court might make. The money belonged to plaintiff’s client. It was in the hands of -parties who were adverse to her in the action. It was the fruits of the labor and skill of plaintiff, and, under the statute quoted, it was chargeable with the lien for his fee.
The notice of the lien was sufficient to bind Moffett Brothers. It was in writing, and was served upon the attorney of record in the case. The attorney of record was the representative of the defendants, and acted for them in this matter as much as in any other involved in the action, and service upon him effectively bound them. (K. P. Rly. Co. v. Thacher, 17 Kan. 92.)
It is next contended that, as the exact amount due was not stipulated nor shown, no recovery whatever can be had. To recover the full amount claimed, the plaintiff should have shown his services were worth that sum. The showing made, however, entitled the plaintiff to a recovery of a substantial amount. By ■the stipulation he estimated the value of the services ■to be $105, and that was the amount claimed in the Hen and named in the notice -of Hen. The facts agreed upon show the character of the litigation, the nature and extent of the services rendered, and, also, that the plaintiff was successful in both courts in which the case was pending. The character and the importance of the litigation, the labor and time necessarily involved therein and the result of the same are elements to be considered by the court in determining the value of the services rendered by the attorney. All of these things being shown or conceded, the court, with its knowledge of the value of legal services, had a basis for determination. The opinion of experts as to such values, if given, would not have been conclusive upon the court, as it must in the end apply its own general knowledge, and from all the circumstances and testimony decide what the value of legal services is. (Bentley v. Brown, 37 Kan. 14, 14 Pac. 434.) It is said that no expert proof was offered because there was no dispute as to the value of the services, and judging by the amount asked by the plaintiff, and from the character and extent of the services rendered, this may very well have been true. Enough appeared, however, to show that the plaintiff was entitled to a substantial recovery for the services shown to have been rendered, and the court erred in holding that he was not entitled to recover anything.
The judgment will therefore be reversed, and the cause remanded for a new trial.
Doster, C. J, Greene, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
John Gill was prosecuted for violations of the prohibitory liquor law upon an informa tion containing ten counts, and was found guilty of the charges stated in three of the counts. He appealed, and contends, first, that the information should have been quashed because the verification was indefinite. It was verified positively by Adell B. Beaumont, and it was also verified upon information and belief by G. R. Gard, as county attorney. In the transcript the printed words “county attorney” followed the signature of Beaumont, and the presence of these words is said to be a clerical error in copying the information. There is some assurarLCe of that in the record itself, where it is stated, and the concession made by the defendant, that Beaumont is a private person. The fact that the information was twice verified did not weaken the charge, nor can we see that' it operated to the prejudice of the defendant. Either verification was sufficient to accomplish the purpose of the law, and the motion to quash was properly overruled.
It is next contended that some of the offenses relied on for conviction were not in the mind of the prosecuting witness when the information was filed. It was charged in the information that on or about certain days in June, 1899, the offenses set •> 77 up in the information were committed, an(j |n election under some of the counts the state relied on sales to particular persons, who testified that the sales of liquor made to them were in May, 1899. From the fact that the offenses were shown to have been committed in May, and were alleged to have been committed on or about certain days in June, the defendant contends that the offenses proved were not in the mind of the prosecuting witness when the information was filed. As will be observed, the time is not definitely fixed in the infor mation, and the slight disparity between the dates named in the information and those fixed by the proof does not show that the offenses were not the ones in the mind of the prosecutor at the beginning of the prosecution. The state is not required to prove that an offense was committed on the particular day charged, but may show that it was committed at any ■ time within two years next preceding the time of the filing of the information. It has been frequently held that the prosecuting witness, or county attorney, will be presumed to have knowledge of the offenses proved or relied on, in the absence of a showing to the contrary. (The State v. Brooks, 33 Kan. 708, 7 Pac. 591; The State v. Lund, 51 id. 1, 32 Pac. 657.) Again, as one of the verifications was positive in form, there could be no question as to the validity of the warrant issued, nor of the arrest made ; and besides, in such cases, the secret reasons of the prosecuting witnesses cannot be inquired into for the purpose of invalidating warrants for arrest. (Holton v. Bimrod, 61 Kan. 13, 58 Pac. 558, and cases cited.)
Further complaint is made that the court gave an additional instruction at the conclusion of the' argument. It was deemed to be necessary because of some claim or contention that was made during the argument, and simply stated to the jury that the precise time of the commission of the offense need not be averred in the information, but that it is sufficient in regard to the matter of time if it appears from the information that the offenses complained of were committed within two years next preceding the time of the filing of the information. No exception is taken to the law as stated by the court in this additional instruction, but it is contended that it cut them out of the right to argue the instruction to the jury, and that it was, therefore, prejudicial to the defendant. It not infrequently happens that some circumstance arises wllich requires an additional instruction after the charge has been given and before the case is finally submitted. In some cases, argument subsequent to the giving of the instruction might be important and necessary, and the court in such cases would doubtless permit it. In this case, the matter upon which the instruction treated was simple and hardly open to any contention ; and besides, counsel made no request for permission to make additional argument, and is therefore in no position to complain that such an opportunity was not given.
We think the case was fairly submitted to the jury, and that no prejudicial error has been pointed out. The judgment of the district court will be affirmed.
Doster, C. J., Greene, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Smith,- J.:
This case was first decided and affirmed January 5, 1901. (63 Pac. 444.) A rehearing was granted later, and the questions involved have been fully reargued before the whole court, since it was enlarged by the addition of four justices, elaborate briefs being filed covering the points discussed by counsel.
Judge Sturges, of the twelfth judicial district, Was called upon to try this case, after a mistrial before' Judge C. W. Smith, of the thirty-fourth district, and he acted as judge pro tern. At the May term, 1899, Judge Sturges was duly selected by the bar as judge pro tern., and took the prescribed oath that he would' faithfully perform the duties of such judge at that term. Upon application of the railway company, the trial of the case was continued to the October term, 1899, “both plaintiff and defendant agreeing thereto, and consenting to the trial thereof by said judge,”' according to the record.
It is contended that when Judge Sturges left his judicial district and was chosen by the bar to act as judge pro tern, and preside at the trial of - . - _. . _ *fils case, then pending m the twenty-first judicial district, in Marshall county, and when he accepted the trust, he was disqualified so to do, in that he violated that part of section 13 of. article 3 of the constitution, which reads: “Such . . . judges shall receive no fees or perquisites nor hold any other office of profit or trust under the authority of the state,” etc. Conceding - this claim to be sound, the disqualification complained of was no more complete than it would have been had an alien or a minor been chosen in the same way to sit as judge in the case. We are quite clear that the judicial acts of Judge Sturges performed in this case were those of a judge de facto, and are not subject to attack in a collateral way. After a review of all the authorities, Van Fleet, in his work on Collateral Attack, section 23, says :
“When a person has an appointment to act as judge of a court, which he and the officers of the court adjudge to be valid; and he takes possession of the court and acts, supported by the power of the state, he is a judge de facto.”
In the present case, Judge Sturges was recognized by the sheriff, clerk, and attorneys, including the counsel for the parties to this action, who consented to his trial of the cause, and no challenge of his authority or right to sit was made until long after his tei’m of office as judge pro tem. had expired, and then, for the first time, in this court. ■
Whether jurisdiction may be conferred by consent is not involved ; but the question is presented whether the acts of a de facto officer, having color of title to the office, who, while in the performance of his duties, is generally recognized by all persons concerned in the work he is performing, can be questioned in a collateral way, or in any manner except by a proceeding on behalf of the state to which such officer is made a party. In the case of State v. Carroll, 88 Conn. 449, 9 Am. Rep. 409, it was held that no color of right derived from an election or appointment is necessary in order to constitute an officer defacto. In that opinion, rendered by Chief Justice Butler, which has been said by Judge Redfield to be one of the landmarks of the law, it was said :
“An officer defacto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised:
“1. Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry to submit to or invoke his action, supposing him to be the officer he assumed to be.
“2. Under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like.
“3. Under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of sdme defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public.”
The application of this decision to the case at bar is found in the second and third subdivisions.
The constitution of Vermont provides that no person holding any office of profit or trust under the authority of congress shall be eligible to any appointment under the legislature, or to hold any executive or judicial office under the state. A postmaster was elected justice of the peace, and in a suit before him the defendants pleaded to the jurisdiction, alleging that at the time the summons issued he was a postmaster under the authority of congress and ineligible to hold a judicial office. The court held that a demurrer to this plea was rightfully sustained; that the justice was, an officer defacto, and his judicial authority could not be questioned in that way. (McGregor v. Balch et al., 14 Vt. 428, 39 Am. Dec. 231. See, also, Gregg Township v. Jamison, 55 Pa. St. 468; Ostrander v. People, 29 Hun, 513.)
In the late case of The State v. Williams, 61 Kan. 739, 740, 60 Pac. 1050, it was said:
“It is a general rule of universal application that a person who receives an appointment to an existing office from those having authority to appoint, and qualifies and enters upon the discharge of the duties of the office, is a de facto officer, although he may be ineligible by reason of being a non-resident, a minor, or an alien. The acts of an officer who comes into-possession of an office under the forms o.f law, and who assumes to act under such an appointment as-Chapman had, are deemed to be legal and binding as-to the public and all persons who have any interest in the things done by him. The acts of a de facto judge 'cannot be collaterally attacked, and his right to, the-office is not open to question except in a direct proceeding brought by the state ; and this is true in a case where the officer is incapable of holding the office.” (See, also, Hunter’s Adm’r v. Ferguson’s Adm’r, 13 Kan. 462; Hale v. Bischoff, 53 id. 301, 36 Pac. 752.)
The decision quoted completely covers the question under discussion here. Judge Sturges was not a usurper in any sense. He was selected in the manner prescribed by the statute, by the members of the bar present. He took the statutory oath of office, and thenceforth was recognized by all the officers of the court, and by the parties litigant, as having such authority as the regular judge might have exercised had he presided in the case. The difference between a usurper and an officer de 'facto is pointed .out in Hamlin v. Kassafer, 15 Ore. 456, 15 Pac. 778, 3 Am. St. 176.
In The State, ex rel., v. Comm’rs of Garfield Co., 54 Kan. 372, 38 Pac. 559, the county of Garfield, by a judgment in a proceeding in quo warranto brought in this court, was dissolved, and adj udged to be an unconstitutional and void organization, for the reason that it contained a geographical area of less than 432 square'miles, contrary to section 1 of article 9 of the constitution. Later, however, in Riley v. Garfield Township, 54 Kan. 463, 38 Pac. 560, it was held that from the time the county was erected until its dissolution by this court it had a de facto existence, and that debts created by it during that time were valid and collectable. In Garfield Township v. Croker, ante, p. 272, 65 Pac. 273, it was decided that a superintendent of public instruction of Garfield county before its dissolution was a de facto officer, and his right to exercise the duties of such office could not be inquired into in a collateral action to which the officer was not a party.
The de facto power of Judge Sturges was hot diminished or impaired after the continuance of the case from the May to the October term. It is true that he took and subscribed an oath on the 23d day of May, 1899, to perform faithfully the duties of a judge pro tem. of the district court of Marshall county, at the regular May term, 1899. The record of his appoint-_ _ _ . _ ment shows that he was unanimously chosen by the bar to try this and other causes. íle was not divested of his judicial authority by a failure to take and subscribe the oath required of a judge pro tem. for the October term. (In re Hewes, 62 Kan. 288, 62 Pac. 673; State v. Carroll, supra, subd. 2 of opinion quoted.) The record is silent as to whether another oath was taken by him at the October term, and, if it were necessary to up hold his acts at that time, we would presume that this silence was favorable to the regularity and validity of the proceedings of the court, and not against them. (Garden City v. Heller, 61 Kan. 767, 60 Pac. 1060.)
Counsel for the railway company assert that they recognized Judge Sturges as a “called-in” judge, under chapter 108 of the Laws of 1897, and hot as a judge pro tem. In the case of In re Hewes, supra, it was held that when a district judge is called from his own district to hold court in a county within another district, and is then selected by the members of the bar as a judge pro tem., his authority to hold court in the latter district is derivable from his election as judge pro tem. * When discussing the right of Judge Sturges to sit at the October term, counsel are strenuous in their insistence that their consent for him to do so could not confer jurisdiction, and that such consent did not cure the errors committed by the regular judge in his refusal to grant the railway company a change of venue to another county in February, 1899. Apart from the question whether jurisdiction can be conferred by consent, errors committed in the progress of a trial are often waived. Parties may conduct themselves in a manner which shows .that a previous objection to an erroneous ruling has been withdrawn or waived. A demurrer to the evidence may be improperly overruled for lack of testimony to sustain the plaintiff’s case, yet, when the defect is supplied by the defendants, the error is cured. (Simpson v. Kimberlin, 12 Kan. 579.) So, if a change of venue be improperly granted, if the parties appear and proceed to trial without objection, the error is waived, no matter how valid were the objections made to the change in the first instance.
We direct attention again to the language used in the journal entry continuing the case from the May ■to the October term, as follows : “Both plaintiff and defendant agreeing thereto, and consent to the trial thereof by said judge.” ' If the venue had been changed by Judge Glass upon application of the railway company, when its motion was heard, and the ■case sent for trial to another county, it was certainly within the power of the parties, by stipulation, to agree that the order changing the venue might be set aside and the case tried in Marshall county. As bearing on this question, see Vaughn v. Hixon, 50 Kan. 773, 32 Pac. 358; Stow v. Shay, 54 id. 574, 38 Pac. 784; Garden City v. Heller, 61 id. 767, 60 Pac. 1060. Counsel for defendant below, after their application for a change of venue had been overruled by Judge Glass, went to trial without objection before Judge Smith, which trial resulted in a disagreement of the jury. Thereafter they agreed that Judge Sturges might try the case, which he did. After the verdict they moved for a judgment in their favor on the findings. Now they appeal to this court to correct errors committed against them by the last judge. During all these proceedings, there was never a suggestion coming from the counsel for the railway company that the case ought to be tried in another county, but there was complete acquiescence in the right of Judge Smith ,and Judge Sturges to sit and finally determine the case on its merits.
The motion for a change of venue presented to the regular judge in February, 1899, set forth two grounds : (1) That Judge Glass was interested, having been of counsel in the case ; (2) that the inhabitants and taxpayers of Marshall county were prejudiced against the railway company to such extent that it could not have a fair trial in that county. No proof was made in support of the latter reason for the change, and no claim is made here that the court erred in overruling the application on the ground asserting prejudice of the inhabitants. The object of counsel in seeking for a change of venue on the first ground was to have the case tried before a judge who was disinterested. This was accomplished by the coming of Judge Sturges and his selection as judge pro tem. The contention of counsel for plaintiff in error is reduced to the claim that the court erred in bringing a disinterested judge-into Marshall county to try the case, instead of sending the case out of Marshall county to a disinterested judge to be tried.. If the case had gone to the judge, they would have been satisfied, but, because the judge came to the case, they now complain. A disinterested judge was secured, and this is what counsel were seeking in their application for a change of venue.
In the original opinion, it was held that the case-made was settled and signed after the term of office of the judge pro tem. had expired, and, for that reason, it was stricken from the record. On October 13,1899, the motion of defendant below for a new trial was overruled, and the court extended the time to March 15, 1900, within which period defendant might prepare and serve on plaintiff’s attorneys a case-made for this court; and plaintiff * below was allowed twenty days thereafter to suggest and serve amendments, the case-made to be settled and signed upon ten days’ notice in writing by either party. The case was served on counsel for plaintiff below on February 21, 1900, and, no'amendments being suggested, the latter gave notice that it would be presented to the judge for settlement on April 23, 1900, and it was signed and settled on that date. It was held in the former opinion that the term of office of the judge pro tern, expired on April 4, •1900, which was the last day fixed by his order for serving amendments. That part of the statute applicable to the question reads-:
“In all causes heretofore or hereafter tried, when the term of office of the trial judge shall have expired, or may hereafter expire, before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his term had not expired.” (Gen. Stat. 1901, §5035.)
In Manufacturing Co. v. Stoddard, 61 Kan. 640, 60 Pac. 320, after quoting from K. & C. P. Rly. Co. v. Wright, 53 id. 272, 36 Pac. 331, the court said:
“The above case is, in effect, a holding that the term of office of a judge pro tern, is limited to such specific periods as he sets for the making and service of the case and the suggesting of amendments thereto, and the settlement of the case, and that, if within such term of office no time is fixed for the settlement of the case, such term cannot be prolonged by specifying an indeterminate period within which the parties may come before him for the settlement of the case.”
In K. & C. P. Rly. Co. v. Wright, supra, it was said :
“The only contingency which warrants an ex-judge in settling and signing a case is that at the expiration of his term the time was actually fixed for making or settling and signing the case.”
It is contended that the writer of the opinion in the latter case, in referring to the section of the statute in question, misstated the language of the law by saying that, when the term of office of a trial judge shall expire during the time fixed for making or settling and signing a case, it shall be his duty to sign and settle the case in all respects as if his term had not expired. Conceding the-misstatement, we do not think it affected the decision. If a case is settled before the last day fixed for the doing of that act, it is settled during the time appointed. The interpretation placed upon the statute by the decisions from which W6 have quoted has been applied in many cases not reported, where the question arose on motions to dismiss. The .explicit rulings in the two cases mentioned have left no ground for the profession to be misled, and we have not been. convinced that they are unsound in principle or that they are based on a misconstruction of the statute. Stability in' the decisions should be maintained, if possible, on questions of practice. In Stone v. Boone, 24 Kan. 337, 341, Chief Justice Horton, speaking.for the' court, said :
‘ ‘ There seems to be running through the entire body of judicial decisions the doctrine that judges ought not to disturb prior rulings of the same court except for cogent reasons; as some express it, ‘only where the decision is flatly absurd or unjust,’ as the certainty of the rule is often more important than the reason of it.”
It is claimed that, because the judge pro tem. ordered that execution be stayed on the judgment until the case-made was settled, he retained jurisdiction until a settlement was in fact made. This order could have no reference to any other settlement than an effectual one, made before the judge lost jurisdiction of the case.
For the foregoing reasons, the matter contained in the case-made cannot be considered. We have reexamined the findings of the jury contained 'in the transcript of the record and conclude that they do not overturn the general verdict, nor that they are so inconsistent with one another as to justify a new trial.
The judgment will be affirmed.
Johnston, J., concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
On January 28, 1894, O. W. Goodlander, one of the plaintiffs in error, held a judgment against a corporation in which the defendants in error were stockholders, on which judgment there had been an execution returned unsatisfied. On that date, and after due notice, the court ordered an execution to be issued in favor of Goodlander against the defendants in error as stockholders for the amount of the judgment which Goodlander held against the corporation, that amount being less than the amount of stock which defendants in error held. This order was made under the provisions of sections 50 of chapter 66 of the General Statutes of 1897. On October 31, 1898, execution issued to the plaintiff in error Wheeler, as sheriff of Bourbon county, against the defendants in error, based on the order above referred to, and this action was one to enjoin the enforcement of that order on the ground that the statute of limitations had barred the same. The court below held that the statute had run against the enforcement of the order of January 28, 1894, and permanently enjoined the execution of it. Plaintiffs in error are here seeking a reversal of that order.
The defendants in error claim that the. order was justified by and under division 3 of section 18 of the code of civil procedure (Gen. Stat. 1901, §4446), which reads:
“Civil actions other than for the recovery of real property can only be brought within the following periods after the cause of action shall have accrued, and not afterwards: . . . “Within three years, an action upon a liability created by statute, other than a forfeiture or penalty.”
We think the court below erred in holding this statute applicable for two reasons. First, the sheriff was proceeding to levy his execution upon the property of the defendants in error and this proceeding was not “an action” within the meaning of the language of the statute. It seems from the first part of the quoted section that the word “action” means what is ordinarily known as a lawsuit, the phrase being that civil actions can only be brought, etc., clearly indicating to our minds that the limitation imposed is one upon the bringing of a suit in the court, while the proceeding in the case at bar was not the bringing of an action, but the enforcement of an order which had been properly made in an action already brought. Second, the execution was not based upon any liability created by statute but upon an order of the court awarding it. While the liability, to enforce which the-order was made, was a liability created by statute, that liability had become fixed in the order for execution which had been made, and the execution issued not upon the stockholder’s statutory liability, but upon the order for execution, so that Good]ander was not by the execution seeking to commence proceedings, or to bring an action, but to enforce a remedy he had already obtained, which was a right to the execution in question.
It is suggested by the defendants in error that at the time of the commencement of these injunction proceedings the original judgment against the corporation had become dormant, and that because thereof the order awarding the execution had also ceased to have vitality or force. There is no showing in the record that the judgment had become dormant; therefore we are not called upon to discuss what effect the dormancy or extinguishment of the judgment against the corporation would have had upon the ancillary-order for execution.
We think that the court erred in holding that the three-year statute of limitations quoted barred the enforcement of the order awarding execution against the defendants in error, and therefore direct that this judgment be reversed and the casé remanded for further proceedings.
Greene, Pollock, JJ., concurring. | [
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Error from Allen district court. | [
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The opinion of the court was delivered by
Greene, J.:
This litigation grew out of a condemnation of land for a public highway. The plaintiff in error appealed from the award of the board of county commissioners to the district court, where the cause was tried with the assistance of a jury. Several interrogatories were submitted by the plaintiff and answered, as follows:
“ Q. What do you allow for the value of the land taken for the road itself ? A. $16.
“Q. What do you allow for the cost of building a fence on each side of the road its entire length? A. $1J30 for both sides.
“Q. What .do you allow for the cost of keeping said fence in repair? A. $4 for all time to come.
“Q,. What do you allow for the expense of providing additional facilities for watering, caused by dividing the land into two portions? A. $75.
“Q,. What was the land in question worth before the location of the road? A. $1000.
“Q. What was said land worth after being divided into two portions irregular in shape by the locating of said road, outside of the land taken for the road itself? A. $791.
“Q,. What do you allow for the diminished value of said tract, other than the land taken for (¡he road, by reason of the location of said road and the dividing of the land? $20.”
With these special findings the jury returnd a generrl verdict, assessing plaintiff’s entire damage at $225. The plaintiff then moved the court for judgment on the special findings of the jury for $434, being the aggregate of the several items of damage in their special findings. This application was overruled, and judgment rendered for $225, to which the plaintiff below excepted, and prosecutes error to this court.
The only question .presented is whether the special findings of the jury shall control the general verdict, and whether the court below erred in not rendering judgment for the amount found by the special findings. It is a recognized principle that where the findings of the jury are fairly susceptible to two interpretations the one should be given that makes them concordant with one another and which supports the general verdict. (St. L. & S. F. Rly. Co. v. Ritz, 33 Kan. 404, 6 Pac. 533; Jackson v. Linnington, 47 Kan. 396, 28 Pac. 173, 27 Am. St. Rep. 300.) In this case, however, it is impossible to harmonize the several items of damage which the jury found the plaintiff sustained with the amount specified in their general verdict. The court instructed the jury upon each' of these items, and each is a proper measure of damage. It has been frequently held by this court that where the special findings of the jury so conflict with their general verdict that they cannot be harmonized, the general verdict must give way ; that the special findings control, and stand as the verdict of the jury. (Gripton v. Thompson, 32 Kan. 367, 4 Pac. 698; Tobie v. Comm’rs of Brown Co., 20 id. 14; School District v. Lund, 51 id. 731, 33 Pac. 595; A. T. & S. F. Rld. Co. v. Morgan, 43 id. 1, 22 Pac. 995.)
Counsel for defendant in error undertakes to reconcile these findings with the general verdict by certain combinations of figures, and he arrived at the amount expressed in the general verdict in two ways, as follows :
The general verdict of $225 is made up of the following items:
Land taken (finding No. 1).................. $16 00
Allowance for fence (No. 2)................... 130 00
Repair of fence (No. 3)..................... 4 00
Providing water facilities (No. 4)............ 75 00
Total (the amount of the verdict)......... $225 00
Value of land............................... $1000 00
After the road was laid out................... 791 00
Difference.............................. $209 00
Land taken................................. 16 00
Amount of verdict....................... $225 00
This effort only serves to demonstrate that the two cannot be reconciled. In his first combination he leaves out the amount which the jury found the land had been decreased in value by reason of the highway being located thereon, and puts this item into his sec-1 ond calculation, adding to it the value of the land actually taken, but takes no account of the other items of damage. If the jury had found the difference between the value of the land before the location of the road and its value thereafter to have been $225, or equal to the sum of the several items actually allowed, this might furnish some ground upon which the special findings could be reconciled with the general verdict, but all this is mere speculation. By the special findings, the plaintiff sustained damages in the sum of $434, and, as it is impossible to reconcile the special findings with the general verdict, the former constitute the verdict of the jury, and the court should have rendered judgment thereon for plaintiff.
The judgment is reversed and remanded, with instructions to the court below to render judgment in favor of plaintiff for the sum of $434 and costs.
Cunningham, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This was an action of replevin brought by A. L. Humphrey against Lee Mayfield, as sheriff, to recover a stock of merchandise which the sheriff had seized on executions issued against M. A. Yoakum and Mollie Yoakum. Humphrey's claim to the right of possession was based on a chattel mortgage executed by the Yoakums to Humphrey and which was filed for record. It purported to have been given as security for several promissory notes given by the Yoakums -to Humphrey, aggregating $800, the first of which became due two years after the mortgage was executed and the last of which matured four years after the execution of the mortgage. The case was tried by the court without a jury, and the agreements as to the facts eliminated all questions from the case except the single question, Was Humphrey’s alleged mortgage a lien on the stock of goods ? The validity of the lien was challenged upon two grounds — first, that the transactions between the Yoakums and Humphrey, including the mortgage itself, were not tona fide, but were fraudulent as against the creditors of the Yoakums ; and another that the mortgage was inoperative and void because of conditions written on its face. Only a general finding was made by the court, and therefore it cannot be determined whether its judgment rests upon one or both of the grounds stated. But we think the case may be disposed of on the single ground that the conditions expressed on its face destroyed its validity.
The instrument was the ordinary form, the greater part of which was printed, but in it there was written, immediately after the description of the mortgaged property, the unusual provision that the Yoakums
“shall have the right to dispose of any and all of said stock and to purchase other goods to keep up said stock; but all moneys derived from the sale of goods over and above what is necessary for running expenses and to keep up said stock shall be turned over to the said A. L. Humphrey, until the said sum of $800, with all interest that shall accrue on it, shall be paid in full, and all goods bought to replenish the stock shall be the property of said A. L. Humphrey until the said notes and all interest is paid.”
Following the written portion of the mortgage were the usual printed stipulations that in the event of a sale or an attempt to sell the mortgaged goods, or a removal of the same from the county, or an unreasonable depreciation in value, or if the security should become inadequate, or the mortgagee should deem himself insecure, he might take possession of the prop erty and sell the same. In this respect the provisions of the mortgage were inconsistent and contradictory,, and the rule in such cases is that the written stipulation shall prevail and be considered as expressing the true intention? of the parties. (Rathbun v. Berry, 49 Kan. 735, 31 Pac. 679, 33 Am. St. Rep. 389.) So considered, it must be held that the mortgage is inoperative and void. The mortgagor not only retained the possession in himself, but by the provisions quoted he reserved the right to sell the entire stock in a lump for cash or on credit, as he might desire, and without notice to or the further consent of the mortgagee.
It is true that the instrument contained a stipulation that the mortgagor had the right to purchase other goods and keep the stock up, but this was optional with him, and no provision was made that he should keep it up to any fixed standard, either as tO' amount or value. There was also a condition that-the moneys derived from the sale of goods, over and above what was necessary to keep up the stock and to-pay the expenses of running the business, should be turned over to Humphrey, but as the mortgagor was-not required to continue business in the usual way and was at liberty to sell the whole stock without notice to anyone, there was but little restraint upon the disposition of the money that might b'e derived from a sale. Whatever may have been the motive and purposes of the parties to the mortgage, the reservations to the mortgagor gave him substantially the same control over the goods as he had before the mortgage was made, and yet it served to fence off his creditors for a period of four years. He could sell the whole or part of the stock as if it were his own, fill up the stock with goods or not, at his option, sell for cash or credit, as he might desire, and he had the opportunity to ap propriate the proceeds of a sale to his own benefit, if he chose such a course. The conditions of the mortgage gave him a fraudulent advantage over his creditors which the law does not sanction. This court has gone to the border line in sustaining mortgages on merchandise where the mortgagor remains in possession and carries on the business in the usual and ordinary way for the benefit of the mortgagee, but we do not feel warranted in extending the rule so as to include mortgages like the one in question.
Under the authority of Rathbun v. Berry, supra, it must be held that the stipulations in the instrument are so inconsistent with a mortgage, and so clearly tend to give the mortgagor a fraudulent advantage over his bona fide creditors, that it should be held to be void on its face and inoperative. (See, also, Leser & Co. v. Glaser, Straus & Co., 32 Kan. 553, 4 Pac. 1026; Smith v. Epley, 55 id. 71, 39 Pac. 1016; Richardson v. Jones, 56 id. 501, 43 Pac. 1127, 54 Am. St. Rep. 594.)
It follows that the judgment of the district court must be affirmed.
Cunningham, Gbeene, Ellis, JJ., concurring. | [
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Per Curiam:
Many questions are presented in this case and ably argued on each side by counsel, but in the view we have taken only one proposition calls for consideration in this court.
A mortgage on lands in Reno county was executed about March 1, 1887. It secured a bond with interest coupons attached, maturing on the 1st days of September and March in each year. The mortgage by its terms provided that upon default in the payment of interest or taxes the whole sum secured by the mortgage should, at the option of the legal holder, at once become due and payable, without notice, and that thereafter the principal and interest should draw interest at the rate of twelve per cent, per annum. The stipulated rate of interest before maturity was seven per cent. No interest was ever paid on the mortgage, and the taxes accruing against the land subsequently to the execution of the mortgage re.mained wholly unpaid.
By due assignment, Thomas A. Westcott became the legal owner of the mortgage and debt thereby secured, and on August 12, 1890, he brought suit for foreclosure, and in his petition elected to declare the whole mortgage debt due as of November 1, 1888, and claimed interest at twelve per cent, per annum from and after that date. The plaintiff in that action died March 1, 1898, and his administrator was appointed on the 16th day of the same month. The action thus commenced continued pending until October 13, 1893, when it was dismissed for reasons not appearing in. the record. No effort was at any time made to revive the action in the name of the administrator of the deceased plaintiff, nor was any motion ever made to reinstate the action, although it would seem to have been improvidently dismissed.
On the 20th day of May, 1895, this action was commenced by the administrator of the estate of Thomas A. Westcott to foreclose the mortgage, and in his petition plaintiff alleged that the former action abated by the death of his intestate. The defendants, who claim an interest in the land, pleaded the statute of limitations as to the entire debt and mortgage, and the court below sustained their plea. Counsel for plaintiff in error contend that in the former action the plaintiff must be deemed to have elected to declare the debt due as of the date that that action was commenced, and not at the time it was in the petition in that case declared to have become due ; that the election pleaded in that case was for the purpose of that action only, and may not be considered as binding in another. We are not cited to any authorities which support the position of plaintiff. A declaration that a debt is due and an election to treat it as due of a particular date, in an action brought upon it, is not for purpose of foreclosure in that case merely, but for all purposes. (Wheeler &, Wilson Manuf’g Co. v. Howard, 28 Fed. 741; Jones, Mortg. §1182.)
We do not mean to determine that an election once made is in all cases irrevocable. Probably in cases of mistake or want of proper information, and certainly when a party is misled by false and fraudulent acts or representations of the debtor, one may, upon a proper showing, be relieved from the effects of an election which ought not to have been made. Here no showing is made or attempted that in the original - action the election actually made was not intended or justified under the conditions then existing.
It follows that at the time this action was brought the statute of limitations had run against the plaintiff’s cause of action, and the judgment of the court below will be affirmed.
Doster, O.J., Smith, Ellis, Pollock, JJ. | [
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The opinion of the court was delivered by
Pollock, J. :
This controversy arises over the construction of section 1, chapter 288, Laws of 1901 (Gen. Stat. 1901, § 517), recited in the bonds. This section reads:
“That section 1 of chapter 163 of the Laws of'1891 be and is hereby amended so as to read as follows : Section 1. Every county, every city of the first, second or third class, the board of education of any city, every township and every school district is hereby authorized and empowered to compromise and refund its bonded indebtedness, including coupons and judgments thereon, upon such terms as can be agreed upon, and to issue new bonds with semiannual interest coupons attached in payment for any sums so compromised, which bonds shall be sold at not less than par, shall not be for a longer period than thirty years, shall not exceed in amount the actual amount of outstanding indebtedness, inclusive of attached coupons, and shall not draw a greater interest than six per cent, per annum. No indebtedness of any kind shall be funded or refunded under the provisions of this act except bonded indebtedness actually existing at the time of the passage of this act or hereafter legally created; and nothing herein contained shall be construed to validate or invalidate any existing bonded indebtedness.”
It is strenuously insisted by counsel for relators that this act confers power upon the municipalities therein named to refund their outstanding bonded indebtedness by the issuance of new bonds, in conformity with the provisions of this act and in compliance with the provisions of the other acts of which this act is amendatory, aggregating, in face value, the entire amount of bonded debt of the municipality, inclusive of interest coupons thereto attached, whether earned or unearned; and that in the present case, as Chase county is refunding $80,000, face value, of the aid bonds, which have thereto attached unmatured interest coupons aggregating $103,200, or a total debt of $183,200, by the issuance of $100,000, face value, of the refunding bonds, the aid bonds are actually being refunded at their present worth, and the transaction is clearly within the power conferred upon the county by the act quoted.
On the other hand, it is contended by counsel for respondent that the act in question, construed in connection with the several acts recited in the bonds, confers power to compromise and refund actually outstanding bonded indebtedness, including matured interest coupons and judgments thereon only, and that the unearned or unmatured interest coupons attached to the aid bonds are not actually outstanding bonded indebtedness within the terms of the act, and may not, therefore, be refunded under the power conferred ; that, as it is admitted that $20,000 of the bonds sought to be registered represent unearned interest coupons, and not indebtedness of the county, the issue in such amount exceeds the power conferred on the county, and that the desire of the county or its agents so to magnify and multiply the bonded debt of the county must be denied.
An examination of the title and provisions of the original act of 1879 (ch. 50), and a comparison of this act with the several acts amendatory thereof subsequently passed, prior to the act in question, leave it entirely free from doubt that only actually outstanding bonded indebtedness may be refunded under the power here conferred; that heretofore the policy of the lawmaking power, as expressed in the amendment of 1891 (ch. 163), has been greatly to restrict and safeguard the large measure of power conferred by the original act. For example, under the original act, “matured' and maturing indebtedness of every kind and description whatsoever ’ ’ might be refunded, whereas the amendment of 1891 limited the scope of the power to refund to “bonded indebtedness, including matured coupons and judgments thereon.”
Again, the original act made no requirement as to registration of the refunding bonds in the office of the auditor of state. This safeguard to prevent abuse of the power the act of 1891 incorporated in the law. By the original act, no restriction was placed on the amount of bonds which a municipality might issue. By the act of 1891, the power of counties and townships to issue bonds, except in refunding outstanding bonded indebtedness, was restricted to five per cent, of the assessed valuation of the municipality, as shown by the last determination of the board of equalization, and of cities (except cities of the first class) and school districts to six per cent.
