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The opinion of the court was delivered by
Valentine, J.:
This is an original proceeding in mandamus, instituted by the plaintiff for the purpose of com pelling the defendant, as state treasurer, to pay a certain bill of the plaintiff for printing the official syllabi of the decisions of the supreme court of Kansas. The main question presented, or sought to be presented, is whether the legislature has the power to authorize the publication of said syllabi (or, indeed, of anything else) in any newspaper other than the one designated by the state printer. The defendant waives all objections to the manner of presenting this question, and merely asks that we shall inform him as to what his duties are in the premises. The facts in the case are substantially as follows: George W. Martin was, during the year 1878, and still is, the state printer for the state of Kansas, and as such state printer did, in pursuance of § 5 of the act of 1876 relating to the state printer, (Laws of 1876, p. 308,) designate the Topeka Blade, a newspaper published at Topeka, Kansas, as the “official state paper” for the state of Kansas for the period of one year next after July 1, 1878. George W. Reed, who was the editor, publisher and proprietor of said newspaper, accepted said designation, published said syllabi in said newspaper, and received the pay therefor, up to April 1, 1879, after which time the state treasurer refused to pay him for publishing any more of such syllabi in said paper, on the following grounds: Prior to said April 1,1879, said § 5 was repealed by §133 of the act of the legislature of 1879, relating to the state departments and officers. (Laws of 1879, p. 324, § 133; see also, Laws of 1876, p. 315, § 16.) An “executive council” was created by § 89 of the same act, (Laws of 1879, p. 312, § 89,) and the power to designate the “official state paper” was taken from the state printer, and placed in the hands of this council, (id., p. 317, §104,) and in pursuance of this statute, said council designated the Commonwealth, another newspaper published at Topeka, as the “official state paper” for the state of Kansas for the period of one year next after April 1, 1879, and the proprietors of said Commonwealth accepted such designation, and commenced the publication of said syllabi.
The plaintiff in this action claims that the grounds of the •defendant for refusing to pay him are not sufficient, and claims that the statute creating the executive council, and authorizing them to designate the official state paper, is unconstitutional, and void, being, as he claims, in contravention of § 4, article 15 of the constitution of the state of Kansas (Comp. Laws of 1879, p. 67), as well as in contravention of other sections of the constitution. This section of the constitution provides that “all public printing shall be done by a state printer,” and “all public printing shall be done at the capital.” The plaintiff claims that the publishing of said syllabi in a newspaper is “public printing” within the meaning of said constitutional provision, a’nd therefore that it must be •done, if done at all, by the state printer, and at the capital. Just how it is public printing he has not very definitely informed us.- It would seem that printing done by a private person, in a private newspaper, to be sent to private subscribers, would be private printing. In the present case the editor, publisher and proprietor of the newspaper in which it is claimed the syllabi should be published, is a private person; the paper, ink, type, printing presses, etc., used by him, are his private property; and the newspaper, when printed, is his own private property, and he sends it to-his private subscribers. No public officer has anything to do with the printing or publishing of the newspaper; the state does not own anything connected therewith; and the state does not even subscribe for any of the copies of the newspaper when published.
The printing, as printing, is in such a case most certainly a private affair. Neither the state as a corporation, nor the public as composed of individual citizens, has anything to do with the paper until after it is all printed and sent to subscribers; and even then the state, as a corporation, has nothing to do with the paper, except to pay for the publication of the syllabi therein. The state does not at any time own the printing, or even any of the newspapers on which the printing is done. It has no right to authorize the state printer, or any other public officer or person, to do the printing in such newspaper; and it cannot even authorize the state printer, or any other public officer or person, to even visit the printing office, except with the permission or consent of the proprietors thereof. Then how can such printing be said to be public printing? It can no more be said to be public printing than the advertisements of John Smith and Thomas Jones, inserted in the same newspaper, can be said to be the printing of such individual persons. It is the publication of the syllabi that is public, while the printing thereof, as-printing, is private. But even the publication is only indirectly and remotely public. It is done merely for the benefit of the individual citizens of the state, and not for the benefit of the state or the public as a corporate entity.
No department of the state government has ever given to the words “public printing” the construction contended for by the plaintiff in this case. On the contrary, every legislature has provided for the publication of the public matters in newspapers other than the one designated by the state printer, and in newspapers published elsewhere than at the state capital. This has been uniformly so with respect to the publication of statutes ordered to take effect upon their being published in some newspaper. Stray notices have been uniformly published in the Kansas Farmer, a newspaper now published at Topeka, but formerly published at Leavenworth city; and delinquent tax lists (including state taxes, as well as county, city and other public taxes') have been published in each organized county of the state ever since said constitutional provision was adopted. But turning to said § 5 of the act of 1876, relating to state printer, under which section the plaintiff founds his whole claim, and with his construction the section is itself unconstitutional. It provides for the publication of public proclamations, orders, notices and advertisements in newspapers published elsewhere than at the capital of the state. We do not think that all printing authorized by the state or paid for by the state is necessarily public printing, and it never has been so considered. We suppose that the state might purchase books published else where than at the capital, and by some person other than the state printer, although they in fact contain printing. We suppose that the state might even subscribe for books, or newspapers, or periodicals, to be published in the future elsewhere than at the capital, and by some person other than the state printer, although they are to contain printing, and the printing to be done in the future. Such subscriptions at least have always been made for the state, and we suppose always will be. With the plaintiff’s construction, however, of the constitution, such a thing could not be done. If the state should desire to sell bonds or other property in the great market of New York, we suppose it might advertise the same in the great dailies published there, and would not be compelled to come back to Kansas and advertise the same in some Topeka newspaper designated by the state printer. Or if the state should wish to encourage emigration from Europe to Kansas, it might publish notices in the newspapers of the great cities of Europe, and would not be confined in its publication to the limits of Topeka and to the newspaper designated by the state printer. Said § 4, art. 15 of the constitution is the last expression of the will of the people upon the subject of which it treats, and therefore everything adopted prior to the time of its adoption and in conflict therewith, must be considered as repealed by it. Yet, although it requires that “all public printing shall be done by a state printer,” and “all public printing shall be done at the capital,” still nearly all the newspapers in the state of Kansas have heretofore published, and we suppose will continue to publish, the various proposed constitutional amendments in their own columns and receive pay therefor from the state. If the plaintiff is correct, no paper in the state but the one published at the capital and designated by the state printer should publish them.
We do not wish to be understood as saying that the publication of syllabi in a private newspaper is in no sense public printing.' The publication is in one sense public, and therefore the necessary incidental printing may also in one sense be said to be public. But it can be said to be public only in a very remote and attenuated sense, and not at all in the closer and stricter sense contemplated by the constitution. So far as the constitution is concerned, the printing as distinguished from the publication is purely and strictly private printing. The printing is one step back and behind the publication, the same as the types and printing presses, etc., are one step back and behind the printing. But even the publication, as we have already stated, is not directly and proximately public, but only indirectly and remotely so.
We do not think that the “designation” of the Blade by the state printer as the “official state paper” for the period of one year, and the acceptance thereof by the proprietor of the Blade, constituted under our statutes such a contract that the legislature could not afterward annul it or provide for its being annulled before the expiration of the year. (Laws of 1876, p. 308, § 5, and p. 315, § 16; Laws of 1879, p. 324, § 133, and p. 317, § 104.)
We do not think that it is necessary to discuss any of the other points made by the plaintiff. They are all overruled, however.
The peremptory writ of mandamus prayed for by the plaintiff will be refused.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Marbourg transferred certain notes to-his-former partner, James H. Lea, upon the following agreement:
“The said W. W. Marbourg hereby agrees to guarantee the collection of the same, and waives protest thereon of each of said notes, and the said Lea hereby agrees to collect the said notes in his own name, and at his own costs and expenses, or in case of an assignment thereof, then in the name-of the holder or holders thereof, and without expense to the said W. W. Marbourg.”
Among these notes were two, secured by real-estate mortgage, given by O’Leary and wife. These notes passed into-the hands of the plaintiff in error, and were put in suit. In this suit certain costs and attorney fees were taxed, the latter-being stipulated for in the mortgage. The real estate not satisfying the judgment, and the makers of the notes being-insolvent, the question is presented whether Marbourg discharges this guaranty by paying the balance due on the judgment, less the costs and attorney fees. All other questions,, whether of practice or otherwise, are, as we understand the-record, waived by the parties.
We understand by this guaranty that Marbourg is bound for the face of the notes, but that all costs and expenses of collection are to- be borne by the holder. Foreclosure of the-mortgage is simply one method of collection; the cost and expense of foreclosure is but the cost and expense of collection. If, without foreclosure, action is brought on the notes, money judgment obtained, execution issued, real estate levied upon and sold, the cost and expense of all this, as well as the fees of the attorney in the suit, is cost and expense of collection, and to be borne by the holder. 'That specific property is pledged as security, does not cast the cost of realizing on-that security upon Marbourg. The holder controls the collection, and all costs of collection, in whatever manner incurred, are to be borne by him. He may sue on the notes-alone, attach, or foreclose; but whatever procedure he adopts, he pursues it at his own cost. Such, we think, is the clear intent of this guaranty, and therefore the ruling of the district court in accord therewith must be affirmed.
Valentine, J., concurring.
Horton, C. J., not sitting, having been of counsel in the court below. | [
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The opinion of the court was delivered by
Valentine, J.:
This is an appeal by the state of Kansas from an order of the court below quashing a criminal information, charging the defendant with committing an escape from the custody of the sheriff of Marion county while being taken to the penitentiary, under a sentence to be imprisoned therein for the period of three years, for the crime of perjury. The defendant has made no appearance in this court, and therefore we are at a loss to know upon what specific ground or grounds the court below quashed the said information. Probably it was upon the ground that the information did not in terms allege that the sheriff had a duly-certified copy •of said sentence in his possession when the defendant made the escape. (Gen. Stat., p. 861, § 256.) This we think is the-strongest ground upon which to place the order of the court •quashing the information. But even in this respect the counsel for the state claims that the information was not fatally •defective. It gave a copy of the order and judgment sentencing the defendant to be imprisoned in the penitentiary as .aforesaid, and then states that while the defendant was “in the lawful custody of the sheriff,” “under and by virtue of the order and judgment aforesaid as entered of record,” “and while going to the place of confinement aforesaid, to wit, to the penitentiary of the state of Kansas,” “ under and by virtue of said order and judgment aforesaid, the said Joseph Hollon did, at Marion Centre,” “then and there feloniously break -such custody of the sheriff,” “and did then and there ■escape therefrom.” The counsel for the state seems to claim that the fact that the sheriff had a copy of the sentence, Although a necessary fact, is nevertheless such a minor and .subordinate fact that it need not be set out in the information in any great detail, or with any great particularity or definiteness, and therefore that the allegations contained in the •information tending to allege this fact are sufficient. He seems to claim that the allegations that the defendant, “while in the ■lawful custody of the sheriff,” “ under and by authority of the •order and judgment” containing the sentence, “and while going to the place of confinement,” “under and by virtue of •said order and judgment,” escaped, are equivalent to allegations that the sheriff had all the necessary authority and papers, including a duly-certified copy of the sentence with which rand by which to hold the defendant in custody. We are inclined to agree with counsel for the state, that the fact of the sheriff having a certified copy of the sentence is such a minor .and subordinate fact that it need not be set out in the information with any great degree of fullness. In fact, we think that if it were set out in any form, even in the most general terms, it would be sufficient. But we think it should be set-out in some form. See, upon a kindred question, State v. Beebe, 13 Kas. 589, 595. Now we do not think that this-fact is set out in any form in the present information. Of course, the information says the defendant was in “lawful custody.” But in “lawful custody” how? This is merely a conclusion of law from the matters and things afterward alleged in the information. The defendant was in the “lawful custody of the sheriff of Marion county, Kansas,” [because as it would seem the sheriff was generally] “the custodian of criminals therein,” [and because he was in custody] “under and by virtue of the order and judgment aforesaid.”' But he was not in custody under a duly-certified copy of such judgment and order then in the hands of the sheriff, but he was in custody “under and by virtue of the order and judgment aforesaid, as entered of record upon such conviction and sentence aforesaid.” In other words, the “lawful custody” mentioned in the information is shown to have been founded upon nothing but the general authority given by law to sheriffs with proper papers to hold criminals in custody, and the judgment as rendered against the defendant on the records-of the district court. It would seem that the sheriff’ did not have any paper of any kind with which or by which to hold the defendant in custody. Therefore the said supposed “lawful custody” was not lawful custody at all, and the defendant did not commit the crime intended to be charged by escaping therefrom.
The order and judgment of the court below quashing the information will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On January 9,1877, John W. Smiley and Lucy, his wife, executed to John D. Pryor their mortgage -upon the southeast quarter of section 23, township 30, south, of range 6, containing 160 acres of land, in Cowley county, to secure the payment of $330.13 and interest, evidenced by •a note signed by said John W. and Lucy A. Smiley. The mortgage was duly filed for record, on January 10,1877. On the 9th of February, 1877, John D. Pryor transferred the note and mortgage to William Trezise, plaintiff. On October 24,1878, the plaintiff commenced his action to foreclose the mortgage. The plaintiff made John W. and Lucy A. .Smiley defendants, and also, Joel F. Lacy, and Amanda E., his wife, who claimed sixty acres of the land as a homestead by occupation, and deed of March 14,1877, to them from John W. and Lucy A. Smiley. James Jordan and Samuel M. Mar.tin were also defendants, as subsequent mortgagees. John W. and Lucy A. Smiley made no answer. Samuel M. Martin and James Jordan filed their separate cross-petitions for the foreclosure of their respective mortgages, but made no defense to plaintiff’s claim. The defendants Joel F. and Amanda E. Lacy filed an answer, alleging that they moved with their effects into their house, on a part of said mortgaged premises, ■on February 10, 1872; that from such date they had been the sole occupants of sixty acres of the land; that it was their homestead; that they were the owners of the same in law and ■equity; that at the time of the execution of the mortgage to plaintiff, they had in actual cultivation on the sixty acres occupied by them, thirteen acres, a house 14x16, one story and a half high, one hundred fruit and ornamental trees, stable, etc. Said defendants asked that the mortgage on their land be held for naught, and duly canceled. The plaintiff filed a general denial to the answer of the Lacys.
The case was tried at the December term.of the district court for 1878, by the court without a jury.
The land in controversy was a part of the lands provided for in art. 16 of the treaty of September 29, 1865, with the Great and Little Osage Indians; and the first act of congress under which any of these lands were sold, was the act of July 15, 1870. By virtue of the provisions of the act of congress' of May 9, 1872, the land became subject to the preemption laws of the United States.
As conclusions of fact, the court found that John W. Smiley and Joel.F. Lacy were both settlers on the quarter-section of land in controversy, previous to its entry, and that they agreed verbally that John W. Smiley should furnish the money and enter the land at the United States land office; and in consideration that Lacy would not interfere with his entry, he would, after his entry, deed Lacy the sixty acres upon which he had his improvements, on the. east side of the quarter. Smiley afterward entered the land, and then made the deed of the sixty acres to Lacy ih pursuance of the contract; but before executing the deed, he executed the mortgage in suit, without’ the knowledge or consent of Lacy. Lacy was in actual possession and occupancy .of the land at the time the-mortgage was executed.
As conclusions of law, the court found that the verbal contract between Lacy and Smiley was binding and valid; that Trezise was charged with notice of the same by the fact of Lacy’s occupancy and possession, and thereupon rendered judgment in favor of the Lacys, decreeing the mortgage void as to said sixty acres. ■
The decision of the court was erroneous in this. While' the findings of fact show that the Lacys had actual possession and occupancy of the premises at the execution of the mortgage, the findings fail to show that such possession and occupation were exclusive, or resulted from a right based upon exclusive property in and dominion over the premises. On the other hand, it clearly appears from the findings that John W. Smiley was also a settler on said quarter-section of land ; that Joel F. Lacy consented and authorized John W. Smiley to represent himself as the sole occupant of the premises;, consented and authorized him to hold himself out to the world. as the inhabitant and actual possessor of all the improvements, including the dwelling-house: because all of these admissions and authorizations were involved in the agreement between Smiley and Lacy, that Smiley should furnish the money to pay for the preemption of all the land, and that he should enter it in his own name in the United States land office, and the subsequent entry of the land and the payment of the same in accordance with the arrangements of the parties. Smiley proved up and paid for the land, on Jan. 9,1877. On the same day he executed the mortgage to Pryor. The money obtained from Pryor was used to pay for the premises. So, instead of the possession of Lacy being exclusive at the time of the execution of the mortgage, it was enjoyed with Smiley, but in such a manner as to be subordinate to the will of the latter. Instead of such possession being open and notorious in Lacy, it was purposely concealed by him, to enable Smiley to prove up the land in his own name. To the public, to the United States, of whom Smiley obtained the fee, the possession of Lacy was the possession of Smiley— and all this with Lacy’s consent. Under these circumstances, the possession of Lacy, set forth in the findings of fact, was not of that character to put Pryor or his assignee, this plaintiff, on further inquiry, or which bound such parties to take the mortgage interest in the property, subject to the equities of Lacy, if he had any equities on January 9th. A person cannot play “fast and loose,” and expect his conduct to gain the favorable approval of a court of equity. We' call that equity which, in human transactions, is founded in natural justice, in honesty and right. The conduct of the defendant is at least questionable, to use mild language, and upon exact justice, honesty and right, has little to commend itself to the judicial mind. (Warren v. Van Brunt, 19 Wall. 646.)
The judgment of the district court, holding the mortgage sued on void as to the sixty acres claimed by the Lacys, will be reversed, and the case remanded with directions to that court, upon the findings of fact, to subject said premises to the payment of the note secured by the mortgage.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
In each of these cases, judgment is claimed against William A. Simpson and Joseph J. Crippen, for the sum of $7,500, together with interest, and for an order on the receiver, James S. Crew, directing him to pay such judgment ratably with other claims admitted against the partnership. Practically, the same questions are involved in these as in the case of The Meredith Village Savings Bank v. Wm. A. Simpson, et al., supra, and under the authority of that case and the principles there stated, these cases will also be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant was convicted, in the district court of Wilson county, of the crime of grand larceny, and from such conviction appeals to this court. The larceny was of a horse. An accomplice turned state’s evidence. In support of his testimony, an officer testified that this accomplice told him where defendant’s camp was to be found, and guided him thereto; also, informed him from what place, a town in Missouri, the horse had been taken, guided him thereto, and disclosed the owner. When the officer commenced his testimony, the defendant objected to any evidence of “the acts or declarations” of this accomplice, which objection was overruled ; and after he had finished, defendant moved to strike out all the “testimony relating to the acts and declarations” of such accomplice, which motion was also overruled. This ruling is the error alleged. Conceding that pending the commission of an offense the acts and declarations of either party engaged therein are competent evidence against the other, counsel insist that when the offense is consummated the declarations of neither party as to what had previously been done are admissible against the other; such testimony is mere hearsay. Doubtless this proposition is true; but the record does not show that the district court ruled to the contrary. Neither objection nor motion ran to declarations concerning past transactions alone.. They were general to all acts and declarations. Now many acts and many declarations were proper matters of proof. Evidence that the accomplice had possession of the horse, that he offered it for sale, that he sold it, that he led the officer to the place and person whence and from whom the animal had been taken, was-all competent, as well as his declarations accompanying and explanatory of these acts. This was but part of the res gestas, or matter showing knowledge of and connection with the crime on the part of the accomplice. What he did in carrying out the crime, and what he said accompanying and explaining such acts, was clearly admissible, and an objection which covered all such matters was properly overruled. An objection, to be available, should generally run to the specific matter alone, which is objectionable, and is not good when it runs to matters, some competent and some incompetent. Thus, in an action by an administrator, the opposing party may not testify as to transactions had personally with the administrator’s intestate. As to other matters he is a competent witness. An objection to-his testifying at all in the case, would properly be overruled, because some of his testimony might be competent, and the court is not to presume that he will give incompetent testimony. To render the ruling of the court erroneous, the objection should be made specifically to evidence of transactions with the intestate. So here, no objection or motion was made which ran alone to objectionable testimony, and therefore the court committed no error in its ruling. Nor in this case is this a mere technical ruling. For of the testimony actually given by the witness, there is but a single statement or two that was not clearly competent: as where he testifies that the accomplice told him that defendant sent him into town to sell the horse. This might be considered a statement of a past transaction; but in view of the other testimony in the case, this seems but of trifling importance, and as the ruling of the court was technically correct, we think we should not be warranted in disturbing the conviction on this ground.
So far as the form of the judgment is concerned, we do not see that any substantial rights of the defendant are prejudiced thereby. No other questions being presented, the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The fees charged and originally allowed to the sheriff, in the case of the board of county commissioners of Allen county against lot four in block three in the city of Iola, Allen county, and other property and the owners thereof, were excessive and unauthorized by law. The statute under which these-proceedings were had prescribes that upon a hearing by the court, it shall be the duty of the court to investigate and decide what taxes have been legally assessed and charged on the lands, lots and pieces of ground named in the petition, and to render judgment therefor, together with the interest and penalty thereon, as provided by law, to the date of such judgment, and charge the same as a lien on said land, lot, or piece of ground, and to order the sale of the same for the payment of such taxes, interest and penalty, and the cost of such proceedings and sale, which sale shall be made and conducted in all respects as sales upon execution. (Laws of 1877, ch. 39, §1.)