Viewed in the light of this former restrictive legislation on this subject, we are justified in holding that the power conferred by the apparently conflicting provisions of the act under consideration is limited to and controlled by the prohibition that ‘ ‘ no indebtedness of any kind shall be funded or refunded under the provisions of this act except bonded indebtedness actually existing at the time of the passage of this act or hereafter legally created.” As interest earned upon a principal bond, represented by past-due coupons, from its very nature inheres in and forms a part of the bond itself, by force of necessity such interest becomes a part of the. “bonded indebtedness actually existing.” But as to the unearned interest represented by coupons attached to the aid bonds sought to be refunded in this case, the holder of the principal bond has not the present right to demand or to receive the same. It is only by his forbearance of the use of the principal sum, evidenced by the face of the bond he holds, for a given period of time in future, that the amount expressed in such coupons becomes the demandable property of the holder or the actual bonded indebtedness of the county.
This is not only the natural and reasonable defini tion of the term “bonded indebtedness,” but it is also the rule adopted by all courts in estimating the amount of indebtedness that may be lawfully incurred under constitutional and statutory limitations upon the power of municipal corporations to incur indebtedness. The face value of the obligations and the accrued interest thereon are alone considered as the debt. Interest to become due thereon in the future is not reckoned indebtedness. (Carroll County v. Smith, 111 U. S. 556, 4 Sup. Ct. 539, 28 L. Ed. 517; Lake County v. Graham, 130 id. 674, 9 Sup. Ct. 654, 32 L. Ed. 1065; Chaffee County v. Potter, 142 id. 355, 12 Sup. Ct. 216, 35 L. Ed. 1040; Sutliff v. Lake County Commissioners, 147 id. 230, 13 Sup. Ct. 318, 37 L. Ed. 145; German Ins. Co. v. City of Manning, 95 Fed. 597.) This is also the view taken by the officers of the county, as they certify to the respondent that “the bonded indebtedness of said county at this date is $80,000,” not $183,200.
The construction we have placed upon the act under consideration seems not only in harmony with the policy and intent of the legislature, as ascertained from prior amendments to the original act, but in direct accord with the positive inhibition contained in the act itself. It is also important to consider the fact that while the original act and amendments thereto recited in the bonds as affording lawful power for their existence have many times been resorted to for the purpose of ,changing the form of the municipal indebtedness of the bodies corporate therein named, it has not heretofore been contemplated that any authority or power resided therein absolutely to create additional bonded indebtedness of such municipalities, but rather, that the power to create bonded indebtedness, as contra-distinguished from the power to change the form of indebtedness, rests in the people, and a vote of the electors is necessary to call such power into operation.
Should the construction contended for by counsel for relators be adopted, the very bonds now sought to be registered may, at the expiration of two years from their date, notwithstanding the option of payment therein contained, be refunded by the issuance of other bonds, aggregating in face value the entire amount of principal and unearned coupons thereto attached. Such power, so liable to abuse, of such vital importance to the taxpayers of the municipality, if intended, must be conferred in such clear, positive and unmistakable terms as to leave no room for construction by the courts.
It follows that the writ must be denied.
Doster, O.J., Johnston, Greene, JJ., concurring. | [
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The opinion of the court was delivered by
Greene, J. :
The original petition in this action, among other things, contained the following allegations :
“That about the 8d day of April, 1891, fire was communicated from one of the defendant’s engines to the grass growing along, upon and near to the track of the said railway company, and that the same ran over, upon and through the premises of the said plaintiff adjoining the land on which the said fire was put out by the said company’s engine.”
“That the said fire escaped from the said engine and was communicated to the said grass on account of the carelessness and negligence of the employees of said defendant in the care of said engine and also on account of the careless, negligent and imperfect construction of the said engine and smoke-stack and fire-pans belonging thereto.”
More than seven years after this action was commenced, the plaintiff below, by leave of the court, and over the objection of defendant, amended his petition as follows:
“That the defendant was guilty of negligence in permitting dry grass, weeds, leaves and vegetation to accumulate and remain upon the right of way of said •defendant, where the said fire mentioned in the plaintiff's original petition was set out, and that said fire was communicated to the said dry grass, weeds, leaves and vegetation on said right of way, by reason of the negligence of the defendant, as alleged in plaintiff's original petition, and by the negligence of defendant in the operation of its railroad, and by reason of the negligence of the defendant in permitting said dry grass, weeds, leaves and vegetation to accumulate and remain upon said right of way."
As a second defense to this amended petition, plaintiff in error pleaded the statute of limitations, to which the defendant in error demurred, and the demurrer was sustained. This is the first error complained of.
The court instructed the jury as follows :
"You are further instructed, that the claim of the plaintiff set up in his cause of action in his original petition, in relation to the carelessness and negligence of the employees of the defendant in the care of said engine and the imperfect construction of said engine and. smoke-stack and fire-pans, is withdrawn from your consideration. And, in determining your verdict in this case, so far'as the negligence of the defendant is concerned, you may consider only that part of the petition of said plaintiff relating to the negligence charged in said amended petition, that the defendant was guilty of negligence in permitting dry grass, weeds, leaves and vegetation to accumulate and remain upon the right of way of said defendant where said fire mentioned in plaintiff’s petition was claimed to have been set out and communicated to said grass, weeds, leaves and vegetation on the right of way of the defendant, and from there running over and upon the land of said plaintiff, and causing the injury complained of by said plaintiff."
This amendment became material, in view of the fact that the cause was submitted to the jury on the facts alleged in the amended petition, all other alleged acts of negligence on the part of plaintiff in error having been withdrawn by this instruction. It is strongly contended by plaintiff in error that this amendment stated a new, separate and independent cause of action, and, having been commenced more than seven years after the right of action accrued, is barred by the statute of limitations.
The wrong complained of in the original petition was the negligence of the plaintiff in error in so operating its line of railway that damage resulted to defendant in error. The original petition stated that the fire was communicated from one of the defendant’s engines to the grass growing along, upon and near the track of said company by reason of the defective engine and the negligent manner in which it it was handled. The amended petition stated that the plaintiff in error negligently permitted dry grass, weeds, leaves and vegetation to accumulate and remain on its right of way where said fire mentioned in plaintiff’s original petition was set out by one of its passing engines. This was only amplifyiüg the negligence charged in the original petition, which contributed to or caused the fire to start that resulted in damage to plaintiff below. It was a more definite allegation as to the condition of the “grass growing along, upon and near the defendant’s right of way” as described in the original petition, and that the defendant negligently permitted such dry grass, weeds, leaves and vegetation to accumulate and remain on its right of way. “It is a fair test, to determine whether a new cause of action is alleged in the amended complaint, that a recovery had upon the original complaint would have been a bar to any recovery under the amended complaint.” (Davis v. N. Y. Rld Co., 110 N. Y. 647, 17 N. E. 733.) Within this rule, the amendment was not a new or different cause of action.
In Railway Co. v. Moffatt, 60 Kan. 113, 55 Pac. 837, it was alleged in the original petition that the defendant was guilty of negligence in failing to give the proper signals and due warnings of the approach of its train. The cause was tried and afterward brought to this court and reversed, and upon a new trial, and more than five years after the cause of action had accrued, the court permitted the plaintiff to amend his petition by alleging that the railway company was negligent in failing to give signals other than those required by the statute, and in failing to have a gate, flagman or electric alarm at the highway crossing. Upon objection that it was a different cause of action, and barred, this court said :
“This contention cannot be successfully maintained. No new cause of action was set forth in the amended petition. The cause of action set forth in each of the pleadings was the negligent killing of Andrew C. Moffatt. In the original petition it is alleged that on the morning in question the company ran its engine and cars at a high rate of • speed over a dangerous crossing without giving any warning of the approach of the train, and without using the bell or blowing the whistle, ‘and without using any other lawful, safe and prudent methods of notifying the public or said Andrew C. Moffatt of the approach of said engine and cars.’ The pleading did set forth in a somewhat indefinite way that the company failed to take other precautions which it should have taken, and which might have averted the injury. The amended petition set forth definitely that which had been pleaded generally in the original petition, and therefore it cannot be said that a new cause of action or a new ground of recovery was introduced.”
Plaintiff in error also contends that there was tu» evidence tending to show that the fire originated from the engine drawing the train. This cause was tried to a jury, and this was one of the questions of fact •submitted to it, and there is evidence in the record tending to support the fact that the fire originated from the engine drawing the train, and the jury, having passed upon this question, found against plaintiff in error. This court will not examine the finding further than to ascertain that there was some evidence to support it, and if there was will not disturb it.
Another contention is that the fire did not start on the right of way, and that unless it did so start, under the pleadings and instructions of the court, the defendant below was not liable. Upon this point, C. J. Beitzel testified, substantially, that on the day the fire escaped he was working on the track about twenty-five •or thirty rods east of where the fire started when the engine which it is alleged set out the fire passed ; that •shortly after the train passed — possibly two or three minutes — he saw the fire. When he first saw it, it had not got under headway, and was on the right of way. This is the only witness who testified that he saw the fire immediately after it started. This evidence went to the jury and there was no direct evidence contradicting it. This is sufficient to sustain the finding of the jury that the fire started on the right of way.
It is also claimed by plaintiff in error that the ■.amount of damage awarded by the jury was not sustained by the evidence and was excessive. While it may be that the amount allowed was large, yet the •matter having been presented to the court below on a motion for a new trial, and by it sustained, this .court cannot say that it is so largely excessive as to warrant it in holding that it was the result of passion or prejudice.
The court instructed the jury :
“You are further instructed, that it was the duty of the defendant to keep its right of way free from dry grass, weeds, and other combustible material, in order that fires may not be set out on the right of way by passing engines and from there communicated to adjoining farms. And if you find that the defendant did not do so, but negligently permitted dry grass, weeds, leaves and combustible material to accumulate- and remain on its right of way, and that the same-toot fire from a passing engine and destroyed plaintiff’s property, and that plaintiff was without fault or negligence in the matter, the defendant would be liable.’’
It is contended by plaintiff in error that it submitted evidence to the jury to show that the right of way was free from weeds, grass, and other combustible material, and that this instruction practically took from the jury the question of negligence on the part of plaintiff in error, and said that it was the duty of plaintiff in error to keep the right of way free from combustible material; that if there was any combustible material on the right of way and the fire caught in it the defendant was guilty of negligence. We do not agree with counsel in this contention. This is not a fair interpretation of the instruction. The instruction is that, if there was combustible material on the right of way, and the jury found that the plaintiff in error negligently permitted it to accumulate and remain there, it was negligence.
It is also contended that the court erred in giving the following instruction:
“You are further instructed that, in order for the plaintiff to make his case in the first instance, it is only necessary for him to show that the fire was set out by the engine of the defendant on its right of way through dry grass, weeds and combustible material thereon, and that the said fire burned said plaintiff’s property, and the value of his property, and if you find from the evidence that the fire which it is claimed destroyed the plaintiff’s property was communicated from the engine operated on the defendant’s railway to dry grass, weeds or other combustible material on the right of way of the defendant, and from there to the plaintiff’s farm, without fault of the plaintiff, then your verdict should be for the plaintiff, unless the defendant has shown that said fire was not communi-. cated by reason of negligently permitting dry grass, weeds and other combustible material to accumulate and remain on the right of way of the defendant.”
The contention is that, in this, the court instructed the jury that it was the duty of the defendant to keep its right of way free from combustible material, and that, if there was any combustible material on the right of way, defendant was, as matter of law, guilty of negligence. This instruction specifically called the attention of the jury to the fact that the defendant might show that the fire was not communicated to the dry grass and other combustible material on its right of way, which it had negligently permitted to accumulate and remain thereon ; and that, if such .combustible material was on its right of way, it might show that it was not there by reason of its negligence.
We think this is the interpretation to be given to this instruction and that it states the law correctly. If a railroad company negligently permits dry grass, weeds, leaves or other combustible material to accumulate and remain on its right of way, which are set on fire by one of its passing engines, and such fire thus started destroys property of another, without fault on the part of the owner, the company is liable for such damage. (A. T. & S. F. Rld. Co. v. Gibson, 42 Kan. 34, 21 Pac. 788; Railway Co. v. Ellithorp, 9 Kan. App. 503, 59 Pac. 288; Railroad Co. v. Matthews, 58 Kan. 447, 49 Pac. 602.)
Plaintiff in error also contends that the court erred in permitting the plaintiff below to introduce evidence in support of the claim in his amended petition for attorney’s fees. The plaintiff in error did not plead the statute of limitations to the allegation in the amended petition claiming attorney’s fees, but on the trial objected to the introduction of evidence on this point because the right to recover attorney’s fees in the action, if one ever existed, was barred by the statute of limitations. Under our statute, which allows attorney’s fees in such actions, they are allowed not as a separate cause of action, but the right to recover, where an attorney has been employed and performed services, depends upon the right to recover on the general cause of action; it is incidental to and dependent on such right, and not independent thereof. What such services are worth and that they have been performed must be pleaded and proved like other facts, but the right to recover such fee does not constitute a separate and independent cause of action.
There are some other alleged errors, but upon examination we find nothing prejudicial to plaintiff in error. The judgment of the court below is affirmed.
Cunningham, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Dostjer, C. J. :
This was an action brought by James Sigerson against the Cummings Harvester Company to recover certain money which he had paid to the company for one of its harvesting-machines. A verdict and judgment were rendered in plaintiff’s favor, to reverse which error has been brought. Summarized, the facts, as specially found by the jury, were that the plaintiff bought a machine of the defendant and, for the purchase-price, gave three notes, payable in one, two and three years, respectively. No written warranty accompanied the sale. However, defendant’s agent orally stated to the plaintiff that the machine was a- good one; that it would run light with four horses; that he (the plaintiff) could go ahead and do the best he could with it and, if it did not work satisfactorily, the company would make it right. It is not clear from the findings whether this statement was made at the time of the purchase of the machine or soon thereafter, upon plaintiff’s complaint that it was not a good one. Nor is it clear in law that the statement was an oral warranty. We will assume, however, as the defendant in error would have us do, that it constituted an engagement of some kind for the breach of which an action would lie.
The machine did not work satisfactorily. This the plaintiff discovered at the first trial. Notwithstanding this fact he paid the first two notes at their maturity, and at the maturity of the third one gave a renewal note for it due in a year thereafter, and at the maturity of that note paid it. He paid all these notes without making- objection and without making any claim for damages on account of the defective character of the machine, nor did he ever return, or offer to return, the machine. After thus fully paying the purchase-price of the article bought he sued to recover the money so paid. The action cannot be maintained. The payment for the machine was entirely voluntary. The plaintiff was under no obligation to make it, but, having made it, he will be held to it and cannot rescind his action. In such cases the authorities are pointed and emphatic in their denial of relief. (Gaar, Scott & Co. v. Stark, 36 S. W. [Tenn.] 149; Harder v. Carter, 97 Ga. 273, 23 S. E. 82; American Car Co. v. Railway Co., 100 id. 254, 28 S. E. 40.) The general doctrine applicable to such cases was declared by this court' in Wabaunsee Co. v. Walker, 8 Kan. 431:
“Where a party pays an illegal demand with a full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, unless to release his person or property from detention, or to prevent an immediate seizure of the same, such payment must be deemed to be voluntary, and cannot be recovered back ; and the fact that the party, at the time of making the payment, files a written protest does not make the payment involuntary.”
The application of this doctrine to this case does not militate against the theory of plaintiff’s right of election to rescind the contract of purchase and to sue to recover back the payments made or to retain the machine and offset his damages, when sued for the contract price. This right of election in the purchaser was affirmed in Weybrich & Co. v. Harris, 31 Kan. 92, 1 Pac. 271. But the purchaser in this case did not elect to rescind the contract and sue for damages,- nor did he elect to affirm the contract and wait until he was sued and ' then offset damages. He elected to affirm the contract, retain the machine, pay the purchase-price, and then sue to recover back the latter. This he cannot do. The law does not give him the right to pay a demand for which he knows he is not legally liable and then give him a right of action to recover his payment back.
The judgment of the court below is reversed, with directions to sustain the motion of plaintiff in error for judgment on the special findings..
Johnston, Greene, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Greene, J. :
This action was commenced in the district court of Cowley county by defendant^ in error- against plaintiffs in error to recover certain personal property, the possession of which they claimed had been obtained by fraud. A trial was had arid a verdict and judgment for plaintiffs below for a return of the property or the value thereof. The defendants below prosecute this proceeding in error.
After the jury had been impaneled to try the cause and the plaintiffs below had made the opening statement of their case, the defendants moved the court to instruct the jury, on the petition and statement so made, to return a verdict for defendants, on the ground that the same failed to show that plaintiffs were entitled to recover in the action. This application was overruled, and this is the first error complained of. The petition alleged that the plaintiffs therein were the owners and entitled to the immediate possession of the property described in the petition, and that the defendants wrongfully detained such possession from them. The statement made by counsel to the court and jury was a general summary of the facts on which plaintiffs intended to rely to establish their right of recovery. The contention of plaintiffs in error is that, as this was an action to recover property, the possession of which plaintiff below claimed, by his oral statement, had been obtained through fraud and misrepresentation, the petition should have stated these facts in such manner that the defendants could have known what they would be called on to meet at the trial. This would require the plaintiff in an action of replevin to plead' the evidence which he intended to introduce to prove his right of recovery, instead of the facts which constituted his cause of action. This is not required in any case. The plaintiffs below pleaded the three elements which, if proved, would en title them to recover — ownership, right of possession, and wrongful detention by 'the defendants ; that is sufficient. It was said in Hoisington v. Armstrong, 22 Kan. 110 :
“But all that he is required to set forth in his petition is that he is the owner of the property in controversy, describing it, or that he has a special ownership or interest therein, stating the facts in relation thereto; that he is entitled to the immediate possession of the property; and that the defendant wrongfully detains the same from him.”
This principle was again approved by this court in Batchelor v. Walburn, 23 Kan. 733.
It is contended that the court erred in admitting certain evidence offered by the plaintiffs below. This evidence was introduced to show the false and fraudulenÍ! statements made by Salisbury & for the purpose of obtaining credit, to representatives of the commercial agencies of R. G-. Dun & Co. and Bradstreet & Co. These representatives testified, in substance, that they called on Salisbury & Co. for statements of their financial condition, and that such statements were made, and by each of them forwarded to their companies, and went into the books of their companies, which books are furnished the wholesale merchants to enable them to determine the credit to be given to the persons therein named. Such evidence is admissible when it is shown, as it was in this case, that such reports came to the plaintiffs and it was upon the faith of such reports that credit was extended.
It is claimed that another statement made at another time, and signed by Salisbury & Co., was erroneously admitted because it was not shown that the plaintiffs had knowledge of it at the time they gave the credit, and that this statement had no influ ence on the minds of plaintiffs in granting the credit. The plaintiffs below were trying to show that Salisbury & Go. had made false statements as to their financial condition, and had done so with the intent of deceiving people engaged in the wholesale trade and defrauding them in obtaining goods. While this statement may not have'been relied upon by plaintiffs in this case in giving credit, yet it was a circumstance which might properly be introduced for the purpose of showing that Salisbury & Co. had been doing just what plaintiffs claimed they had been doing, and a circumstance tending to show that they had authorized the making of the other statements which were relied upon, and with which the latter statement corresponded.
It is also urged that no demand was madfe of the defendants below before this action was commenced. The only purpose for which a demand is ever required to be made before commencing an action in replevin i-s to terminate a lawful or rightful possession. The contention of plaintiffs below was that the possession of the property by the defendants was wrongful, and obtained by fraud and false representations. In such case no demand is necessary ; the possession was wrongful from the beginning.
The defendants in the court below, besides Salisbury, were mortgagees in possession of the goods, and, as to them, it is contended that the court misinstructed the jury. The instruction complained of is as follows :
‘ ‘ To entitle the plaintiffs to recover, it is necessary that they shall establish, by their evidence, the alleged fraud and fraudulent purpose of C. E. Salisbury in obtaining the goods, and if they have es-ta^ished this fact by the evidence, then it devolves upon the defendants to show by a pre ponderarme of the evidence that they obtained possession of the goods from Salisbury in good faith, and for a valuable consideration, and without any knowledge or notice of fraud on the part of Salisbury to obtain the goods, and in disposing of them.”
It has generally been held that, where one purchases or obtains possession of property from a fraudulent vendee, the burden is upon him to show that he is a bona fide purchaser for a valuable consideration and. without notice. This is the rule that has been adopted in this state. (Dry-goods Co. v. Kahn, 53 Kan. 276, 36 Pac. 327; Wafer v. Harvey County Bank, 46 id. 597, 26 Pac. 1032.)
Mr. Tiedeman, in his work on Sales, says :
“The purchaser must take the goods in good faith and without notice of the defect in his vendor’s title. But not only must he be without knowledge of the defect, but he must not even know facts which are calculated to arouse the suspicion of a reasonably prudent man that everything was not right. The burden of proof is on the party who claims the protection of a bona fide purchaser.” (§329.)
Another contention is that the court erred in overruling their demurrer to the evidence. There was some evidence tending to establish every essential element of the plaintiff’s cause of action; it was therefore the duty of the court to submit the question to the jury. There are some other alleged errors, but they are not of sufficient importance to demand special attention.
The judgment of the court below is affirmed.
Johnston, Smith, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Pollock, J.:
On the 4th day of October, 1899, plaintiff in error brought its action against defendants in error Gustin and wife on a promissory note for $1500, and procured an order of attachment to be levied on certain personal property as the property of defendant in error J. J. Gustin. The writ was levied by one Zutavern, who had no authority to execute its commands. By virtue of the levy there came into the hands of Zutavern a large amount of personal property. On the 14th day of October, upon the return of the writ, the defendant filed his motion to discharge the attachment, and on the same day defendant in error Clark, claiming to be the owner of a portion of the property seized, filed his motion for an order discharging the property by him claimed from the levy of the writ. Each of said motions, among other grounds, alleged that Zutavern was without lawful authority so to do, which motions were supported by affidavits, and, among them, was the affidavit of the county clerk, showing the want of authority in Zutavern to execute the writ. These motions were noticed for hearing before the judge of the district court, at chambers, on the 23d day of October.
On the 21st day of October the plaintiff filed in the office of the clerk of the district court the following release: “Comes now the plaintiff and releases the property attached in the above-entitled action under the order of attachment dated October 4, 1899, from the levy under said order made.” On the same day plaintiff filed a new bond in attachment and caused another writ of attachment to issue and levy to be made upon a portion of the property theretofore seized under the writ of October 4. On October 23 defendants in error, by their/ counsel, appeared before the judge of the district court, at chambers, and procured an order discharging the property from levy under the writ of October 4. This order recited the failure of the plaintiff to appear and present any proofs in support of the' attachment; the release of the property by the plaintiff from attachment; ordered the attachment dissolved, and the property discharged from the levy thereof; and further, ordered the property to be returned to the defendants in error, “unless now held by a subsequent order of attachment.” On November 1, defendants in error filed motions to discharge the property from the levy of the writ of attachment issued October 21, alleging, among other grounds, the order of the judge of October 23 sustaining the motions filed to dissolve' the attachment and discharge property from the levy of the writ of attachment of October 4 as final and conclusive between the parties, and an adjudication against the right of the plaintiff to seize and hold the property under the attachment, upon any ground specified in the affidavit in attachment filed at the commencement of the action. These motions were heard by the court in term time, and the plea of former adjudication was overruled as to Gustin and sustained as to Clark. Plaintiff brings error.
The sole question presented for determination is, Was the order of the district judge at chambers discharging the property claimed by Clark from the levy of the writ of attachment issued October 4 conclusive, and a final adjudication against the right of plaintiff to seize and hold the property under the writ of attachment issued October 21, based upon the original affidavit in attachment? We are of the opinion that this question must be answefed in the negative. Many sound reasons for this ruling might be given under the facts in the case at bar. As a general rule, subject, however, to exceptions, the doctrine of res judicata is not applicable to orders made on motion. (Stapleton v. Orr, 43 Kan. 170, 23 Pac. 109; National Bank v. Barkalow, 53 id. 68, 35 Pac. 796; Blair v. Anderson, 58 id. 97, 48 Pac. 562, 62 Am. St. Rep. 606; Bank v. Bank, 59 id. 354, 53 Pac. 132.) This rule should apply with special force in cases where the order relied upon as an adjudication is made by a judge at chambers upon an ex parte hearing, as in the case at bar.
Again, it has been many times determined by this court that the rule to be applied in the determination of the question as to whether or not a decision made upon motion shall be held an adjudication of the question passed on depends more on the substance and condition of the decision than on the form of the proceeding. (Hoge v. Norton, 22 Kan. 375; Comm’rs of Wilson Co. v. McIntosh, 30 id. 238, 1 Pac. 572; Axman v. Dueker, 45 id. 179, 25 Pac. 582.) Applying this rule to the present case, it will be seen tha,t the decision on the motions leveled at the seizure of the property under the writ of October 4 was not only ex parte and without contest before the judge at chambers, but also was made after thp release of the property by plaintiff from the levy made under that writ,_and, as a.consequence of such release, the judge was called on to determine no ground of the motions presented. It was only necessary to give effect to the release filed; also, it will be seen that defendants in error may have had, and in this case undoubtedly did have, ample reason for quashing the levy of the writ of October 4, in that Zutavern had no lawful authority to levy the writ, which would not apply to the levy made under the writ of October 21. It is further apparent that the judge, in vacating the levy made under the writ of October 4 and directing the- return of the property to defendants in error, expressly made the order of return conditional upon the property’s not being held under a levy made upon a subsequent writ of attachment.
It follows that .the order discharging the property "claimed by defendant in error. Clark upon the ground of former adjudication is erroneous, and must be reversed.
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The opinion of the court was delivered by
Burch, J.:
From January, 1905, to January, 1911, the defendant was clerk of the district court of Morton county. On July 3, 1911, the county brought an action to recover sums of money claimed to be due it from the defendant, arising from the administration of his office. The county had prosecuted a number of actions under the statute relating to the foreclosure of tax liens and it was claimed that the defendant charged, and withheld from the proceeds of the sales excessive, illegal and fictitious sums as fees and costs. A further claim was made, that the defendant failed to make reports required by law, and thereby incurred the penalty prescribed for such defaults. In another cause of action it was claimed that the defendant was indebted to the county on account of fees collected and retained in excess of the amount he was allowed to keep as compensation for his services. On June 29, 1911, a deed was filed for record whereby the defendant conveyed to E. M. Dean, with whom he was associated in the business of buying and selling real estate, some eighty-three quarter sections of land. At the commencement of the action an attachment was issued and levied on twenty-eight of these quarter sections. Later in the same month Dean and the defendant moved to discharge the attachment for the reason, among others, that' the grounds stated in the affidavit for attachment were not true. After a hearing the court found that the plaintiff had failed to sustain the affidavit by proof and the attachment was dissolved. The plaintiff appeals from this order.
The affidavit for attachment charged that the defendant was about to remove and dispose of his property, and had assigned, removed and disposed of a part of his property, for the purpose of placing it beyond the reach of his creditors and with the intent to hinder, delay and defraud them. At the hearing much evidence was introduced bearing upon these subjects, some of which was conflicting.' The plaintiff insists that certain facts presented were conclusive of fraud. The defendant meets them with explanations contained in the testimony, and with a showing that the defendant, after the transfer mentioned, was still possessed of a large amount of accessible property, and had no creditors of importance unless the county should be one. Fraud in law as distinguished from fraud in fact was not established. There is ample basis for the conclusion of fact drawn by the trial court and consequently its ruling will not be disturbed.
The affidavit for attachment asserted that the debt and liability of the defendant were fraudulently incurred. The proof consisted of charges of fees and costs, entered on the appearance docket and other records of the defendant’s office, which the plaintiff claims were excessive, illegal and fictitious, and proof that the sums so challenged were deducted from the proceeds of sales made in the foreclosure cases referred to. The foreclosure cases were concluded in December, 1907. The charges in question were entered in regular form and were perfectly patent and public. The. defendant testified that he made various quarterly settlements with the county treasurer relating to the foreclosure suits and rendered a complete statement respecting them; that the county board and county treasurer checked this statement with the books, that they examined his books and checked all his accounts, that the county treasurer had the appearance docket for several days checking it up, and that all the defendant’s official transactions showed plainly and. clearly on his dockets.
The question whether or not the entries now challenged as unauthorized and unwarranted were made with intent to defraud is one of fact. The law will not .presume fraud in official conduct. It rather presumes official probity. Any fee bill is likely to contain items which, when scrutinized, must be cut out. In the absence of proof to the contrary, the presumption is that such items appear through misconception of the law, or error, or mistake, or some other cause untainted with corruption. The abstract presents a few entries on the defendant’s appearance docket, which it is claimed are illustrative. The district court had the-docket itself before it and was much better able than this court to say whether or not, in the light of the other evidence, it disclosed false and exaggerated charges, too flagrant and too numerous to be compatible with honesty.
It is argued that a presumption of unjustifiableness, arises from the fact that the defendant made no attempt to explain specific entries pointed out at the hearing as supporting the affidavit for attachment. Ordinarily the failure of one in the defendant’s situation to justify or to excuse impugned entries would tell strongly against him. In this case, however, the record shows, plainly enough why no special vindication was offered. After the attachment had been levied, the petition was amended to include the claims based upon the foreclosure proceedings, and after the hearing hád proceeded for some time the affidavit for attachment was amended to include the ground now under consideration. The defendant’s counsel took a position in the district court, which they still maintain, which rendered it unnecessary for them to go into the merits of the plaintiff’s case at the attachment hearing. It was contended, first, that the levy rested on the original affidavit and could not be buttressed by an additional, independent ground brought forward later, and second, that the right of the plaintiff to relief in respect to fees and charges connected with the foreclosure cases, whether fraud were involved or not, was barred by the statute of limitations. The statute of limitations was especially relied on with great confidence and so the merits of the main case were given only incidental attention.
The plaintiff suggests that the attachment was dissolved because the court regarded the plea of the statute of limations as good and argues that the statute should not apply because the money sought to be recovered is in fact taxes in the hands of the defendant as a tax-collecting officer. The record, however, shows a general finding that the grounds laid in the affidavit for attachment were not sustained, which includes a finding-against the plaintiff on the facts.
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The opinion of the court was delivered by
Mason, J.:
The Carey Coal Company, an individual doing business under that name, sued the Beebe Concrete Company, a copartnership, upon an account. There was no controversy over this, but a trial was had upon a cross-demand. The defendants had furnished for the use of the plaintiff a second-hand steam engine. They assert that this was done under an agreement that they were to be paid a reasonable price for its use, that it was used for 230 days, and that its use was worth $5 a day. The plaintiff contends that the agreement was that he was to have the use of the engine in consideration of repairs he made upon it, that it was not used for more than 90 days, and that its use was not worth the amount’ named. The ju¡ry awarded the defendants $125 on the claim, thereby in effect finding that there was an agreement to pay what the use of the engine was reasonably worth, and that it was reasonably worth that amount. The defendants appeal on the ground' that the allowance was too small. The only question presented is whether prejudicial error was committed in the admission of certain evidence introduced as having a bearing upon the value of the use of the engine.
The plaintiff was permitted, over the objection of the defendants, to ask a witness what the engine itself was worth. The question for the determination of the jury was of course what the use of the engine was worth—not the value of the engine itself. The trial court fully recognized this distinction, but allowed this inquiry explicitly upon the theory that the value of the thing itself was a circumstance that might be considered • in determining the value of its use. We think under the facts of this case that view was correct. A situation may perhaps be imagined where upon an issue as to the usable value of an article, evidence of what the article itself was worth might have a tendency to mislead the jury. But here the article in question- was a much used piece of machinery, more or less out of repair. It can not be presumed, and the evidence did not conclusively show, that it had a definite usable value that could be arrived at with reasonable certainty by the opinions of witnesses upon that precise matter. One witness for the defendant estimated the usable value at $10 a day; another at from $5 to $7. Witnesses for the plaintiff testified that one of the defendants had said that $8 a day would not be out of the way, and had sent in a bill on the basis of $2 a day. No exceptional conditions were shown such as to give peculiar value to the use of the engine at the time it was lent. Evidence of its general condition and state of repair was admitted without objection, and was obviously competent. We think estimates of the value of the engine might be of some aid in arriving at a fair charge for its use.
There seems to be little direct authority upon the question. In Alling v. Cook, 49 Conn. 574, cited in 13 Encyc. of Ev. 597, a ruling was approved which excluded evidence of the value of a chattel, the issue being what the parties had agreed should be paid for its use. This is obviously a different question from that here presented, although there may be some analogy between them. In Cohoon et al. v. Kineon, 46 Ohio St. 590, 22 N. E. 722, the exclusion of evidence as to value of real estate was held not to be error, where the inquiry was as to its rental value. The court said:
“Proof of the value of the fee simple could hardly aid in ascertaining rental value. The converse of the proposition might be true; indeed would be. But it is matter of common observation that many tracts of real estate of great value have no actual rental value. The evidence would have been misleading, and was, we think, properly excluded.” (p. 591.)
In such a situation as that suggested, evidence of the value of the property might be prejudicial, but it would be going too far to say that evidence of the value of real estate could never be of aid in ascertaining what it ought to rent for. Where property is capable of immediate use for the ordinary purpose to which it is adapted, there will naturally be some relation bétween its value and the value of its use. And where the rule is applicable at all it ought to work both ways. True, proof of the value of a vacant city lot could not greatly aid in arriving at a fair charge for its use in raising vegetables; but on the other hand, neither would proof of its rental value for that purpose be of much help in determining its reasonable worth.
In Standard Supply Co. v. Carter & Harris, 81 S. C. 181, 62 S. E. 150, 19 L. R. A., n. s., 155, this language was used, which exhibits the theory upon which evidence of full value may be deemed to affect, although not to control, the question of usable value:
“It is quite possible to arrive at the fair rental value of a cotton ginnery for a cotton season. ... In making proof of the rental value of a ginnery which had been operated in past seasons, evidence may be offered not only of the cost and physical condition of the property, but of all the conditions which surround it, including its patronage, and success and hazards in the past, and any change for better or worse in such conditions. All of these, and perhaps other matters, would be inquired into by those contemplating the renting of the property; and they are therefore factors entering into the determination of the market rental value; but neither the past success, indicated by the profits, nor any other single factor, is to be taken as controlling. Evidence of all these factors, along with other competent evidence, is admitted in order to arrive at the fair rental value.” (p. 187.)
The answer of the witness to the question objected to Was, in substance, that the engine was worth nothing at all in the condition it was in before the plaintiff repaired it. This was little more than a general depreciation of the property—an exaggerated form of stating its bad condition. It could hardly be regarded as of enough importance to justify a reversal, even if its admission were held to be erroneous. But the same question as to the admissibility of evidence is raised by another objection. Complaint is made of a ruling requiring one of the defendants to state upon cross-examination the amount for which they subsequently sold the engine—-$400. We think the testimony was competent, upon the ground that evidence of the value of the engine had some bearing upon what its use was worth, and that evidence of what it sold for had some bearing upon its value. The sale was made by the defendants; they were not denied an opportunity to show the circumstances under which it was made; there is nothing to suggest any unfairness. The price is therefore some evidence of value. (Hard wick v. Can. Co., 113 Tenn. 657, 88 S. W. 797; Harrow v. St. Paul & Duluth R. Co., 43 Minn. 71, 44 N. W. 881; Watson and others v. The Milwaukee & Madison Ry. Co., 57 Wis. 332, 15 N. W. 468; Railway Co. v. Searles, 71 Miss. 744, 16 South. 255; Parmenter v. Fitzpatrick, 135 N. Y. 190, 31 N. E. 1032; 16 Cyc. 1143; 3 Elliott on Evidence, § 2319, note 113.)