The only writ issued in cases of this character to a sheriff, and the writ on which the charges were made in this case, was an order of sale of the lots and pieces of ground on which certain taxes were declared a lien. The writ conformed to the judgment and order of the court, and under it the sheriff was only required to appraise and sell as upon execution the specific property therein mentioned. He had no levy to make, and there was no service to be made on any person; so the fees claimed for serving the parties and the several tracts of- land were unwarranted.- We also think that the statute allows to the sheriff the sum of fifty cents only for the appraisement, ■fifty cents for the advertising, and fifty cents for the offering for sale or the selling of the property named in the writ or levied upon under an execution,-and not fifty cents for each piece of property. The reference by the statute is to all the property to be disposed of under a single writ, and not to each separate piece of real estate or each article of personal property to be sold thereunder. (Laws of 1875, ch. 97, §1.)
The charges for mileage in serving the order of sale and making the appraisement were properly disallowed. As .above stated, no service had to be made on any party, and hence no fees could be charged for such acts.
The order and judgment of the district court in retaxing the fees and costs will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, brought by Peter Gardner against A. H. Williams and J. F. Naylor, for the recovery of a mare and a saddle. The action was commenced before a justice of the peace of Jackson county, where judgment was rendered in favor of the plaintiff, and against the defendants. The defendants then took the case to the district court on petition in'error, where the judgment of the justice was affirmed; and the defendants in the justice’s court (plaintiffs in error in the district court) now bring the case to this court on petition in error, and ask that the judgments of both the district court and the justice’s court be reversed.
At the time the plaintiff (defendant in error) commenced his action, he filed with the justice an affidavit for the replevin, and also a bill of particulars; and upon these papers the justice issued a summons, including an order to the officer executing it, to seize the property in controversy and deliver it to the plaintiff. (Gen. Stat., p. 789, § 58; Hannum v. Norris, 21 Kas. 116.) The summons was duly served upon the defendants, but the property could not be found, and hence was never taken under the writ. On the return day of the summons, and at the time set for the trial of the cause, the defendants made a special appearance, and moved the court to set aside the service made in the case, and to dismiss the action because of certain supposed defects and irregularities in the papers in the case. The court overruled the motion, and the defendants excepted. The defendants made no further appearance in the case. The plaintiff then proceeded with the trial; but as the property in controversy had not been taken by the officer, he proceeded with the trial as an action for damages only, and recovered a judgment for $58 damages, and costs.
The defects in the plaintiff’s papers, as the defendants alleged them to be and set them forth in their said motion, are as follows:
“ 1. The affidavit filed by the plaintiff in this case is irregular, and does not state facts sufficient to confer jurisdiction upon this court to issue summons in this action.
“2. This court has no jurisdiction of the subject of this action, or of the persons of the defendants.
“3. The summons issued in this case is irregular, and void upon its face.
“4. For other defects and irregularities appearing upon the face of the papers in the case.”
It is not now claimed that either the summons or the bill of particulars, as a summons and bill of particulars in an action of replevin, is or was in any respect defective. Indeed, they were amply sufficient. But it is still claimed that the affidavit for the order of delivery is insufficient, and the defendants (plaintiffs in error) now point out what they consider to be the fatal and incurable defects therein. This they did not do, or at least it does not appear that they did it, in the justice’s court. The defects now pointed out by the defendants are as follows:
1. While the plaintiff states in his affidavit that-he has a special ownership in the property in controversy, that he is entitled to the immediate possession thereof, and that the defendants wrongfully detain the same from him, and while he also states that his special ownership is derived from a written agreement between himself and one Thomas Cline, giving to the plaintiff the property to hold as a pledge and a security for $60 borrowed of the plaintiff by Cline, yet the plaintiff does not state in his affidavit that Cline ever owned the property, or that either he or Cline ever had the possession thereof; and he does not give any copy of the said written agreement.
2. And while the plaintiff states in his affidavit that the property was not taken for the payment of any tax, fine or amercement assessed against him, or by virtue of an order issued in replevin “ or any other mesne of final process,” yet he does not state therein that the property was not taken in execution on any order or judgment against him, or if so taken on execution, that it was by statute exempt from seizure; nor does he state that it was not taken on “any other mesne or final process issued against him.”
We think the affidavit was informal and defective in the respects substantially as pointed out by the defendants; but still we do not think that it was so defective or informal as to be void. We think that the justice of the peace had jurisdiction to issue the summons, and that the summons was valid. If the action had proceeded to the end as one of replevin, we think the justice, upon proper motion being made therefor by the defendants, should have required the plaintiff to amend his affidavit so as to make it correspond strictly with the requirements of the statute; and if the plaintiff had then failed to so amend (and only in that case), then the justice should have dismissed the action. But the action did not proceed to the end as an action of replevin. The officer failing to find the property in controversy, the action was converted into one for damages only, and as an action for damages, no affidavit of any kind was required; and therefore we do not think that the court erred in overruling said motion.
Said affidavit contains “mesne of” instead of “mesne or,” but any one can understand what was meant; and if the property was not taken under any “mesne or final process,” it could not have been taken “in execution on any order or judgment;” (Auld v. Kimberline, 7 Kas. 601, 607;) and while the affidavit defectively states how plaintiff’s special ownership of the property was derived, yet it also states positively and absolutely that he had a special ownership in the property. It was not absolutely necessary that the plaintiff should give a copy of said written agreement in said affidavit.
The affidavit was merely irregular, and not void; and all the other proceedings in the case were entirely regular. Hence, the justice had jurisdiction both of the parties and of the subject-matter of the action, and the right to hear and determine the case; and hence the defendants could not ignore the proceedings as nullities, but they were bound to appear and defend if they had any defense.
The affidavit related to the action wholly as an action of replevin, and when the action ceased to be one of replevin, and became one for damages merely, the- affidavit became a very unimportant paper in the case. It was probably necessary that the affidavit should be sufficiently regular so as to give to the court jurisdiction. But when the court acquired jurisdiction, and the action was converted into one for damages only, it then became entirely immaterial how irregular the affidavit was. It was no longer necessary that the affidavit should be amended so as to make it comply strictly with the statutes, or that the case should be dismissed, for an affidavit is not required at all in an action merely for damages.
But it is claimed that if we treat the action as one for damages only, then the summons was not sufficient; that it was defective in not having the amount for which the plaintiff would take judgment in the action in case the defendants did not appear indorsed on the summons, as required by §11 of the justice’s act. (Gen. Stat., p. 777.) But for the purposes of obtaining jurisdiction, this was an action of replevin, and the statutes do not require that any such indorsement should be made on a summons in replevin. With an ordinary summons in replevin, the court acquires jurisdiction of the parties whether the property is taken or not. And when the court obtains jurisdiction of the parties, it may proceed with the case as one for damages only, although no amount is indorsed on the summons, under the following statute, which reads as follows, to wit:
“Where the property claimed has not been taken, the action may proceed as one for damages only, and the plaintiff shall be entitled to such damages as may be right and proper.” (Gen. Stat., p. 790, § 67.)
But the defendants were substantially informed on the face of the summons in this case for what amount the plaintiff would or might take judgment. A judgment in replevin is for the property itself, or for the value thereof or the value of the possession in case the property itself cannot be obtained, and for damages. (Laws of 1870, p. 184, § 6.) And the summons in this case showed that the value of the property in controversy was $73. Judgment, however, was ren dered for only $58 and costs. The bill of particulars was full and ample in this case; and as the summons contained everything that the statute requires, the defendants were bound to look into the bill of particulars if they desired to know anything further with respect to the plaintiff’s claim. And if the summons and the bill of particulars taken together authorized a judgment to be rendered, which the defendants believed to be unjust or wrong, it was the duty of the defendants to make a defense to the action. Probably no injustice or wrong was done the defendants in this case. Probably they could not and should not have caused a different judgment to be rendered if they had made all 'the defense that they possibly could to the action.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a promissory noteEirey, the plaintiff, filed his petition in the court below on December 11, 1876, against Tefft as maker and Auld as indorser of the note. Summons was duly issued, and served on both defendants on the same day. Both defendants were required to answer on or before January 2, 1877. Aulji answered on January 5, 1877, and Tefft did not answer at any time. On March 16, 1877, Tefft. filed his petition for adjudication ás a bankrupt, in the-district court of the United-States, and was afterward duly adjudged to be a bankrupt-On October 31, 1877, he was duly discharged by said court from all debts and claims provable against his estate, as a bankrupt, and his certificate of discharge was duly issued to him. On February 4, 1879, this case was regularly called for trial in the court below. Trial was had between Firey and Auld, which trial resulted in a finding and judgment for Auld. Firey then produced said note, and asked for a judgment thereon against Tefft, who then asked leave of the court to file an answer in the case forthwith, and not to delay the trial, setting forth in his answer the said discharge in bankruptcy, giving a copy thereof. But the court refused to permit the answer to be filed, and Tefft duly excepted. Tefft then asked leave to file said discharge, and to introduce the same in evidence; but the court refused, and Tefft again excepted. The court then rendered judgment on the note against Tefft, who again excepted. Tefft then' moved for a new trial (a strange proceeding where judgment is rendered on a default), and again presented said discharge; but the court overruled the motion, and Tefft again excepted. Tefft again presented to the court his certificate of discharge, and asked that the court enter his discharge from all liability on the said judgment rendered against him, and also asked that the court order that there be indorsed on said judgment the following words, to wit: “Discharged by virtue of the bankrupt law;” but the court refused, and Tefft again excepted. He now brings the case to this court for review.
There can be no question upon the facts of the case as now presented, that Tefft was on October 31, 1877, by virtue of said bankruptcy proceedings, duly discharged from all liability on said promissory note, and consequently that, with proper diligence on his part in-showing such discharge, no judgment should, or properly could, have been rendered against him on said note. But whether Tefft used proper diligence or not, ■was the material question in the case in the court below. That is, did he take the proper means in the court below to show that he was discharged from all liability on said note? That question, however, is not the only question presented in this court. If this court shall decide that the court below might, or even should, have permitted-said answer to be filed, then the more difficult question arises: Did the court below abuse its discretion in refusing to permit said answer to be filed? (Code, § 106.) The statutes of Kansas with reference to discharges from debts and judgments on account of bankruptcy proceedings read as follows:
“Section 1. That in any action pending before any of the courts of this state, on any contract provable under the act of congress hereinafter mentioned, when it is made to appear by the affidavit of any party to any such action, and the certificate of the register in bankruptcy, or the clerk of a district court of the United States, that such party has presented his petition to the proper court for a discharge under the act of congress, approved March 2, 1867, entitled ‘An act to establish a uniform system of bankruptcy throughout the United States,’ it shall be the duty of such court to continue all further proceedings against such person or persons, until the question of the debtor’s discharge shall have been determined.