The judgment is affirmed.' | [
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The opinion of the court was delivered by
Johnston, C, J.:
This was an action brought by the state on the relation of the attorney-general to enjoin the board of education of the city of Great Bend from proceeding with the erection of a high-school building on a site which it had selected. The board of education having determined that a high-school building was needed submitted two propositions to the electors of the district composed of the city of Great Bend and the territory attached thereto for school purposes. One was:
“Shall the Board of Education of the city of Great Bend of the State of Kansas borrow money in the sum of Two Thousand Five Hundred Dollars ($2,500.00) and issue bonds therefor as provided by law, in order to raise funds for the purchase of a school site?”
The other was:
“Shall the Board of Education of the city of Great Bend of the State of Kansas borrow money in the sum of .Seventeen Thousand Five Hundred Dollars ($17,-500.00) and issue bonds therefor as provided by law, in order to raise funds for the erection of a suitable school building?”
At an election held on April 2, 1912, an affirmative vote was cast on both questions. In behalf of the state it was alleged that prior to the election there was an understanding among the electors that if the bond propositions were carried the board would purchase a new site for the school building somewhere in the south part of the city where it would be convenient for school purposes, and that a majority of the electors cast their votes in favor of the propositions on that theory. The board, it was alleged, was disregarding this understanding, and instead of purchasing a new site, as it was understood it would, was proposing to erect the building on what is known as “high-school block,” which is now owned by the city and on which a school building stands. On a demurrer to the petition the trial court held that a cause of action was not stated'and the injunction sought was denied. On an appeal it is contended that the vote authorizing the board to issue bonds to purchase a site was an express mandate to the board requiring it to purchase a new site, and that it could not use the proceeds of the building bonds to erect a building on “high-school block” or upon a site already owned by the district.
The legislature has full control over schools and school property. Great Bend is a city of the second-class and the legislature has provided that boards of education in cities of that class “shall . . . exer-
cise the sole control over the schools and school property of the city.” (Gen. Stat. 1909, § 7600.) Such a provision, it has been held, gives the board the discretion to locate the sites of school buildings. In Williams v. Parsons, 79 Kan. 202, 99 Pac. 216, it was said:
“That boards of education, and not the court, must locate schools, untrammelled by judicial interference in the exercise of the discretion wisely committed to them by the law, is a principle to which we give full and hearty approval.” (p. 207.)
This expression was emphasized in the opinion rendered in the final disposition of the case. (Williams v. Parsons, 81 Kan. 593, 106 Pac. 36.)
The legislature has not provided that the location of a school building in a city of the second class shall be determined by a vote of the electors nor upon the wishes or direction of any number of them. In an ordinary school district the electors are authorized to decide questions of this kind, but evidently it was the legislative view that the interests of. the public would be best subserved in cities by vesting the discretion to control schools and school property in boards of education, and in the exercise of this discretion members of the boards may determine locations and select sites according to the dictates of their own judgment "and conscience.
In the propositions voted upon there was no attempt to designate a site nor to instruct the board how it should make the selection. Presumably the voters knew the law and understood that the board and not the voters was vested with the discretion to fix the lo cation of the high-school building. By the vote the board was empowered to issue bonds to pay for a site, but in view of the discretion vested in the board it must be regarded as an authorization to issue the bonds for a site if one is. needed and it was finally determined to purchase one. It can hardly be inferred that the board is required to issue bonds and buy a site if one should be donated to the district for that purpose any more than it would be required to issue all the bonds voted if only a part of the amount voted was needed to pay for a site. The propositions, although voted on at the same election, were separate and distinct from each other. The result on one could not affect the action of the board on the other. If the electors had voted against the bonds to purchase a site and in favor of bonds to erect a building the adverse result on the first proposition would not have prevented the erection of the building with the bonds voted on the second proposition. The fact that many of the electors may have understood that the board expected to purchase a new site rather than to use one already owned by the district will not interfere with the discretionary power lodged in the board. The members of the board can not escape or shift the respónsibility which the law places on them. They are required to exercise discretion and use their best judgment in the matter. They are not to act officially on the understanding or beliefs of others, but must act on their own responsibility and decide and do what in their deliberate judgment seems at the time is right and proper under all the circumstances.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
George D. Ragsdale sold a stock of merchandise, store furniture and fixtures to H. B. Cobban and J. H. Beach and evidenced the transaction by the following contract:.
“This agreement made and entered into this 18th day of April, 1910, Witnesseth: That:
“Whereas: H. B. Cobban and J. H. Beach, herein called parties of the first part have purchased the stock of General Merchandise at Eureka, Kansas, known as “The Cash,” from Geo. D. Ragsdale, herein called party of the second part, and
“Whereas: said first parties owe the said, second party the sum of $12000, evidenced by notes of even date herewith, and
“Whereas: said first parties have agreed to apply the net proceeds from sales from said stock and all other goods put into said stock toward the payment of said notes.
“It is therefore agreed that Miss Gertrude Miller be appointed trustee to receive all moneys coming in from sales of said stock and to pay first from said receipts all necessary running expenses of said stock and pay for all goods purchased by said first parties put into said stock, as bills come due, and pay the balance to the said second party to apply on said notes, and said Gertrude Miller is hereby .constituted and appointed trustee for said purpose. It is agreed, however, that should the net proceeds at any time fail to pay said notes, as they become due, then the said trustee shall apply all the proceeds, except expenses, coming into her hands as such trustee toward payment of all notes past due when requested to do so by the said party of the second part, or his assigns, in writing. Said trustee shall deposit all moneys received by her as such trustee in some bank in Eureka, Kansas, and all checks, shall be countersigned by H. B. Cobban, or J. H. Beach, or their authorized agent.
“And it is further agreed that should the said first parties sell all of said stock, or any part thereof, in a lump the said trustee herein appointed shall receive the proceeds of such sale, or enough thereof to pay the balance on said notes and shall pay said amount to the said party of the second part. The authority herein vested in said trustee shall exist until all of said notes are paid and shall then cease. In case the said Gertrude Miller at any time should refuse or fail to act as such trustee, or the parties hereto desire to chá'nge the trustee, then another trustee may be appointed by the consent and agreement of both parties hereto. And in case of a failure to agree then the Cashier of the Citizens National Bank of Eureka, Kans., acting at that time, shall act as such trustee.
“H. B. Cobban
“J. H. Beach
“Geo. D. Ragsdale.”
It is conceded that Helen Williams was afterwards appointed trustee in place of Gertrude Miller and succeeded to whatever rights and powers the latter held by the terms of the contract. Cobban and Beach in turn sold the stock of merchandise, store furniture and fixtures to M. L. Woodruff for the consideration of one dollar and the assumption of the indebtedness to Rags-dale and other accounts not to exceed $1000.
The plaintiff thereafter brought suit against Wood-ruff for $475 and interest alleged to be due upon a promissory note executed by Woodruff, and procured an attachment on the property bought from Cobban and Beach. A receiver was appointed to take charge of the property attached. Ragsdale filed an interplea, alleging that seven notes for $1000 each, exhibits 1, 2, 3, 4, 5, 6 and 7, besides interest, had become due to him, which were executed to him by Cobban and Beach as a part of the purchase price of the property, and also set forth a copy of the contract between himself and Cobban and Beach, hereinbefore set forth; that by the terms of said contract, the stock of merchandise, store furniture and fixtures were to be held in trust by Gertrude Miller to secure such indebtedness; that such contract was filed for record in the office of the register of deeds of Greenwood county, April 20, 1910; that Woodruff, as a part of the purchase price of the property, had assumed the payment and had paid all of the notes except one for $1000; that on January 20, 1910, and prior to the appointment of the receiver in this action, he commenced an action in the district court of Greenwood county against Woodruff, Cobban and Beach and caused all the property involved in this action and now in the hands of the receiver to be attached therein; that by reason thereof he obtained a first and prior lien on all of the property. He prayed judgment for $1000 and interest from April 18, 1910. and costs, and that he be decreed a first lien upon all the property attached in this action; also that he be decreed to be entitled to the proceeds of the sale of süch property by the receiver and for all further equitable relief.
Hélen Williams also intervened, by leave of court, and alleged that she had been duly appointed to succeed Gertrude Miller under the contract between Cob-ban and Beach with Ragsdale. She also alleged the facts substantially as pleaded by Ragsdale. She prayed for judgment against the plaintiff for the value of the store furniture- and fixtures and that the receiver be -ordered to pay to her as trustee the proceeds of the sale of the furniture and fixtures.
M. L. Woodruff answered, admitting the facts as alleged in the petition. Thereupon the plaintiff moved for judgment on the pleadings. The motion was sustained, judgment was rendered against Woodruff for $553.35 and the plaintiff was adjudged a first lien on the property attached and the proceeds thereof. The receiver was ordered to pay to the plaintiff the proceeds of the sale of the property sold by him, less certain cost's, attorneys’ fees and compensation for the receiver, and execution was awarded for any balance remaining. Ragsdale and Williams were adjudged to pay the costs of their respective interpleás. A motion for new trial was overruled and Ragsdale and Williams appeal. Their principal contention is that the contract entered into by Cobban and Beach, of the first part, and Ragsdale, of the second part, invested Gertrude Miller and, upon her resigning the trust, her successor, Helen Williams, with the possession and right of possession of the property described therein, and through such trustee gave Ragsdale a lien upon the property to secure the payment of the unpaid purchase price of the property.
Such is not the effect of the instrument. It simply constituted Gertrude Miller, or her successor, a trustee to receive payment for the merchandise sold in the course of trade or of such of the property as might be sold in bulk, and to dispose of money so received in the manner prescribed in the contract, which expressly recognized the right of Cobban and Beach to sell the whole or any part of the stock in a lump, as they did sell the whole to Woodruff.
The property was not shown to be incumbered by mortgage or other lien at the time of the levy of the plaintiff’s attachment thereon. True, Ragsdale alleged that he procured an attachment to be levied thereon prior to the appointment of the receiver in this action, but this does not constitute an allegation of a'prior attachment lien. Time may have elapsed between the levy of the plaintiff’s attachment and the appointment of the receiver, during which time Ragsdale’s attachment may have been levied.
The other issues of fact pleaded by the interpleaders are based upon the interpretation of, or upon inferences drawn from, the contract between Cobban and Beach and Ragsdale. The interpretation and construction of writings is for the court and not within the province of the jury—questions of law and not of fact.
We conclude that no issue of fact, to be tried by the court or a jury, was presented by the pleadings and that the court did not err in sustaining the motion for judgment on the pleadings nor in rendering judgment for the plaintiff.
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The opinion of the court was delivered by
Burch, J.:
The firm of Whisnant & Danielson was engaged in the retail hardware and implement business at Idalia, Colo. Danielson owned all the property and Whisnant managed the business for a share of the profits. The firm sold out to Scott.. In part payment of the price Scott turned over to Danielson two promissory notes held by Scott, aggregating $1400. After-wards Scott took up these notes and substituted for them his own note for $1400. When it fell due he failed to pay and Danielson sued him. When Whisnant and Danielson sold out they were indebted to the Mo-line Plow Company on three promissory notes for $339 each, and to the International Harvester Company of America on an account for $454. As part of the consideration for the Whisnant & Danielson sale to him, Scott agreed to satisfy this indebtedness, and after-wards did so. The notes, however, were indorsed, and the account was assigned to Scott, and he set them up as a defense to Danielson’s cause of action. The cause was referred to a referee for trial. An extended hearing followed in which all the dealings and relations of the parties were thoroughly investigated, including a number of collateral matters. As a result the referee made the following findings of fact:
“From the testimony introduced I find:
“First: That on the twenty-second day of May, nineteen hundred and nine, at the time of the commencement of this action, the plaintiff was the owner and holder of the note set out in the petition as Exhibit A, and that there was due thereon to the plaintiff from the defendant the sum of fourteen hundred dollars, with interest at the rate of ten per cent per annum from May tenth, nineteen hundred and eight.
“Second: I find that the notes and account set out in the answer of the defendant as offsets against the notes sued by the plaintiff were never in fact owned by the defendant or purchased by him, but at the time the same were taken up by him, as claimed, they were thereby paid and discharged by the defendant, pursuant to a valid existing agreement of the defendant .to pay and procure a discharge of liability on the part of the plaintiff on all of the items so pleaded ás setoffs.
“Third: That on January seventh, nineteen hundred and eight, the plaintiff and Chas. Whisnant sold and delivered to the defendant a certain stock of merchandise, goods, notes and accounts, and as a part payment of the purchase price thereof the said defendant agreed to pay the said notes and accounts pleaded as setoffs in the manner and the form which he afterwards did pay the same.
“Fourth: That the plaintiff ought to have and recover judgment against the defendant for the sum of fourteen hundred dollars, with interest thereon at the rate of ten per cent per annum from the tenth day of May, nineteen hundred and eight, and the costs of this action.”
These findings were approved by the district court and judgment was rendered accordingly. Scott appeals.
The reply undertook to deny the purchase of the notes and of the account by the defendant and the indorsement of the notes and the assignment of the account to him. The denial, however, was in the copula- ■ tive form and consequently was pregnant with one or more admissions. The subject was presented to the referee who ruled against the defendant and held the denial to be sufficient to raise all the issues contemplated by the plaintiff. It is strenuously insisted that the judgment should be reversed because of this ruling.
A very learned brief and a very logical and dis criminating oral argument submitted on behalf of the defendant make it clear that the plaintiff was guilty of a breach of good form in introducing such a reply to. the files. Since, however, the referee compelled the parties to resort to their proof exactly as if the reply were of good character, and since all phases of the rights and liabilities of the litigants have been investigated and determined as if upon issues properly framed, the court is constrained to give some consideration to the merits of the controversy. When the defendant remitted the money due them to the plow company and to the harvester company he was merely carrying out his agreement to pay the notes and account and thereby pay for the property which he received from the plaintiff. Consequently, in his hands the notes and account were discharged obligations of Whisnant & Danielson, and of Danielson as a member of that firm. Whether or not the forms of the pleadings were such as to define with accuracy the matters upon which proof was necessary is no longer of consequence. Full proof has been made and the court is obliged to ignore defects in the pleadings which do not affect the substantial rights of the adverse party. (Civ. Code, § 134.)
The reply spoke in the name of Whisnant & Daniel-son, a partnership. As already indicated the proof was that Danielson owned all the property and effects of the firm which were sold and delivered to the defendant. It is confidently asserted that there is a fatal variance between the pleadings and the proof. Here again the court is prevented from recognizing technicalities in opposition to substance and justice. The statute reads as follows:
“No variance between the allegations, in a pleading, and the proof is to be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled, and thereupon the court may order the pleading to be amended, upon such terms as may be just.” (Civ. Code, § 134.)
The defendant did not invoke this statute or comply with it. The record shows clearly enough that the defendant was neither misled nor prejudiced, and a formal amendment of the reply must be regarded as waived, if indeed, the whole case considered, the reply needed amendment.
The certainty and sufficiency of the reply are challenged in some other particulars, but the defects pointed out are of less gravity than those which have already been considered. Probably the most effective way of reaching such defects would have been by motion made before the cause was referred.
It is asserted that the second finding of the referee is not supported by the evidence and that, as a consequence, the plaintiff must fail because he can not set up the defendant’s contract with the partnership to pay the partnership debts as a defense to the plaintiff’s individual liability on, those obligations. Neither proposition is sound. It is not necessary to recite the evidence warranting the inference that the defendant paid the debts of the partnership, as he agreed to do, and did not buy them. But conceding the fact to be that he did buy them, the plaintiff is entitled to the benefit of the defendant’s promise to pay them. The general rule is that one of two joint contractors can not alone enforce a joint contract against the party with whom they contracted, but the rule has no application to the facts of this case. By statute the liability of the firm, Whisnant & Danielson, to the plow company and to the harvester company was also the several liability of each partner. (Gen. Stat. 1909, § 1641.) The promise of Scott to discharge this liability was a promise made for the benefit of each partner who might be called upon to pay. The plaintiff was a privy to the consideration for the promise, in fact, furnished it, and he has a clear, individual, legal right to its performance by the defendant. In the case of McKinnon v. Palen, 62 Minn. 188, 64 N. W. 387, a partner secured a partnership debt by a mortgage upon his individual property. In an action to foreclose the mortgage he sought to avail himself of items of damage accuring to the partnership, to reduce the debt secured by the mortgage. The court said:
“Plaintiff contends that because none of these items of damages accrue to defendant in his individual right, but all of them accrue to him and Wichterman in their joint or partnership right, therefore defendant can not recoup them in this action, which is against him alone. The contention is not well founded. While this action is against defendant alone, it is for a partnership debt, and he has a right to avail himself of any defense of which the partners would have a right to avail themselves if the suit were against both of them.” (p. 192.)
This rule is founded upon common justice (Seaman v. Slater 49 Fed. 37, 40), and prevents a multiplicity of actions to reach the same ultimate result.
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The opinion of the court was delivered by
Smith, J.:
This, action was brought in the district court of Shawnee county for breach of contract- of marriage alleged .to have been entered into between appellant and appellee on the 8th day of November, 1909. Trial was had to a jury, and verdict was returned and judgment rendered in favor of appellee for $5500. Motion for new trial was overruled and appeal taken to this court. Very numerous assignments of error are made in the case, of which it is necessary to refer to only a few.
The appellee in her petition alleged that appellant's deceased wife was the sister of her father; that in the fall of 1909 and long prior thereto she had been engaged in the occupation of teaching school; that she was thirty-six years of age; that during the fall of 1909 appellant wrote her several letters urging her to resign her school and come to Topeka and take a position in his store, and live in- his house with himself, his son and his daughter-in-law; that she accepted the proposition, and arrived in Topeka on the 7th day of November-; that she was met at the railway station by the appellant and taken to the home of himself and son and daughter-in-law; that on the second night after her arrival the appellant without her consent entered the room where she was sleeping, got into bed with her, and “by force and threats of exposure of their situation to the other members of the household and promises of a speedy marriage accomplished the seduction of this plaintiff, who had up to said time, as aforesaid, been a chaste and pure woman.” Also that the said defendant by persuasions and promise to marry the. plaintiff at various other times, to wit, about November 30, December 12, January 4, January 21, again sustained improper relations with the plaintiff, from which relations the plaintiff becamé pregnant and remained in such condition for sixty days, when she suffered a miscarriage.
The answer was a general denial. On the trial the appellee testified to the facts substantially as alleged in her petition.
Without reciting in full or following in exact order as given, the appellee testified, in part, as follows:
“I left for Topeka the first week in November. It was between the last week in. October and the first week in November that I received some letters in regard to my coming to Topeka to go to work. I did not tell you on yesterday that I came down here to go to work in the grocery store as cashier. I came down here for the purpose and expectation of eventually becoming the wife of William Green; ... I came-down here with the intention of being in his home and becoming his wife. I had no marriage contract with him at that time. I had no written contract with him. There are two kinds of contracts. I came down here with the expectation of being at William Green’s home. The'contract I have sued upon was made after I came to Topeka.”
Later appellee testified as follows:.
“Q. Where was your room located? A. Beside Mr. Green’s room; a small room.
“There were heavy rolling doors between our rooms. I had been asleep and was awakened; was awakened by the rumbling noise of the door in opening. The-doors were very heavy and made such a racket, made considerable noise. The next I saw was Mr. Green.. He was right by my bed, and as I fully awakened I saw Mr. Green, as he entered the room, as he came up-to me. ' At first he did not say anything. He rolled back the bedclothes; just pushed back the bedclothes. Didn’t say a word at first; reached out and pushed back' the bedclothes; did not remove them fully from, my person. I rose up in bed, and he began to say something to me. He says, ‘Siney, just never mind.’’ I asked him what this all meant. I said, ‘Uncle Will,, what do you mean?’ Of course I was close to him, in. a way. He sat down on the bed then, and I rose up in. bed and was fully awakened. I began to say something to him about his actions in coming in the room,, and he said, ‘Never mind, Siney; we will just have a. little private talk.’ ”
She also testified that she was thirty-six years of' age, had taught school twenty years, and had never-had intercourse before; that the appellant’s son, the; son’s wife, two children and a maid, during this and other times- specified, were sleeping on the same floor of the dwelling house, viz., the second 'floor; that appellant came to her room three or four times thereafter. With reference to this she said :
“I was unwell on the 9th; had my courses regularly up to the 9th of January; no interference of any kind or character; I am sure of that. I became pregnant the month after he was with me on the 15th or 16th; it was because of his having been with me on the 15th or 16th.”
The appellant, on-the other hand, testified and denied that he had ever at any of the times stated had sexual intercourse with her or had promised to marry her; also that he had never been in her room when she was in bed.
No other witness testified to any fact or circumstance bearing upon the question of promise of marriage or of seduction, except that a Mrs. Norris testified as to conduct between the appellant and appellee said to have occurred in Chicago some time before the appellee came to Kansas, which is not claimed to have indicated any improper relation between the parties, but that each had a kindly regard, if not affection, for the other.
Numerous assignments of error are made by the appellant, very few of which refer to the rulings upon the introduction of testimony, and none of which we think are well taken.
Appellant complains that the jury were instructed that they might take into account the plaintiff’s seduction, without any definition of- that term being given them. It is argued that the jury may have assumed that any procuring of sexual intercourse with the plaintiff amounted to seduction. However, no instruction on the subj ect was requested by appellant, so that the omission to give one does not constitute error. Upon another trial a proper instruction should be given if requested.
There are also numerous objections to the instructions given and refused by the court. The first of these which we care to discuss is instruction No. 11, which was requested by appellant and refused by the court. It seems that no instruction similar to this was given. It reads:
“In weighing the evidence which has been introduced before you in this case you have a right to take into consideration and call to your assistance the knowledge and experience common to mankind for the purpose of throwing light upon the question submitted for your determination. You may take into consideration the age of both plaintiff and defendant, the disparity or difference in their years, the amount of the defendant’s wealth, if the evidence shows him to be a man of wealth, the time, the place, the surroundings and the circumstances under which the plaintiff claims the defendant promised to marry her and had sexual intercourse with her.”
In any trial before a jury in which there is conflicting evidence an instruction of this nature is proper, but only under unusual circumstances is the failure or refusal to give such an instruction regarded as sufficiently erroneous to justify a reversal of a judgment. We think it is nót too much to say in this case that the evidence of the appellee herein is extraordinary and of such a character, especially in view of the great noise she says appellant repeatedly made in entering her room, near midnight and almost in the presence of the members of his own household, that it should have been carefully scrutinized, and that the giving of the instruction requested would have tended to lead the jury to such scrutiny. The instruction ought to have been given, but we are not disposed to place the reversal' of the case alone upon the refusal to give it.
A more serious question, we think, is involved in the refusal of the court to give instruction No. 13 requested by the appellant. It reads:
“If you should find that' there was a contract of marriage made between the plaintiff and the defendant on the night of the 8th day of November, 1909, and that the plaintiff is .entitled to recover on account of the breach thereof, and should further believe that the defendant had sexual intercourse with the plaintiff at any time or times other than the night of the 8th of November, 1909, then I instruct you that you would not be authorized to take into consideration any sexual intercourse that occurred at such other time or times in determining what amount of damages you will award to the plaintiff.”
The courts of last resort in several states have held that seduction can not be proven in aggravation of damages in an action for the breach of a promise of marriage. This is on the ground that the recognized common-law rule is that a woman can not recover for her own seduction, the parties being in pari delicto, or that she should not be allowed to do indirectly that which the law forbids her to do directly; that an action for seduction is given to the parent or to him who stands in- loco parentis to the person seduced, and to permit the person seduced, herself, also to recover would subject the seducer to double damages. (Wrynn v. Downey, 27 R. I. 454, 63 Atl. 401, 4 L. R. A., n. s., 615.)
In the case note to the case in 4 L. R, A., n. s., 615, supra, the authorities upon this question are collated, and it appears therefrom that by far the greater weight of authority sanctions proof of seduction by means of a promise of marriage in aggravation of damages in an action for a breach of the contract. Indeed, this is admitted by Chief Justice Douglas in the Wrynn case, supra, but the decision is justified on the ground that from a long course of decisions it has become the settled law of that state, which, if changed at all, should be changed by the legislature and not by the courts. In Sramek v. Sklenar, 73 Kan. 450, 85 Pac. 566, the rule has been recognized in accordance with the law prevailing in most Of the American states and against the rule in the Wrynn case.
By instruction No. 13, appellant evidently sought to eliminate any claim for damages other than for the breach of the contract made on the night of November 8, 1909, and the seduction accomplished on the same date, if the jury should find such a contract and a breach thereof.
Summing up the claims of the appellee, the contract of marriage and the breach thereof constituted the appellee’s cause of action. The seduction was not a cause of action, but, as we have seen, was proper for the consideration of the jury in determining the amount of damages to be allowed. Subsequent acts of intercourse constitute neither seduction nor ground for compensation or aggravation of damages, unless, as in Sramek v. Sklenar, supra, the long continuance of the unlawful relations for years under repeated promises of marriage or other circumstances justify the inference that the promises were not made with any intention of redeeming them, but were intentionally fraudulent. In such case exemplary damages may and should be allowed. In the Sramek case no portion of the damages were designated as exemplary, yet it is apparent that the verdict and judgment were sustained by reason of the long-continued fraudulent acts of the seducer.
In this case fraud is not pleaded, and if the appellant made the promises there is hardly a suggestion that they were not made in good faith. According to appellee’s testimony the relations continued less than three months.
As we have seen, seduction may be proved in aggravation of damages, but we have been cited to no decision that goes further and holds that pregnancy or any of the hardships that follow therefrom can also be considered to increase the damages, neither have we found such a decision. On the other hand, in Giese v. Schultz, 65 Wis. 487, 27 N. W. 358, it was said:
“In an action for breach of a promise of marriage, where it is alleged that, by virtue of such promise, the defendant seduced the plaintiff and got her with child, the jury in estimating the damages, may consider the loss of virtue and reputation and the mental suffering and sense of disgrace caused by the seduction, but can not allow any additional damages because the plaintiff was gotten with child or suffered a miscarriage.”
There was evidence of pregnancy, miscarriage and sickness resulting therefrom. In view of the large amount of damages allowed, we can not say that the verdict and judgment were not materially influenced by such evidence. The refusal of the instruction permitted the consideration of that evidence, and the refusal, thereof was error.
The judgment is reversed and the case is remanded for a new trial. | [
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Per Curiam:
This was an action to set aside the will signed by. Samuel Long, and the grounds of attack were that he lacked testamentary capacity to execute the will and that it was signed through undue influence exercised by his daughter, a beneficiary under the will. Much testimony was taken as to the capacity of Long, and upon it the court found that on April 11, 1906, when the will was executed, he was of unsound mind, did not know the extent of his property nor understand the disposition he was making of it. . It was found that he was suffering from senile dementia or melancholia and was not conscious either of the ties of relationship or of his obligations to kindred. It was found, too, that while the evidence did not disclose that fraud or undue influence was exercised at' the signing of the will, Mrs. Boyer had secluded him most of the time since he had resided with her, which was about six months before the will was made, that she denied relatives and others access to or communication with him, that this surveillance increased after the signing of the will until it reached practical imprisonment “in a lonely hut on an uninhabited prairie,” and because of his condition and surroundings Mrs. Boyer had exercised undue influence over him. It appears that at least a year before the will was made the mind and memory of Long began to fail, and although on a hearing in the probate court several months before the will was made he was found to be insane an appeal was taken from that decision to the district court and on a trial there a finding of sanity was returned. Between the time of the adjudication in the probate court and the reversal of that decision on appeal in the district court the will was signed by Long. There is a sharp conflict in the testimony in regard to his mental capacity. Many of his neighbors and those near to him testified that his mind was sound enough to transact ordinary business and that he was competent to make a will when the paper was signed. However, there is abundant testimony tending to show mental incapacity and which sufficiently supports the findings of the trial court. Most of the testimony upon which the findings rest was oral, but even if it had all been in the form of depositions and documents we would be inclined to the opinion reached by the district court.
Complaint is made of testimony given by some of the Long heirs, who were parties, which included transactions and communications had personally with Long. The witnesses were not incompetent to testify, but some of the testimony did trench on the rule excluding that kind of evidence. The court, however, expressly stated in one of the conclusions that such testimony was incompetent, and holding that view it must be presumed that the court gave it no weight and hence no prejudice could have resulted. (Broadie v. Carson, 81 Kan. 467, 106 Pac. 294.)
The judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff, .an employee of the defendant, sued for damages resulting from personal injuries occasioned by the fall of an elevator in the -defendant’s packing house. The plaintiff recovered and the defendant appeals.
The elevator is of the common friction-hoist type. In this instance the machinery by which the car is operated is located under a suitable covering on the roof of an adjacent building. The essential parts of this machinery are a friction wheel of vulcanized paper with a face some twelve or more inches in width, a cast-iron bull wheel some thirty or forty inches in diameter and having a twelve-inch face, a wooden brake block fitting the bull wheel, a spool-shaped drum on the same shaft with the bull wheel and a control lever. The necessary attachments are a cable which lifts the car, an operating lever inside the car and a wire cable which connects the operating lever with the appliances above. One end of the car cable is fastened to a header. It passes thence over a sheave at the top of the well, then down under a second sheave fasténed to the top of the car, then up over a third sheave at the top of the well and then to the drum on the bull-wheel shaft. This shaft is located between the.friction wheel and the brake block. When the shaft rests at the central point between the friction wheel and the brake block the bull wheel touches neither of them. The shaft, however, is movable, so that contact may be established between the bull wheel and the brake block on one side of it or the friction wheel on the other side. The control lever is adjusted to this sliding shaft. On the arm of the control lever is a weight which bears the lever down in such a way as to push the bull wheel against the brake block and hold it there. This contact can only be broken by means of the operating lever in the car. When the bull wheel is against the brake block the operating lever points upward at an angle of sixty or sixty-five degrees. When the lever is pulled down the wire cable draws the sliding shaft away from the brake-block side of the frame in which it rests and toward the friction wheel. If the lever be pulled down far enough the faces of the bull wheel and friction wheel are pressed together. Power is communicated to the friction wheel, which revolves constantly while the power plant is in operation. To raise the car the operating lever is pulled down until contact is established between the bull wheel and the friction wheel. The friction of their surfaces causes the bull-wheel shaft to revolve and wind up the car cable on the drum. To stop the car the operating lever is simply released. The control lever then withdraws the bull wheel from the friction' wheel and thrusts the bull wheel back against the brake block, which locks the bull wheel and holds the car stationary. The operating lever returns to its original position. To lower the car the operating lever is pressed down far enough to release the pressure of the bull wheel against the brake block but not far enough to establish contact with the friction wheel. The car then descends by force of gravity. The elevator is equipped with the usual countervailing weights and with a safety device intended to arrest the descent of the car should the cable break.
The. elevator is used for conveying loaded trucks of meat and the men handling the trucks from upper to lower stories of a department of the defendant’s plant. It was operated by a man assigned to that duty, who also opened and closed the elevator gates. On the day the injury occurred the car was stopped at the fourth floor and the gates were opened. A trucker named Laskowski placed a truck load of meat in the car and stood between the handles of his truck on the side of the car next to the operating lever. The plaintiff then pushed a loaded truck into the car beside Laskowski’s truck. . The car commenced to descend, its progress was not arrested, and when it struck the bottom of the elevator well the impact was sufficient to throw the plaintiff down upon the handles of his truck and to the floor and severely injure him. His companion was somewhat jarred but otherwise unhurt. The operator was left at the fourth floor. His account of the affair was that before he could close the gates and enter the car Laskowski pulled the operating lever down, and as the car descended looked up and laughed at him. A trucker who was present also testified that Laskowski pulled the lever down, but Laskowski denied that he did so.
The petition charged two classes of delinquencies on • the part of the defendant: First, that the type of elevator was inherently unsafe; and second, defective parts and want of inspection. No attempt was made to establish liability on the second ground proposed. On the other hand, the proof was that the various parts of the elevator were in proper condition, that regular inspections were made, that the elevator, worked perfectly before the incident complained of, that the only result of the fall of the car was to dislodge the cable from one of the sheaves, and that when the cable was replaced the elevator again worked perfectly under severe tests and has ever since continued to do so. A somewhat indirect charge of overloading under the direction of a foreman was included in the petition, but the plaintiff himself testified that the elevator had carried larger loads many times before, and consequently the theory of too much weight in the car was abandoned.
The faults which it is claimed render a friction-hoist elevator so dangerous that a reasonably prudent man ought not to adopt it were enumerated in the petition as follows:
1. There is a point at which the bull wheel touches neither the brake block nor the friction wheel; and consequently a point at which there is nothing to prevent the force of gravity from causing the car to descend.
2. No uniform speed can be maintained.
3. Because no uniform speed can be maintained no appliance can be attached insuring safety in case of accident.
4. No air cushion is provided at the bottom of the shaft to receive the car in case of a fall.
Of course the first criticism vanished before the plaintiff’s own proof. There is nothing wrong in allowing an elevator cage to descend by force of gravity; and the principle of this elevator is that the bull wheel can remain at the free point only when the operator holds it there by means of the lever inside the car. If the operating lever be not manipulated, the weighted control lever holds the bull wheel securely against the brake block, and should the elevator be descending it can be' stopped without utilizing the brake block and be made to rise by throwing the bull wheel against the friction wheel. Besides this, the car did not fall because there is a point at which the bull wheel touches neither the brake block nor the friction wheel. The bull wheel was in hard contact with the brake block when the plaintiff says the car commenced to descend.
The undisputed evidence of one of the plaintiff’s witnesses (all the evidence on the subject) was that the operator maintains uniform speed for the car by the simple method of regulating the pressure of the bull wheel against the brake block. Besides this, the plaintiff does not claim he was injured because the operator at the time was prevented from keeping the car at a uniform rate of speed.
The proposition that no safety device could be attached because uniform speed could not be maintained was left without support when complete control of speed was shown to be a feature of the elevator, and the matter of an air cushion at the bottom of the shaft is not referred to in any of the proceedings subsequent to the petition or in the plaintiff’s discussion of the safety apparatus in his brief. So far as the proof shows it may be that some pneumatic device at the bottom of the shaft prevented the wrecking of the car and the killing of both men.
To the faults of the elevator specified in the petition the plaintiff now adds some others. This is done by going outside the pleading and by enlarging the pleading itself by interpretation.
It is said that the machinery controlling the movement of the car is not permanently connected with and under the control of the power, but only temporarily so when the bull wheel is pressed and held against the friction wheel. There is nothing whatever in the evidence to indicate that this is a fault. No motor is required to drive the car down or to hold it stationary. Gravity acting on the car does the one kind of work, and gravity acting on the weight attached to the control lever does the other. When other power is needed the operating lever connects it. Such is the principle of the friction-hoist elevator, and the principle is not unsound merely because another kind of elevator might be built with more complex machinery and using more power. It is said that there is a point where the bull wheel is midway between the friction wheel on the right and the brake block on the left when there is absolutely no means of controlling the movements of the cart This statement suppresses from the mechanism the operating lever whereby the bull wheel may be thrown either against the brake block or against the friction wheel and so is contrary to the fact. It is said that when the car is suspended at a height there is nothing to hold it in place and prevent it from falling but the degree of pressure of the bull wheel against the brake block produced by the weight on the control lever, and that no way is provided whereby the operator can increase this pressure. This is true, and so long as the car is not overloaded nothing more than the weight on the control lever is required to hold the car stationary. If more than ordinary pressure is desired the weight may be correspondingly adjusted or increased.