• “Seo. 2. That in any action in which any judgment has been or may hereafter be rendered against any person or persons in any of the courts of this state, and such person or persons shall have applied to the proper court for his or their discharge under the act of congress, approved March 2,1867, entitled ‘ An act to establish a uniform system of bankruptcy throughout the United States,’ and shall file his or their affidavit or affidavits of such fact, with the certificate of any register in bankruptcy, or the clerk of the district court of the United States, it shall be the duty of the court to make an order in such case that no execution, order of arrest, or other process shall issue on the same, and no sale of lands or personal property shall be confirmed, but the same shall be set aside and held for naught.
“Sec. 3. That in any case in which any person or persons has been or may hereafter be discharged from his debts under and by virtue of the act of congress approved March 2,1867, entitled ‘An act to establish a uniform system of bankruptcy throughout the United States,’ and shall produce a certificate of discharge, as provided for by said act, to the court in which any judgment is of record, it shall be the duty of any such court to enter a discharge of any such person from any and all liability thereon, and the court shall order to be indorsed on the record of said judgment, the following words: ‘Dis charged by virtue of the bankrupt law.’ And thereafter any such judgment shall be deemed fully discharged and satisfied.” (Comp. Laws of Kansas, 1879, p. 116.)
What was done in this case from January 5, 1877, (the time when Auld filed her answer,) up to March 4, 1879, (the time when said trial was had, and said judgment rendered,) is not shown. Whether the court was at any time during that time in session or not, whether the case was at any time called or not, whether it was at any time continued or not, and if continued, by whom, and upon what grounds, or whether any proceedings were had in the case under §1 of said statutes of Kansas, or under, any other law, does not appear. All that we can now know concerning the case, we have already stated.
Up to January 2, 1877, the last day within which Tefft had a right to answer, he had no defense to the action, and therefore very properly refrained from answering. His default was therefore meritorious, instead of being censurable or negligent; and he should certainly lose nothing by such default. From January 2, 1877, up to March 16,1877, (the time when Tefft filed his petition in bankruptcy,) the plaintiff, Firey, had a right to take judgment against Tefft on said default, without trial and without evidence; and the entering of the judgment would have been a merely formal matter — as purely formal as the entering of a judgment upon the verdict of a jury, or upon an agreed statement of facts, after the submission of the case thereon to the court; and if any such judgment had been rendered, Tefft could have come into court at any time after his discharge in bankruptcy, and have had such judgment discharged, as provided by § 3 of said statutes of Kansas. But no such judgment was rendered at that time. On March 16, 1877, Tefft filed his petition in bankruptcy, and still no judgment was rendered. Why all proceedings were still delayed is not shown. Possibly they were stayed under § 1 of said statutes; but whether they were so stayed or not, is not shown by the record, and it is wholly immaterial. On October 31, 1877, Tefft received his final discharge in bankruptcy, and still the proceedings were delayed; but why, is not shown. Up to October 31, 1877, Tefft’s default was not only excusable, but was justifiable; for up to that time he had no defense to the plaintiff’s action. But after that time, both parties still delayed to take any action in the case. Firey neglected to take or ask to take a judgment, and Tefft neglected to file or ask to file an answer. Thus, the condition of the case remained until February 4, 1879, when Firey asked for a judgment, and Tefft asked leave to file his answer.
This is all there is of the case. Tefft neglected to file or to ask to file his answer from December 11,1877, up to February 4, 1879. But a portion of this neglect was justifiable and meritorious. Firey neglected to take judgment from January 2, 1877, up to February 4,1879, but as to a- portion, at least, of that time, his neglect was probably beneficial to him; for, as we have already seen, if his judgment had been rendered at any time prior to the commencement of the proceedings in bankruptcy, the judgment would certainly have been discharged by the final discharge in bankruptcy. With this view of the case, (the view that a judgment rendered at that time would have been discharged, but that a cause of action, or a suit pending on such- cause of action, would not have been so discharged,) a judgment rendered at that time would not have been as valuable to Firey as the suit pending on said promissory note. But as the judgment was due long before any bankruptcy proceedings were commenced, and as the rendering of the judgment would have been merely a formal matter, without a trial and without evidence, it may be asked: Should we not consider the case very much in the same way that we would if said judgment had been rendered at the time it was due? And should we not consider the judgment, actually rendered on February 4,1879, as relating back to January 2, 1877, the time when it was first due, and as being of about the same value as it would have been if it had been rendered when it was first due? That is, although a judgment cannot relate back so as to become a lien on real •estate from the time it might have been rendered, yet, should it not relate back so as to be of no more value to the plaintiff, who could take judgment whenever he chose, than it would be if it had been rendered when it ;was first due? This is the most favorable view of the question that can be taken on the side of Tefft. And taking this view, or considering the question in this light, it would seem that the court below should have’ permitted said answer to be filed. Indeed, from the facts as they are presented to this court, each of the judges ■of this court believes that the court below in its discretion •should have permitted said answer to be filed. Said § 3 of the Kansas statutes by its terms applies to “any judgment.” It applies in terms to the judgment rendered against Tefft in this case, and would apply in terms to any judgment that •could have been rendered against Tefft therein. It applies in terms to any judgment which might be rendered pending proceedings in bankruptcy, or that might be rendered after ■the bankrupt’s final discharge, even on a cause of action •accruing after such discharge, as well as to judgments rendered prior to the commencement of proceedings in bankruptcy. Hence, to say that the statute does not apply to the present case, is to limit its terms, or, perhaps, properly speaking, to limit its operation in some cases, where by its general terms it would have full scope. We think the statute must be limited in its operation in some cases where it would ■seem by its terms, or at least by a portion of its terms, that it should have operation. Thus, although the statute would ■seem by its terms to apply to a judgment rendered after the bankrupt’s discharge, and on a cause of action accruing after ■such discharge, yet we cannot think that such was the intention of the legislature, or that such can be the effect of the ■statute. The true intent and spirit of the statute are, notwithstanding its terms, merely to discharge and relieve the bankrupt from such of his debts only as the national bankrupt law would discharge .and relieve him from. This is hhe only reasonable view of the statute; and the requirement of the statute, that the words, “discharged by virtue of the bankrupt law,” shall be indorsed on the judgment, shows' that this is the correct view. We would therefore think that said § 3 of our Kansas statute would not apply to the-judgment rendered against Tefft in the present case> ^ gee jSrati0na.l Bankrupt Law, U. S. Rev. Statutes, pp. 992, 993, §§5115 to 5119.) For, as before-stated, said judgment was not rendered until long after Tefft received his full discharge in bankruptcy.' We know that the operation of the terms of a statute should never be-limited within narrower bounds than the terms of the statute would themselves prescribe, unless the case coming-within such terms clearly does not come within the spirit of the statute, or within the intention of the legislature. The-spirit of the statute and the intention of the legislature must govern in all cases when they can be ascertained. And here,, from the object of the statute, the thing to be attained, the-purpose to be subserved, and the language of the statute preceding and following the words, “any judgment,” we know what the intention of the legislature was and what the spirit of the statute is. -But from the fact that the legislature used-such broad and general language in said statute, saying “any judgment,” when it in fact merely meant any judgment discharged or released by virtue of the national bankrupt law,, we would think that the legislature intended that the courts-of the state should not throw any unneceseary obstacles in the way of a bankrupt’s being discharged from debts, from-which, by virtue of the national bankrupt law and proceedings thereunder, he had been properly discharged. Hence,, for this reason, among others, we would think that the court below should have permitted said answer to be filed. But-can this court say that the district court abused , _. . . . As discretion m refusing to permit said answer to-be filed? We can nearly say so, but not quite.. The code of civil procedure provides, among other things, as-follows:
“Sec. 106. The court, or any judge thereof in vacation,, may, in his discretion, and upon such terms as may be just,. allow an answer or reply to be made, or other act to be done, after the time limited by this act, or by an order enlarge such time.” (Comp. Laws of 1879, p. 616.)
“Sec. 144. Either party may be allowed, on notice, and on such terms as to costs as the court may prescribe, to file a supplemental petition, answer or reply, alleging facts material to the case, occurring after the former petition, answer or reply.” (Comp. Laws of 1879, p. 619.)
As will be seen from § 106 of the code, the whole matter rests within the discretion of the trial court. Was that discretion abused? On October 31,1877, Tefft was discharged as a bankrupt, and his defense to this action then became complete. He might have appeared on that day before the district court, or the judge thereof, and have asked to file an answer in the case, setting up his said defense of a discharge in bankruptcy. He was then in default. And then was a very proper time to ask to be relieved from such default. But he did not appear. He did not appear at that time, nor at any other time prior to February 4, 1879. Why did' he not appear sooner? Why did he delay the matter so long? And when he did appear, why did he not account for or make some excuse for this great delay? For over fifteen months he slept upon his rights, without the slightest excuse therefor, so far as the record of the case shows. This was inexcusable negligence; and although the plaintiff was equally negligent in his great delay in taking judgment, still we cannot say that the court below abused its discretion in finally, and on February 4, 1879, refusing to permit the defendant Tefft to file an answer, and in then rendering judgment in favor of the plaintiff and against the defendant Tefft, for the amount of said note. Entertaining these views, the judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The claim of counsel for the defendant is, that the ruling of the district court denying a temporary injunction to restrain the sale of the real estate of the plaintiff under the execution issued against John W. Crawford, et al., was not erroneous, for the reasons: First, That an action was pending to foreclose a lien when the plaintiff purchased the premises in controversy,, and as she was charged with notice of this action from the date of the filing of such petition, she could not acquire any title or interest against the lien; and second, that as she was a party defendant in the action of Wiebe v. Crawford, et al., she ought to have obtained, if she was entitled thereto, her injunction in that suit, and that, if she ever had any legal or equitable rights to the land levied upon, she had lost them by her own laches. These reasons are not sufficient. The pendency of the action of Wiebe v. Crawford would not prevent a sale of the premises to a party purchasing in good faith and for a valuable consideration. A lien for the erection of improvements cannot be created on a homestead in any manner different from its creation upon any other real estate. A homestead may be sold on an execution for purchase-money, or for the erection of improvements; but the judgment rendered for such purchase-money, or for the erection of improvements thereon, is no more a lien on the homestead than it is on any of the other real estate belonging to the judgment debtor. It certainly is no lien on property sold in good faith prior to the first day of the term of the court at which such judgment was rendered. (Greene v. Barnard, 18 Kas. 518.)