The petition contained an allegation that the apparatus for stopping the car in case the appliances for lowering or raising it or holding it stationary should refuse to work was insufficient, worn, and had not been properly inspected or kept in repair. This allegation was interpreted by the petition itself in the statement of the specific causes of the plaintiff’s injury. These causes were said to be “defective, faulty and improper construction” of the elevator, “the old, worn and unfit condition of the appliances attached thereto for stopping and holding the same,” and the lack of an air cushion. There was no charge that some other safety device should have been attached in addition to the one for stopping the cage if the cable should break, and the plaintiff plainly counted upon nothing in respect to safety devices except the bad order of the one in use and the lack of an air cushion.
Assuming, however, for the plaintiff’s benefit that his petition charged what he now claims, his proof failed to show culpable negligence on the part of the defendant. The purpose of a safety device is to keep the car from falling, and this elevator was already equipped with two safety appliances, the control-lever mechanism and the emergency device. Should the cable break, the countervailing weights pull out steel teeth which catch into the guides at each side of the shaft and so stop the descent of the car. The control-lever mechanism is in constant operation at all other times. It even resists the operator, and its opposition must be overcome to permit the car to move at all. Besides this, should the brake block refuse to engage the bull wheel with sufficient tenacity to hold the car the operator may stop its descent by throwing the bull wheel against the friction wheel. Under these conditions some evidence of the inherent inefficiency of this type of elevator is essential before the question of lack of ordinary care on the part of a person adopting it arises. The "bare suggestion of more safety devices is not enough.
The plaintiff made an effort to supply proof of the character indicated by offering the opinions of three expert witnesses. The defendant’s master mechanic, John Matthewson, was called. He described the construction and operation of the elevator in detail, and then was asked whether or not the car would fall or run down rapidly, assuming that the appliances were all in good condition and that the control lever bore a weight proportionate to the load on the car. He answered that it would not. John Larson, a carpenter who had previously worked at millwright work at the packing houses of Swift & Company, the S. & S. Company and Ruddy Brothers, was called. A millwright is one who erects machinery. Larson had not seen the elevator in question but was familiar with the class. He was asked whether or not in his opinion it was possible for the car to fall or run down rapidly, assuming that all the appliances were in good mechanical condition. He answered that it was possible, because “if the bull wheel would get to starting, get a little bit wet, it won’t hold—the brake block won’t hold it.” Philip Talbot, a millwright out of employment, was called. He. had worked for the defendant and at the Armour and S. & S. packing houses, and was familiar with friction-hoist elevators. He was familiar with the elevator in question, and was asked whether or not it could be operated safely with a load of two men and two trucks of meat, such as were usual when he worked for the defendant. He answered that in his opinion it could not be, but said he was not condemning the elevator directly because it was a friction-hoist elevator. He felt that no elevator was safe when overloaded.
None of these answers shows that friction-hoist elevators as a class are inherently dangerous for the uses to which this one was put or that this one was defective in any of the particulars relied on for recovery. Larson did not pretend to say that bull wheels in this type of elevator have such a tendency to get to starting or are so susceptible to moisture that they are unsafe, but considered it possible for the car to run down “if the bull wheel would get to starting—get a little bit wet”—a condition not disclosed by the proof. Talbot had no direct imputation of unsafety to make against friction-hoist elevators except such as attends them in common with others—danger from overloading, a matter of mismanagement not in issue.
The expert testimony was duly challenged. It consisted of opinions respecting a matter of mechanical theory and an ultimate fact in the case. Was it possible, under the principle upon which the elevator was constructed, for the car to run down, and was the elevator safe for use by the truckmen of the plant? In the development of the subject of opinion evidence the court long ago took the position that such evidence is admissible only as a matter of necessity where it is the best that can be had, as where the facts, situation or circumstances are such that they can not be presented to the jury in such a way that the jury itseif can draw the proper inference from them; and that such evidence invades the province of the jury where it relates to an ultimate fact which the jury itself must find from all the evidence in the case, especially if the jury is as capable of drawing the ultimate inference as the witness. (K. P. Rly. Co. v. Peavey, 29 Kan. 169, 178; Erb v. Popritz, 59 Kan. 264, 269, 52 Pac. 871; Telephone Co. v. Vandervort, 67 Kan. 269, 270, 72 Pac. 771, and cases cited in these opinions.)
Upon a revision of the code of civil procedure the legislature allowed these restrictions upon the admissibility of such evidence to stand, and consequently they form a part of the settled law of the state. In qualifying his experts the plaintiff disclosed the fact that friction-hoist elevators have been in common use in large numbers in all the principal packing houses of Kansas City for many years. The defendant’s evidence made the number more definite by showing that there were ninety-tw.o pf them. Take Talbot’s testimony. He described the construction and operation of friction-hoist elevators in detail and said:
“I have worked at Armours, Cudahys and Schwartzschilds. I think I quit work at Cudahys about February, 1.910, and had worked there three years off and on. While at Cudahys I worked on and about the repair and construction of the friction-hoist elevators used at that plant. ... I worked at Armours a little over three years. The first two years, in the carpenter department ; off and on when they were short of men I used to help out in the millwright department, and I know of something like a dozen of friction-hoist elevators in the Armour plant. I believe they had three of these elevators at the S. and S. plant. At Cudahys I worked in the millwright gang all the time. I used to inspect elevators there. I inspected them once every morning. We would inspect the cage and see that everything was tight, in and about the cage, then we would go up to the friction house and inspect the frictions and the machinery they are connected with. I did that every morning, and in doing so I rode on the car. I think they have eleven of these elevators at Cudahys.”
It is perfectly manifest that the question whicn. should have been asked of this experienced man was whether or not the bull wheels of these elevators did in fact slip and permit cars loaded in the usual way to run down. In the opinion in the case of City of Topeka v. Sherwood, 39 Kan. 690, 18 Pac. 933, it was said:
“When the question of the proper condition or safety of anything constructed is to be determined, evidence tending to show that it served the purpose for which it was designed is always competent, and often the most satisfactory and conclusive in its character.” (p. 695.)
. Six years’ observation of the use of these elevators for packing-house purposes was sufficient to verify the facts concerning their performances, and the best evidence of their reliability or unreliability consisted in the demonstrated results of such use. Nothing else could possibly be so satisfactory or conclusive. The fact's were perfectly capable of narration and comprehension, and with the facts before them the jury could say whether or not the elevators were safe or unsafe.
“Where the claimed defects in a county bridge are described by witnesses who have knowledge of them, and the character and extent of such defects are comprehensible by the ordinary mind, the jury are the judges of the safety of the bridge for travel, and it is not competent for a witness, even though an expert, to give in evidence his opinion as to the safety of the bridge.” (Murray v. Woodson County, 58 Kan. 1, syl. ¶ 1, 48 Pac. 554.)
In the case of Chandler v. Bowersock, 81 Kan. 606, 106 Pac. 54, the opinion of a witness was received that the lever of a machine was likely to fall and throw the machine in motion, and that the machine was unsafe. There was some doubt whether the petition made the inherent danger of the machine an issue. It was held that the petition was broad enough to permit evidence to be given on that subject. It was then held that allowing the opinion of the witness to be given in evidence did not constitute prejudicial error for the following reason:
“There was positive evidence that the machine had been in the habit for years of suddenly starting into operation without the lever being moved by anyone. Two or three young men who had been employed at the machine testified that in order to prevent the machine from starting itself they had been obliged to rig up an appliance with weights and strings to hold the lever in position..” (p. 608.)
In other words, the proved conduct of the machine rendered the opinion of the witness as to how it might act and whether or not it was safe so superfluous and lacking in importance that the jury could not have been affected by it. In this case numbers of friction-hoist elevators lifted truck loads of meat and the men accompanying them day after day for long periods of time under the eyes of the experts who constructed, inspected and repaired them, and what the jury needed to hear was how the elevators actually worked instead of opinions regarding the soundness of an application of a mechanical principle.
^Whether the elevator be regarded as a place or as an appliance, the defendant owed the plaintiff the duty to supply one which was reasonably safe. The plaintiff argues that he proved a violation of this duty when he proved that the elevator fell with great and unchecked velocity, under the doctrine of res ipsa loquitur. It is not necessary to discuss at length this much applied and misapplied phrase. It may be remarked, however, that it does not dispense with proof of negligence in personal-injury cases, and that it does not require a presumption of negligence from the, mere fact of injury. The phrase expresses an argument in favor of an inference of negligence from the manner and circumstances of an injury. The argument, when expanded, may be stated in the language of the opinion in Scott v. London Dock Co., 3 H. & C. 594, quoted in Potter v. Rorabaugh, 83 Kan. 712, 112 Pac. 613:
“ ‘There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care. (p. 600.)’ ” (p. 714.)
Wigmore discusses the subject under the head of “Burden of Proof—Presumptions,” and after stating the considerations which limit the application of the phrase says:
“It may be added that the particular force and justice of the presumption, regarded as a rule throwing upon the party charged the duty of producing evidence, consists in the circumstance that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to him but inaccessible to the injured person.” (4 Wigmore on Evidence, § 2509.)
It may be freely granted that the sudden fall of an elevator cage in the course of its ordinary use warrants an inference of negligence. But, as between an employer and one of his employees, it does not raise a presumption of culpable negligence on the part of the former. This limitation on the application of the res ipsa loquitur doctrine was clearly stated in the case of K. P. Railway Co. v. Salmon, Adm’x, 11 Kan. 83. An employee was injured by the collision of two trains of the same company. The opinion reads:
“The said collision was the only proof of negligence on the part of the railroad company introduced on the trial. A collision always presumptively shows negligence, but whether negligence of the company, or negligence merely of some one or more of its officers, agents, or employees, is the important question in this case. As between the railroad company and a passenger, the negligence of any officer, agent, employee or servant of the company is the negligence of the company 'itself; but as between the railway company and one of its employees, the negligence of another employee, a coemployee, it not at all the negligence of the company. (Dow v. K. P. Rly. Co., 8 Kan. 642.) Therefore, while a collision presumptively proves negligence on tbe part of the company as between the company and a passenger, yet it never proves negligence on the part_ of the company as between the company and one of its employees. It is a general rule that one employee does not represent the principal any more than any othex* employee, and negligence between coemployees is not at all the negligence of the principal. This rule has its exceptions. As to railroad companies, the general manager, the general superintendent, the general officer for the employment or discharge of the other agents and servants of the railway company, or indeed any other general officer, would probably be the representative of the company, in fact the company, as between the company and all other persons, whether such persons were employees or not. But proof of a collision does not at all show negligence on the part of any one of these general officers. It tends more properly to show negligence on the part of the brakeman, the fireman, the engineer, the conductor, or some other inferior officer, agent or servant of the company, who has a more close and direct connection with the collision.” (p. 91.)
This reasoning was approved and adopted in the case of Railway Co. v. Taylor, 60 Kan. 758, 57 Pac. 973, in opposition to the contention that knowledge of the defective and dangerous condition of cars in the ownership or control of a railway company should be presumed in favor of an injured employee. The decision in the cases of A. T. & S. F. Rld. Co. v. Wagner, 33 Kan. 660, 7 Pac. 204, and Railroad Co. v. Tindall, 57 Kan. 719, 48 Pac. 12, are to the same effect.
In the case of Lane v. Railway Co., 64 Kan. 755, 68 Pac. 626, the syllabus reads:
“In an action against a railroad company for the recovery of damages for injuries to an employee occasioned by the alleged faulty construction of a split switch, the plaintiff must show, in order to warrant a recovery, not only the way in which the switch was constructed, but that such construction was not of a proper and approved kind, or, if of a proper and generally approved kind, that the one complained of was of improper and faulty construction.
“In order that a plaintiff may recover in such action, he must show negligence on the part of the company, and in the absence of a statute making it so, the fact of the occurrence of the injury raises no presumption of such negligence.”
The principle upon which these decisions are founded is the same whether applied to the construction and operation of a railway or to the construction and operation of an elevator.
Even in the case of a passenger on a railway train the mere occurrence of injury does not, of necessity, warrant an inference of negligence on the part of the carrier. (Railroad Co. v. Burrows, 62 Kan. 89, 95, 61 Pac. 439; Hart v. Railroad Co., 80 Kan. 699, 102 Pac. 1101; Brown v. Railroad Co., 81 Kan. 701, 106 Pac. 1001.)
In the last case the syllabus reads:
“To sustain an action for damages occasioned by the alleged negligence of another it is necessary for the claimant not only to show that the injury occurred, but to produce sufficient evidence to show prima facie, that such injury occurred through the fault of the other. It is not sufficient to show circumstances which would indicate that thé other party might have been guilty of negligence, especially when the evidence furnished suggests with equal force that the injury might have resulted without fault on the part of the other party.”
In this case the so-called fall of the elevator car with its occupants, considered alone, indicates negligence on the part of some coemployee of the plaintiff, as for example, Laskowski, as much as it indicates negligence for which the defendant is responsible. Besides this, the “particular force and justice” of the rule relieving the injured person from showing the cause of the occurrence is wanting here because the plaintiff explained the cause of his injury fully in his petition.
“If the plaintiff possesses knowledge of the facts, and is able to plead them specifically and in detail, the reason for the rule disappears and with it the rule itself.” (Orcutt v. Century Bldg. Co., 201 Mo. 424, 443, 99 S. W. 1062, fall of an elevator.)
A criticism upon the phraseology of an instruction relating to the defendant’s duty toward the plaintiff is answered in the case of Kamera v. Boiler Works, 82 Kan. 432, 108 Pac. 806.
It follows from what has been said that the opinion evidence received by the court ought to have been excluded and that the demurrer to the plaintiff’s evidence ought to have been sustained. It is not necessary to consider other matters discussed in the briefs.
The judgment of the district court is reversed and the cause is remanded with direction to grant a new trial. | [
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The opinion of the court was delivered by
Porter, J.:
The appellant, Gustav Witt, was guardian of the persons and estates of Theodore and Huida Witt, minors, from the time of his appointment in 1895 until his removal by the probate court of Stafford county in 1908, when U. G. Charles was appointed guardian. This is a suit by .Charles on behalf of the minors against the former guardian and his sureties for an accounting, setting up fraud in annual settlements, misappropriations of funds and waste and mismanagement of the property. The case was sent to a referee, who found the facts and law against the former guardian. The court approved the report and rendered judgment accordingly, from which Gustav Witt appeals.
There was a long trial before the referee and a great mass of evidence was taken covering a multitude of transactions, some of which involved the administration of other estates, and necessarily the findings of fact are voluminous. We shall state as briefly as possible the substance of the findings which are deemed necessary to an understanding of the real controversy.
Mary L. and Edward Witt were married in Indiana in 1875. They removed to Texas in 1885, and in the same year Edward died intestate, leaving his widow and two children, Emma and Ida Witt, as his only heirs at law. The widow was appointed administratrix and •trustee, and her management of his estate is indirectly involved here and will be mentioned later.
In the spring of 1887 Mary L. Witt returned to Indiana and in November married Theodore J. Witt, brother of her first husband. They came soon afterwards to Stafford county, Kansas, and two children were born to them, Theodore and Huida Witt, in whose behalf this action is brought. Theodore J. died December 16,1894, leaving his widow and these minors as his only heirs. He left a will devising to the two children one-half of his real estate and to the widow all the personal estate, stating in the will that under the law she would take the other half of the real estate. Mary L. Witt, the widow, died four days after her husband, intestate, and leaving as her only heirs at law Emma and Ida Witt, children by her first husband, and Theodore and Huida by the second marriage.
The will of Theodore J. Witt named Mary L. Witt aexecutrix. It was admitted to probate in Stafford county, but no further proceedings were had or taken under it. At the time of his death Theodore J. Witt was the owner of 532 acres of farm land in Stafford county, about 460 acres cultivated and .the remainder in pasture. His brother, Gustav Witt, owns and lives on land adjoining.
On January 12, 1895, Gustav was appointed by the probate court administrator of the estate of Mary L. Witt, and qualified as such, and on the same day was -appointed guardian of the persons and estates of both sets of children. The children of Edward Witt are not parties to this action and have no interest in the controversy; but it appears that as administrator of the estate of Mary L. Witt, Gustav received what is referred to in the findings as the Texas mortgage for $4000 in which a portion of the proceeds of the estate of Edward Witt, deceased, had been invested by Mary L. Witt in her capacity as administratrix. In her application to the probate court of Bexar county, Texas, for such appointment she set out property amounting to about $5500, which she represented to be community property. There was in force, in that state a community-property law and the Texas court adjudicated the property left by Edward Witt to be that kind of property. No report or settlement of the community estate was ever made by her in the Texas court.
The will of Theodore J. Witt was not filed for probate until after the death of Mary L. Witt. She was sick at the time of his death, and she made no election under the will and there is no evidence that she had any knowledge of the existence of the will. As administrator Gustav Witt received the proceeds of the lands for the year 1894 and the personal property, including 'the Texas mortgage for $4000. He rendered his first account as administrator in January, 1896, his second in January, 1897, and his final account a year later, when he was discharged as administrator. In these settlements there was no person to represent the minors but himself as their guardian. He acted in the double capacity of administrator and guardian and the settlements were made without notice to the minors. As guardian he never applied to the probate court for an order to lease his wards’ land or to loan or invest their funds, and no such order was ever made.
From 1895 to 1907, inclusive, he leased the lands as guardian for grain rent, but the referee finds that he kept no account of such grain rent when it was gathered or threshed, and that the partially kept accounts of such grain rent when it was sold “were kept by various parties on inside of cover of account books and in pocket memorandum books in pencil and in such an imperfect and unsatisfactory and unintelligible manner that it is impossible to tell from the evidence what amount of grain rent was received by Huida Witt and Theodore Witt, minors, or how much grain was raised on said land.”
The evidence shows that in 1898 Gustav Witt, in addition to farming the place where he lived, engaged in the grain business and kept an elevator and a store. From that time on he purchased the grain raised on the wards’ lands, including their shares.- The tenants would deliver grain to the elevator, and take the scale tickets to the store, where a daughter or some member of Gustav Witt’s family would credit the tenant with two-thirds. The balance was understood by everybody to belong to the wards, but no accurate account was kept, and it was the custom to destroy the scale tickets at the end of one year. On the trial it was found practically impossible for Gustav Witt to show the amount of grain rent received from the lands. The cattle and live stock owned by the guardian were frequently kept on the pasture lands of the wards and his cattle at times were allowed to eat and destroy grain in stacks which was raised on their lands. The referee finds that it was impossible to ascertain the amount of damages which the estate thereby sustained.
As guardian he filed annual accounts up to 1902. Tn 1905 his account attempted to give the.receipts for rent in a lump sum for three years. In 1907 an account was rendered for two years. In 1908 the probate court, after an investigation of his entire account, removed him as guardian and appointed U. G. Charles in his place. In the inventory as administrator he charged himself with the $4000 Texas mortgage. In his first account as administrator he claimed that only $1250 of this belonged to the estate and that $2750, or two-thirds of the mortgage, belonged to the children of Edward on the theory that no .part of the property ever was community property. At the time he was appointed guardian Theodore Witt was five and Huida was less than three years old. The minors were taken into the family of the guardian and in his accounts he charges them for their board and clothing. From the time Theodore was ten he worked on the farm, and the referee finds that from 1900 to 1902 the labor performed by him for the guardian was sufficient to pay for his board and clothing, and that his services from 1903 to 1907, inclusive, were reasonably worth $100 a year and board. Huida was required to work not only in the house but in the fields. The evidence is that she began doing work at nine years of age. From the age of about twelve until she left the guardian’s home, when sixteen, she performed all kinds of field work; she plowed, raked hay, pulled broom corn, sledded ridges-, chopped cornstalks, herded cattle, and worked in the elevator dump. She was required to do such work as plowing for neighbors, her wages being paid to the guardian and never accounted for. Both children were kept from school a large part of each school year in order to work for the guardian. The referee finds that during 1906 and 1907 the services of Huida were reasonably worth $75 per year and board. The referee in general terms found that the evidence established fraud in the management of the estates of the minors, and that the distribution made by the probate court of Stafford county at the settlement of Gustav Witt as administrator was not conclusive or binding upon the minors. The referee proceeded to restate the administrator’s account and to correct the errors shown by the evidence. The account with each of -the minors was likewise restated and charges and credits given in accordance with the findings and evidence.
As conclusion of law the referee held that the adjudication of the probate court in Texas is entitled to full faith and credit, and that court having adjudicated the property left by Edward Witt to be community property it vested the Texas property in Mary L. Witt, subject to payments of debts and to distribution among the heirs of Edward Witt. The will of Theodore was construed to vest all the personal property in Mary L. Witt; and it was held that upon her death Theodore and Huida Witt became the owners of one-half of the personal property and that thereafter each owned three-eighths of the real estate. The referee held that the minors were entitled to interest at 6 per cent on the yearly balance found to be due, the interest to be added yearly to the principal; that the manner in which the guardian leased and man aged the lands constituted a breach of trust; that by reason of his having failed to keep accurate accounts of the rents and profits, and because of the impossibility of determining the amount of damages or the amount of rents or whether they had been accounted for, the referee charged him with the cash rental value of the interest of the minors in the lands from the time when he had assumed the right to manage and control the lands. The conclusions of law are clearly stated and cover all the issues. It is not deemed necessary to recite them in full.
The amount found due Theodore Witt on June 8, 1908, when the former guardian was removed, is $11,004.45, from which is deducted the sum of $3443.76 paid to the present guardian, leaving a balance due Theodore of $7581.67. The amount due Huida Witt after deducting the payment to the present guardian was found to be $6870.56. The last conclusion of law by the referee is that plaintiff can only recover the amount alleged in. the petition', which was $11,300, that being the aggregate amount of the two bonds executed by the guardian, and the referee held that this amount should be divided in proportion to the amounts found due each minor. The trial court rendered judgment as recommended. The defendant appeals generally; the appellee has a cross-appeal alleging error in denying an application to amend the petition, and in not rendering judgment as against Gustav Witt for the entire amount found due.
The errors of which appellant complains are for the most part purely technical. The petition does not show incapacity of plaintiff to maintain the action. The minors might have been named as plaintiffs suing by their guardian, but the petition clearly shows that the plaintiff sues for them in a representative capacity and not for himself. The statute (Gen. Stat. 1909, § 3975) .requires him to prosecute and defend for the ward. The objection is to form rather than substance and. furnishes no ground for reversal. (Hopkinson v. Conley, 75 Kan. 65, 88 Pac. 549.) The petition states a cause of action and but one cause. The demurrer and the objection to evidence were rightly overruled. There was a succession of wrongs alleged, the common purpose of which was to detain moneys belonging to the minors. (Klemp v. Winter, 23 Kan. 699, 704, 705.) The action is one for an accounting. The district court, had jurisdiction. (Klemp v. Winter, supra; Mitchell v. Kelley, 82 Kan. 1, 3, 107 Pac. 782; Hawk v. Sayler, 83 Kan. 775, 112 Pac. 602.)
There was no misjoinder of causes of action even under the strictness of the old code, in force when the-original petition was filed and which had been super-ceded by the new code when the petition was amended. In an action on behalf of minors against a former-guardian for an accounting allegations of fraud, of' waste and mismanagement, of wrongful appropriation of the minors’ propérty by pasturing their lands, and purchasing their grain at less than its actual value-are mere matters of inducement, where the petition as a whole shows that all 'that is demanded is an accounting and judgment for whatever sum may be due. Wrongful or tortious acts of the former guardian may be waived and he may be compelled to account for the reasonable value of the property wasted or wrongfully appropriated. There still remains but a single cause of' action for an accounting. (Klemp v. Winter, supra.)
It is claimed that the finding that the guardian was, guilty of fraud is too general, that the referee should have stated more in detail the acts and omissions which constituted fraud or breach of trust. . We think the-findings are sufficient in this respect. Some acts are-shown which constitute fraud in fact; other acts and. omissions are stated which the law declares constitute-fraud irrespective of the intent or purpose. It is un necessary to recapitulate. It is doubtless true that the property and estate of the minors suffered far more from mismanagement than from willful misconduct of the guardian, but the evidence and findings show such culpable neglect of duty as to constitute a clear breach of trust.
The course adopted'by the referee in charging the guardian with the cash rental value of the minors’ interest in the lands was made necessary by the guardian’s culpable neglect in failing to keep accounts with his wards. While it may seem to be a harsh rule and to work some hardship in this instance the principle upon which it is based is reasonable, and its application to the situation presented here meets with our approval. The fact that the petition contained no allegation as to the cash rental value of the lands and asked for no recovery on that basis is of no importance. It was an action for an accounting, and it became the duty of the court to determine what sums were due from the guardian.
The statute (Gen. Stat. 1909, § 3975) requires guardians to manage the interests of their wards under the direction of the court. The guardian may lease the lands of the wards or loan their money, but can do these things lawfully only under the direction of the probate court. A statute similar to ours has been construed to inhibit by implication the doing of these acts without an order of court. (Easton v. Somerville, 111 Iowa, 164, 82 N. W. 475.)
The allowance of' compound interest against the guardian was not error. In Gassell v. Gassell, 147 Cal. 510, 82 Pac. 42, the guardian mingled the wards’ funds with his own without any authority from the court, and failed to keep an account from which an accounting could be rendered. The court held that it was not error to charge him with compound interest although he was guilty of no fraud. This rule is ap plicable alike to guardians and executors as to other trust relations. (1 Church, New Probate Law and Practice, p. 204; Guardianship of Dow, 183 Cal. 446, 449, 65 Pac. 890, 892.)
The final settlement of the administrator, who was at. the same time the guardian, was not conclusive or binding upon the minors, but voidable by them or by their representative. (2 Woerner, The American Law of Administration, 2d ed., § 505; Alexander v. Alexander, 70 Ala. 212.)
If authorities are needed to support the principle that, a guardian can not trade with himself on account of the ward nor use or deal with his wards’ property for his own benefit, see Merket v. Smith, 33 Kan. 66, 5 Pac. 394, and 21 Cyc. 101, 102.
The fact that the court approved the report of the referee without having examined the evidence can not. avail appellant, because we have examined the evidence set out in the abstracts and approve the findings as well as the conclusions of law.
The only serious error we find was in the refusal to-render judgment against appellant for the full amount, found to be due. The petition should be regarded as amended to conform to the facts. The furtherance of justice seemed to require this, and there was an application to amend before the evidence was all taken,, which application should have been granted.
The judgment will therefore be modified and the cause remanded with directions to render judgment against Gustav Witt for the whole sum found due. A counter abstract was printed containing five hundred and fifty pages. There being no occasion for one of more than fifteen pages, the cost of printing the excess will be taxed to the appellee. | [
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The opinion of the court was delivered by
Burch, J.:
F. E. Mason deposited with the defendant a check for $250 and received credit therefor on account subj ect to check. Afterwards he drew a check on the bank in favor of the plaintiffs for $150, to pay for a diamond ring which he desired to purchase of them. .One of the plaintiffs communicated with the bank by telephone, informed the cashier of the pend ing ring transaction, and asked if the check was good. The cashier replied that -Mason had on deposit sufficient funds to meet the check, that the check was good, and that it would be all right to let Mason have the ring. Relying on what the cashier said, the plaintiffs sold the ring and took the check in payment of the price. The bank then discovered that the check for which it had given Mason credit -was fraudulent, and when the plaintiffs presented their check payment was refused. The plaintiffs sued the bank for the amount of the check, setting up all the facts. A demurrer was sustained to the petition and the plaintiffs appeal.
The plaintiffs base their right to recover on the principle of equitable estoppel ás stated in Clark v. Coolidge, 8 Kan. 189:
“As a general rule estoppels in pais can apply only in the following cases:
“1.' Where the party doing the act or making the admission knows at the time the truth of the matter about which he is acting or making admissions, or pretends that he knows the same, or has better means of knowing the same than the other party.
“2. Where the other party does not know the truth of the .same.
“3. Where the act or- admission is expressly designed to influence the conduct of the other party.
“4. Where the other party relies upon and is influenced by such acts or admissions.” (p. 196.)
All these elements, except perhaps the third—and its presence may be conceded-—were 'embraced in the allegations of the petition. The argument is that the bank’s failure to investigate the genuineness of the check deposited by Mason before the plaintiffs inquired about it made the loss possible, and consequently that the bank, although innocent of intentional wrongdoing, is the one who in j ustice'" and good conscience must suffer.
The state of facts upon which liability is predicated is the old, old one of refusal to pay an unaccepted bill which the drawee orally recommended as good to the holder before he acquired it. The question in such .cases is, Was it the duty of the drawee to pay the bill ? If not no liability attaches for refusal to pay, because no duty has been violated. The obligation of the drawee of a bill to the holder has been dealt with expressly by the legislature in the negotiable instruments act. The drawee is not liable on the bill unless and until he accepts it. (§ 134.) Acceptance is the signification by the drawee of his assent to the order of the drawer, and acceptance must be in writing signed by the drawee. (§ 139.) Section 134 relates to rights and duties, and not to form of remedy. It means that the drawee is not obligated to pay the holder unless and until he accepts,' and the plaintiffs gain nothing by saying that they, do not sue “on the bill.” Neither do they gain anything by saying that they ground their action upon equitable considerations, since equity must follow the law in all cases in which the legislature has intervened and prescribed rules of law which govern the rights of the parties.
“The established rule, although not of universal application, is that equity follows the law, or, as stated in Magniac v. Thomson, 15 How. 281, 299, ‘that wherever the rights or the situation of parties are clearly defined and established by law, equity has no power to change or unsettle those rights or that situation, but in all such instances the maxim equitas sequitur legem is strictly applicable.’ . . . Courts, of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law. They are bound by positive provisions of a statute equally with courts of law, and where the transaction, or,the contract, is declared void because not in compliance with express statutory or constitutional provision, a court of equity can not interpose to give validity to such transaction or contract, or any part thereof.” (Hedges v. Dixon County, 150 U. S. 182, 192.)
The negotiable instruments act entailed no hardship upon the plaintiffs, for they might have asked for a certified check or might easily have obtained a lawful acceptance, and to permit them to recover on the theory proposed would loose again upon the business world the evils which the statute was designed to repress.
The judgment of the district court is affirmed. | [
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Per Curiam:
This action was brought by the appellee to recover from the appellants a sum alleged to have been paid by him to the holders of the appellee’s promissory motes, which notes are alleged to have been given to 'appellants and the consideration for which was in whole or in part a patent right or an interest in a patent right; that the notes did not contain the words “Given for a patent right” as required, by section 5516 of-the General Statutes of 1909,. and that the holders thereof, to whom the payments were made, were innocent holders. There was evidence to sustain the finding of the court in favor of the appellee.
The legal questions involved are decided in Nyhart v. Kubach, 76 Kan. 154, 90 Pac. 796, and in Tredick v. Walters, 81 Kan. 828, 106 Pac. 1067, the latter case being quite similar to this one. In that case the evidence in regard to the consideration was:
“Ques. Mr. Walters, I will ask you what', if anything, Mr. Betz said with reference to his patent? Ans. He said he had a patent—he said he had a patent on the use of the cable wire that was used to reinforce the posts.” (p. 834.)
The portion of the opinion relative thereto is:
“These were the only representations in regard to a patent. It goes without saying that one who has an article designed for a particular use, who has the right to use the article for the purpose for which it is designed,' and who sells such article to another, by necessary implication sells also the right to use the article for such purpose. The molds described in the contract were designed expressly fqr the manufacture of the posts claimed to have been patented, and.the sale of such molds, by the terms of the contract, necessarily carried with it the exclusive right to manufacture, sell and use the posts claimed to be patented, within the designated territory for the time specified. The right to manufacture, sell and use a patented article is the very essence of the intangible thing called a patent, and brings the case squarely within the reasoning of Hankey v. Downey, 116 Ind. 118.” (p. 834.)
In this case the appellee’s evidence is:
“Q. Tell what they said and did.
“A. They made a proposition to me and told me what they did with agents, and if I would take an agency for my township they would sell me 12 machines and 12 sets of molds, price $6 and some cents apiece.
“Q. What was said about patents?
“A. They stated they had patents.
“Q. Did they say they had patents on both molds and fence?
“A. Yes, sir.”
The following cases are also instructive as to the question involved: The State v. Morey, 81 Kan. 149, 105 Pac. 501; Bolte v. Sparks, 85 Kan. 13, 116 Pac. 224.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff, Kaill, sold a tract of land to the defendant, Bell, and received in part payment •of the price an order for the purchase of a book described as “Bell’s Louisiana Portfolio” signed by the board of school directors of a parish in Louisiana. The order proved to 'be uncollectible, and Kaill sued Bell to recover the sum of money represented by it. The plaintiff recovered, and the defendant appeals.
The order was one of a number, aggregating $7500, delivered to the plaintiff pursuant to a written contract of sale wherein the defendant guaranteed that the orders were valid and were taken in the regular course of business. The contract provided that the plaintiff should have ten days’ time in which to furnish an abstract of title to the land, and that the defendant should have ten days’ time in which to examine the abstract. In due time the contract was consummated by a delivery of a deed to the land and delivery of the orders referred to. The contract did not specify the particular orders to be supplied, and the first time the plaintiff saw those which he accepted was when they were turned over to him in exchange for his deed. At that time the defendant, in the plaintiff’s presence, placed the following indorsement upon each order, which he signed and then handed to the plaintiff, who blotted the signature:
“For value received, this account is assigned to Henry G. Kaill, without recourse.”
The plaintiff examined the orders, observed the in dorsement, and knew the meaning of the words “without recourse,” but nothing was said by either party respecting any change in the terms of the previous contract. The defendant contends that by virtue of the indorsement and its acceptance by the plaintiff a novation was accomplished, and that the defendant is relieved from his guaranty of validity.
There is nothing in the situation or conduct of the parties to indicate that an abrogation of the express contract of guaranty was mutually intended, and the insertion of the words “without recourse” in the instrument passing title does not have that effect. Those words have no precise legal signification outside the law of commercial paper, and unless it is manifest that they were intended to express a different meaning they must be given their ordinary effect, which is that the indorser assumes no contractual liability by virtue of the indorsement itself. Even in the case of commercial paper indorsed without recourse the vendor impliedly warrants that the instrument is ¿ valid obligation' of the kind it purports to be. The following authorities are sufficient to furnish a key to the law on the subject. (Challiss v. McCrum, 22 Kan. 157; Drennan v. Bunn, 124 Ill. 175, 16 N. E. 100; Hannum v. Richardson, 48 Vt. 508; Meyer v. Richards, 163 U. S. 385; Gompertz v. Bartlett, 2 Ell. & Bl. 849; Gurney v. Womersley, 4 Ell. & Bl. 132; 7 Cyc. 831; 2 Randolph on Commercial Paper, §§ 720, 756.)
In the case of Hannum v. Richardson, supra, a note given for intoxicating liquor sold contrary to law,, and consequently void at its inception, was transferred by indorsement without recourse. The court said:
“By indorsing the note ‘without recourse’ the defendant refused to assume the responsibility and liability which the law attaches to an unqualified indorsement, so that in respect to such liability it may perhaps be regarded as standing without an indorsement. If it be so regarded, then in what position do these parties stand in respect to the transaction? The principle is well settled, that where personal property of any kind is sold there is on the part of the seller an implied warranty that he has title to the property, and that it is what it purports to be, and is that for which it was sold, as understood by the parties at the time. . . . In this case the note in question was given for intoxicating liquor sold in this state in violation of law, and therefore was void at its inception; in short, it was not a note, it was not what it imported to be, or what it was sold and purchased for; it is of no more effect than if it had been a blank piece of paper for which the plaintiff had paid his fifty. dollars. In this view of the case we think the defendant is liable upon a warranty that the thing sold was. a valid note of hand.” (pp. 510, 511.)
In this case the defendant contracted to deliver to the'plaintiff school orders for school supplies, and if the instruments were not legal orders they failed to answer the description contained in the contract precisely as the instrument in Hcmnum v. Richardson failed to possess the character imported by its face. Such being the law, the greatest effect the restrictive words of the assignment could have would be to substitute an implied for an express warranty of validity, which of course was not a matter in the mind of either party.
The defendant argues that the law implies knowledge on the part of the plaintiff of any legal restrictions on the power of the school board to issue the orders, and consequently that the plaintiff took them for what they were worth. The contract shows, however, that the parties did not act with reference to such knowledge or deal upon the basis of a delivery of school orders, good or bad, in payment for the plaintiff’s land.
There remains to be considered the question whether or not the order is invalid for want of power on the part of the board of school directors to purchase the portfolio.
The plaintiff brought suit on the particular order in question in the proper court of the state of Louisiana and was defeated. Under the law of this state the judgment is prima facie evidence only in favor of the plaintiff, and the guarantor had the right to contest the claim that the order is invalid when sued in this state for the amount of money which it represents. In a suit in the circuit court of the United States for the district of Louisiana upon another order given by a different school board the plaintiff recovered. This judgment is not, of course, res judicata, and neither judgment is conclusive upon the courts of this state as an interpretation of the law of the state of Louisiana.
The statutory law of Louisiana governing the subject was agreed to. It provides for a state board of education which is given power to prepare rules, bylaws and regulations for the government of the public schools of the state, prescribe the studies which Shall be taught therein, enforce strict uniformity of textbooks, and adopt a list thereof. Parish boards have power to procure school sites, erect school buildings, contract for outbuildings and enclosures, make repairs, and provide the necessary furniture, equipment and apparatus. No other provision of the laws of Louisiana either gives or denies power respecting the matter in controversy.
It is agreed that the article for which the order was given consisted of a large number of sheets, bound in book form, containing maps, historic data, descriptive, scientific and other educational matter,-printed in words and figures, with indices and directions, and covered with a heavy, flexible binding. Included in the price for the article and sold with it was a wooden frame or rack for its support, mounted on an iron or steel tripod with legs and feet. The article is used for educational purposes, and in book form, but without the wooden frame and tripod, was exhibited in evidence in the district court. The secretary of the state board of education of the state of Louisiana testified that he is custodian of the records of the board and that there is no record of the adoption of the portfolio. • The attorney-general of Louisiana testified that in his opinion the portfolio is embraced within the section of the act relating to the adoption of a list of textbooks by the state board.
The defendant argues that the portfolio falls within the provision of the law relating to necessary furniture, equipment and apparatus. The plaintiff contends that it is an educational book, supplemental to the usual textbooks, and that the school board had no more authority to purchase it than they would have to establish, a reference library upon geographical, historical, scientific, and other subjects, to supplement the instruction afforded by the textbooks adopted by the state board. It is agreed by the parties that the signatures upon the order were genuine, that the officers signing it were duly elected and qualified, that the order was filled by a tender of the thing attempted to be purchased, and that the order and its assignment to the plaintiff were received in evidence in the Louisiana suit together with proof of tender of the thing ordered. This evidence was sufficient to warrant a recovery in the Louisiana court unless the law rendered the order invalid, and the judgment of the Louisiana court is some evidence that 'such is the case. The opinion of the attorney-general of Louisiana was properly received upon the subject and is to the same effect. The district court had the book before it and consequently was able to determine by actual examination whether or not it was fairly classifiable as school furniture, equipment or apparatus. The frame and tripod were mere incidental facilities to use and did not characterize the article itself. The questions of what the law of Louisiana is and of what the nature of the book is were questions of fact and the conclusion reached by the trial court is abundantly sustained. This court is all the more ready to approve the finding of the trial court because the defendant, who was duly notified of the suit in Louisiana and called upon, to defend the legality of the order according to his guaranty, could easily have procured an adjudication from the highest court of that state, which' would have ended the controversy.
The plaintiff pleaded false representations respecting the character of the order but the proof comprehended nothing affording a basis of liability beyond the terms of the written guaranty. It is claimed that part of the proof respecting false representations ran counter to the rule forbidding the. impeachment of written instruments embodying the result of oral negotiations. If so it is immaterial because the contract alone is ample to sustain the judgment. Both parties introduced some irrelevant oral evidence, but the trial was before the court without a jury and the presumption is that it was disregarded. There is nothing in the record to indicate the contrary, and in any event the agreed facts and the competent evidence recited above authorize the judgment which was rendered.
The court desires to express its appreciation of the agreed abstract submitted jointly by eoúnsel for the respective parties, which very succinctly but very clearly and with perfect fairness sets forth those portions of the proceedings which are necessary to a full understanding of the questions presented for review. The practice is greatly to be commended.
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The opinion of the court was delivered by
Porter, J.:
Action to foreclose a mechanic’s lien. The defendant, F. J. Arnold, is the owner of two residence lots in the city of Wichita which he authorized a real-estate agent to sell for him. They were vacant lots and the price at which they were listed was $250. The agent showed the property to D. F. Sutton, a building contractor, who made an offer to take them and to pay $100 in cash and the balance in forty days. He told the agent that he wanted the lots to build houses on, that he wanted to build right away. The agent saw the owner and informed him of the offer; the owner said it was all right and the agent told Sutton that the arrangement was satisfactory. There was no contract in writing. Sutton at once began the erection of two houses on the property and contracted with the plaintiff lumber company for the material. He saw the agent several times within the next month and asked for an abstract of title which the owner had agreed to furnish. The agent went to see the owner about the abstract and was told that Sutton could have no abstract until he made the cash payment. On the same day the owner and the agent went to the property and saw the houses which were in process of building. Sutton was then informed by the agent that the owner would' not furnish an abstract until a payment was made. No express authority was given by the agent to Sutton to take possession of the lots, nor was any demand made for the cash payment until the owner was told that the abstract was asked for. Up to this point there is no dispute as to the facts. Arnold testified that he had no knowledge that the houses were being built until he went to the property with the agent four weeks after accepting the oral offer. A witness for plaintiff testified that he put in the foundation for both houses; that while at work on the second foundation he saw Arnold at the property “looking around”; that sometime before the lien of the lumber company was filed he went to Arnold to see about getting pay for his labor and material; that Arnold said he had been at a good deal of expense and trouble and wanted to know how much witness would settle for; that after some conversation Arnold offered him seventy-five per cent of his bill, which he accepted, and Arnold paid him; that he had made an offer to Arnold to pay him all expenses and the purchase price of the lots and take up Sutton’s contract. This offer it appears was not accepted. The attorney of appellant testified that he went to Arnold and asked him to pay the account of the lumber company for the material it had furnished, and that Arnold said he had no fault to find with the lumber. company except that their bill was too high, and that he had fooled around with Sutton long enough, that Sutton had never paid a cent, and that he was going to start suit to put Sutton off the property. The bookkeeper of the lumber company testified that before the lien was filed Arnold came to the office of the company and said the bill was too high. Mr. Stanley, a lawyer, testified that he went to Arnold when the houses were nearly completed and told him that Sutton had made arrangements to raise the money and pay for the lots, and inquired how much cash he wanted; that Arnold said he would take fifty dollars down; that the witness then went and got a check for that amount which he offered to Arnold and asked for the abstract, and that Arnold said he would see about it. Witness saw him again about the matter and Arnold said that he had decided not to furnish an abstract, that the houses were built on the lots and he could hold them and would do so.
There was evidence of another offer made to Arnold by a man named Adams, who claimed to have a contract with Sutton for the purchase of-the houses, and who testified that he went with Sutton to Arnold after the houses were nearly finished and made an offer'to take up Sutton’s contract and pay the purchase money, and that the offer was refused. Soon afterwards Arnold brought an action in ejectment against' Sutton, and procured a restraining order enjoining the defendants in .the action from removing the houses from the property. On March 14, 1910, judgment for possession was rendered in his favor, and a permanent injunction was granted restraining Sutton and all persons claiming through or under him from removing the houses or any part thereof from the premises. On the trial of this-action to foreclose the lien of the lumber company the court sustained a demurrer to plaintiff’s evidence. The question for determination is whether Sutton obtained such an interest in or title to the property as will support a lien.for the material furnished under a contract made by him with the lumber company. A mechanic’s lien can attach to an equitable estate or interest in lands.
“Taking the whole of the law together, and it undoubtedly means that a mechanic’s lien shall operate upon the whole of the estate which the person procuring the labor and materials may have in and to the' property for which he procures the same, whatever may be the character of that estate, but that such lien cannot operate upon anything more than such estate, and that so far .as it does operate, it is the paramount lien upon the enhanced value given to such estate by the labor and materials.” (Seitz v. U. P. Railway Co., 16 Kan. 133, 140.)
In Drug Co. v. Brown, 46 Kan. 543, 26 Pac. 1019, it was held that one in possession of real estate under a verbal, agreement for a conveyance to him becomes the equitable owner within the meaning of the mechanic’s lien statute and that the lien of the material man attached to such interest. If the interest owned by the person who makes the contract is less than a fee simple estate the lien is upon the lesser estate. (Hathaway v. Davis & Rankin, 32 Kan. 693, 696, 5 Pac. 50; Choteau et al. v. Thompson & Campbell, 2 Ohio St. 114.)
“It is generally held that a party in possession under a contract of purchase, and'who is to be invested with full title upon compliance with certain conditions, is regarded as an owner under the mechanic’s-lien laws. (Phillips on Mechanics’ Liens, § 69.)” (Lumber Co. v. Osborn, 40 Kan. 168, 172, 19 Pac. 656.)
An equitable title is sufficient. (Mortgage Trust Co. v. Sutton, 46 Kan. 166, 26 Pac. 406.) The facts in the present case distinguish it from the cases of Huff v. Jolly, 41 Kan. 537, 21 Pac. 646, and Lumber Co. v. Schweiter, 45 Kan. 207, 25 Pac. 592, where it was held that no lien was acquired by material men because the possession of the real estate was taken under the conditional agreements which were never performed, and therefore no interest or title passed to which a lien could attach. In Huff v. Jolly, supra, the agent had authority to negotiate for a sale at a stipulated price, .part cash and balance on time, and the contract was not to be effective until the payment was made and the contract approved. The proposed purchasers knew of these terms and agreed to take the lot. They never made any payment and no written contract was entered into, but they erected a building on the premises. It was held that they had no interest or estate in the property and could create no lien on the lot or building for labor and material furnished. In the Schweiter case the contract was in writing, and while the purchaser was to take possession and erect a building, it was expressly stipulated that the conveyance should not be made until the house was enclosed, and that then the purchaser should mortgage the property for a specified amount, that until the deed and mortgages were made the legal and equitable title should remain in the grantor, and until that time the grantee should not create any lien upon the property for labor or material. The material furnished by the plaintiff was purchased before the execution of the deed and mortgage. It was said in the opinion:
“The only claim which Jones (the purchaser) had upon the land was derived from his contract with the owner, and any one who relies on the contract to establish ownership in Jones must be governed by the limitations and conditions therein contained.” (45 Kan. 211.)
In The People’s Savings, Loan and Building Association v. Spears et al., 115 Ind. 297, 17 N. E. 570, it was held that:
“Something more than mere inactive consent is necessary in order that a lien may be acquired against the owner of property.” (p. 301.)
The position Arnold takes in respect of the payments made to other material men is, that those payments were made long after plaintiff - had contracted with Sutton to furnish material; therefore it is said no estoppel arises to benefit plaintiff. It is argued that he wanted no houses erected, that all he desired was to sell the lots; further, that he has no assurance that all the material included in the lien statement was ever used in the construction of the houses, and he claims, moreover, that they were poorly constructed.
The plaintiff relies upon the fact that the lots were purchased under an offer to the agent in which it was expressly stated that Sutton wanted them to build houses on at once, that they were begun at once and no objection to their being built was made until more than a month afterwards; and our attention is directed to the evidence showing that when the defendants were informed by the agent that Sutton was asking for the abstract he placed his refusal solely upon the ground that no cash payment had been made, and he made no claim or assertion to the effect that Sutton was not rightfully in possession, that in fact he permitted the plaintiff to continue to furnish material for the houses for several weeks after he was fully informed that they were being constructed. We think that Sutton under his verbal contract, accompanied by possession and the making of valuable improvements, acquired the equitable title,- and that he might have maintained a suit for specific performance upon a tender of the purchase money, or have set up the same claim by a cross-petition in the ejectment action. (Everett v. Dilley, 39 Kan. 73, 17 Pac. 661; Drug Co. v. Brown, 46 Kan. 543, 26 Pac. 1019.) The possession appears to have had the essential qualifications of being open, notorious, exclusive and in pursuance of the contract. (Baldwin v. Sqnier, 31 Kan. 283, 1 Pac. 591; Baldwin v. Baldwin, 73 Kan. 39, 84 Pac. 568.) It is true, as suggested, that a lien for labor or materials can only attach by virtue of the statute as applied to the facts, and that no lien of this kind can be created by force of equitable rules. At the same time courts are established for the purpose of doing justice and not to assist a party to obtain an unconscionable advantage; and in a case like this slight circumstances might be considered sufficient evidence that the holder of the legal title acquiesced in the purchaser taking possession of the lots and in contracting for the material.' If he permitted the purchaser to take possession under the oral contract and to make the improvements he ought to be estopped to deny that the purchaser obtained the equitable title. By obtaining a judgment in ejectment and an injunction forbidding the purchaser and those claiming under him from removing the houses or any part thereof the defendants foreclosed whatever equitable rights the purchaser had acquired and the equitable title merged in the legal title. At the time of the merger the plaintiff’s lien had attached to the equitable title. The payment of the $100 was not made a condition precedent to the passing of the equitable title, as in Huff v. Jolly, 41 Kan. 537, 21 Pac. 646, and in Lumber Co. v. Schweiter, 45 Kan. 207, 25 Pac. 592. It was in the power of the defendant as vendor to make the cash payment such a condition at any time before the rights of third persons intervened; but it was too late for him to fall back upon that provision of the contract after having permitted possession to be taken under the oral agreement and the improvements to be made which enhanced the value of the property.
Applying these principles to the facts shown by plaintiff’s evidence we hold that plaintiff is entitled to a lien upon the equitable title acquired by Sutton and that the decree should provide for a sale of the property, giving to the defendant the first lien upon the proceeds for the purchase'money and interest and the plaintiff a second lien thereon.
The judgment will be reversed and the cause remanded with directions to overrule the demurrer to the evidence. | [
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The opinion of the court was delivered by
Porter, J.:
Appellants .brought this action praying for the abatement of a nuisance and for an injunction against the appellee from maintaining the same. The court found in favor of the railway company, and gave judgment against appellants for costs. The appellee owns and operates a line of railroad running in a southeasterly direction from the town of Benedict, in Wilson county, extending for about one mile across the river bottom where it crosses the Ver digris river. On the southeast side of the right of way is a public road 40 feet in width, and immediately adjoining this highway is the appellants’ land consisting of about 700 acres used for farming purposes. From the town of Benedict to where the railroad crosses the Verdigris river the track is laid upon an embankment averaging from 10 to 15 feet in height. From Benedict the river runs in a southeasterly direction and for about one mile is parallel to the railroad and about one-fourth of a mile distant therefrom. The land traversed by the railroad is low bottom land which drains to the southeast. The petition alleged that the surface water from rain and snow falling upon the land immediately west of the railroad gathers behind the railway embankment, sometimes to the depth of from 10 to 12 feet; that sometime after the railroad was built in 1887 a small opening about 4 or 5 feet wide was made in the embankment opposite appellants’ land; that afterwards, in 1905, the entire embankment from Benedict to the river was raised by the appellees and the opening made larger; that in July, 1909, the railway company with teams and scrapers completed the opening to the width of about 160 feet. It was alleged that the effect of the embankment is to collect the surface water in a body and cast it through the opening with great force upon appellants’ land, thereby washing away the soil to a great depth, covering up growing, crops, destroying trees, cutting ditches and watercourses through the farm land, to the great and irreparable injury of appellants.
The case was submitted to the court.upon the appellants’ testimony, no evidence having been offered by the appellee.
Appellants’ contentions are (1) that the judgment is against the weight of the evidence; (2) that it is actionable per se for a railroad company to collect and cast surface water upon the lands of an adjoining proprietor. We find no difficulty in reaching the con elusion that there was an abundance of testimony to support the judgment. It appears from the evidence-that when the railroad was constructed in 1887 the-grade was from one to four feet above the level of the-surface. There was a natural depression near where the opening complained of is located. In 1889 the track was raised about three feet across the river bottom and a 70-foot pile bridge was put in. The surface water-continuing to cause trouble, the grade in 1905 was again raised about three feet and the width of the-opening was increased to 98 feet in length, and in 1909 the opening was increased to 154 feet. These figures are taken from the counter abstract and appear to be conceded as correct. While several witnesses who had been familiar with the situation from the time the railroad was first constructed testified to the effect 'that as frequently as from two to four times each year a great volume of surface water collects on the westerly side of the embankment and is discharged through the opening upon appellants’ land, there is no testimony, nor is there in the petition any averment, that the railroad was constructed in a negligent or careless manner. On the contrary it appears from the evidence beyond cavil that it was built and has been maintained in the usual and ordinary manner in which railroads are constructed in similar situations. A witness for appellee who owned land on the westerly side-of the railroad adjoining the opening testified in substance that if the opening were closed and no way were provided for carrying off the surface water collected there “it would simply take out the road.”
The failure of appellants to produce any evidence to-show that the collecting and casting of the surface water complained of. was caused by the negligent or-unskillful construction of the railroad by the appelleecompelled a judgment against them. (Mo. Pac. Rly. Co. v. Renfro, 52 Kan. 237, 34 Pac. 802; A. T. & S. F. Rld. Co. v. Hammer, 22 Kan. 763.) The Renfro casa affirmed the rule of the common law in respect to the flow of surface water as declared in former cases cited in the opinion, and established firmly the rule that in the absence of negligence or unskillfulness in the construction of its road a railway company “will not be liable to an adjoining landowner for injuries from the overflow of surface water occasioned by the obstruction of the roadbed.” (Syl. ¶ 2.) The question was exhaustively considered' in all its aspects in that opinion, and it is not deemed necessary at this time to review the question or to consider cases from other courts where the rule of the civil law obtains or some local statute controls. It was said in the opinion in the Renfro case that the petition would have been demurrable if it had not alleged that the railway was constructed in a negligent or unskillful manner. It appearing from the evidence that the ditches complained of were mere incidents to and necessary for the usual, ordinary and proper construction of the road, this court declared the law to be that no liability rested upon the railway company for injury resulting from surface water cast or collected upon adjoining land by the construction of the ditches. The opinion (p. 243) cites with approval the following language used by the Dakota court in the case of Hannaher v. St. Paul, M. & M. R. Co., 5 Dak. 1, 37 N. W. 717, that seems to apply with particular force to the facts shown by the record in the present case:
“If, by such usual and ordinary construction of its road, the surface of the earth was necessarily changed, and the currents of the surface water were interrupted and diverted, it was one of those ordinary incidents of railroad construction which might have been reasonably expected to have resulted from such work, and oné that plaintiffs themselves were bound to have guarded against and to have used such precautions as were in their power to remedy. Any other rule would require railroad companies in level countries to build their roads upon elevated trestles, or encounter the hazard of some disturbance of surface elements.” (p. 24.)
In A. T. & S. F. Rld. Co. v. Hammer, 22 Kan. 763, it was ruled in the syllabus:
“The simple fact that the owner, of one tract of land raises an embankment upon it which prevents the'surface water falling and running upon the land of an adjoining owner from running off said land, and causes it to accumulate thereon to its damage, gives to the latter no cause of action against the former; nor is the rule changed by the fact that the former is a railroad corporation, and its embankment raised for the purpose of a railroad track, nor by the fact that a culvert could have been made under said embankment sufficient to have afforded an outlet for all such surface water.”
It is apparent that the trial court concluded from the evidence that the embankment and opening thereunder which appellants complain of as constituting a nuisance per se are merely incidental and necessary to the proper construction of appellee’s road in the usual and ordinary manner in which railroads are constructed and maintained. In the language of the Dakota court, supra, “Any other rule would require railroad companies in level countries to build their roads upon elevated trestles, or encounter the hazard of some disturbance of surface elements.” (p. 24.)
It is suggested by the appellee that since the record shows that at the time it acquired its right of way for the construction of its road the lands on both sides of the right of way where the opening' complained of is maintained belonged to a single proprietor; that the relief which appellants seek, if granted, would, require a court of equity to enter a decree defeating the very purpose and intention which the railway company and appellants’ predecessors in title had in mind when the transaction occurred whereby the railroad company acquired its right of way across the lands. And this is true for the reason that the interruption and diversion of the surface waters which is complained of is shown to be merely one of the ordinary incidents of railroad construction and such as might have been reasonably expected to have resulted therefrom. (Hannaher v. St. Paul, M. & M. R. Co., 5 Dak. 1, 87 N. W. 717.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The appellees, as copartners doing'business in the name of the O. K. Family Laundry, were the owners of certain laundry machinery, fixtures and appliances, which were located in a building owned by Mrs. Cubbon in Wichita.
The appellees, with their wives, entered into a written lease with Mrs. Cubbon and her husband by the terms of which the Cubbons leased to appellees the ground floor of the building for a term beginning November 1, 1909, and ending May 1, 1912, at the rental of $1050, payable in monthly installments of $35 in advance on the first day of each month during the term. The lease also contained provisions which, in' effect, made it a chattel mortgage upon the property of the lessees in the building to secure the payment of the rent. The lease was filed in the office of the register of deeds.
It appears that the appellees became in financial stress, and the Stockyards State Bank, of which Cubbon was vice president and appellant was cashier, had a mortgage on the same property for $1000 and also held unsecured bills against appellees for several hundred dollars. The appellees employed the appellant to sell the property for them if he could get $2500 therefor, and to pay him $50 as his commission if he made the sale. A sale was effected for $1800, to which appellees assented, and a bill of sale was given in which was a covenant that the goods and chattels were free and clear of all incumbrances. This bill of sale was signed by the O. K. Family. Laundry, per Walter Williams, and the Stockyards State Bank, per W. W. Brown, cashier.
The appellant received the $1800 and paid the bank its mortgage and unsecured claims, and there remained in his hands as proceeds of the sale $457. Of this remainder he offered $8 to the appellees and turned over $449 to Mr. Cubbon. The appellees demanded the payment of the $457 to them, and, upon the refusal thereof by the appellant they, brought this action.
It does not appear that the appellees assigned their lease of the building to the purchaser of the machinery or that Cubbon made any new lease to the purchaser. The purchaser, however, repeatedly paid rent to Cubbon and Cubbon received it. Besides receiving rent from the purchaser of the machinery, the Cubbons made considerable improvements to the building and permitted its occupancy by the purchaser.
The appellant claims that the mortgaged property was sold free and clear of incumbrances for the appellees, and that he supposed Cubbon was entitled to the balance of the purchase price, after paying the mortgage and unsecured bills, to secure the payment of the rent to the end of the term. He does not claim to have had any authority from appellees to turn the money over to Cubbon, nor does it appear that any arrangement was made between him and Cubbon as to the purp'ose for which the money was to be turned over or the purpose for which it was to be held.
Cubbon’s security was not affected by the sale of the property. The mortgage was of record and the purchasers. were bound to take notice of it. It does not appear that the purchaser was affected by allowing the mortgage to stand unreleased. It stood only as security for rent, which they recognized their liability to pay by paying it from time to time as it came due. There does not appear to have been any contract, however, that the purchaser was to occupy and pay the rent for the term it was leased. But however this may be, Cubbon was only entitled to the rent from month to month as it came due, and nothing was due at the time the appellant turned over the $449.
Even if some rent had, in fact, been due, the appellant had no right to pay it out of appellees’ money unless he had express authority from the appellees, or authority clearly to be implied from all the circumstances of. the transaction, so to do, neither of which appears in this case.
The judgment of the court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Carey McLain obtained a judgment in Missouri against M. V. B. Parker. He sued upon it in Johnson county, Kansas, attaching real estate there and elsewhere, including a tract in Wyandotte county. The plaintiff died and the action was revived in the name of his executrix. May L. Parker and Effie E. Parker moved to discharge the Wyandotte county land from the attachment on the ground that it belonged to them. The motion was overruled. Later they brought an action in Wyandotte county against the executrix, asking to quiet title to the land. They recovered judgment and the defendant appeals.
There is nothing to show that in the Johnson county court any trial was had of the ownership of the Wyandotte county land other than the summary hearing usual where a motion is made by a stranger to dis-charge attached property. In such case the motion is denied unless the ownership of the claimant is demonstrated beyond substantial question, and the ruling is not regarded as an adjudication of title. (Grocer Co. v. Alleman, 81 Kan. 543, 900, 106 Pac. 460, 997, 27 L. R. A., n. s., 620, 135 Am. St. Rep. 398.)
The judgment here appealed from was rendered upon oral evidence as well as depositions. A fair question of fact was presented and the decision of the trial court is final.
Complaint is made that the scope of inquiry was unduly limited. The plaintiffs introduced in evidence a deed to them from M. V. B. Parker and wife, covering the property in controversy, executed February 3, 1892, and recorded the 4th of the following April. One of the plaintiffs (Effie E. Parker) testified to their ownership and was cross-examined at considerable length. The defendant then offered the record of the evidence given at the hearing on the motion in Johnson county. This was rejected except as to the deposition of May L. Parker. This ruling is complained of, but can not be reviewed, for nothing is shown as to the contents of the rejected record, except that it included a deposition of the wife of M. V. B. Parker, taken by the plaintiff. It is not shown that May L. Parker or Eífie E. Parker were notified of, or were represented at, the taking of this deposition. It would have been admissible against them in the hearing on the motion as an affidavit, so that its admission there does not throw light upon the matter. It was offered only as a part of the entire evidence given in the Johnson county hearing, evidently on the theory that its use in one proceeding rendered it competent in the other. It had little direct relation to the particular matter in controversy. Its rejection can not be regarded as ma terial error. The defendant’s attorney next called M. Y. B. Parker to the stand and began his examination by asking what property he had and if he had any real estate in his own name. The court regarded this as an attempt to use the proceeding as one in aid of execution and for that reason sustained objections to the questions. A list previously made by the witness-of property owned by himself and his wife at various times was introduced in evidence. Several schedules,, including those for 1883 and for 1903, showed the land in controversy. On motion of the plaintiffs the court struck out all entries prior to May, 1893, the date of the first transactions between Carey McLain and M. V. B. Parker out of which the original litigation grew. The examination of the witness was also confined to' matters subsequent to that date. These rulings are complained of. It can not be thought that the decision of the court could have been changed by the retention, of the evidence which had been stricken out after having been once considered. The matter of Parker’s-method of handling property and of doing business was quite fully gone into. Enough-evidence was admitted to exhibit in considerable detail the basis of the claim made by the defendant. The court had some discretion in controlling the examination, and we can not say that, this discretion was abused, or that if all the rejected evidence had been admitted there is any probability whatever that a different conclusion would have been reached.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff sued for compensation for his services as undersheriff of McPherson county, and recovered. The board of county commissioners appeals.
The plaintiff based his right to recover on chapter 210 of the Laws of 1907. The title and section 1 read as follows:
“An act to provide for the payment of an under-sheriff in counties having more than eighteen thousand population and less than twenty-five thousand population.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. The board of county commissioners in each county within the state having a population of eighteen thousand and not more than twenty-five thousand inhabitants, except McPherson county, shall allow to the sheriff of the county the sum of six hundred dollars per annum for the hire of an undersheriff, in counties not operating under a special act.”
The answer pleaded the invalidity of the act, alleging that, although general in scope, it does' not have uniform operation throughout the state, and that it’ is a special act governing a subject to which a general law could have been made applicable. (Const. Art. 2, § 17.) A demurrer was sustained to this answer on the theory that the act contained plural subjects, one of which, the exception of McPherson county, was not embraced in the title, and that the provision relating to this subject could be eliminated without affecting the remainder of the legislation.
The interpretation proposed is impossible, because the exclusion of McPherson county from the operation of the act is not a separate, disconnected and independent matter which can be severed without affecting the remainder of the act. (C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 28 Kan. 453.) The declared purpose of the legislature is that undersheriffs of McPherson county shall not receive the benefit of the law. This purpose informs the entire act, and the portion concerning McPherson county can not be eliminated without changing the whole scheme of the statute, even to the extent of making it applicable in territory where the legislature expressly said it should not operate.
Interpreted by its title, the law is one of a general nature covering all counties of a specified class. It does not, however, have uniform operation upon all the counties of the class throughout the state. McPherson county is excluded, and the exclusion of McPherson county renders the act invalid. (Darling v. Rodgers, 7 Kan. 592; Robinson v. Perry, 17 Kan. 248.)
If .the body of the act alone be. considered it is special legislation applying to some counties and arbitrarily excluding another of the same class. The plaintiff was permitted to plead and prove that there is nothing in the situation or circumstances of McPherson county or in the conditions prevailing there to justify giving it treatment different from that accorded to other counties of the same grade. This question was one to be determined by judicial notice of facts and conditions lying within the common public knowledge and not upon evidence introduced under an issue framed (Anderson v. Cloud County, 77 Kan. 721, 734, 95 Pac. 583), but nothing in the plaintiff’s proof needs correction by information noticed judicially. The subject was one of common interest to all the members of a group of counties. No difference in circumstance or other valid reason existed for difference in regulation. No obstacle existed to the framing of an applicable general law of uniform operation upon all the members of the group alike. Instead of enacting such a law the legislature undertook to dispense special privileges to some of them. In so doing it stepped outside its constitutional province as a law-making body and the product of its action lacks the force and quality of a statute. (Anderson v. Cloud County, supra; Deng v. Scott County, 77 Kan. 863, 95 Pac. 592; The State v. Nation, 78 Kan. 394, 96 Pac. 659; Board of Education v. Davis, 87 Kan. 286, 123 Pac. 885.)
It will be observed that the act in question was passed subsequent to the adoption in 1906 of the constitutional amendment making it a judicial question whether or not in any case a general law might have been made applicable to the subject of a special act. (Const. Art. 2, § 17.)
The judgment of the district court is reversed and the cause is remanded with direction to render judgment for the defendant on the pleadings. | [
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The opinion of the court was delivered by
Burch, J.:
A meandering stream called Chisholm creek formerly flowed in a southerly direction through the eastern portion of the city of Wichita and emptied into the Arkansas river some miles south of the city limits. In the year 1907 the city constructed a canal for the-purpose of straightening the creek and more effectually draining the territory tributary to it. The canal was in fact substituted for the creek between twenty-first street and Zimmerly street, a distance of three and three-quarters miles. The canal has the same fall as the creek between the streets named but has only half the length of the creek and has some five and one-half times the carrying capacity. At Zimmerly street the canal empties into the creek, which again pursues a meandering course to its outlet.
The plaintiff owns land near the point at which the water of the canal returns to the creek, which he devotes to market gardening. On May 31 and June 1, 1908, following a rainstorm, this land was flooded, to the plaintiff’s injury. He sued the city for damages on the theory that the canal brought down quantities of water from the vicinity of its source with such rapidity that the crooked creek below could not take care of it. The action was tried before a jury which returned special findings and a general verdict adverse .to the plaintiff. Judgment was rendered accordingly and the plaintiff appeals.
Among the special findings returned by the jury are the following:
“Q. 1. Were the plaintiff’s crops inundated with water on or about the 31st of May or the 1st of June, 1908? A. Yes.
“Q. 5. Were plaintiff’s crops wholly or partially destroyed by water on May 31, or June 1st, 1908, for which damages are claimed in this action ? A. Partially.
“Q. 6. If you answer the foregoing question affirmatively, state whether the water that destroyed or partially destroyed the plaintiff’s crops was overflow water from the mouth of the drainage canal. A. Partially.
“Q. 7. Did the waters from the drainage canal directly contribute to or cause the damage to the plaintiff’s crops by overflow on May 31st or* June 1st, 1908? A. No.
“Q. 8. Were the plaintiff’s crops wholly or partially destroyed by water coming from the mouth of the drainage canal on May 31st or June 1, 1908? A. Partially.
“Q. 12. On May 31st or June 1st, 1908, were the premises and country at or near the mouth of the drainage canal inundated by water flowing out of the drainage canal ? A. Partially.
“13. Q. On May 31, 1908, was the district in the northeast part of the city of Wichita, and at or near Twenty-first street, overflowed with surface water? A. Yes.
“14. Q. Was there an unprecedented flow of water in the vicinity of the drainage canal and on plaintiff’s property on May 31, and June 1, 1908? A. Yes.
“15. Q. Did Dry creek empty into Chisholm creek, south of the drainage canal and north of where the Santa Fe railway crossed Chisholm creek on May 31, 1908? »A. Yes.
“16. Q. Did Gypsum creek empty into Chisholm creek south of the drainage canal and north of where the Santa Fe railway company crossed said Chisholm creek on May 31,1908 ? A. Yes.
“17. Q. ^Vas Gypsum creek high and out of its banks, on May 31, 1908? A. Yes.
“18. Q. If you answer the foregoing question in the affirmative, state the cause of Gypsum creek being high and out of its banks on said date. A. By excessive rainfall.
“19. Q. Was Dry creek high and out of its banks on May 31,1908? A. Yes.
“20. Q. If you answer the foregoing question in the affirmative, state the cause of Dry creek being high and out of its banks on May 31, 1908. A. By excessive rainfall.
“36. Q. Was the plaintiff’s property destroyed in part by the removing and distributing of surface water flowing in the city of Wichita through said drainage canal? A. No.
“39. Q. On May 31, and June 1, 1908, did any water empty into said canal except surface water? A. No.”
Findings numbered 7 and 36 are obviously conclusive against the plaintiff. It is claimed that these findings are not in accord with the evidence, but there is ample evidence to sustain them. It is further claimed that these findings are incompatible with those numbered 6, 8 and 12, wherein it is stated that part of the water which covered the plaintiff’s premises and destroyed his crops came from the mouth of the canal. The meaning of the jury, however, is plain and consistent. The rainfall was so excessive that the various watercourses of the territory affected were uhable to take care of- it. The district in the northeast part of the city in the vicinity of the origin 'of the canal and the country about its mouth were alike flooded, causing an unprecedented flow of water. Commingled with the waters on the plaintiff’s premises were some which the canal brought down, but the inundation took place notwithstanding the action of the canal. If Chisholm creek had not been straightened it would have been out of its banks like Gypsum creek and Dry creek and the plaintiff’s crops would have been injured just the same.