At the time the action of Wiebe v. Crawford, et al., was commenced, no attempt had been made by Wiebe to comply with the mechanic’s-lien law, and no lien for the erection of improvements existed on the property. The attempt to foreclose the pretended lien for the erection of improvements failed (as it ought to have done), as there was no lien to be foreclosed. Only a personal judgment was rendered for the amount due on the promissory notes against John W. Crawford, the maker of the notes, and only an ordinary execution was issued. On such an execution, the defendant in this case, as sheriff, after exhausting the personal property of said J. W. Crawford subject to execution, might have levied on the real estate of said judgment debtor; and had there been no valid sale of his homestead before the first day of the term at which the judgment was rendered, he might have levied on said homestead. The sale to the plaintiff deprived-him of the right of such levy. The plaintiff in this action was not compelled to ask for any order of injunction in the suit of Wiebe v. Crawford, et al. To protect her rights, she appeared voluntarily in that case and filed her answer, asking that the prayer of said Wiebe for a lien on the premises should be refused. She was successful in her application. Only a personal judgment was rendered. The court, it is true, found as conclusions of law certain matters tending in some degree to carry out the theory of counsel for defendant, that the sum sued for was a lien on the premises, but no order was made for the sale of the real estate, or for any application of the proceeds thereof; nor were such conclusions of law embodied in the judgment, nor was this plaintiff in any way enjoined or barred from setting up and claiming, the interest and title to the property which she asserted in her answer. Under these circumstances, she has nothing to complain of. in the judgment rendered against J. W., Crawford. Neither, does that judgment give any authority to the defendant, as sheriff, to levy upon and sell the property of this plaintiff on an execution issued against the property of said J. 'W. Crawford.
The order and ruling of the district court will be reversed, and the case remanded with directions to said court to grant said temporary injunction to restrain the defendant from selling the land of the plaintiff, under the execution issued against the property of John W. Crawford.
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The opinion of the court was delivered by
Valentine, J.:
This action was brought April 24,1877,. by J. C. Johnson against E. Husband and W. A. Short, on a promissory note for $170, dated July 22, 1876, due October 1, 1876, payable to the order of Platter & Crew, indorsed,, when made, by Short, and indorsed on August 20, 1876, by Platter & Crew to the plaintiff Johnson.
The defendants set forth in their answer, as a defense to-the action, that the only consideration for said note was two-horses purchased by Husband of said J. C. Johnson and ~W. V. Platter, and N. S. Crew; that the horses were purchased for work on Husband’s farm, which the vendors at the-time well knew, and stated that the horses were all right (except a cold), which statement Husband relied upon, and in consideration thereof made the purchase; that the horses, however,, were not all right, that they had a contagious disease which-rendered them worthless, which the vendors at the time well knew, and which Husband did not know; that said horses communicated said disease to a large number of other horses belonging to Husband, which rendered those other horses also-worthless; that Husband expended a large amount of time, money and labor in doctoring and taking care of these horses r and that he sustained damages by reason of the foregoing facts to the amount in the aggregate of $2,500, for which amount he asked judgment. The defendants also set forth in their answer that Short signed said note as a guarantor only,, and that he did not receive any part of the consideration for the note. The plaintiff’s reply was a general denial. A trial was had before the court and a jury, and the verdict and judgment were rendered in favor of the defendant Husband, and against the plaintiff, for $781.73 and costs. To reverse this judgment, the plaintiff now brings the case to this court, on petition in error.
The record is voluminous, and many questions are raised, but we hardly suppose that it is expected that we shall go' into elaborate detail in the discussion of, all of them.
The plaintiff claims that the court below committed material error in the admission and rejection of testimony. Whether it did or not, we shall not stop to inquire, but shall pass to the next questions.
The plaintiff also claims that the court erred in its instructions to the jury. Neither shall we stop to consider this question. Eor, even if the court did err as is claimed, we would think that, with the view the jury took of the case, the error was immaterial.
The plaintiff also claims that the court below erred with reference to the special findings of the jury. This question we shall examine more at length. It appeared on the trial of the case in the court below, that said horses were sold by Johnson, Platter and Crew to Husband, on July 22, 1876, for $320, and that Husband gave two promissory notes therefor, one of which he afterward paid, and the other is the one now sued on. The plaintiff admitted on the trial that said horses were diseased at the time of said sale, and that the vendors knew it. He admitted that the horses had a cold, and that they also had the distemper, and that the distemper was and is á contagious disease, and that the vendors at the time of the sale well knew all of these things. But he claimed that Husband also knew these facts; that Husband himself carefully examined the horses, and that he was also informed by the vendors and by other persons that the horses not only had a cold, but that they also had the distemper. Husband, however, claimed at the trial that the disease which the horses had at the time of the sale was worse than a cold, and worse than the distemper, and that the vendors knew it, but that they falsely and fraudulently represented and stated that the horses had nothing worse than a cold. Therefore, whether the horses had at the time of the sale some disease worse than the distemper, and whether the vendors knew it at that time, or not, were two very important questions of fact in the case. For the purpose of ascertaining the opinion of the jury upon these questions, the plaintiff requested the court to submit to the jury the following special questions, to wit: “ 1. What, if any, disease did the horses have at the time of sale ? 2. Did the sellers know what disease the horses had when sold?” The court below submitted the first of these questions to the jury, but refused the second, and in lieu thereof gave the jury the following: “Did the sellers know that the horses had, when sold, any disease?” To which the plaintiff duly excepted. The jury returned a general verdict in favor of the defendants, and answered said special questions as follows: To the first they answered, “A contagious disease;” to the second they answered, “Yes.” “The plaintiff objected to the answer of the jury upon the first particular question of fact submitted being received, as not responsive to the question, and requested the court to direct the jury to state specifically the name of the disease, or if they could not do that, then to state whether it was the disease known as distemper, or something else; which the court refused to do, and ordered the verdict and special findings to be filed by the clerk, and discharged the jury” — to all of which the plaintiff duly excepted. We think the court below erred. By this action of
^e court and jury the plaintiff was deprived of a substantial right given him by the statutes; (Laws of 1874, ch. 91 pp. 140, 141 § 1; Bent v. Philbrick, 16 Kas. 190; Cent. Branch U. P. Rld. Co. v. Hotham, ante, p. 41;) and by tbis action of the court and jury nothing was found by these two special findings, except what had already been admitted by the plaintiff himself on the trial. The plaintiff had the right to have special questions of fact submitted to the jury, and proper answers given to them — answers which would mean something in the case, and not such as would be merely a reiteration of what the plaintiff had already admitted. The answers should be such as would settle some disputed question between the parties.
The plaintiff also claims that the verdict of the jury for $781.73, damages, was the result of marking, aggregation and division, and that the verdict was procured in that manner in pursuance of a previous agreement to that effect made by the jury. On the motion for a new trial, the plaintiff read in evidence the affidavit of George Geisler,, one of the jurors, which affidavit states as follows:
“That the jury, in order to arrive at the amount of damages to be allowed to said defendant Husband, mutually agreed that each juror should set down such amount as he thought said Husband should recover for each separate item of damage claimed; that the several amounts thus obtained should be added together, the aggregated sum divided by twelve, and that the quotient thus obtained should be taken and accepted as the amount to be returned in the verdict of the jury 'as the damages sustained by the said Husband; . . . that such agreement was carried out, and the amount of damages returned by the jury in their verdict was obtained by such addition and division, and the quotient obtained was in all cases abided by on the part of said jury.”
Three other jurors agreed with Geisler (as their affidavits show) that the verdict was obtained as Geisler states that it was.
The defendants read in evidence on said motion for a new trial the affidavit of Daniel Lockard, a juror, which affidavit states that it was —
■ “Proposed that each juror should mark down the amount he thought the defendant ought to recover on each of. the separate items for which damages were claimed; that the several amounts for each item be divided by twelve, and the several quotients then added together, in order to see if they could get an amount upon which they could agree. That each item of damages was taken up separately, and in each case after the average was found as aforesaid the amount was adopted by vote of all the jurors; and after the several amounts had been so obtained, the said sums were added together, when it was proposed to deduct from the sum so obtained the amount of the note upon which this suit was brought, which after some discussion was done, and the balance was then agreed upon as the amount of damages to be awarded.”
Six other jurors agreed with Lockard, as their affidavits show, that the verdict of the jury was obtained as Lockard says that it was. But two of said six jurors, after making an affidavit stating that the facts were as Lockard ° state(* them to be, then made another affidavit stating that the facts were as Geisler stated them to be. We think this verdict ought to have been set aside. That it was obtained by marking, aggregation and division, is proved beyond all question. Whether it was obtained in pursuance of a previous agreement made by the jury, that the result finally obtained by such marking, aggregation and division should be the verdict of the jury, is not so clear. It is certain, however, that at least four of the jurors believed that it was so obtained, and these four evidently felt bound to abide by such result. Geisler’s affidavit was the first one made upon this subject. It was made on November 30, 1877, only four days after the verdict was rendei’ed. Lockard’s affidavit, which was the principal affidavit read on the other side, was not made until January 8,1878. Nine of the jurors made affidavits. Not one of them stated that the facts set forth in Geisler’s affidavit were not true, unless the facts as set forth in Lockard’s affidavit contradict the facts set forth in Geisler’s affidavit. Four of the jurors, including Geisler, made affidavits stating that the facts as set forth in Geisler’s affidavit were true; and Lockard himself, as shown by the affidavit of R. A. Lovitt, stated to Lovitt and another that the facts as stated in Geisler’s affidavit were true. Lovitt’s affidavit was not contradicted. We think the •court below erred in not setting aside this verdict. Some of the authorities upon this question will be found referred to in 9 U. S. Dig. (F. S.), 575, 576. That the affidavits of jurors, stating facts which do not essentially inhere in the verdict itself, may be received to overthrow or , set aside the verdict, see Perry v. Bailey, 12 Kas. 539. Many authorities may be found opposed to this doctrine, but still we think this is the better doctrine.
There are some other questions in this case, but we do not .think that it is necessary to consider them. The judgment ■of the court below will be reversed, and cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by James C. Hotham against the Central Branch Union Pacific Railroad Company, to recover damages alleged to have been sustained through the negligence of the railroad company in permitting sparks to escape from its engines, whereby certain hay belonging to EEotham, stacked near the railroad track, was burned and destroyed. Judgment was rendered in the court below in favor of Hotham, and against the railroad company, for $130; and the railroad company now brjngs the case to this court for review.
Every question of any importance presented in this case has already been considered by this court in other cases, and hence we shall be very brief in the discussion of the questions now presented. We might also here say that many of the questions now presented are futile.
As a preliminary question, the defendant in error Hotham claims that the record brought to this court shows that the motion for a new trial made in the court below was not filed in the case in proper time. The record however does not show any such thing; but on the contrary, it seems to show that the jury was impanneled, trial had, verdict and judgment rendered, motion for a new trial made, filed, argued, and overruled, all on the same day.
We shall group the numerous questions raised in this ease, and consider the same, under four heads: 1. The ownership of the hay; 2. The value of the hay; 3. Negligence on the part of the defendant below, plaintiff in error; and 4. Contributory negligence on the part of the plaintiff below, defendant in error.