Since the special findings of fact preclude recovery by the plaintiff, it is not • necessary to consider the errors assigned respecting instructions given and refused.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
A resident of New York died while owning stock in a corporation organized under the laws of Kansas. Action was brought in this state against his administrators to compel the payment of an inheritanee or succession tax upon the transfer of the stock.’ .Judgment was rendered in their favor, and the state appeals -
Where a resident of another state dies owning property in Kansas, our statute ordinarly requires the payment of a succession tax here. If, however, the laws of the state of his residence impose a tax of like character and of equal or greater amount, which has actually been paid, no payment is required here, provided the laws of that state make “a like exemption . . . in favor of estates of citizens of this state.” (Gen. Stat. 1909, § 9266.) Shares of stock are regarded as situated in the state of incorporation. (.37 Cyc. 1562.) The stock here involved was subject to a tax .of like character in New York, which was duly paid, to an amount greater than that claimed here. Upon. the death of a nonresident of that state owning property there, whether or not it is liable to a succession tax elsewhere, a tax is collected on account of the tangible property, but none is exacted with respect to that which is intangible, including corporate stock. The sole question in dispute is whether this condition of the New York law amounts to “a like exemption” to that of the Kansas statute.
The section of the Kansas statute on the interpretation of which the controversy turns, reads as follows:
“Property of a resident of the state, which is not therein at the time of his death, shall not be taxable under the provisions of this act if legally subject in another state or country to a tax of like character and amount to that hereby imposed: Provided,•Such tax be actually paid, guaranteed or secured in such other state or country. If, however, such property be legally subject in another state or country to a tax of like character but of less amount than that hereby imposed, and such tax be actually paid, guaranteed or secured as aforesaid, such property shall be taxable, under this act to the extent of the excess for which such property would otherwise be liable hereunder over the tax thus actually paid, guaranteed or secured. Property of the estate of a nonresident decedent, which is situated in the state at the time of his death, if subject to a tax of like character with that imposed by this act by the law of the state or country where decedent, had his residence, shall be subject only to such portion of the tax hereby imposed as may be in excess of such tax imposed by the laws of such other state or country: Provided, That a like exemption is made by the laws of such other state. or country in favor of estates of citizens of this state, but in such cases m> exemption shall be allowed until the tax provided for by the law of such other state or country shall be actually paid, guaranteed or secured in accordance with: law.” (Gen. Stat. 1909, § 9266.)
The first part of the section relates to the taxing of property in other states owned by a resident of this state at the time of his death. If a succession tax is collected' in the state where the property is located, it is waived here, irrespective of what would be the rule of the other state if the conditions were reversed. This provision is for the benefit of residents of this state. Whether other states legislate in a similar way for the advantage of their citizens does not affect the matter. The second portion of the section relates to the taxing of property in this state owned by a resident of another state at the time of his death. If a succession tax is collected in the state of the decedent’s residence, it is waived here only in case the laws of that state make a like exemption in favor of the estates of citizens of this state.
The New York statute relating to an inheritance tax, so far as here important, reads as follows:
“A fax shall be and is hereby imposed upon the transfer of any tangible property within the state and of intangible property, ... in the following cases: . . .
“1. When the transfer is by will or by the intestate laws of this state of any intangible property, or of tangible property within the state, from any person dying seized or possessed thereof while a resident of the state.
“2. When the transfer is by will or intestate law, of tangible property within the state, and the decedent was a nonresident of the state at the time óf his death.” (8 Laws of New. York, 1911, ch. 732, § 1.)
This statute defines intangible property as including stock in a corporation. Its operation is not affected by the laws of any other state. Upon the death of a resident of New York a tax is imposed upon all of his intangible property, wherever located,. and upon such of his tangible property as is there situated; but none is exacted with respect to his tangible property outside of the state. Upon the death of a nonresident of the state of New York owning property there (and this is the phase of the law the effect of which we are now required to determine) a tax is exacted only with respect to such of it as is tangible. A state may impose a tax upon the intangible property of a nonresident which has a situs within its borders, notwithstanding a similar tax has been lawfully charged and collected elsewhere. (Blackstone v. Miller, 188 U. S. 189, 47 L. Ed. 439; People v. Union Trust Co., [Ill. 1912] 99 N. E. 377.) The state of Kansas declines to exercise this power against the resident of a state which grants a similar exemption as to citizens of this state. The state of New York, with respect to property having a situs there, owned at the time of his death by a nonresident, declines in any event to exercise its right to impose a tax where the property is intangible, but in all cases exercises the right where it is tangible. Does this amount to the granting of a like exemption to that of the Kansas statute, for the purpose of the present case? The exemptions are not wholly alike, yet they have something in common. They are alike in the sense that if the conditions were reversed—if a resident of Kansas had died owning stock in a New York corporation—no tax would be exacted by the laws of that state. The New York exemption is more liberal than that of Kansas in that its benefits are not restricted to the residents of states which reciprocate the comity; it is less liberal in that it does not extend to tangible property.
The meaning intended by the legislature is not entirely clear. There is room for construction. The situation is peculiarly one for the invocation of any just rules of interpretation which are applicable. Several courts have held that the language of a statute imposing a succession or inheritance tax is to be strictly construed against the government, and liberally in favor of the taxpayer. (37 Cyc. 1556; 27 A. & E. Encycl. of L. 340; Blakemore and Bancroft on Inheritance Taxes, p. 32; Note, 127 Am. St. Rep. 1052.) As said in the note just cited, no good reason seems to be given for this rule, and none is apparent, except perhaps to the extent that a purpose to require an in dividual to contribute to the public expense ought to be expressed with reasonable clearness. There is force however in the suggestion made in behalf of the defendants, that double taxation—the imposition of a like tax with respect to the same property in each of two jurisdictions—although not repugnant to any principle of constitutional law, is so contrary to natural justice, that a purpose to exact it ought not to be imputed to the legislature in any doubtful case.' The desire to avoid double taxation is evident in this act as well as in those of most states that have legislated in the matter. As said in Dos Passos on Inheritance Tax Law, 2d ed., p. 187: “On grounds of policy and comity . . . the rule has been not to impose what would be, in effect, a double tax on nonresidents’ estates, where it can possibly be avoided.”
We think the spirit of the Kansas act is that where property in this state owned by a nonresident at the time of his death has been subjected to an inheritance tax in the state of his residence, a similar tax ought not to be required here, except in cases where if the conditions were reversed, and a nonresident of this state had died owning the same character of property in the other state, a payment there would be exacted. That spirit is effectuated by considering that the exemption of the Kansas statute operates for the benefit of the estate of a resident of any other state, the law of which would not exact an inheritance tax with , respect to similar property in that state, owned by a resident of Kansas at the time of his death, no matter how dissimilar the statutes may otherwise be. In other words, the exemption made by the laws of another state is to be regarded as like that of the Kansas statute, in any circumstances in which, if the conditions were reversed, it would have a like operation.
The section above quoted from the Kansas act is substantially the same as one found in the Massachusetts statute of 1907 (Acts, Í907, ch. 563, §3). This was amended in 1909 (Acts, 1909, ch. 490, Part IV, § 3) and in 1911 (Acts, 1911, ch. 502, § 1) but not so as to change the effect of the reciprocal provision. We are not aware of any judicial interpretation of its language, but the authors of one of the textbooks already cited express the opinion that the statute of New York brings that state within its operation. (Blake-more and Bancroft on Inheritance Taxes, pp. 483, 563.) At page 483 it is said:
“The Kansas statute contains the same reciprocal clause for avoiding double taxation that is found in Massachusetts. . . . Property of a nonresident in Kansas, including stock wherever situated in a Kansas corporation, will not be taxed (except for the difference if Kansas rates are higher) if owned by a resident of a state which extends similar courtesies to residents of Kansas. Massachusetts, Maine, Vermont and New York seem to be the only states that do so.”
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
W. J. Tramel, a millwright in the employ of the Armour Packing Company, was required to make some repairs in the meat-cutting department of the packing plant, near the ceiling, which was about twelve feet high. To reach the place he stood' upon a ladder about' sixteen feet long, the top resting against a joist and the bottom on the floor. While he' was at work the bottom of the ladder slipped and he fell, receiving injuries on account of which he sued the company. Upon the trial a verdict was rendered for $1500. As a condition of denying a new trial the court required $500 to be remitted, and upon this being done .judgment was rendered for the plaintiff. The defendant appeals.
It is contended that the facts, as established by the findings of the jury, supplemented by the plaintiff’s own testimony, preclude his recovery, and we regard the contention as well founded, for these reasons:
The conduct of the defendant relied upon as constituting negligence is the omission to provide the ladder with spikes to keep is from slipping. The floor of the room in'which the injury occurred was of granitoid or asphalt. The ladders kept and used in rooms having floors of that character were purposely left by the company without spikes, because (as the evidence showed and the jury found) the floors were made smooth and waterproof so that they could be kept clean and in a sanitary condition, and spikes in the ladders would have made holes in the surface so that grease and water would be absorbed, rendering the floor no longer waterproof, and in time perhaps destroying it. In. view of these facts the rule of practice which dispensed with spikes upon ladders, used in the departments having such floors was unquestionably reasonable, and the absence of spikes in a ladder kept for use there can not be regarded as negligence.
There is no evidence that any one in authority directed the plaintiff to use the ladder in the manner described, or to use it at all. ’ A rolling bench was provided to stand upon while doing similar work, and the plaintiff hacl used this for such a purpose a few days before. The mere presence of a ladder in the room can not be regarded as an invitation to use it without examination, upon the assumption that was furnished with spikes. It was provided with hooks two and a, half feet from the top, to be hooked over line shafts or other objects, but the plaintiff did not know this, ánd did not notice them. Ladders in departments of' the plant which had soft floors were provided with spikes. The jury found that the plaintiff did not know that the ladder used by him was not provided with spikes; that the fact was not “apparent and obvious”; and that he was prevented from ascertaining it by the “lack of close inspection.” The plaintiff testified that, he could have seen whether spikes were attached if he had made a close examination, and that he could have-ascertained that fact by feeling with his hand. No evidence, however, is needed to prove that he could readily have learned what the fact was in this regard if he had made any effort to do so. But he said that, he did not look to see whether there were spikes on the ladder; that he made no examination or inspection whatever in that regard; that he knew the floor was hard, wet and greasy, and that the ladder, unless it had spikes, was apt to slip; that he paid no attention to the bottom of the ladder; that he relied upon the-ladder having spikes in it. The rule that the workman may rely upon the employer’s having provided a safe-tool or appliance is not applicable, for two reasons. Its basis is that the employee is justified in assuming that the employer has not been negligent in this regard. But here the company was not negligent. The ladder was not defective. It was in good condition for the use for which it was intended and to which it. was adapted. There are well-considered cases holding-the omission of spikes from ladders not to be negligent under ordinary circumstances. (Blundell v. Mfg. Co., 189 Mo. 552, 88 S. W. 103, and cases there cited.) It may be said here, with even greater force than in the opinion from which the language is taken:
“The failure of the defendant to provide prongs . . . to keep the ladder from slipping, is not suffi cient to make the defendant liable in this case. The ladder was a very simple appliance, one that is familiar to every grown man. Its liability to slip when not resting firmly or securely is a matter known to all men. . . . There is a total absence of any evidence in this case showing that the ladder furnished was not a reasonably safe appliance and could not have been safely used for the purposes to which it was applied or intended to be applied. There is nothing in the case which, in any manner, made it obligatory upon the plaintiff to use the ladder. . . . There was, therefore, no necessity for the plaintiff to use the ladder at all. But even if this be not true, no reason appears why the plaintiff could not, or did not, fasten the ladder so as to prevent it from slipping before ascending it. . . . The plaintiff’s case rests upon the proposition that a ladder is an unsafe appliance . . . unless it has prongs . . . attached thereto to keep it from slipping. No case supporting such a proposition has been cited by counsel and none has fallen under the observation of the court. On the contrary, among the cases hereinbefore cited, there are several where the claim here made was distinctly denied by the court; and in other cases, a ladder without prongs . . . has been held to be a reasonably safe appliance for the master to furnish the servant, for such uses as ladders are generally applied to.” (pp. 565, 566.)
The necessity of protecting the asphalt floor makes it clear that the defendant was under no obligation to equip the ladder with spikes. But even if such a duty had rested upon the- company, the case seems to fall within the settled rule with respect to “simple tools”—that a recovery can not be had for injuries resulting from defects which can be as readily detected, and the effect of which can be as readily understood, by the employee as by the employer. Cases on the subject are collected in a recent note in 40 L. R. A., n. s., 832, and in other notes in that series there cited, in 22 A. & E. Ann. Cas. 1004, and in 98 Am. StRep. 298.
The judgment is reversed and judgment for the defendant ordered. | [
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Per Curiam:
The petition filed in this case alleges, and the answer admits, the execution of a written contract between the appellant and the railroad company, by the terms of which the appellant was to grant or procure the right of way and to grade the same for. a spur track about two. thousand feet, more or less, in length to connect the appellant’s coal mine with the track of the railroad company. Upon the furnishing of such right of way, graded by "the appellant, and upon the. payment by him to the railroad company of the estimated cost thereof, $701.33, the railroad company was to construct such spur track and own, control and operate the same. The contract further provided:
“If the actual cost of construction exceeds said estimated cost, the Shipper shall upon presentation of bill therefor, pay the Railroad’Company the excess, and if the actual cost is less than the estimated cost the Railroad Company shall upon completion of track repay the Shipper the difference. The shipper (now appellant) shall do the grading and the cost of the same shall not be included in said estimated cost.”
The petition further alleges the completion of' the contract and that the actual cost of the construction was $122.33 over and above the estimated cost; that demand for the payment thereof had been made upon the appellant and that he had failed and refused to pay the same. Judgment is asked for that amount.
The answer admits the execution of the contract, payment by the appellant of $701.33, the procuring of the right of way, and the grading of the spur track by him. It further denies only that the defendant (appellant) owes or is indebted to the plaintiff (appellee) in any amount whatever. Further, the answer alleges that the railroad company demanded and recovered an unreasonable price for constructing the spur track, and that the appellant did not know, at the time of the execution of the contract, that by the terms thereof the railroad company would own the track when completed.
In an amendment to the answer the appellant -claims that the company neglected and refused to build the sidetrack, or spur track, from the 10th day of November, 1906, when it is alleged the grading was finished, until the 10th day of March, 1907, and alleges that he was damaged ten dollars per day, aggregating $1100, during the time. In a further amendment the appellant alleges that he lost a profit of eighty-five cents per ton on twelve tons per day of coal from November 10, 1906, to March 10, 1907; that his damage was '$10.20 for each and every working day'during the period.
The reply to such answer and the amendments thereto was a general denial.
The first objection by the appellant is to the admission of the testimony of A. C. Bean. Bean testified that he was an accountant and worked for the railroad company for about five years, including the time when the spur track in question was constructed, and that he knew the actual cost thereof; that the original cost, including freight, was $920.03, $122.33 above the estimated cost; that it was his business to make up payrolls, bills and vouchers. In substance, he testified that he made up the statement, “Exhibit C,” which was admitted in evidence, in the regular course of business, upon reports made by Coughlin, roadmaster, and Frazier, track foreman.
Coughlin testified that he was roadmaster at the time.the spur track was built, and that “Exhibit C” contained a correct statement of the material used, therein.
Frazier testified that he was track foreman in the building of the spur track, and that “Exhibit C” contained a substantially correct statement of the amount of labor employed.
Bean testified, in substance, that he was acquainted with the value of the various articles of material used and of the labor employed, and that he made up the statement, “Exhibit C,” from the reports of Coughlin and Frazier, by simply extending the price of items of material and labor therein described. Surely this renders “Exhibit C” competent evidence in this case.
It is said by the appellee that appellant should not be heard for the reason that his answer, as amended, raises no issue to be tried. It appears there was no denial in the answer except a denial of any indebtedness to the company. There is no denial of the facts upon which the indebtedness is alleged to have arisen, and sufficient facts are not stated to constitute a cause of action for damages against the plaintiff in the action. The contract pleaded seems to specify no time within which the spur was to be made or completed, nor is there any allegation as to what would be a reasonable time for doing the work or that it was not done within a reasonable time.
The appellant alleges, in effect, that he did not understand the contract, but pleads no reason therefor. It is conceded that the contract was in writing, and the parties thereto will be presumed to have known its contents, in the absence of any affirmative showing to the contrary, which was entirely lacking in this case.
But it is said that the contract was unreasonable in that it required the appellant to pay for and go to all the expense of making the spur track, and that when completed it should be the property of the appellee, and that the appellee should be required to operate it only so long as the business done thereon should, in the judgment of the appellee, pay for doing so. Unexplained, this does seem a one-sided contract, but it is said that it is the usual contract exacted by railroad companies for' spur tracks to mines. The appellant testified that he had been a miner practically all his life, and presumably he had opportunities to determine whether such a contract was desirable or not, and it is presumed that he made the contract understanding its terms.
The appellant failed to prove any violation of the contract on the part of the company, and the company proved, by competent evidence, its claim for the cost of making the spur track, over and above the estimated •cost at the time the contract wás made. There is no •conflict in the evidence. The court, therefore, properly instructed the jury to return a verdict for the plaintiff, and the amount of such verdict, and rendered .judgment accordingly.
It may be said that where the court assumes to determine the facts, as in this case, that no verdict of the jury should be required,, but that the court should as sume the responsibility of rendering judgment on the uncontroverted evidence. This, however, is a matter of form and does not go to the merits of the judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
An action was brought to restrain the enforcement of an ordinance for the collection of a poll tax for road purposes. A demurrer to the petition was sustained and the plaintiffs appeal. The only question involved is whether the statute as it now exists authorizes a city of the first class to enforce the collection of such a tax. To decide this requires a review of the legislation on the subject. A provision of the General Statutes of 1868, which has never been expressly repealed, required each township to be divided by the' trustee into road districts. (Gen. Stat. 1909, § 9584, subdiv. 1.) The general road law of 1874 contained two sections which remained unchanged until 1907, portions of them reading thus:
“Each incorporated city of more than six hundred inhabitants shall constitute a separate road district, and the corporate authorities of such corporation shall have power to appoint a road overseer . . . and any such city shall have the power to pass any by-law or ordinance necessary to carry out fully the provisions of this act.” '(Laws 1874, ch. 108, .§ 16.)
“All male persons between twenty-one and forty-five years of age, who have resided thirty days in this state, who are capable of performing labor on public highways, and who are not a township charge, shall be liable each year to perform two days’ work of eight hours each on the public roads, under the direction of the road overseer withim whose district they may respectively reside, or furnish a substitute to do the same, or pay the sum of one dollar and fifty cents per day to said road overseer, who shall receipt for the same, and expend it in repairs on the public roads within his district.” (Laws 1874, ch. 108, § 18.)
Doubtless cities of less than 600 inhabitants, being cities of the third class, would be deemed to form a part of the township in which they were situated, for the purpose of this statute, so the operation of section 18 was state wide. In 1907 section 16 was amended by striking out “each incorporated city of more than six hundred inhabitants,” and inserting in lieu thereof “each incorporated city of the third class.” (Laws 1907, ch. 295, § 1.) It has been held that this change removed cities of the first and second class from the operation of section 18, and that this form of road tax remained uncollectable in such cities, notwithstanding the reenactment of that section in 1909 incidental -to various amendments which are not important in this connection. (Heath v. Iola, 81 Kan. 177, 105 Pac. 32.)
In 1911 section 16 was amended by making the first clause read “each incorporated city of the second and third class shall constitute a separate road district.” (Laws 1911, ch. 251, § 1.) While some minor changes were also made it is perfectly obvious that the purpose of this amendment was to make the inhabitants of cities of the second class subject to the road tax. It is also clear that the legislature had before it at the same time the proposition to restore the old law by making it extend as well to cities of the first class, and deliberately refused to take that action. This appears from the fact that the measure as introduced, and as passed by the senate,-undertook to make every incorporated city a separate road district (Senate Journal, 1911, pp. 29, 135), and was amended by the house of representatives so as to exclude cities of the first class (House Journal, 1911, p. 537). It is beyond controversy that when the act became a law (March 2, 1911) cities of the second and third class were authorized to enforce the collection of the road tax, and those of the first class were not. The serious question is as to the effect of a subsequent enactment. At the same session of the legislature an act was passed which was approved by the governor March 8, and became effective upon its publication in the statute book of that year.’ It was a revision of the entire road law, and superseded practically all existing statutes on the subject. (Laws 1911, ch. 248.) So far as relates to the matter in hand it consisted of amendments of previously existing sections, and not of new enactments. The original section 16 of the law of 1874, making certain cities road districts, appeared as section 15, in substantially the same from in which it had just been passed as a separate act, except that for the former term “road overseer” was substituted in two instances “street commissioner” and in a third “township trustee.” The original section 18, as amended in 1909, containing the provision making all male inhabitants of the state between certain ages liable for the tax, was reenacted as section 36, the only change of present importance being this: the former law provided that the proceeds of the tax should be expended in improving the roads in the district of the taxpayer’s residence; the new law says they shall be expended on the roads within the township or city within which he lives. In behalf of the city this argument is made: so long as the law declared the tax should be expended only in the road district in which it was collected, the withdrawal of certain cities from those classified as constituting such districts might well be interpreted as taking them out of the operation of the statute; but now that the fund is made expendable in the city or township the broad language of the act makes it applicable throughout the state, in cities of the first class as well as elsewhere, although they do not constitute road districts. The argument is plausible and might be sound if the act were to be construed as an entirely new measure, no regard being had as to its history. We think the more reasonable view to be this: in substituting the phrase “city or township” for “road district” the legislature designed merely to do away with any subdivision of townships into road districts—practically to make each township (as well as each city to which the act applied) a road district; the question of what cities should be affected was not then under consideration. The language of the earlier act of 1911, which was plainly chosen with the very purpose of excluding cities of the first class from the operation of the road-tax law, was preserved in the later enactment of the same session without material change. If the intention had been to effect a reversal of policy in this regard it seems certain that this language, having reference to that particular subject, would have been altered in accordance with that purpose. The language, must be deemed to have the same meaning in the reenactment that it had when originally adopted. Indeed, it is difficult to assign. to it any other practical purpose than to indicate in what cities the road tax shall be collectable.
The suggestion is made that if the law does not apply to cities of the first class it violates the constitutional requirement that the rate of assessment and taxation must be uniform. (Const. Art. 11, § 1.) That provision is not applicable to this form of taxation. (Comm’rs of Ottawa Co. v. Nelson, 19 Kan. 234, 241; In re Dassler, Petitioner, 35 Kan. 678, 684, 12 Pac. 130; The State, ex rel., v. City of Topeka, 36 Kan. 76, 85, 12 Pac. 310; 1 Elliott on Roads and Streets, 2d ed., § 480.) It is said that poll taxes, not being laid upon property, are not within constitutional requirements as to equality and uniformity, unless by reason of an arbitrary exemption of a certain class of persons. (37 Cyc. 766, 767.) Any exemption founded upon a reasonable classification is unobjectionable. (Note, 13 L. R. A., n. s., 901.) It has also been said (speaking of an ordinary property tax for road purposes) that the legislature may grant exemption to persons in cities, but only in case an equivalent burden be imposed upon them for the maintenance of their streets. (27 A. & E. Encycl. of L. 915.) Counsel for the city argues that the residents of cities of the first class can not be exempted from the operation of the law imposing a poll tax for road purposes, inasmuch as the legislature has not imposed any equivalent burden upon them. The system of caring for the streets of a city of the first class differs from that by which highways are kept in repair in other cities and in townships. There is a reasonable basis for a classification, giving the poll tax a place in one system and not in the other. The matter is one upon which the decision of the legislature is final. It is not necessary, in order to sustain a statute exempting residents of a city of the first class from liability for such a tax, that the court should be able to find that they are under some specific compensating burden. (State v. Sharp, 125 N. C. 628, 34 S. E. 264, 74 Am. St. Rep. 663; State v. Wheeler, 141 N. C. 773, 53 S. E. 700, 115 Am. St. Rep. 700, 5 L. R. A., n. s., 1139.)
The judgment is reversed and the cause remanded with directions to overrule the demurrer to the petition. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff sued upon a promissory note and for the foreclosure of a mortgage given to secure the same. The court rendered judgment for the defendants, and the plaintiff appeals.
The petition alleged that on the 26th day of March, 1906, the Gardners executed to W. T. Finicum their promissory note for $1775, due three years after date with interest at eight per cent, payable annually; that before maturity and for a valuable consideration Finicum indorsed and delivered the note to appellant and that no part of the same had been paid, and that it was past due; that at the same time the Gardners executed another note for $925 due six months after date and delivered the same to Finicum; that both notes were secured by the same mortgage. A copy of the mortgage which contains copies of both notes was attached to the petition.
The answer was a general denial and a plea of total failure of consideration. This defense set up a contract in writing entered into between Finicum and Gardner and Shinkle, partners, twenty-six days previous to the execution of the note, by the terms of which Finicum was to convey to Gardner and Shinkle several quarter sections of land in Stevens county, Kansas, including three quarters which he was to convey by quitclaim deed, and to quiet the title thereto in regular court proceedings; that prior to the execution of the contract he had begun an action to quiet 'the title to these three quarters, and that afterwards, and on the 20th of April, 1908, a judgment had been rendered in the action forever barring the appellees from any interest or title to the lands in question, and that thereby the consideration for the note sued upon wholly failed. The answer set out a copy of the contract for the conveyance of the lands.
To the answer appellant filed a demurrer, which the court overruled. The reply denied that at the time appellant purchased the note, which it alleged was long before maturity, he had any knowledge or notice of any infirmity in the note, or of any defense to the same. It was also alleged that at the time the contract was entered into Gardner well knew that Finicum’s title to the three quarters of land was defective, and that by accepting quitclaim deeds of conveyance and long afterwards executing the note sued upon he was estopped to claim a failure of consideration. The principal errors complained of are the overruling of the demurrer to the answer, the finding that appellant was not a purchaser in good faith for value before maturity, and the finding that there was a total failure of consideration.
The first question to be determined is whether the appellant occupied the position of a good-faith purchaser for value before maturity. This was denied by the answer. The mortgage was given to secure two notes; one of these, for $925, was past due When appellant purcu^oed the note sued upon. The mortgage contained a provision that “if said sum or sums of money or any part thereof or any interest thereon, is not paid when the same is due . . . then the whole of said sum or sums, and interest thereon,” shall become due and payable. It is argued by appellant that because the note for $925 was given as part payment for per sonal property, and was no part of the land transaction, the failure to pay it when due would not accelerate the maturity of the other note, but we can not agree to this contention. The fact that it was given for a different consideration or that it was secured also by a chattel mortgage would make no difference. The mortgage on the real estate was made to secure both notes, and the notes and the mortgage must be construed together. (Spesard v. Spesard, 75 Kan. 87, 88 Pac. 576.) The mortgage expressly declares that the failure to pay either sum or any part thereof when due shall accelerate the maturity of the other. The appellant was not a purchaser in due course. (National Bank v. Peck, 8 Kan. 660; Snyder v. Miller, 71 Kan. 410, 80 Pac. 970.) Any defense therefore that could have been interposed in an action on the note brought by Finicum himself was available to the appellees. The appellant cites McNight v. Parsons, 136 Iowa, 390, 113 N. W. 858, holding that knowledge that a note was given in consideration of an executory agreement or contract of the payee which has not been performed will not deprive the indorsee of the character of a bona fide holder unless he also has notice of the breach of the contract; also the case of Farmers’ Bank of Roff v. Nichols, 25 Okla. 547, 106 Pac. 834, and especially directs our attention to the cases referred to in a note to the last-cited case in 21 A. & E. Ann. Cas. 1160. None of the cases referred to can avail the appellant, because of the fact that he purchased the note after maturity. It is expressly stated in the syllabus to Farmers’ Bank of Roff v. Nichols, supra, that one who purchased a note in due course of business before maturity can recover thereon even though “at the time of the transfer he had notice of the contemporaneous agreement.” In McKnight v. Parsons, 136 Iowa, 390, 113 N. W. 858, it was said in substance that where the controversy is between the original parties to a note, or between the maker and one who is not a good-faith holder of the instrument, it is a well-established general rule that the defense of failure of consideration or of fraud may be established by parol evidence. The cases cited in the note in 21 A. & E. Ann. Cas. 1160, relied upon by appellant, are in support of the general rule, which is stated to be that the note and contract intended to control may be read and construed together, provided the controversy is between the original parties to the agreement or between persons standing in their place or chargeable with notice. The doctrine is elementary that an agreement intended to control the liability of the parties to a negotiable bill or note can not be asserted as a defense in an action upon the instrument brought by a holder in due course. Between t'he original parties or persons standing in their place or chargeable with notice such a defense may be asserted. The negotiable instruments law declares that “absence or failure of consideration is matter of defense as against any person not a holder in due course.” (Gen. Stat. 1909, § 5281.) The same act (Gen. Stat. 1909, § 5305) declares that to constitute one “a holder in due course” of - a negotiable instrument he must, among other conditions, have become the owner before it was overdue, and must have taken it in good faith and for value. For cases from other states see note to Myrick v. Purcell, 95 Minn. 133, 103 N. W. 902, 5 A. & E. Ann. Cas. 148, 149-152.
If the failure to quiet the title to the three tracts of land could have been asserted in an action on the note "by Finicum, it was available in the present action to the appellees. It appears that there were seven quarter sections of land which Finicum agreed to convey to Gardner. The agreed price for all the land was $5300. Finicum was to take as part payment a stock of merchandise amounting to $3525, and the balance was represented by the note sued upon. The fact that Gard-' ner took quitclaim deeds to part of the lands would not ■estop him from asserting the defense because of the contract by which Finicum agreed to quiet the title to those tracts. The $1775 for which the note was given was not the price of any particular tracts of land, but was the general balance due after credit was given for the invoice price of the stock of goods. The value of the three pieces of land which the appellees were deprived of is shown by the evidence to be $750 each. Appellant contends there was not a total failure of consideration for the contract of conveyance. Section 35 of the negotiable instruments law (Gen. Stat. 1909, § 5281) reads:
“Absence or failure of consideration is matter of defense as against any person not a holder in due course; and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise.”
There is some conflict of authority as to whether a partial failure can be shown under a plea of a total' failure of consideration. (See 4 Encyc. Pl. & Pr. 951.) The rigid rules of the common law in respect of bills of exchange and promissory notes required the amount of the failure to be liquidated and certain, and some of the earlier cases in this country went so far as to hold that, a partial failure furnished no defense. (Walters et al. v. Armstrong, 5 Minn. 448.) In Torinus v. Buckham, 29 Minn. 128, 12 N. W. 348, the contrary was held. Technical rules as to pleadings were often enforced, as. in Bisbee v. Torinus, 26 Minn. 165, 2 N. W. 168, where partial failure was pleaded and it was held that a total failure could not be shown. Before the adoption of the uniform negotiable instruments law it was made a statutory rule in some of the states that either a want or failure of consideration, in whole or in part, may be shown. (Great Western Ins. Co. v. Rees, who sues, etc., 29 Ill. 272; Honeyman, etc., v. Jarvis, etc., 64 Ill. 366.) This court held as earty as Dodge v. Oatis, 27 Kan. 762, that as between the original parties a failure or partial failure may be shown, and in that case it appears from the Statement of facts that the defense set up was a failure of consideration. The negotiable instruments law, which, in most of its features merely codifies the law as it existed previously, in express terms permits either a total failure of consideration or a partial failure to be shown, and this without regard to whether the failure is an ascertained and liquidated amount or otherwise; and under the liberal provisions of code pleading we think that proof of a partial failure should be permitted under a plea of a total failure. A defendant might not be able to state in his answer whether the failure would turn out° to be total or partial.
It was not necessary in order to rely upon the defense of failure of consideration that appellees should offer to rescind the contract or to restore that part of the consideration represented by the lands to which they retained title. (Russ etc. Co. v. Muscupiabe etc. Co., 120 Cal. 521, 52 Pac. 995, 65 Am. St. Rep. 186.) If the action to recover on the note had been brought by the original holder the appellees might have had the right to elect whether to affirm the contract and recover damages for the breach or to rescind and recover the consideration, but they had no election as against.the appellant except to plead a defense w-hich they might have elected to set up against the original holder. They could have paid the note without setting up any defense, and then have sued Finicum for breach of the contract. (Delaney v. Implement Co., 79 Kan. 126, 98 Pac. 781.)
Before this action was brought the final judgment had been rendered in the action to quiet title and the contract had been breached. We do not agree with the appellees that because a former judgment quieting the title was rendered in 1906 there was a breach of the contract then, for the reason that appellees purchased and took the contract after the former judgment had been set aside and understood that Finicum’s contract was to procure a favorable judgment on the final hearing. It appears that when the court rendered the final judgment, April 20, 1908, in the action quieting the title against the appellees, the cause was continued in order to ascertain the amount of tax liens upon the lands, and it also appears that the evidence in this case was that the value of each of the three quarter sections lost to the appellees was $750, and the failure of consideration it would seem amounted to $2250, while the amount due on the note at the time of the trial was $2450. The court found generally against appellant upon the theory that there was a total failure of consideration. If the record speaks the truth the judgment should be modified and appellees should be credited upon the note with the value of the three quarter sections at the time of the purchase, less any sums declared to be due under the tax liens in the action in which appellees were deprived of the title.
If the consideration for which a note is given fails in part only the holder may recover for the part as to which the consideration has not failed. (Mader v. Cool, 14 Ind. App. 299, 42 N. E. 945, 56 Am. St. Eep. 304; Drew v. Towle, 27 N. H. 412.)
The judgment will be modified in accordance with the foregoing views and the cause is remanded for that purpose. The costs of the appeal are ordered taxed against the appellees. | [
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The opinion of the court, was delivered by
Smith, J. :
This is a proceeding in error prosecuted to reverse a decree of the district court foreclosing a mortgage. In 1875 Alfred Allen purchased forty acres of farming land in Lyon county and occupied it with his wife and family until his death, in 1890. He left a will devising the land mentioned to his wife, the plaintiff in error. She elected to take ' under the will. Afterward, while living on the land with her four children, two of whom at the time of the trial were minors, she.executed a mortgage thereon, which, after default in payment of the debt, was decreed to be foreclosed in the court below.
It is insisted that the mortgage was no lien on the homestead property. The broad claim is made by counsel for plaintiff in error that the constitutional provision exempting the homestead from forced sale under any process of law, except it be founded on a lien given by consent of both husband and wife, makes void a mortgage given after the marriage relation has ceased to exist. In other words, if there be no husband and wife, there can be no valid mortgage on the homestead. The adoption of such meaning would interpose serious impediments in the way of alienation. It would deprive a widow or widower, acquiring a homestead after the death of a spouse, of the power of parting with it by voluntary conveyance, and would place undue restraints on the sale and encumbrance of real estate.
It will be noted that section 9 of article 15 of the constitution exempts the homestead property from forced sale under any process of law, and provides that the same shall not be alienated without the joint consent of husband and wife, “ when that relation exists,To give the constitutional provision the interpretation contended for would, in our judgment, be a strained construction and at variance with the views of this court heretofore expressed. While Alfred Allen was alive, occupying the land with his wife and children as a homestead, he and his wife could lawfully alienate or encumber the same by their joint consent. The legal title was vested in the husband. He could by will devise all the land to his wife. (Martindale v. Smith, 31 Kan. 270, 1 Pac. 569; Vining v. Willis, 40 id. 609, 20 Pac. 232.) After the husband’s death and the election of the wife to take under the will, she took the whole estate. The children got none. Their homestead rights in the land were no greater after the death of their father than before.
Section 7973 of the General Statutes of 1901 pro yides that a married person having no children may devise one-half of his or her property to other persons than the husband or wife, but nowhere do we find any statutory restriction on the right of a husband or wife to devise property to the survivor. We think the wife had all the rights in the land which, before the husband’s death, were vested in both her husband and herself. It is not disputed that they, while living together, might have alienated or abandoned the homestead. Having' title, she could do, with respect to the land, what they both could do when the husband was alive. It has been said that “the consent of the children, who may occupy the homestead, is never required for the purpose of transferring or alienating the homestead.” (Vining v. Willis, supra.) See, also, Shepard v. Brewer et al., 65 Ill. 383. In the case of Martindalev. Smith, supra, there are expressions in the opinion which tend to the view that the children acquired some homestead rights. They are dicta, however, and not necessary to a decision of the case.
“It is a familiar rule of criticism in regard to judicial decisions, that their authority arises from what the court decides in reference to the facts before it, rather than from what the judge who delivers the opinion may say in illustration and support of the ruling of the bench. When it is remembered that judges are often obliged to write a hundred opinions per annum, they would be more than human if they did not occasionally use expressions of a general character, which, while perfectly true in regard to the case before them, are at the same time incorrect when pushed to extremes or applied to a totally different state of facts.” (Lawrence, J., in Brown v. Coon, 36 Ill. 243-246.)
The judgment of the court below will be affirmed.'
Dostee, C. J., Ellis, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Smith, J. :
On the 6th day of April, 1889, school district No. 52, in Harper county, included within its boundaries twenty-two sections of land. On that date the county superintendent of public instruction formed a new district within the territorial limits of the first, consisting of six sections of land, and designated it as district No. 83. On July 20, 1889, the superintendent proceeded to make a division of the school property, and made a finding that the new district was entitled to the sum of $113.85. The record made by the superintendent reads: “On tne 20th day of July, 1889, made division of school property of district 52 belonging to 83, it being one hundred and thirteen ($113.85) dollars and eighty-five cents.” No appeal was taken from this apportionment or award, and the amount was paid to district No. 83 out of the levy made on the taxable property of district No. 52. Later, and on October 18, 1890, the superintendent took further action in the matter, which her record explains, as follows :
“Went to Corwin upon application of district 83 for a more equitable division of the property at this time belonging to district 52, and the matter was this day adjusted as follows : By allowing district 83 a further sum of two hundred and thirty-four ($234.64) dollars and sixty-four cents ; amount previously allowed, one hundred and thirteen ($113.85) dollars and eighty-five cents ; total, three hundred and forty-eight ($348.59) dollars and fifty-nine cents.”
The defendant in error refused to pay the sum last awarded, and proceedings in mandamus were begun against its officers to compel the levy of a tax sufficient to pay the amount. A peremptory writ was awarded in the court below, which judgment it seeks -to have: reversed. ’■ .
Section 6120 of the General Statutes of 1901 provides that “when a new district is formed in whole or in part from one or more districts possessing a schoolhouse, or entitled to other property, the county superintendent at the time of forming such new district; shall equitably determine the proportion of the present value of such schoolhouse, or other property, justly due to said new district.” The proportion, when ascertained, shall be paid by levy on the property of the-district retaining the schoolhouse or other property.
The question to be determined is whether, when the' first award was made and the amount thereof paid by district No. 52 to district No. 83, the matter could be reopened and a further additional sum allowed to district No. 83 more than a year after the first action was taken by the superintendent. It must be answered in the negative. The action of the superintendent in making the first allowance to district No. 83 was quasi ■ judicial. An appeal might have been taken from her' decision under section 6121 of the General Statutes of 1901. (School District v. The State, 15 Kan. 43.)
In the case of The People v. Supervisors of Schenectady, 35 Barb. 408, it was held that a board of supervisors’ (corresponding in authority to a board of county commissioners in this state) had both judicial and ministerial functions, and that after it had made an apportionment of taxes to be raised among several towns and wards in a county it had executed a judicial act which was in effect a judgment, and that after having passed a resolution apportioning the taxes, which had been entered of record by its clerk,' it could not by any resolution again apportion and equalize the assessments on a new and different basis, and the second apportionment was held to be a nullity. See, also, Black on Judgments, from which we quote :
“In a case in New Jersey, where justices of the peace and surveyors of highways made a determination in writing, relating to encroachments on a road by adjoining landowners, which determination was partially acted upon, and boundary lines fixed, and afterwards an entirely different determination, as to the place and encroachments on the same road, was made by the same officers, without the first determination being set aside or reversed, it was held that the action of this body was a judicial one, and the first determination was a bar to the second and rendered It invalid.” (Yol. 2, § 522.)
If the superintendent of public instruction, her first award having been paid, could, after the lapse of more than one year, supplement the same by increasing the amount of the allowance made to the defendant in error, she might again and again increase the award. After the action taken by the superintendent on July 20, 1889, the power of that officer in the matter of the division of school property was exhausted, and the subsequent award was a nullity.
The judgment of the court below will be reversed, with directions to proceed further in accordance with this opinion.
Dostek, O. J., Ellis, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Doster, C. J. :
This is an appeal from a judgment of conviction of arson. On the trial, one Reynolds, a witness for the state, testified to a material matter substantially different, so the defendant claimed, from his testimony relating to the same matter given on the preliminary examination. The defendant called the county attorney as a witness to impeach the testimony of Reynolds, by proving contrary state ments made by Mm on the former trial. The state objected, for the reason that the county attorney “should not be required to make any statement as to what occurred in the performance of his duty.” The court sustained the objection, remarking: “I think it would be' an exceedingly improper thing to require the county attorney to testify as to what occurred there. I shall protect a public officer in the discharge of his duty.” The defendant’s counsel then made formal offer to prove by the county attorney the matter in impeachment of the witness Reynolds, to which the same objection above stated was made. The objection was sustained, the court saying :
“I shall sustain the objection because it is open to the defense to prove the same facts by other witnesses, without taking the county attorney out of his chair as prosecutor to make him a witness for the defense upon matters which came to him in the course of his duty as a public officer.”
Neither of the reasons given by the court is sound. There is not, of course, any statutory prohibition of the right to call the county attorney as a witness in such a case, nor is there any rule of public policy which forbids calling him to testify to the incidents of a public trial conducted by him as a public prosecutor. The testimony given on such trials by witnesses whom the county attorney calls on behalf of the state are not in the nature of privileged communications to him. They are made to the court and in the face of the public. Should it, thereafter, become material to know what they were, any one who heard them may be required to state his remembrance. The question has been pointedly decided in Indiana. The supreme court of that state said:
“The evidence of a witness before a grand jury, given in the hearing of the prosecuting attorney dur ing the investigation of an alleged crime, is not a privileged communication to such attorney.
“Where such investigation results in an indictment, and, on the trial of such case, such witness gives evidence, on cross-examination by the defendant, as to his'testimony in such case before the grand jury, the prosecuting attorney may be compelled to testify as a witness, in relation to such testimony, for the purpose of impeaching such witness.” (The State v. Van Buskirk, 59 Ind. 384.)
The county attoxmey being a competent witness, it was not in the power of the court to refuse to hear his testimony because the facts could be obtained from other witnesses. Admitting such to be the case, it is sufficient to say that litigants, and especially defendants in criminal cases, are not to be hampered thus in their choice of those by whom they seek to prove their cases. The intelligence of some witnesses, their remembrance of facts, the calmness, dignity and appearance of candor they manifest when on the stand, is ofttimes more convincing than that which others equally credible can show. It is inconceivable, therefore, as a proposition in the administration of justice, that the court should be invested with power to determine the witnesses by whom a suitor may prove his case, or, what is the same thing, with the power to determine by whom he shall not prove it.
The recox’d before us is vei’y meager — so meager that the counsel for the state argues, and with some appearance of reason, that it fails to show what Reynolds’s testimony was, or that a foundation for his impeachment was laid, or indeed that he testified at all on the trial. It is to be observed that no objection was made in the court below on the score now urged. The objection there made was to the competency of the witness only, and that presupposes the occurrence on the trial of a state of facts to which his testimony could be rightly directed. From this and from other portions of the record, together with some necessary implications derivable therefrom, we think it is shown that the witness Eeynolds did testify, and what his testimony was, and that a foundation for his impeachment was laid.
Some other claims of error were made, but we have not thought it necessary to examine into them. The judgment of the court below is reversed and a new trial ordered.
Cunningham, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
An application for a change of venue was made and overruled. It was supported by a large number of affidavits which tended to show the hostile feeling of the inhabitants of the county against the appellant, and generally expressed the opinion that he could not obtain a x fair and impartial trial by reason thereof. These affidavits very generally followed the same form, and were evidently prepared in bulk’ by attorneys and signatures obtained to them. A less number of affidavits were filed by the state, some made by officials of the county, showing a general acquaintance with the people of the county, all of them tending to disprove the facts and conclusions stated in the affidavits filed by appellant. Of necessity, the question of a change of venue, depending as it does upon matters of fact, must be left very, lárgely to the sound discretion of a trial court. The rule as laid down in this court is:
“Before a court is justified in sustaining an application for a change of venue on account of the prejudice of the inhabitants of the county, it must affirmatively appear from the showing that there is such a feeling and prejudice pervading the community as will be reasonably certain to prevent a fair and impartial trial.” (The State v. Furbeck, 29 Kan. 532.)
This rule necessarily carries with it the duty of the trial court to determine, upon a full consideration of the entire showing, whether such a state of feeling does exist. It calls for the exercise of a sound judicial discretion. The presumptions are in favor of the correctness of the conclusions reached. In this case we cannot say that, upon the showing made, appel lant was entitled to a change of venue, or that the trial court abused its sound discretion in refusing the same.
Appellant claims that the trial court erred in overruling his challenges to four jurors whom he contends were shown to be incompetent on their voir dire. Without quoting this examination, we may say that we do not think that such examination shows the incompetency of the challenged jurors to sit. Selected portions of their examination may show that they had formed or expressed some opinions as to some of the material facts in the case, but upon the whole of such examination it does not so appear. They had heard the matter talked of to- some extent, and had each, perhaps, some impression as to the case, but not such an impression as under the rules of this court disqualified them to sit as jurors. All expressed themselves as being satisfied that .they could render a fair and impartial verdict after hearing all of the evidence, and their willingness to be tried, if they were arraigned upon a criminal charge, by men of as unbiased minds as they themselves possessed. We think these jurors were competent under the rules heretofore laid down by this court.
More serious questions arise in the fourth and fifth assignments of error, and as they are analogous, they will be considered together. The record fails to show affirmatively that the appellant was present at all times during the trial. Nor does it show affirmatively that the jury were admonished, as required by statute, upon each separation. It does show that the defendant was arraigned and pleaded “not guilty,” and it also shows that he was present when sentence was pronounced. The appellant insists that, as it is necessary that the defendant should have been present at all stages of the trial below, in the absence of a showing that he was so present it must be presumed that he was not, and that therefore the record shows affirmative error.
He cites many authorities in support of his contention and might have cited more, and we are free to admit that the weight of authority is with him in this contention, but neither the many authorities nor the reasons given therein for the rule convince us of its soundness. The reason generally given is that the rights of one charged with a crime must be very jealously guarded by the courts, and with this statement we find no fault. It is only to its application that we object. It is not a case of guarding the rights of one' charged with a crime. If we might say that the want of showing that he was present proves that he was absent, then our way would be clear, but we do not think this to be the correct rule. Errors are not presumed ; presumptions are to the contrary. This court has decided the rule to be different from that insisted upon by the appellant. In The State v. Potter, 16 Kan. 98, where it was urged that the defendant must be present in court when an application for a change of venue in a criminal case was heard, and where the record did not show that he was so present, the court, in passing upon the question, said :
“ But even if it were necessary, we would presume in favor of the regularity and validity of the proceedings of the- court below, where there is nothing to show the, contrary, that the defendant was personally present in the court when said change of venue was granted.” (See, also, McCartney v. Wilson, 17 Kan. 297; The State v. English, 34 id. 629, 9 Pac. 761; The State v. Baldwin, 36 id. 1, 12 Pac. 318.)
Upon this proposition this court does not stand alone. See People v. Sing Lum, 61 Cal. 538; People v. Cline, 83 id. 374, 23 Pac. 391; People v. Collins, 105 id. 504, 39 Pac. 16; Rhoads v. The State, 23 Ind. 24; The State v. O’Hagan, 38 Iowa, 504; The State v. Kline, 54 id. 183, 6 N. W. 184; Ell. App. Proc. § 291.
Other courts have held that where the record shows the presence of the defendant upon arraignment and his presence at the time of sentence the reasonable presumption is that he was present during the entire trial, and therefore hold that a record showing these facts .is sufficient. (Martin v. State [Fla.], 27 So. 865; Bolen v. The People, 184 Ill. 338, 56 N. E. 408; Ell. App. Proc. §§ 291, 725; Welsh v. The State, 126 Ind. 71, 25 N. E. 883; Bartlett et al. v. State of Ohio, 28 Ohio St. 669; Bond v. State, 63 Ark. 504, 39 S. W. 554, 58 Am. St. 129.)
We are well satisfied that the rule quoted from The State v. Potter, ante, sustained as it is by a number of very respectable authorities, is the better one ; and this leads us to the further conclusion, for the same reason, that the silence of the record as to the matter of admonishing the jury is likewise not a sufficient ground for reversal, though perhaps in this matter there is more ground for the contention of the appellant, in this, that the record does show that the jury were permitted to separate, and showing this much, without adding that they were admonished, appellant claims is an affirmative showing that they were not so admonished. We, however, do not agree with this contention, and hold that the silence of the record in this respect, as well- as in the other matter, does not affirmatively show error. (The State v. Rogers, 56 Kan. 362, 43 Pac. 256.)
Upon the trial, Sarah A. Daugherty, wife of the ap pellant, was permitted to testify, oyer the objection of the appellant, that the little girl made complaint to her of the treatment she had received from appellant the evening of the transaction, and it is now insisted that, while this evidence is admissible in cases of rape as defined by the common law, it is not admissible in cases of statutory rape ; that the reason why it is admissible in the former cases is based upon the fact that in those force is used in the accomplishment of the crime, and that the promptings of the person outraged is to make complaint at the first opportunity, and that, as in statutory rape, force is not necessarily concomitant; therefore, the reason failing, the rule fails also, and evidence of such complaint would be ordinary hearsay testimony. Admitting for the purposes of this case that the contention is correct, it could be carried no further than the facts of the case would necessarily carry it, so that when force was shown the common' law rule would obtain.
We do not hesitate to say that, under the evidence of the state in this case, the appellant was guilty of the crime of rape as known at common law. He took the child from the horse v she was riding, laid her down on the ground, and proceeded to the accomplishment of his purpose, although she protested. They were far away from any one to lend her aid or protection. She yielded to the forcibly expressed wish of one who stood to her in the place of a father. She had been accustomed to give to his ordinary commands ready obedience. It can well be said that she had no will to assert against his. What he did was as much the overpowering of her will and the accomplishment of his purpose thereby as though the strength of a full- grown woman had been in her body and she had •exerted it all to prevent the accomplishment of his purpose. (Bailey v. The Commonwealth, 82 Va. 107, 3 Am. St. 87.)
Surely the facts of this case bring it fully within the rule applicable to ordinary cases of rape. There nan be no question but that the defendant might have •shown, the absence of complaint for the purpose of weakening the testimony of the girl, and, as the complaint to her foster-mother was made within five or ten minutes after her arrival at the neighbor’s house, and as soon as opportunity would permit it to be made, we think the admission of evidence of it was not error.
While testifying to the fact of this complaint having been made, Mrs-. Daugherty was also permitted, over the-objection of the appellant, to tell the name of the person whom the child claimed had committed the outrage upon- her, to wit, the appellant. On the cross-examination of the same wi‘tness, the defendant had her narrate all the details of the transaction' as given to her by the ■child, and also to repeat the name of the defendant in ■connection therewith. The child was also a witness upon the, trial and narrated the whole transaction in ■detail, and gave the name of the appellant as the guilty person. It is unquestionably the rule in cases of this kind that nothing beyond the fact that the prosecuting witness had made complaint can be testified to. The name of the offender and the details of the transaction may not be repeated by the one to whom com- ■ plaint has been made ; but, in this case, we think the •error in permitting Mrs. Daugherty to testify that the child told her that it was appellant who committed the outrage upon her was cured by the fact that the defendant took the matter up on the cross-examina tion and drew out of the witness all of the details. More than this, the court withdrew this objectionable evidence from the jury, upon the request of counsel for the defendant. Upon such request the jury were instructed as follows:
“Oh, yes, the court instructs you and requests you to disregard the question and answer and not consider it at all in your deliberations, but you may consider the fact of complaint. being made, the fact that she did state, if you find that to be a fact, that some one had had intercourse with her that night.”
It is strongly insisted, however, that the withdrawal of incompetent evidence does not cure the error resulting from its admission. Without deciding this question, we may say that in this case the defendant is not in a position to complain, for he is as much responsible for the introduction of the objectionable evidence as is the state.
The language of the court quoted above is complained of as being an oral instruction to the jury and consequently a violation of the rule that instructions must be g^en in writing. This language was used, as we have already seen, in connection with the discussion concerning the admissibility of the evidence of Sarah Á. Daugherty, relative to what the child had told her had taken place that night, and occurred during the progress of the trial, and to a degree, at least, upon the request of the appellant. Any ruling of the court relative to the admission or rejection of evidence may in some degree be considered an instruction upon the law of the case, and especially so where the court gives a reason for the admission or rejection of such evidence, but we fail to see how such statements may reasonably be deemed to be instructions in the case. It would have been entirely proper for the court to have embodied this direction to the jury in a written instruction and given it to them at the close of the trial, yet we think that ordinarily an error committed in permitting the introduction of evidence would be more surely cured by its prompt withdrawal in the manner in which it was here done.
The defendant’s theory of defense was that his wife had procured the child to make the complaint, so that the wife might procure a divorce and get his property away from him ; so the question of the amount of his property became to some extent a material one upon the trial. The defendant was asked upon cross-examination this question: “You haven’t got any property, have you, Mr. Daugherty?” He answered, “I guess not.” Thereupon the further question was asked : “Have n’t you filed a petition in bankruptcy, in which you say you are insolvent and have no property ? ” This was objected to, for the reason that, this petition being in writing, it would be the best evidence as to what it contained. The rule contended for is not disputed, but we think it has no application here. The answer to the first question was somewhat equivocal, and it was only for the purpose of rendering it more certain that the later question was asked. The question was not so much for the purpose of showing the contents of the petition in bankruptcy as for the purpose of showing the fact that it had been filed. We do not think the question objectionable. In this connection, we may say that we find no error in the admission of the evidence of the witness Bert Smith.
Exceptions are taken to the giving of several of the instructions. We have given them careful considera-' tion and find no error therein.
Upon the whole record, we conclude that the appellant has had a fair and impartial trial under the law, and therefore affirm the judgment of the court below.
Smith, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The appellant and another were indicted by the grand jury of Montgomery county, the charging part of the indictment reading as follows :
“That John E. Turner and Dan Late, late of said county and state, on or about the 25th day of May, A. d. 1897, at the said county of Montgomery and state of Kansas, the said John E. Turner and Dan Late then and there being, did then and there, unlawfully and knowingly, drive into said county of Montgomery and state of Kansas about sixty head of cattle, well knowing that said cattle then and there being were capable of communicating, and liable to impart, to native cattle, what is known as Texas, splenic or Spanish fever.”
To this the appellant filed a plea in abatement, alleging, in substance, that the officers drawing the grand jury drew the names of sixteen i -i n . -, persons, when they were only authorized j j by the order of the court to draw the names of fifteen persons ; that no record was kept of such proceedings at the time ; that no record was kept of the fact that a petition signed by 100 taxpayers was presented to the judge of said court twelve days before the convening of the term of court at which the appellant was indicted, asking the judge to call a grand jury ; that section 1, chapter 153, Laws of 1889 (Gen. Stat. 1897, ch. 102, §§94, 95), authorizing the calling and drawing of a grand jury, is unconstitutional and void ; that the sixteenth man drawn as a grand juror was summoned, and served on the panel, while one of the original fifteen ordered to be drawn, and who was drawn, was not summoned to appear, although he lived in the county, within reach of the officer, and was in every way qualified ; that no record was kept showing the fact that the foreman of the grand jury was sworn by the court to act as such' foreman, and that the grand jury did not present the indictment in its present form to the court, but that the words “well knowing that,” which appear as an interlineation in line 14, were not in the indictment when presented, but were inserted therein after the same, had been presented to the court. The state filed an answer to this plea in abatement, and, upon the hearing, the court refused to permit the appellant to introduce any testimony tending to prove the allegations of his plea, but held that it stated no facts challenging the indictment. Upon this question we think the ruling of the court was correct. Section 5521, General Statutes of 1901, states:
"No plea in abatement or other objections shall be taken to any grand jury duly charged and sworn, for any alleged irregularity in their selection, unless such irregularity in the opinion of the court amounts to corruption, in which case such plea or objection shall be received.”
The contention that the indictment was altered after having been returned into court is not sufficiently alleged to show that it was not done by the grand mry under the direction ox the court, or that it had not been returned by the order of the court to the grand jury for such correction. It is not alleged how, or by whom, it was so altered. It must be alleged that the alteration was wrongfully made, or made without authority, before it can be made available by a plea in abatement.
After the plea in abatment was decided against appellant, he filed a motion to quash the indictment, for the reason that it did not contain facts sufficient in law to constitute a public offense. The contention upon this proposition is that the indictment does not charge specifically that the cattle were driven by appellant into Montgomery county between the 1st day of February and the 1st day of December, as provided in section 7423, General Statutes of 1901. The indictment charges that they were driven into Montgomery county on or about the 25th day of May, 1897, and, as there is but one month of May in each year, and that month comes between February and December, and not between December and February, we think that the date alleged was a sufficient statement that the cattle were so driven between February and December.
Another error complained of by appellant is the ad mission of certain testimony. The record is not paged, nor do counsel, in their brief, refer us to the place where this may be found in the record. Rule 9 of this court provides:
“ Counsel for the plaintiff in error shall number the pages of the record, and shall fully index the pages, showing the pleadings, testimony, in- ■ structions, verdict, findings, and all other material parts of the record, before the clerk shall receive or file it; and the clerk shall prepare for the court a copy of the same, numbering the pages as in the original, unless a copy has been furnished by the plaintiff in error, as allowed by statute.”
We do not feel it the duty of the court to examine a record which is not paged to find some alleged error in the admission of testimony. If a litigant desires that we do so, it is his duty not only to page the record, but also to refer, in his brief, to the page of the record where such testimony may be found. It is the duty of counsel in all cases to ifidex and page the record.
The last contention of appellant is that the indictment charged the defendant under section 7420, General Statutes of 1901, which reads as follows :
“No person or persons shall, between the first day of February and the first day of December of any year, drive or cause, to be driven into or through any county or part thereof m this state, or turn upon or cause to be ¡turned or kept upon any highway, range, common or pasture within this state, any cattle capable of communicating or liable to impart what is known as Texas, splenic or Spanish fever. Any person violating any provisions of this act shall upon conviction thereof be adjudged guilty of a misdemeanor, and shall for each offense be fined not less than five hundred dollars nor more than two thousand dollars, or be imprisoned in the county jail not less than thirty days and not more than one year, or by both such fine and imprisonment.”
He contends that, therefore, the court erred in permitting the state to prove that the appellant had driven said cattle from south of the thirty-seventh parallel of north latitude into Montgomery county, on or about the 25th day of May, 1897, for the purpose of showing that appellant had knowledge that said cattle would communicate Texas, splenic or Spanish fever. Section 7423, General Statutes of 1901, provides:
“In the trial of any person charged with the violation of any provisions of this act, and in the trial of any civil action brought to recover damages for the communication of Texas, splenic or Spanish fever, proof that the cattle which such person or persons are charged with shipping, driving or keeping, or which are; claimed to have communicated the said diseases, were brought into this state from south of the thirty-seventh parallel of north latitude, shall be taken as prima facie evidence that such cattle were, between the first day of February and the first day of December of the year in which the offense was committed, capable of communicating and liable to impart Texas, splenic or Spanish fever, within the meaning of this iact, and that the owner or owners or person or persons in charge of such cattle had full knowledge and notice thereof.”
The contention is that the information charged that the appellant drove these cattle into Montgomery county, Kansas, knowing that they were capable of communicating, and liable to impart to the native cattle, what is known as Texas, splenic or Spanish fever, and that, therefore, the state was confined in its proof to actual knowledge on the part of appellant. Under this statute, the fact that the cattle were driven from south, of the thirty-seventh parallel of north latitude-into the county of Montgomery, state of Kansas, on or about the 25th of May, 1897, is prima facie evidence that they were capable of communicating, and liable to impart to the native cattle, what is known as Texas, splenic or Spanish fever, and that the owner or owners, or person or persons in charge of the same, had full knowledge and notice thereof. We think the court committed no error in permitting this fact to be shown for the purpose of proving knowledge on the part of appellant. This is one of the ways provided by the statute for proving knowledge.
Counsel, in their plea in abatement, assert that the law providing for the drawing and impaneling of a grand jury is unconstitutional and void, but they do not refer to this matter in their brief and we assume that it has been abandoned. We also think that the evidence supports the verdict.
The judgment is affirmed.
. Johnston, Cunningham, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Dosteb,, O. J. :
This was an action to foreclose a mortgage on real estate. The mortgage was executed by Charles Black, Brettun Crapster, and Caroline L. Bangs. These persons were the heirs of one Margaret Brettun, deceased, in whose name the legal title to the land stood of record. ' To the action Carrie Louise Crapster, Bretta Viola Crapster and a number of others were made defendants. They claimed to «own the land as the devisees of one Sor anus Brettun, deceased. The will under which they claimed did not •specifically describe the property, but they sought to prove that it in fact had belonged to the devisor and not to Margaret Brettun, and therefore had not descended to the latter’s heirs, the mortgagors. To make this proof, they introduced as evidence the record of ■the administration of the estate of Sor anus Brettun, had in the probate court of Bock Island county, Illinois, and a like record of an auxiliary administration had in Cowley county, this state. ’These records showed that Margaret Brettun, in whose name, as before stated, the title of the land stood, and Charles C. Black were executors of the will of Soranus Brettun; that they had inventoried the land as belonging to his estate, and that rentals from it had passed into their hands as executors, and were disbursed by them as part of the estate. It was not shown that the mortgagee, or his assignees, the plaintiffs in the foreclosure case, had any actual knowledge of these probate court records or of the facts shown by them. On the strength of this and, perhaps, other evidence, presently to be noticed, judgment went against the plaintiffs. Error has been prosecuted to this court.
The above-recited evidence was in no sense proof of title in Sor anus Brettun, because it was only what third persons said concerning the title. The most that could be claimed for it was that it was constructive notice of title in him; but it was not even that, because the will of Soranus Brettun and the proceedings in administration of it were not in the chain of title to the land as shown of record, but were apart from it. What is meant by being in the record chain of title is being in that chain which reaches back to a. common source — to the original grant. It is undeniable that only such conveyances or other grants as are in the record chain of title are constructive notice to subsequent purchasers or encumbrancers. The registering of a deed or will by a stranger to the record chain does not impart notice to any one." (Devl. Deeds, 2d ed., §§ 712, 713.)
It is true that the probate courts are courts of record, and their proceedings dispositive of land titles are constructive notice to the world; so, perhaps, are official declarations concerning title required to be filed in the court by executors and administrators, such as inventories of the lands of the estate, but this is true only of those proceedings or papers which are in the record chain of title, not outside of it. In such cases judicial records stand upon no different footing from records in other public offices.
“In the investigation of titles, purchasers look for decrees and judgments against those who appear of record to have been owners, and when it is ascertained that a particular decree or judgment does not affect the title which is the object of inquiry, it is believed not to be customary to look further; and to- hold that purchasers are affected with constructive notice of every fact relating to the purchased estate that may happen to appear in some of the files of a case, and not elsewhere, would, in our judgment, be carrying the doctrine of constructive notice to a dangerous extent. . The establishment of such a rule would have a direct tendency to unsettle titles, for no one could know of a certainty when he was getting a good title, without examining the files in every case in the county where the land lay, and this would be wholly impracticable. (Dugan et al. v. Follett et al., 100 Ill. 581, 590.
Further evidence was introduced for the purpose of charging the plaintiffs with notice of a title to the land in Soranus Brettun. It consisted, first, of a mortgage of the same land previously executed by Margai’et Brettun, reciting that she was the widow and an heir of Soranus Brettun, and, second, of the possession of a tenant who claimed under a lease executed by one who signed himself “agent Brettun estate.” The recital of the mortgage and the possession of the tenant were nothing more than notice. They only served to put the mortgagee on inquiry and deprive him of the character of an innocent owner. They were not evidence of the ultimate fact of ownership. They were not proof of title in Soranus Brettun. The only fact to the discovery of which the notice thus imparted might have led was the fact of the probate court inventories before mentioned, and they, when reached, would only have been evidence of the same character — simply notice. It must be borne in mind that the burden of proving title in Soranus Brettun rested on the defendants. Beyond that the substantive fact, viz., ownership, remained to be proved, and it was not done.
The plaintiffs have a theory of construction of the will of Soranus Brettun under which they maintain that the land was devised to Margaret Brettun, and therefore that she, and afterward her heirs, owned it, even if she had no other source of title. The theory is not sound.
Some of the defendants resisting the foreclosure were minors. They were represented by a guardian ad litem, to whom a fee of fifty dollars for services as such was allowéd and taxed against the plaintiffs as costs. The taxation of this fee was error. It was not costs. Such fee is not designated anywhere in the statute as costs, and costs are only allowed by statute. In a large number of cases the taxation of a guardian ad litem’s fee as costs against the unsuccessful party has been refused. (10 Encyc. Pl. & Pr. 684; Walton v. Yore, 58 Mo. App. 565; Holloway v. McIlhenny Co., 77 Tex. 657, 14 S. W. 240; Union Ins. Co. v. Van Rensselaer, 4 Paige Ch. R. 85; Hutchinson v. Hutchinson, 152 Ill. 347, 38 N. E. 926.)
For error in the admission of evidence the judgment of the court below is reversed, and a new trial ordered.
Johnston, Smith, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Greene, J.:
There was no allegation in the answer of either Hill or Logan that the Western Farm Mortgage Company, or either of its successors, was the agent of Walter, the owner and holder of the note and mortgage, nor was there any evidence produced on the trial tending to establish such fact. The interest coupons, which were paid by Logan and by Hill to the Western Farm Mortgage Company and its successors, and returned to them, brought home to them knowledge that neither Neill nor the Western Farm Mortgage Company,- or either of its successors, was the owner-or holder of said note and mortgage. The testimony conclusively showed that neither Walter, the owner of the note and mortgage, nor his brother, who was his agent in the transaction, ever authorized the Western Farm Mortgage Company, or its successors, to collect for the plaintiff in error either the interest or principal of said note, and it conclusively showed that neither of them had any information that the Western Farm Mortgage Company, or its successors, were doing so. The interest and principal were payable at the Third National Bank of New York. Charles T. Walter, who was the agent of his brother, the plaintiff in error, deposited the interest coupons, as they became due, in his own bank at St. Johnsbury, Vt., for collection. These interest coupons were forwarded in the regular course of business to the Third National Bank of New York, and by it paid and the amount credited to plaintiff in error.
We are unable to see, after a careful examination of the evidence, how it was possible for the jury to find that the Western Farm Mortgage Company, or its successors, were the agents of plaintiff in error for the collection of this note. Before it can be held that a payment to the Western Farm Mortgage Company, or its successors, discharged the liabilities, this fact must be fairly deducible or inferable from the evidence. Upon this question the verdict of the jury was not only against the weight of the evidence, but it was not supported by any evidence. The court should have granted the plaintiff in error a new trial.
There are some other questions raised by the plaintiff in error, but in the view that we have taken of this case they become immaterial.
The judgment of the court below will be reversed and the cause remanded.
Johnston, Cunningham, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Doster, C. J. :
This was a garnishment proceeding brought by the National Wall-paper Company, the creditor, against William Kincaid, the garnishee. C. A. Garrett and H. O. Kincaid, as a partnership, owed the National Wall-paper Company. Each of them was individually indebted to William Kincaid. These debts were each for the sum of $420, and, to secure them, each partner executed a mortgage on his undivided half-interest in the partnership property, and each partner indorsed upon the other’s mortgage his consent thereto. The partnership was insolvent at this time. The mortgages were given in good faith, to secure bona fide debts. The question, therefore, is whether members of a partnership may prefer their individual to their partnership creditors by the execution of liens upon their own interests in the partnership property, each party consenting to the act of the other. This question has been several times discussed before the court and adverted to in some of the opinions. (Woodmansie v. Holcomb, 34 Kan. 35, 7 Pac. 603; Berkley v. Tootle, 46 id. 335, 26 Pac. 730; Mannen v. Bailey, 51 id. 446, 32 Pac. 1085; Tootle v. Rice, 53 id. 581, 36 Pac. 990.) In the last two cases the'question was stated and attention called to opposing authorities, but no decision was made. In Woodmansie v. Holcomb, supra, it was ruled in the syllabus:
“While the partnership remains in existence and in a solvent condition, it may, upon a bona fide consideration, all the partners assenting, transfer and appropriate the firm property in payment of the individual debt of one of its members.”
In the opinion it was remarked:
“The decisions of the courts have gone farther than this, and, although not unanimous, the weight of authority seems to be that mere insolvency, where no actual fraud intervenes, will not deprive the partners of their legal control over the property and of the right to dispose of the same as they may choose; and where the separate creditor purchases from the firm in good faith, and the individual indebtedness is a fair price for the property purchased, such purchase cannot, of itself, be held fraudulent as against the general creditors of the firm.”
In Berkley v. Tootle, supra, it does not clearly appear that the partnership was insolvent, but the case seems to have proceeded upon the assumption that it was, and the foregoing extract from the opinion in Woodmansie v. Holcomb was quoted as the law applicable to the facts under consideration. It is questionable, indeed, whether the remarks made in the case of Woodmansie v. Holcomb were necessary to the decision of that case, but subsequent cases, and especially that of Berkley v. Tootle, appear to have regarded with favor the rule announced.
We are of the opinion, now that the question is directly presented, that the members of an insolvent partnership, all the partners consenting, may, in good faith, appropriate their own interests in the partnership property to the payment of their individual debts in preference to those of the partnership. It has been loosely said that partnership creditors have a lien on the partnership property, but this is not true, and we think that no court has so decided, in the sense those words imply. The partners themselves have an equity in the partnership property to compel its appropriation to the payment of partnership debts, as against the debts of the individual members of the firm, and to this equity the partnership creditors succeed in cases and under circumstances which will enable them to enforce it, and that ordinarily, if not always, is when the partnership is in the control of the court, and its assets are in the course of administration by the court, either through the bankruptcy of the firm, or the creation of a trust in some mode. Strong and well-considered decisions in which this doctrine is asserted, with citations to numerous authorities, are Case v. Beauregard, 99 U. S. 119, 25 L. Ed. 370; Purple et al. v. Farrington et al., 119 Ind. 164, 21 N. E. 543, 4 L. R. A. 535. These cases are entirely in point in the present controversy. The facts in each are almost identical with those in the present case. In the one last cited, it was tersely remarked that “members of a partnership largely indebted and insolvent may lawfully mortgage the firm property to secure an individual indebtedness, if, in so doing, they act in good faith.” This we believe to be the law.
The judgment of the court below is reversed, with directions' to proceed in accordance with this opinion.