I. All the evidence in the court below, applicable to the question of the ownership of the hay, showed that the hay belonged to the plaintiff Hotham, and the court below erred as against Hotham, if it erred at all, with reference to this question, in submitting the question of the ownership of the hay as a doubtful question to the jury. The case of Powers v. Clarkson, 17 Kas. 218, can have no possible application to this case.
II. The court below erred in allowing the plaintiff to testify that the hay was worth $J¡. per ton to him. He did not testify with regard to the market value of the hay, or that it had any market value, and he did not state that he even knew what the market value was. We think, however, that the error was rendered immaterial and harmless by the other evidence and the findings of the jury. The other evidence showed that the hay was worth from $3 to $3.50 per ton, and the jury found that it was worth $3.25 per ton.
III. The evidence.showed and the jury found that the engine from which the sparks escaped which caused the fire, was a first-class engine, in good order and good condition, and supplied with all the most approved appliances for preventing the escape of sparks or fire. The engineer who had charge of the engine at the time the fire was produced, was also a careful, competent and trustworthy engineer. But the jury found that on the day the fire was caused, the engine was mismanaged, and although the evidence is seemingly weak to support such a finding, still we cannot say that the evidence is insufficient. The finding was probably correct. The hay was stacked in five separate stacks, from one-half to three-fourths of a mile distant from and north of the railroad track, and dry grass and stubble intervened all the way from the railroad track to the stacks, except that an ordinary .public road existed between the railroad track and the haystacks. The weather was very dry at the time the fire escaped, and it was also windy.
The question whether the defendant was guilty of any culpable negligence was fairly submitted to the jury, at least so far as the defendant’s rights are .concerned. If any error was committed in this respect, the error was against the plaintiff, and not against the defendant. The court charged the jury that the plaintiff could not recover unless the fire was caused by the negligence of the defendant; that the burden of proving such negligence rested upon the plaintiff; and that the mere fact that the fire was caused by one of the defendant’s engines, would not of itself raise any presumption of negligence against the defendant. Now in the light of some of the recent decisions, the correctness of the last proposition may be questioned. Spaulding v. Chicago & N. W. R. R. Co., 30 Wis. 110; B. & M. R. R. Co. v. Westover, 4 Neb. 268; Bedford v. H. & St. Jo. R. R. Co., 46 Mo. 456; Coale v. H. & St. Jo. R. R. Co., 60 Mo. 227; Illinois Cent. R. R. Co. v. Mills, 42 Ill. 407; Burke v. L. & N. R. R. Co., 7 Heiskell (Tenn.), 451; Ellis v. Portsmouth & Roanoke R. R. Co., 2 Ired. (N. C.) 138; Longabaugh v. V. C. & T. R. R. Co., 9 Nev. 271; Piggot v. E. C. R. R. Co., 3 C. B. (M. G. & S.), 229. These authorities hold that the mere fact of fire escap-. ing from the company’s engines is prima faeie evidence of negligence.
The court also substantially charged the jury that the defendant was required to exercise only ordinary care, and was not liable for anything less than ordinary negligence. Among ■others of a similar character, the court gave the following instruction:
“If the jury find from the evidence that the defendant did ■exercise ordinary care and precaution to prevent the injury in the use and operation of its said engine and cars, then the ■defendant is not guilty of negligence'nor liable for said burning.”
The jury not only found generally against the defendant, but found specially that the defendant was guilty of negligence. It found specially that the defendant did not “exercise due and ordinary care in the management of its said engine,” and that if it had exercised “ordinary prudence and caution” the fire would have been prevented.
IV. Unless the court below erred with respect to the plaintiff’s supposed contributory negligence, we do not think that it erred materially as against any substantial right or interest cf the defendant below. We shall therefore now pass to the consideration of the question whether the court below did commit any substantial error with regard to the plaintiff’s supposed contributory negligence. As we have before stated, dry grass and stubble extended all the way from the defendant’s railroad track to the plaintiff’s haystacks, except that an ordinary public road existed between the railroad track and the haystacks; and the plaintiff took no means to pror tect his hay from fires, except that he stacked it from one-half to three-fourths of a mile from the railroad track, and stacked it on the ground where the hay had been cut. The hay was made from wild prairie grass, and was stacked in the open prairie, on land not belonging to the plaintiff. The question of contributory negligence was as fairly presented to the jury, so far as the instructions were concerned, as the defendant had any right to expect. Indeed, the court erred in favor of the defendant and against the plaintiff in instructing the jury upon this question. The court charged the jury, among other things, that the plaintiff could not recover in this action for any injury to his hay, unless the jury were “satisfied by affirmative evidence” “that the said plaintiff was in the exercise of ordinary care and caution on his part to prevent such injury.” ' Now this instruction was entirely too favorable to the defendant, and was erroneous as against the plaintiff. Iq the absence of evidence tending to show either thM the ^plaintiff was negligent or not negligent, the court should have directed the jury to find, an(j £]je jury shou]cl have found, that he was not negligent. (K. P. Rly. Co. v. Pointer, 14 Kas. 38.) The court also instructed the jury as follows:
“If the jury find from the evidence that the plaintiff could, by the exercise of ordinary care, have prevented the injury to himself or property, and that the said plaintiff did not exercise ordinary care herein, then he cannot recover in this action.”
This instruction, we think, states the law correctly.
The defendant (now plaintiff in error) claims that the court below erred in refusing to permit the defendant to introduce evidence to show that the plaintiff was guilty of contributory negligence. The defendant also claims that the court below erred in refusing to permit the jury to find specially whether the plaintiff was guilty of contributory negligence or not. The writer of this opinion thinks that the court below erred in both of these particulars. Negligence is always a fact to be proved and found 0 J L . kke other facts. The broad, comprehensive and general fact of negligence is a fact. The minor and subordinate facts going to make up and constitute negligence, are facts. And the probative facts which merely go to prove the ultimate fact of negligence, or to prove some one or more of its constituent and subordinate facts, are also facts. The law does not attempt to define what particular facts or conduct shall constitute negligence, or prove negligence. It at most can only say that negligence is the absence of care, and leave the question for the jury to determine whether, under all the circumstances, due care has been exercised or not. Of course, it is the province of the court to determine whether the evidence offered or introduced tends to prove or disprove negligence. And if no evidence is offered or introduced tending to prove negligence, the court may itself decide that no negligence is proved, and direct the jury to find* accordingly. And where evidence is introduced, proving negligence beyond all controversy, and no countervailing evidence is introduced, the court may generally say that the negligence is proved. But in all cases where evidence is offered tending to prove negligence, the evidence must be admitted. And in all cases where such evidence is introduced, and the adverse party then seeks to rebut the same by introducing countervailing evidence, such countervailing evidence must be admitted. And when all the evidence offered is introduced, then, unless there is no evidence introduced to prove negligence, or unless the evidence introduced is all one way, and proves negligence beyond all controversy, the- question whether negligence is proved or not is a question of fact for the jury, and not a question of law for the court. In all cases where the facts constituting or tending to prove or disprove the negligence are disputed, the question whether such supposed negligence has any existence or not, is a question of fact for the jury. And even where there is no dispute about the facts in their details, still, if they are stated or proved in such limitless, cumbrous or diffusive detail that different minds of reasonable capacity might honestly differ with respect to whether they in fact constitute or prove negligence or not, the question as to whether they do in fact constitute or prove negli gence or not must be submitted to the jury as a question of fact. The inferences to be drawn from such numerous and cumbrous details, are inferences of fact and not inferences of law. We would refer to the following authorities, which show that the courts are not entirely harmonious upon the question of contributory negligence, some of them sustaining the foregoing views, and some not: K. P. Rly. Co. v. Brady, 17 Kas. 380, 384, et seq.; St. J. & D. C. Rld. Co. v. Chase, 11 Kas. 47, 56; Kesee v. C. & N. W. Rly. Co., 30 Iowa, 78; Garrett v. C. & N. W. Rly. Co., 36 Iowa, 121; O. & M. Rld. Co. v. Shanefelt, 47 Ill. 497, 505; Ill. Cent. Rld. Co. v. Nunn, 51 R. 78; C. & N. Rly. Co. v. Simonton, 54 Ill. 504; Coates v. M. K. & T. Rly. Co., 61 Mo. 38; Murphy v. C. & N. W. Rld. Co., 45 Wis. 222. See also, Flynn v. S. F. & S. J. Rld. Co., 40 Cal. 14; Fero v. B. & S. L. Rld. Co., 22 N. Y. 209; Cook v. Champ. Trans. Co., 1 Denio, 91; Kellogg v. C. & N. W. Rly. Co., 26 Wis. 223; Salmon v. D. L. & W. Rld. Co., 38 N. J. Law, 5; D. L. & W. Rld. Co. v. Salmon, 39 N. J. Law, 299; Phila., &c., Rld. Co. v. Hendrickson, 80 Penn. St. 182; Vaughan v. T. V. Rld. Co., 3 H. & N. 743.
In this state, the statute requires that “in all cases the jury shall render a general verdict; and the court shall, in any case, at the request of the parties thereto, or either of them, in addition to the general verdict, direct the jury to find upon particular questions of fact, to be stated in writing by the party or parties requesting the same.” (Code, § 286 ; Laws 1874, pp. 140, 141.)
The defendant in this case requested the court below to direct the jury to find specially upon various particular questions of fact, each of which questions was specifically set out in writing by the defendant, and several of which questions related to the general question of whether the plaintiff was guilty of contributory negligence or not. The defendant also in writing requested the court to direct the jury to find upon the following question of fact, to wit:
“Would a person in the exercise of ordinary care and caution, such as would be exercised by a prudent man, stack said hay in the place and under the conditions and circumstances that the plaintiff did in this case?”
But the court refused to direct the jury to find specially upon any question of fact relating to negligence on the part of the plaintiff. In this, the writer of this opinion thinks that the court below committed material error. In his opinion, the question whether the plaintiff was 0f contributory negligence or not, was one of the “particular question's of fact” involved°in this case, and should have been submitted to the jury, as requested by the defendant. Therefore, in his opinion, the judgment of the court below should be reversed for such error, and the cause remanded for a new trial. But in this the court is not agreed. The Chief Justice, who was formerly counsel in the case, has not taken any part in the case in this court, and has not expressed any opinion upon this question; and my brother Brewer and myself differ upon the question. Mr. Justice Brewer and myself agree upon all questions involved in the case except this one, and upon this one we differ: He thinks that there was not sufficient evidence tending to prove contributory negligence for the jury to consider, while I think there was; but he will express his own views, in an opinion of his own upon this subject, better than I can do it for him.