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The opinion of the court was delivered by
Ellis, J. :
In this court, by oral argument and in its brief, the defendant in error challenges the right of the plaintiff to recover upon his petition, on the ground that the Robbs were necessary parties to the action. Without passing upon the merits of this contention, it may be disposed of by adverting to the fact that this question was not raised by defendant’s pleadings in the court below, for which reason it must be deemed to be waived. (Gen. Stat. 1901, §§ 4523, 4525.)
Without expressing an opinion as to the extent of the relief which the .plaintiff should be awarded, my associates in this division of the court have determined that plaintiff was entitled, under his petition, to recover at least for the time he necessarily lost while making proper efforts to secure other motive power with which to prosecute his business. The court does not hold that he may be adjudged to receive all he claims as his due, and does not pass on the question as to whether he should be allowed for prospective profits. In the present status of the case that matter is not before us for adjudication. It will suffice to say that if the evidence shall sustain his averments he should recover compensation for the loss actually and necessarily sustained by him through the negligence of the defendant. As he was entitled to prevail in the cause and to have judgment for some amount, the order, of the court sustaining the demurrer was erroneous, and such judgment will be reversed, and the cause remanded for further proceedings in accordance with this opinion.
Doster, O.J., Smith, Pollock, JJ., concurring. | [
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Error from Oowley district court. | [
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The opinion of the court was delivered by
Doster, O. J.:
The appellant was convicted on four counts of the offense of selling intoxicating liquor. He was sentenced under the first count to confinement in the county jail for forty-five days and to the payment of a fine of $100. A like sentence was imposed on him under all the other counts, with a statement in each sentence that the term of imprisonment should begin at the expiration of the term of imprisonment under the preceding count. The journal entry of judgment closed in the following language :
“And it appearing to the court that at the March, 1900, term of this court you were convicted in case No. — of a like offense and sentenced to a term of imprisonment in the county jail, and to'pay a fine and costs, from which conviction and sentence you have perfected an appeal to the Kansas court of appeals, S. D., E. D., and were released on bond pending said appeal, it is further ordered and adjudged by the court that, in the event that you should finally be recommitted to jail under said conviction to serve out your sentence, the period of imprisonment herein shall be separate from, and independent of, said former punishment, and in addition thereto, it being the object and intention of the court and of this order and judgment that you should serve the entire time imposed by both sentences. To all of which the defendant excepts.”
It is claimed that these sentences are indefinite as to period, of commencement and termination. We think not. When the date of the commencement of the imprisonment is not specified in the sentence, it begins, as a rule, the day it is pronounced, and the statute provides that the cumulative sentences of a convicted person “shall commence at the termination of the term of imprisonment to which he shall be adjudged upon prior convictions.” (Gen. Stat. 1901, § 5695; The State v. Carlyle, 33 Kan. 716, 7 Pac. 623.)
The order of the court that the .term of imprisonment to which the defendant was sentenced should be separate from, and independent of, the period for which he had been sentenced at a former term of court for a separate offense, has no relation to the beginning and ending of the period of imprisonment imposed in this case. It has no relation to the be ginning or ending as elements, or ingredients, of the sentence. It only declares that the one sentence is separate from the other — that the execution of the one sentence shall not be understood as the execution of the other. There is no element of uncertainty in the sentence itself. Inasmuch as the defendant appealed from the judgments of conviction in both cases, the time when he may enter upon the term of imprisonment under either one is, by that fact, made uncertain, because, if the conviction in the former case should not be sustained, but is to be sustained in this one, he might at once enter upon the service'of his term in this case. On the other hand, if his conviction in both cases should be affirmed, then the commencement of the term in this case, as in the other one, becomes subject to contingencies. The jail authorities may require him to enter first upon the service of his sentence in this case, or first in the other one. Therefore, he may, according as such event occurs, first commence to serve the term imposed under the former conviction or under the present one; but the uncertainty thus produced was not produced by this sentence, as it was pronounced and recorded, but by the subsequently occurring event. If such indefiniteness and uncertainty of commencement of term of imprisonment should occur, and, if it should be of a character legally prejudicial to the appellant, he would not be, of course, without remedy; but so far he has not been prejudiced. The sentence is not indefinite and uncertain.
Some other claims of error are made, but they are not well taken. The judgment of the court below is affirmed.
Smith, Pollock, JJ., concurring.. | [
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The opinion of the court was belivered by
Smith, J.:
This was an action brought by W. M. Barber to recover damages from the plaintiffs in error for breach of the covenants of warranty in a deed executed and delivered by them to him on May 28, 1893. The deed contains the usual covenants of warranty, seisin, for quiet enjoyment, and against encumbrances. The property conveyed is a town lot. It appears that on the 8th day of September, 1886, one C. M. Scott obtained a tax deed to the lot in controversy, and placed the same on record the day following. At that time the property was occupied by persons who are grantors of the grantors of the plaintiff below, and it has been in their possession and Barber’s ever since. In February, 1895, Barber, purchased the outstanding tax title of Scott, and procured a quitclaim deed from him for the property. In this action he recovered a judgment below against plaintiffs in error for the amount so paid.
The question of law presented on the foregoing facts is whether the tax deed held by Scott vested in him any title to the lot or constituted an encumbrance or charge thereon at the time the warranty deed was executed by the Bruingtons to Barber, in May, 1893. It is well settled that Scott, the grantee in the tax deed, could not maintain an action to recover the real estate, nor enforce by action his claim for taxes, after his tax deed had been on record two years. (Gen. Stat. 1901, § 4444; Mitchell v. Lines, 36 Kan. 378, 13 Pac. 593; Corbin v. Bronson, 28 id. 532; Coale v. Campbell, 58 id. 480, 49 Pac. 604.)
Counsel for defendants in error in their brief say :
“While defendants in error will admit that the tax-title holder, C. M. Scott, in the case at bar could have obtained no rights under his tax deed under the statutes of Kansas, we do contend that this tax deed was a cloud upon the title of the real estate in question, as it affected Barber, and such a cloud as would affect the market value of the land, and such a cloud as would prevent the defendant in error from conveying a good title, or that would prevent him from borrowing money upon the same.”
The buying in of an invalid tax claim will not entitle the purchaser, who is the grantee in the warranty deed, to recover the amount paid from his warrantor. (2 Devl. Deeds, §928; Cummings v. Holt, 56 Vt. 384; McInnis v. Lyman, 62 Wis. 191, 22 N. W. 405; Balfour v. Whitman, 89 Mich. 202, 50 N. W. 744; Gleason v. Smith, 41 Vt. 293; Snyder v. Jennings, 15 Neb. 372, 19 N. W. 501; Robinson v. Bierce, 102 Tenn. 428, 52 S. W. 992; Luther v. Brown, 66 Mo. App. 227.) Barber paid for a title -which had no foundation in law, the existence of which furnished no basis for a successful attack on his ownership or possession. The assertion of title by Scott under his tax deed, while it might have given Barber some apprehension and feeling of insecurity, in fact exposed him to no hazard. He could not have been evicted thereunder.
The judgment of the court below will be reversed and a new trial ordered.
Doster, C.J., Ellis, Pollock, JJ., concurring. | [
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The opinion of the court was delivered by
Pollock, J. :
Plaintiff, Stephen Martin, leased sixty acres of unbroken prairie land to defendant, Anton Hamersky, for a term of two years, commencing March 1, 1895, and ending March 1, 1897. The consideration expressed in the lease reads as follows :
“For the use of said premises for the.term mentioned, he hereby covenants and agrees to break and cultivate for the said two years the above-mentioned property. . . . It is further agreed by the parties to the within, lease that lessee shall pay all taxes on the above-described property for the years 1895, 1896, 1897, 1898 and 1899 when due, and shall deliver the receipts to lessor’s agents in Wichita, Kan.”
In the fall of 1896 the premises were sown to wheat by defendant. At the expiration of the term of the tenancy as provided for in the lease nothing was said between the parties, but defendant continued to occupy the premises, cut and cared for the wheat, and was proceeding with the thrashing of the same, when plaintiff made demand for one-third of the wheat, as the landlord’s share of the crop for the use of the premises. This demand was refused.' Thereupon plaintiff commenced this action in attachment to recover the value of one-third of said crop of wheat, as the landlord’s share for the use of the premises. Upon the trial, a demurrer to the evidence of plaintiff was interposed and sustained. Plaintiff brings error.
Section 3846, General Statutes of 1901, provides :
“When premises are let for one or more years, and the tenant with the assent of the landlord continues to occupy the premises after the expiration of the term, such tenant shall be deemed to' be a tenant from year to year.”
As defendant, with the implied assent of his landlord, held over after the termination of the term fixed by the lease, he became a tenant from year to year. In the absence of an express agreement between the parties as to the amount of rent to be paid after the expiration of the term provided by the lease, what agreement will the law imply? Counsel for plaintiff in error contends the law will imply an agreement between the parties for the payment of the reasonable rental value of the premises, to be determined by the custom obtaining in the locality where the property is situate. Counsel for defendant in error contend that the holding over implies an agreement between the parties to pay rent upon the same terms and conditions as expressed in the written lease. This is the sole proposition involved in this controversy. In the sustaining of the demurrer to the evidence of plaintiff, the trial court seems to have adopted the latter contention. The general rule is as contended by counsel for defendant in error :
“When a tenant with the consent of the. landlord, express or implied, holds over his term, the law implies a continuation of the original tenancy upon the same terms and conditions.” (12 A. & E. Encycl. of L., 1st ed., 758.)
While conceding the general rule to be as stated, counsel for plaintiff in error insists that the case at bar is an exception to, and is not controlled by, this general rule ; that, by the express provisions of the lease in this case, the defendant was to have the use of the premises for two years in consideration of the “breaking,” or, in other words, the reducing of the raw or unbroken prairie land to a state of cultivation ; that, at the expiration of the term for which the tenancy was created, the work to be performed as a substitute for the payment of rent was fully performed, and could not operate in law as the implied consideration for the further use of the premises. .With this contention we agree. While fully recognizing and adhering to the general rule in all cases to which the same is applicable, yet, under the peculiar conditions of the written lease for two years, the rent reserved therein being in the form of labor which, from its very nature, was incapable of performance but once, and which had been performed under the original lease and before its expiration, we can find no room for the operation of the general rule in this case. The law neither presumes nor requires performance of an act incapable of performance.
In the case of Diller v. Roberts, 13 Serg. & R. (Pa.) 60, the court said:
“There was no evidence, of any agreement for the second year’s rent; but it was contended, on the part of the defendant, that on the plaintiff’s holding over after the end of the first year, the law implied an agreement that he should pay the same rent, and at the same time which he had agreed to pay it the first year. Such, undoubtedly, is the general rule ; but the written agreement for the first year, in this case, was of so singular a nature, that I do not think there could be any implication of law that it should extend to the second year.”
In the case of Ives v. Williams, 50 Mich. 106, 15 N. W. 36, it was said :
“But when the case is of such a nature that the facts plainly revolt against material provisions of the old lease ; or when, according to the evidence, there is not only no right to infer the assent of the parties, but positive proof that the landlord unqualifiedly dissents, there is no authority for holding that the parties are nevertheless subject as matter of law to the old provisions.”
The general rule being inapplicable to the facts in this case, it follows that the demurrer interposed should have been overruled and that the judgment must be reversed.
Doster, C.J., Johnston, Greene, JJ., concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
William Miller was charged with unlawful sales of liquor and with, maintaining a place where liquor was unlawfully sold. The complaint contained three counts, the first two of which charged unlawful sales of liquor at particular times, and the third the maintenance of a nuisance. In justice’s court he was convicted only upon the first and third counts, and acquitted on the second, which charged an unlawful sale of liquor. An appeal was taken to the district court, and there he was again convicted upon the first and third counts. He complains of the ruling of the court refusing a continuance.
The ground upon which the motion for a continuance was made was the absence of a witness. The testimony which it is alleged that the witness would have given appears to be competent and material, but it is not shown that due diligence was used to obtain his testimony. About two weeks before the trial was had, a notice was given that the deposition of the absent witness would be taken at a neighboring county-seat, and about a week afterward an effort was made' to take the deposition, but at that time the witness had removed to another town, and his testimony could not be obtained under that notice. It does not appear that a subpoena was issued from the trial court, as might have been done under the statute. If a sub poena had been issued at the time the notice to take depositions was given, it could have been served on the witness and his attendance secured. In criminal cases witnesses may be subpoenaed in any county of the state, and district courts have full power to compel their attendance. (Crim. Code, §§165-167; Gen. Stat. 1901, §§5607-5609.)
A party who seeks a continuance on account of an absent witness must make it appear that he has used the ordinary legal means provided by statute to obtain the evidence ; and where a party fails to employ such means, when they are practicable and would be effectual, the failure will, as a general rule, be fatal to an application for a continuance. No sufficient reason was given for the failure to have a subpoena issued, and therefore no sufficient diligence has been exercised by the appellant. The matter of continuance is largely within the discretion of the trial court, and its ruling refusing a continuance cannot be reversed unless it appears that there has been an abuse of discretion. (The State v. Barker, 43 Kan. 262, 23 Pac. 575.)
Another objection is that proof was admitted of a sale of liquor by the appellant on the 12th day of June, 1900. The second count of the complaint charged an unlawful sale upon that day, but on that count there was an acquittal in the lower court. The testimony, however, was not offered to sustain the charge on which there had been an acquittal, but was admitted as proof tending to establish the third count of the information, which was maintaining a place where liquors were unlawfully sold, or, in other words, the keeping of a nuisance. For that purpose the testimony was competent. Any act or conduct of the defendant occurring within the statutory period and' which, tends to establish the keeping of a' nuisance was admissible. Where evidence can be used to prove two counts of an information, the fact that ■one of them has been eliminated does not preclude the use of the evidence to establish the remaining count.
The final contention is that error was committed in the admission of bottles and barrels of liquors, glasses, corkscrews and other paraphernalia found on the premises of the defendant when the arrest was made. It is urged that the averments in the complaint did not warrant the seizure of the articles mentioned, and that as they were wrongfully obtained they could not be admitted in evidence against the defendant. Assuming, but not deciding, that the officer acted in excess of authority when he took possession of the liquors and other articles found upon defendant’s premises, it does, not follow that the evidence should be excluded. In Greenleaf on Evidence, section 254a, it is said:
“Though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility if they are.pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question.”
In Shields v. The State, 104 Ala. 35, 16 South. 85, the question was considered at length and the authorities reviewed, and it was held that evidence obtained by an illegal and unauthorized search is admissible to fix the guilt of a criminal offense upon the person searched ; and the principle extracted from all the authorities is “that, however unfair or illegal may be the methods by which evidence may be obtained in a criminal case, if relevant, it is admissible, if the accused is not compelled to do any act which criminates himself, or a confession or an admission is not extorted from him, or drawn from him by appliances to his hopes and fears.” (See, also, Gindrat et al. v. The People, 138 Ill. 111, 27 N. E. 1085; Seibert v. People, 143 Ill. 571, 32 N. E. 431; People v. Barker, 60 Mich. 277, 27 N. W. 539; State v. Flynn, 36 N. H. 64; Commonwealth v. Dana, 2 Metc. [Mass.] 329; Commonwealth v. Tibbetts, 157 Mass. 519, 32 N. E. 910; Commonwealth v. Smith, 166 Mass. 370, 44 N. E. 503; State v. Burroughs, 72 Me.479; State v. Pomeroy, 130 Mo. 489, 32 S. W. 993; 1 Tayl. Ev. § 922; 1 Bish. Crim. Proc. 246.) These authorities conclusively show that no constitutional right of the defendant was violated and that the admission of the evidence does not constitute reversible error.
The judgment of the district court will be affirmed.
Cunningham, Greene, JJ., concurring. | [
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The opinion of the court was delivered by
Pollock, J. :
This was an action brought by the board of county commissioners of Labette county to recover from George Campbell, probate judge of said county for two years beginning January, 1893, and his bondsmen, certain sums of money collected by Campbell as probate judge in excess of the amount of compensation allowed by section 4, chapter 140, Laws of 1889. ■'
The case was heard upon an agreed statement of facts, found in the record, by which it was shown that, during the two years he was in office, Campbell collected fees from all sources aggregating $4901.22 ; that he received at one time from the county the sum of $337.60, and later the sum of $162.57 ; that he also received by mistake the sum of $12.25; that he paid into the county treasury the sum of $831.34; that, after deducting from the amount he had received the sum of $1250 per year, and the amount by him paid into the county treasury, and dividing the remainder of the fees, one-half to the county and one-half to Campbell, as provided in said section, he was indebted to the county in the sum of $881.69. Of this amount, as shown by the statement of facts, $16 was received for examining the accounts in the office of the county treasurer, and $16.80 for services performed in various miscellaneous matters. These two amounts, aggregating $32.80, were by the trial court deducted from the entire amount, and judgment was entered against Campbell and his bondsmen in the sum of $848.89. From this judgment defendants below bring error.
The sole contention of counsel for plaintiffs in error is that section 4, chapter 140, Laws of 1889, establishing the compensation of the probate judge of Labette county, is unconstitutional and void. This section reads as follows :
“The probate judge of Labette county shall receive in full compensation for his services the fees prescribed and allowed by law, and shall keep an accurate account of the same, but shall not be entitled to receive any salary from the county; provided, however, that, if the fees of said officer shall not in any one year aggregate the sum of $1250, such officer shall receive from the treasurer of said county, upon order of the board of county commissioners, a sum sufficient to make the compensation for the services of said office for such year reach the sum of $1250 ; and if such fees aggregate more than $1250, one-half in excess thereof shall be turned by him over, to the treasurer of said county, taking duplicate receipts therefor, one of which he shall file with the county clerk, and it shall become a part of the general fund of the county.”
Counsel for plaintiffs in error predicates his argument to establish the unconstitutionality of this act first upon the ground that, as section 8, article 3, of the constitution, creates the probate court a court of record and confers thereon “such probate jurisdiction and care of estates of deceased persons, minors and persons of unsound minds, as may be prescribed by law,” etc., and prescribes that the probate judge shall “receive for compensation such fees as may be prescribed by law” for the performance of such constitutional duties, the probate judge is enbilled, by virtue of his office, to retain all fees by him received, properly charged and collected under the law, for the performance of these constitutional duties, and that the provision of the above act requiring payment out of the county treasury, in case the fees collected in any one year by the probate judge do not equal $1250, an amount sufficient to raise the compensation to $1250, and the provision requiring the payment by the probate judge into the treasury of the county, in case the fees collected exceed $1250, one-half of the excess above such sum, render the act unconstitutional and void.
The second ground is that, as the legislature may impose upon the person occupying the oflice of probate judge duties other than those over which the probate court is specifically given jurisdiction, it may prescribe the amount of compensation to be paid and received for the performance of such legislative duties, either in fees or salary, but that the amount so fixed must be uniform throughput the state; and, as the section under consideration is expressly limited to Labette county, it is in violation of section 17, article 2, of the constitution, which provides that “in all cases where a general law can be made applicable no special law shall be enacted.”
As to the latter contention, it has been expressly decided by this court that the legislature has the power, by special law, to prescribe the fees that may be retained, or salary to be paid to the county officers in the different counties of the state (Comm’rs of Norton Co. v. Shoemaker, 27 Kan. 77); and that in such matters of local concern it is the province of the legislature to determine and declare whether the object to be attained can or cannot be accomplished by the passage of a general law. (The State, ex rel., v. Hitchcock, 1 Kan. 178, 81 Am. Dec. 503; Elevator Co. v. Stewart, 50 id. 378, 32 Pac. 33; The State, ex rel., v. Lewelling, 51 id. 562, 33 Pac. 425; Eichholtz v. Martin, 53 id. 486, 36 Pac. 1064.)
As to the first proposition, in our opinion, counsel for plaintiffs in error misconceives the proper construction to be placed upon that clause of section 8, article 3, of the constitution, which provides that the probate judge shall “receive for compensation such fees as may be prescribed by law.” It was not the intent of the framers of the constitution that the judges of probate courts should receive as compensation for the performance of the duties imposed by the constitution all of the fees which the legislature might provide should be paid by the parties litigant to the probate judge, but, on the contrary, that having created a court of record and made provisions for a judge thereof, by the expression used, it was the intent that the incumbent of such office should re ceive for compensation fees, and not a salary, and that the fees should be such as the legislature might provide by law; that it is competent not only for the legislature to fix the fees which shall be paid by litigants to the probate judge, in the transaction of the business over which this provision of the constitution expressly extends the jurisdiction of the probate court, by a general law applicable throughout the state, but that the legislature may also, by special law, determine what amount of such fees collected by the probate judge of any one county may be by him retained for his yearly compensation, and require the payment of the remainder into the treasury of the county.
As in the present case, the legislature has, by this special act under consideration, provided that the probate judge of Labette county shall collect all of the fees by law prescribed to be paid by litigants in the probate court in the performance of those duties imposed upon that court by the constitution, and also all of the fees as provided by the legislature in the performance of those acts devolving upon the probate judge over which the constitution does not extend the jurisdiction of the probate court, and permits him to retain out of the amounts so collected, as his yearly compensation for all services performed, all of such fees until the same equal in amount the sum of $1250, and provides for the covering into the treasury of the county one-half of the excess above such yearly compensation, so that in no year shall he receive less than the stated amount of $1250, such act is within the power of the legislature, is not'prohibited by any constitutional provision, and is therefore valid.
It follows that the judgment of the district court must be affirmed.
Dostee, C.J,, Johnston, Greene, JJ., cdncurring. | [
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The opinion of the court was delivered by
Johnston, J.:
In an action brought by J. Y. Dean to recover on a promissory note originally executed by W. H. Rice, James Turner, and C. L. Rice, the defense was made by O. L. Rice that he had signed the paper as surety, and had been released by an extension of time granted without his knowledge or consent. At a public sale of the property of Dean, held on February 9, 1886, W. H. Rice bought some cattle on credit and gave a note for $306, payable nine months-afterward, with interest from date at twelve per cent, per anum, and James Turner and O. L. Rice signed the note with him as sureties. About December 1, 1890, the note being not paid, Dean obtained from "W. H. Rice and James Turner a renewal note, payable two years from that time, with interest at ten per cent, per anum from date. O. L. Rice, who had been absent from the state for several years, did not sign the renewal note nor consent to the extension of time thereby granted to the other parties, but the testimony is that at that time Dean reserved his rights against O. L. Rice, the surety. In this action to recover the debt, judgment was rendered against W. L. Rice and James Turner without contest, but the court held that C. L. Rice was not liable on the obligation because the creditor, Dean, had granted the principal on the note an extension of time without the consent of the surety.
Dean first alleges that error was committed in admitting testimony to the effect that C. L. Rice had signed this note as surety, when it had not been shown that Dean knew when he accepted the renewal note that Rice had signed in that capacity. The point is without merit, one reason being that testimony was given tending to show that Dean was asked on the day of the public sale to accept Turner and C. L. Rice as sureties, and that he had accepted them in that relation. As a general rule an agreement between the' creditor and the principal for an extension of time to the principal in which to pay the debt, without the knowledge or consent of the surety will operate as a release of the surety. (Roberson v. Blevins, 57 Kan. 50, 45 Pac. 63.) An important exception to the rule is that if the creditor, at the time of the extension, reserves his remedies' against the ¡3urety the latter will not be discharged from liability.
The principal ,1’eason for the release of sureties in such cases is that the postponement of payment varies the contract relation and deprives the surety of the right to pay the debt when it becomes due and to have immediate recourse on the principal. When a cred itor ties his own hands- and grants an indulgence which prevents a surety from obtaining that indemnity against a principal which the law gives him, the surety is necessarily prejudiced and should be released. If, however, a creditor explicitly reserves all remedies against the surety, it rebuts the presumption of a purpose to release the surety, and, in effect, it is an agreement between creditor and principal that the creditor may sue the surety, who in turn may then proceed against the principal. If the surety is not deprived of the protection and indemnity which the law affords him against a principal he is not prej - udiced and is not entitled to be released from the obligation which he had undertaken. (2 Rand. Com. Pap. §970; 2 Dan. Neg. Inst. §1322; Tied. Com. Pap. §424, p. 706; 2 Brandt, Sur. §376; 24 A. & E. Encyl. of L. 830.)
As the proof in the qase all shows that the remedies against the surety were expressly reserved by the creditor, there was error in releasing the surety from liability.
The judgment of the district court will be reversed and the cause, remanded for further proceedings.
Doster, C. J., Smith, Ellis, JJ., concurring. | [
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Error from Labette district court. | [
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Error from Chautauqua district court. | [
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The opinion of the court was delivered by
Johnston, J. :
This was an action brought by J. A. Hopkins, as sheriff, to recover the balance due on a bid made by the Farm Land Mortgage and Debenture Company at a mortgage sale of real estate. In a foreclosure proceeding brought by the company named, a judgment for $2150 was given in its favor, which was decreed to be a first lien on the mortgaged premises, and at the same time another judgment against the mortgagors was rendered, for $654.30, which was decreed to be a second lien against the same property. At the sheriff’s sale, which was held on October 19, 1897, the company was represented by one of its attorneys who was not familiar with the record of the case or with the amount of the judgment. Prior to the sale he made- inquiry of the under-sheriff, who was in charge of the office, as to the amount of the judgment held by the company, and the costs, as he desired to bid that amount in behalf of the company, and the officer informed him that it was $2838.05. The amount so given included not only the judgment in favor of the company but also the judgment which was the basis of the second lien against the property, Soon afterward the officer proceeded to the front door of the court-house and offered the property for sale in pursuance of notice, and the attorney, relying upon the statements made by the under-sheriff as being the amount of the company’s claim, made a bid of $2838.05, and, there being no higher bid, it was struck off to the company. At that time there was due to the company under the foreclosure judgment $2150, with some accrued interest and the costs. Subsequently the company paid the costs, and' the sheriff executed to it a deed of the property. At the time of the delivery of the deed no demand was made upon the purchaser to pay the difference between its judgment and the amount of the bid, but several months afterward a demand was made, and upon a refusal the present action was brought.
It was contended in the court below that the erroneous statement made by the sheriff as to the amount of the company’s claim, and the delivery of a deed without demanding the excess of the bid over the plaintiff’s claim, forever estops him from claiming such excess. It was held that the rule of estoppel invoked was not applicable, and judgment was given in favor of plaintiff below.
Although the error may be an expensive one to the company, we can find no ground to reverse the judgment or to award the equitable relief which is asked. The sale was open and public. A bid for a definite sum was made and accepted. The sale was reported to the court and confirmed. No objection was made to the proceeding, nor was there any attempt to set aside the sale. The holder of the second lien had a right to rely upon that bid for the payment of his judgment and the discharge of his lien. Bids are supposed to be based upon the value of property offered for sale rather than upon the extent of the liens existing against it. It was not the duty of the sheriff to inform the judgment creditor of the amount of its judgment, nor did he have any better means of knowledge than the company itself. Presumably a judgment creditor knows the amount of his judgment better than any one else, unless it is the judgment debtor, and has as good an opportunity to know and is as much chargeable with knowledge of the amount as the sheriff, who gets his information from the clerk of the district court. It is conceded that the sheriff did not intentionally deceive the purchaser, but erroneously gave the amount of both j udgments for which the land was to be sold instead of the single one, about which inquiry was made. The, amount of the judgment, interest and costs was a matter of record in the office of the clerk of the district court, only a few steps from the place where the inquiry was made of the sheriff. That was the source of the sheriff’s information, and the company, even if it were destitute of information as to its own judgment, had the same means of ascertaining the facts as he had. There are, at least, two reasons why the equitable doctrine invoked by the company cannot be applied here, and one is that it might operate injuriously upon the owner of the judgment which was declared a second lien upon the premises, and the other is the knowledge, or the means of knowledge, of the company setting up the estoppel.
“It may be stated as a general rule that it is essential to the application of the principle of equitable estoppel that the party claiming to have been influenced by the conduct or declarations of another to his injury, was himself not only destitute of knowledge of the state of the facts, but was also destitute of any convenient and available means of acquiring such knowledge ; and that, where the facts are known to both parties, or both have the same means of ascertaining the truth, there can be no estoppel.” (11 A. & E. Encycl. of L., 2d ed., 434; Clark v. Coolidge, 8 Kan. 189.)
Here there was no design by the sheriff to deceive, and there was no obligation resting upon legal duty to obtain and give information to the company. A mistake of fact was made, it is true; but before equitable relief can be afforded it must appear that the fact was not only not known to the party, but that it was one which he could not by reasonable diligence have ascertained. Negligence often weakens a claim for equitable relief, and the general rule is that, where a party neglects to avail himself of the means of inmation and to ascertain facts upon which his claim is based, where it is as much his duty as that of the party with whom he deals to know the facts, equity will not relieve against his own negligence. (Graham v. Berryman, 19 N. J. Eq. 29: 1 Story, Eq. Juris. §146.) The judgment is affirmed.
Doster, O.J., Smith, Ellis, JJ., concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The defendant in error commenced this action in the district court of Pawnee county, against plhintiffs in error to quiet the title to the •southeast quarter of section 5, township 23, range 15 west, in said county, alleging that he was the ■owner and in actual possession, and that defendants therein claimed to have some interest or title to said real estate adverse to his, and praying that the title be quieted in him. To this petition the defendants answered, setting up a tax deed issued October 14, 1896, for the unpaid taxes of 1892, and subsequent taxes, interest and charges thereon; also, alleging actual possession and asking for a judgment quieting the title to said lands in them, or, if defeated in that, that the taxes, interest, and charges, so paid by them, be declared a first lien on the property. The plaintiff replied, first, by a general denial, and second, by an allegation that the tax deed held by defendants was void for various reasons, and particularly because there was levied and assessed against said land for the year 1892 an illegal tax of eleven cents for what is known as the “current university fund,” wliich amount was included in the amount for which said land was sold in 1893 ; also, that in 1893, for the same fund, a tax was levied and assessed against said land in the sum of five cents, for the year 1894 a like sum of eleven cents, and for the year 1895 a like sum of sixteen cents, which sums were wrongfully included in and added to the legal tax against said property, and were included in the amount for which said deed was issued. Plaintiff also alleged that the treasurer did not post, or cause to be posted, a list or notice of unredeemed lands in four.public places in said county, as required by section 137 of chapter 107, General Statutes of 1901. He pleaded a tender of $65 as being the amount due the defendants for taxes, interest and costs paid by them for such tax deed. • *
The following stipulation was filed in the cauáe:
“It is hereby stipulated’and agreed by and between the plaintiff and defendants herein that the plaintiff was the absolute owner in fee simple of the southeast quarter of section 5, township 28 south, of range 15 west of the sixth principal meridian, being the land involved in this controversy, by virtue- of a certain warranty deed dated September 9, 1892,-to James T. Phelps, and signed by Elvira C. Taylor andPIorace J. Taylor, duly acknowledged and filed for record in the office of register of deeds of Pawnee county, Kansas, on September 15, 1892, at 4:15 p. m. ; that the, chain of title from the government down to said plaintiff, to.and including the date of said deed, is perfect.”
The court made special findings of fact, among which were the following :
“1. That the piaieiiff below received title to this land from Taylor as specified in the stipulation, and that he has never sold or transferred it; that at the commencement of this action he was in the actual possession of said land and has so continued ever since.
“2. That the land was subject to taxation for the year 1892, and that there was assessed, levied and entered against said land upon the tax-rolls of that year, for what is known as the current university fund, a tax of nine cents, which was included in the taxes for the year 1892, and was a part of the amount for which the land was sold in '1893, and included in the certificate issued under said sale ; that during each succeeding year, a similar levy was made for said current university fund and included in. the tax against said real estate, and that the interest was computed on this item each year and the penalties added thereto.
"3. That the treasurer of said county did not post, or cause to be posted, a list or notice of unredeemed lands in four'public places in said county as required by law.
"4. That the actual amount due defendants for the taxes, interest and penalties paid by them for the tax deed is sixty-five dollars ; and before the commencement of this action the plaintiff tendered to said defendants the said sum of sixty-five dollars, which tender has been kept good.”
Upon such findings the court rendered judgment for the plaintiff below, canceling the tax deed and quieting the title in the plaintiff therein, and against defendants for costs, awarding them sixty-five dollars, and decreeing such amount to be a lien on the land, less the amount of costs of the litigation. The defendants below prosecute error, and assert many reasons why the cause should be reversed. With the view we have taken of the case it will be unnecessary to pass upon all of these alleged errors, as they become immaterial.
If the assessment for this university fund was unauthorized by law, a tax deed based upon a sale of real estate which included such illegal levy cannot be sustained, if an action is commenced to set it aside before the right is barred by statute. (The State, ex rel., v. Bailey, 56 Kan. 81, 42 Pac. 373.) The plaintiffs in error undertake to sustain the assessment for the years 1892 and 1893, by chapter 39, Laws of 1891. The title of this act is, "An act making an appro priation for the maintenance ánd support of the university of Kansas/’- Section 1 reads :
“There is hereby appropriated for the current expenses of the university of the state of Kansas, for fiscal year ending June 30, 1892, the sum of seventy-five thousand dollars; and for the fiscal year ending June 30, 1893, the further sum of seventy-five thousand dollars.”
This contention cannot be sustained. This was nothing more than an appropriation of $75,000 out of the general revenue for the fiscal years ending June 30, 1892, and June 30, 1893. The same claim is made for the assessment for this fund for the years 1894 and 1895, under chapter 12, Laws of 1893. This was a similar act, making an annual appropriation out of the general revenue for the support, of the university for the fiscal years ending June 30, 1894, and June 30, 1895, and neither made any attempt to provide for a levy for the maintenance of the university. There was no authority in law for making these assessments, and the court was correct in holding that the tax deed in question was void for that reason.
The court below also found that the redemption notice had not been posted by the county treasurer in at least four public places in the county prior to the time within which the land might be redeemed. Section 7671 of the General Statutes of 1901 provides:
“The county treasurer, at least four months before the expiration of the time limited for redeeming lands, as aforesaid, shall cause to be published in some paper published in or of general circulation in his county, once a week for four consecutive weeks (the publication herein to be provided to be completed at least four months before the day of sale), a list of all unredeemed lands and town lots. . . . He shall also cause to be posted for the same length of time such list and notice in at least four public places in the county, one of which shall be in some conspicuous place in his office:”
This omission is fatal to this tax deed. It was said in Stout v. Coates, Assignee, 35 Kan. 382, 386, 11 Pac. 151, 154:
“That the posting up of the redemption list and notice required by the provisions of section 137 of said chapter 107 cannot be omitted, and if omitted, the failure to comply with the provisions of the statute in that regard will be fatal to the tax deed, if challenged before the statute of limitations has full operation thereon.”
There are many errors complained of by plaintiffs in error, some of which have force, and especially is this true in the holding of the court below that the description of the land set out in the assessment rolls, and as described in the notice of sale, was insufficient. We think such description is ample and all that the law requires, but with the view we have taken such rulings were not prejudicial to plaintiffs in error.
Another contention on the part of plaintiffs in error is that the court erred in not decreeing the plaintiffs in error a first lien upon the land in controversy for the full amount which the court found due them by reason of what they had paid out in procuring the tax deed. Instead of doing this, the court decreed a lien only for such amount less the amount of costs which was assessed against the plaintiffs in error in that court. In so far as the judgment did not decree to them a lien for the full amount due them, it is erroneous, and the cause is remanded with instructions to correct such judgment, decreeing to the defendants below a first lien upon the real estate for the full amount so found due.
The judgment, thus modified, is affirmed.
Cunningham, Pollock, JJ., concurring. | [
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Subsets and Splits