The two Justices to whom the case was submitted agreeing that, upon all questions except one, the judgment of the court below should be affirmed, and being equally divided upon that one, the judgment of the court below must be affirmed. | [
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The opinion of the court was delivered by
"Valentine, J.:
The petition of the plaintiff, Margaret Ransom, alleges in substance that on September 1, 1877, and for a long time prior thereto, she was the owner of the real •estate now in controversy; that said premises were then and ■still are occupied as a residence by one C. Homer, a single man, and by his family. (This fact of occupancy seems to be alleged as a fact in favor of the plaintiff, but we would -think it was rather against her.) On said September 1,1877, the plaintiff executed a deed for the property to Homer, and he executed a mortgage thereon to H. J. Ransom, and also a ■deed back to the plaintiff, Mrs. Ransom. These two deeds and this mortgage were executed simultaneously, and as parts and portions of one and the same transaction. The deed from the plaintiff to Homer was executed without any consideration other than as herein expressed, and solely for the purpose of enabling Homer to procure a loan of money from said H. J. Ransom, and to secure it in his own name; and it was the purpose and intention of the parties then and there-verbally expressed, that said Homer should. not acquire any beneficial interest in said property other than that necessary to enable him to effect the said loan; and he never did acquire any interest in said property other than as above stated. The deed from the plaintiff to Homer and the mortgage from Homer to H. J. Ransom were recorded September 19, 1877,. and the deed from Homer to plaintiff was recorded November 10, 1877.
Prior to said September 1, 1877, and on January 28,1876, a judgment was rendered in favor of the defendant Kate-Sargent, and against said Homer. This judgment is still in force. On January 10, 1878, an execution was issued on said judgment, and placed in the hands of the defendant W. D. Disbrow, as sheriff, for service. On January 15, 1878, said Disbrow levied said execution on said property, and was-about to sell the same, when this action was commenced to-restrain and perpetually enjoin the defendants from further proceeding against said property. The defendants demurred to the plaintiff’s petition, on the ground that it did not state facts sufficient to constitute a cause of action against them,, and the court below sustained the demurrer. The plaintiff then brought the case to this court for review.
We think-the court below erred. We do not think that Homer had any interest in said property to which a judgment lien could attach, or upon which an execution could be levied. Harrison v. Andrews, 18 Kas. 535; Hazelton v. Lesure, 91 Mass. (9 Allen), 24. But for the argument and authorities-in this case, we would refer to the able brief of counsel for plaintiff. We would suggest one query, however. We suppose that the defendants claim solely upon the ground that the defendant Sargent obtained a judgment lien upon the property at the time that the plaintiff executed her said deed to Homer, and that they do not found any claim upon the-mere fact of the levy of the execution independent of such judgment lien; for at the time the execution was issued and levied, both deeds and the mortgage were recorded, and the- defendants were bound to take notice of the contents thereof, and to know that the plaintiff owned the property (provided she did own it), and to know that H. J. Ransom had a mortgage lien upon it (provided he did have any such mortgage lien). The query, then, which we wish to suggest, is this: If the defendant Sargent obtained a judgment lien on said property, was it prior to the mortgage lien of H. J. Ransom, or was it subsequent thereto? We suppose the defendants would answer that it was prior thereto, and that H. J. Ransom was deprived of the security which the parties intended he should have, and which he in good faith supposed he was getting. We however do not think that the defendant Sargent obtained any judgment lien on said property.
The judgment of the court below will be reversed, and cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The only question presented is, whether the court below erred in sustaining the demurrer of defendant in error to plaintiff’s petition. We think it did. The defendant agreed for a sufficient consideration to let plaintiff draw out of the firm of Osbun & Co., of which he was a member, $660 of merchandise. To this agreement, Osbun & Co., for value, assented. Afterward, both Moore and Os-bun & Co. refused to deliver the merchandise to the plaintiff, when demanded. The $660 in merchandise was a part of the purchase price of the interest of Frayser in the firm of Osbun & Co., which Moore agreed to turn over to Frayser. When Moore and Osbun & Co. refused to deliver the goods, Moore became liable on his individual contract for all damages ac cruing to Frayser by reason of his failure to comply with his agreement. Again, he was liable as a member of the firm of Osbun &'Co.; for, by its action, that firm also became liable to the plaintiff for the value of the merchandise which it refused to deliver in accordance with its contract. Under our statute, in all cases of joint obligations and joint assumptions of copartners or others, suits may be brought and prosecuted against any one of those who are so liable; therefore there was no defect of parties in the petition. The petition stated sufficient facts, and the demurrer ought to have been overruled.
The judgment of the district court must be reversed, and the cause remanded, with direction to the court below to overrule the demurrer of defendant.
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The opinion of the court was delivered by
Valentine, J.:
This was an action substantially to quiet title to certain real estate situated in Leavenworth county, but also taking to some extent of the nature of a strict foreclosure of a mortgage. The real estate belonged originally to the Educational Association of Leavenworth, Kansas, and was mortgaged by the association to Andrew Stuart on August 24, 1870. This mortgage was duly recorded August 30, 1870. On September 6, 1871, the association gave its promissory note to Lucien Scott, of which note Gillett and Smith were indorsers. On September 8, 1873, Scott obtained a judgment on this note in the district court of Leavenworth county against said educational association and said Gillett and Smith, which judgment is still in force. This judgment was of course a lien on said real estate, subject however to the prior lien of said mortgage. On June 27, 1874, Henrietta Stuart, administratrix of the estate of said Andrew Stuart, who died intestate in 1872, recovered a judgment and decree of foreclosure on said mortgage against said educational association. Neither Scott, nor Gillett, nor Smith, was a party to the suit in which this foreclosure judgment was rendered, and hence the judgment could not have any-effect upon their rights. Afterward said property was sold on said foreclosure judgment to Henrietta Stuart, the sale was duly confirmed, a sheriff's deed was duly executed to her for the premises, of which she took possession, and has since held the possession of the same. Afterward an execution was issued on the Scott judgment against the educational association and Gillett and Smith. This execution was levied on said real estate, and the sheriff was about to sell the same when this action was commenced. This action was begun by said Henrietta Stuart against said Scott and Gillett and Smith, and the prayer of her petition was as follows:
“The plaintiff therefore prays that an injunction may be granted to restrain the sale of said property by the sheriff of Leavenworth county aforesaid, which he threatens to do on the 11th day of December, A. D. 1876, by virtue of the execution now in his hands, or at any other time, in said cause; also, that the title of this plaintiff to the real estate aforesaid may be quieted, and may be adjudged, established and declared by this court to be free and clear from any liens by virtue of the judgment above referred to in favor of defendant, said Lucien Scott, or any subsequent proceedings; and that the said defendants may be adjudged and declared to have no interest or lien on said real property belonging to this plaintiff; and that the plaintiff in this cause may have such other or further relief as may be agreeable to equity.”
The court below, after making separate findings of fact, made conclusions of law, as follows:
“1. That there cannot be a strict foreclosure, or a judgment in the nature thereof, in Kansas.
“2. That said Lucien Scott has a lien on the above-mentioned tract of land, to and for the amount of the judgment by him recovered in September, 1873.
“3. That plaintiff is not entitled to maintain any such action as this. >
“4. That defendants are entitled to a judgment that they go hence without day, and have and recover of and from said plaintiff their costs herein expended, and that execution issue therefor.”
Judgment was rendered in accordance with this fourth con■clusion of law.
The plaintiff now brings the case to this court, and asks that said judgment be reversed, on the ground, as we understand, that the court below should, instead of rendering the judgment it did, have rendered a judgment requiring the ■defendants Scott, Gillett and Smith to redeem said property from said mortgage within some specified time, or that they be forever barred and foreclosed from all equities and interest in said land. No such judgment was asked for, however, in the court below. There was not the slightest intimation, ■even, presented to the court, either written or oral, that such a judgment, or indeed any judgment authorizing or permitting a redemption would have been acceptable to the plaintiff. It is true, that during the trial the plaintiff’s attorneys offered orally to the defendants’ attorneys to permit the defendants, or either of them, to redeem the premises, but nothing of this kind was said or intimated to the court. All that the court could properly know — indeed, all that the •court may in fact have known with reference to plaintiff’s ■desires for a judgment — was to be found in the prayer of her petition, and that was against any such judgment as the plaintiff now desires. We do not think that the court below ■erred in refusing to render the judgment which the plaintiff asked for, for we do not think that the plaintiff was, under the circumstances of this case, entitled to any such judgment; and we do not think that the. court below erred in failing to render a judgment which the plaintiff did not ask for. A ■court is not bound to do better for any party than such party .asks the court to do for him or her. We do not think that the plaintiff has lost much, if anything, by the present judgment. Her claim to said property is paramount to that of the defendants, and neither the defendants nor any purchaser at sheriff’s sale under the Scott judgment can get possession of the property until he redeems the property by paying to-the plaintiff whatever law and equity would require. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on certain notes and mortgages given by the defendants to the plaintiff for money loaned. The case was tried by the court below without a jury, and the court found that the notes and mortgages sued on had been fully paid, and consequently that the mortgages were not liens upon the real estate mortgaged; and thereupon the court rendered judgment in favor of the defendants, and against the plaintiff for costs. The plaintiff then moved the court for a new trial, upon various grounds, among which was: “Error in the assessment of the amount of recovery.” The court overruled the motion, and then the plaintiff brought the case to this court for review. We think the court below committed error. Evidently the plaintiff should have recovered something, but just how much we have not taken the trouble to ascertain. That may be done by the court below upon a retrial. The case was probably decided upon the theory that ch. 5 of the Laws of 1869, (Comp. Laws of 1879, p. 237, §134,) had no legal force — that it was void, or had been re-repealed; or at least that it had no application to the present case; and that ch. 65 of the Laws of 1875, (Comp. Laws of 1879, p.237, §137,) applied and had controlling force in the case. This theory, however, is wrong. (Massey v. Citizens’ Building and Savings Association, ante, p. 624.) Said ch. 5 of the Laws of 1869 is valid, and has not been repealed, and it does have application to just such cases as this. It applies in all cases where the loan was made in accordance with its provisions, and prior to, March 20, 1875, the time when said ch. 65 of the Laws of 1875 took effect. Now the present association was organized in January, 1872, and the said loans were effected and completed early in the year 1872 — about three years before said ch. 65 of the Laws of 1875 took effect.
There are other questions in this case, but as they have not yet been passed upon by the court below, we shall not now consider them. When the court below determined that the case must be decided under the provisions of said ch. 65, and not under the provisions of said ch. 5, and therefore that an amount had already been paid sufficient to satisfy said notes and mortgages, (an amount, however, not sufficient to satisfy the same, were the case to be decided under the provisions of said ch. 5,) it virtually determined everything else in the case, for everything else that was done therein neces ■sarily followed as a logical sequence. Correcting this error, we think the court below will decide the other questions correctly.
The judgment of the court below will be reversed, and the •cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The main allegation of error to which our attention is called, is the action of the district court in reversing the judgment of the probate court upon a transcrijpt which not only did not purport to contain all the evidence in the case, but which showed affirmatively that all the evidence was not incorporated in the record. The point is well taken. The district court must have considered the transcript in the light of a case-made, and upon the ground that it contained a statement of so much of the proceedings and evidence as was necessary to present the errors complained of, it reviewed the testimony and reversed the judgment. This was error. Neither a probate court nor a probate judge has any authority to settle or sign a case-made. Such power exists only in a district judge or district court. (Clark v. P. & G. R. R. Co., 5 Kas. 654; § 547 of the code; § 1, ch. 114, Laws of 1871.) Section 550 of the code gives no authority to make a case, but only points out the mode of obtaining authenticated copies of records. As a transcript, the record here is defective. It does not show that any bill of exceptions was signed or filed; nor does it purport to be all of the proceedings in the case. On its face it appears that very material evidence was omitted. For instance, the foundation of the claim of the defendant in error was the allegation that on the 26th day of May, 1875, he recovered a judgment in the district court of Shawnee county, against the Topeka Bolling Mill Company. No valid evidence of any such judgment was set forth in the transcript. The statement of the clerk was insufficient for the district court to act upon, when it appeared that all the records of this pretended judgment were before the probate court and examined by it. Counsel for the defendant in error seem to rely upon the certificate of the probate judge. That is additional evidence that the case was taken up on a case-made, and corroborative of this is the fact that the record was ■ handed- to the attorney of the administrator and indorsed by him that he had no suggestions of amendments to make. Instead of the certificate of the judge or the indorsement of the attorney aiding the defects complained of, they tend clearly to show the record was improperly prepared to take the case to the district court, to have a decision upon the question whether the judgment of the probate court was sustained by evidence. The certificate of the judge was unsuitable for a transcript, or a bill of exceptions. His opinion that sufficient portions of the evidence and proceedings were embraced in his transcript to present the errors complained of, was of no binding effect, and did not conclude any of the parties. If it was intended for a bill of exceptions, or a transcript, this language was unnecessary. These words, instead of strengthening the character of the record, only weaken it for the purposes for which it was used; at least, they tend to show more emphatically the fatal imperfections which inhere therein. So, in whatever view we may consider the record and papers presented to the district court, they are so defective that the court could not say the judgment of the probate court was unsupported by sufficient evidence, and therefore ought not to have reversed it.
The judgment of the district court, reversing the decision of the probate court, must' be reversed.
All the Justices concurring. | [
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Per Curiam:
The judgment of the court below in this case will be reversed, and cause remanded for further pro ceedings. This decision is made upon the authority of the decisions, just announced, in the cases of Comm’rs of Saline County v. Geis, ante, p. 381, and Comm’rs of Lyon County v. Goddard, ante, p. 389. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action to quiet title, brought by the owner of certain lots against the holder of a tax-sale certificate thereon. It was conceded that the lots were subject to taxation, the levy legal, and the valuation not excessive; also, that the owner had paid no part of the taxes. Several defects are alleged in the assessment and sale proceedings. These defects we shall concede, without deciding, were sufficient to invalidate the sale; yet, notwithstanding these defects, we think the plaintiff was not entitled to a judgment in this action, and for the cardinal rule of equity that he who seeks equity must first do equity. Counsel contends that because the action is authorized by and brought under the statute, it is not subject to equitable principles; but this is a mistake. The action to quiet title was, under the old practice, one in equity; and while the forms of actions are changed, the principles under which relief is granted remain the same. True, the statute has enlarged the scope of this action, but it has not obliterated the rules which guide the courts in granting relief. The action of injunction was equitable; it is now prescribed by statute, but the principles of equity still control it. Here a party, who admits that he owes an honest debt to the state, comes into a court of equity, and without paying-or offering to pay that debt, asks that the proceedings which the state has taken to collect that debt be adjudged void. We have already decided that an injunction will not lie under those circumstances. (City of Lawrence v. Killam, 11 Kas. 499; Challiss v. Comm’rs of Atchison Co., 15 Kas. 49.) And we now decide that a lot owner cannot obtain any such relief by changing the action to one for quieting title.
The judgment of the district court will be reversed, and the case remanded with instructions to render judgment upon the findings for costs in favor of the plaintiff in error, defendant below.
All the Justices concurring. | [
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'The opinion of the court was delivered by
Horton, C. J.:
The facts in this case are substantially these:. James Tolley, father of the plaintiff below (defendant in error here), settled upon a quarter-section of government land, and made such improvements and had such residence thereon, that at the time of his death he was entitled to enter the land as a home for himself and family, and to receive a-, patent therefor, under the provisions of an act of congress-for the disposal of certain lands to bona fide settlers. (16 U. S. Stat., p. 55.) Before completing'his entry, he died, leaving-a widow, America Tolley, and nine children, of whom said John H. Tolley is one. The land was entered by the widow,. America Tolley, for the heirs, on April 7th, 1871. Mrs. Tolley died in widowhood, in 1873. The said John H. Tolley brought this action on May 31st, 1878, against Gatton,. to recover possession of the whole quarter-section of land,, claiming to be a tenant in common with his brothers and sisters, and entitled to possession of every part of the land against Gatton, whom he alleged to be a stranger and intruder on -the premises. Said Tolley offered evidence tending-to prove that he was the owner of one-eighteenth of the laud-as the heir of his father, and one-eighteenth as the heir of his mother, and that he had one-ninth by conveyance from-his brother Charles, making two-ninths in all.
Gatton claimed that John H. Tolley and all the other-heirs of James Tolley, deceased, had been divested of all title and interest in the land by virtue of certain guardian- and administrator’s deeds, and also certain voluntary conveyances, and offered proof to that effect.
The court below rejected the guardian’s deed as incompetent evidence, on the ground that the proceedings in the-probate court in the matter of the sale of the land described therein, which occurred prior to the execution of the deed,, should first be introduced in evidence. As to the other-deeds, the court instructed the jury that, upon the evidence-in the case, the land in controversy when James Tolley died was the homestead of America Tolley and the minor children,, and could not be sold, alienated, partitioned or divided until the widow married again, or all of the children arrived at-the age of majority, and that any deed executed by the widow or any of the heirs of James Tolley, deceased, for any portion-of the land, before the widow married again, or all of said, children arrived at the age of majority, was absolutely void- under the statutes of the state; that as all the deeds introduced in evidence by the defendant showed upon their faces that they were executed and delivered before all of the minor children arrived at the age of majority, and as the evidence showed the widow did not marry again, but died in 1874, all of said deeds were void. The court further instructed the jury that as the defendant was in possession under deeds which were void, and was a' trespasser, said John H. Tolley was entitled to recover the possession of all the premises.
The court committed no error in rejecting the deed of America Tolley, as guardian of the minor children of James Tolley, deceased, of date of January 3, 1872, purporting to-convey the title of the minors in the premises in dispute. There is. no statute mating a guardian’s deed prima facie evidence that the law has been observed in its execution, and the proceedings and power under which it was executed, ought to have'been shown before the deed was offered. Sec. 18, ch. 46, Gen. Stat., providing that the same rules that are prescribed in the sale of real property by executors and administrators, after the granting of the order of sale, shall be observed in sales under the provisions of this act, as far as-applicable, is not broad enough to make guardians’ deeds presumptive evidence that the directions and requisitions of the law have been in all respects complied with; therefore they stand in a different relation from that of executors’ or administrators’ deeds. Perhaps this is a mistake that the legislature ought to rect-ifjq but until guardians’ deeds are placed upon the same footing with executors’ and administrators’ deeds, as evidence of their recitals,, the prior proceedings in the probate court upon which they rest must be first shown, before a court is compelled to receive such a deed as a valid conveyance of real estate. In this case no such evidence was presented, and therefore the deed was properly excluded.
We cannot indorse with like favor the instructions of the court. We have lately had occasion, in Dayton v. Donart, ante, p. 256, to consider and construe the sections of the act relating to “descents and distributions,” which are the subject of discussion in the case at bar; and much stated in the opinion in that case is applicable in this. It was there held, “that if the property or any interest therein is sold and conveyed while the property is still occupied as a homestead by the widow and any one or more of the minor children, the title to such property or interest passes to the purchaser.” The instruction of the court, that the homestead could not be sold or alienated until the widow again marry, or all the children arrive at age, is in conflict with this authority, and not sound. There is no prohibition in the act of “descents and distributions” against a sale or other alienation of the homestead, and we cannot judicially interpolate such inhibition. Of course, such sale will not interfere with the right of any of the heirs not joining therein in their occupation of the premises as a homestead until the widow marry again, or all the children arrive at majority, or there is an abandonment of the premises as a homestead, and no enforced division can be had prior to that time. In this case it appears that there was not only a conveyance by the widow and some of the heirs, but that long before the commencement of the action there was an abandonment of the premises as a homestead by all the parties, minors as well as adults. The voluntary conveyances of the widow and heirs were not void, and Gatton was therefore not a trespasser.
Notwithstanding the claim of John H. Tolley to the whole of the premises in his petition, he may recover any part or portion of the land to which the proof may show he is entitled. (Everett v. Lusk, 19 Kas. 195.) But his recovery will be limited to the interest he has in the land, and his damages in proportion to such interest. The damages for withholding the premises, and for the rents and profits, can only be such as have accrued within the three years prior to the commencement of the action. While such cause of action may, under the code, be united with an action for the recovery of real property, yet the three years’ statute of limitations applies to such claims.
The judgment of the district court will be reversed,- and the case remanded for a new trial in accordance with the views expressed in this opinion.
All the Justices concurring. | [
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The opinion of the could was delivered by
Hutchison, J.:
We have here two separate appeals from the judgment and a subsequent order in a case tried in the district court of Doniphan county. The judgment was rendered in favor of the plaintiff on June 9, 1927, from which the defendant promptly appealed. On June 27, 1927, the journal entry of judgment was corrected by adding interest to the amount allowed plaintiff, confirming the attachment issued at the commencement of the action, and ordering the attached property to be sold and the proceeds to be -applied on the plaintiff’s judgment. A motion was then filed to resettle the journal entry and retax the costs. A motion for a new trial was also filed. When these were overruled, except as to one item of costs, the defendant again appealed. The cases are numbered, abstracted and briefed separately, but argued and submitted together.
J. L. Overlander commenced this action against his brother, J. A. Overlander, to recover one-fifth of the rents and profits of a farm in Doniphan county inherited by plaintiff and defendant and three other brothers from their father’s estate, the defendant being the one chosen to supervise and manage it. Both parties are nonresidents of the state, and service was obtained by attaching the defendant’s one-fifth interest in the land. The defendant appeared and filed a general denial and a counterclaim consisting'of a multitude-of items. A referee was appointed, who heard the evidence and made findings of fact and conclusions of law, finding in favor of the plaintiff for $604.75, with interest at six per cent from May 15^ 1924. Upon objections being filed to the report the whole matter was heard and reviewed by the court, and a few changes Were made by the court in the findings and quite-a few additional items in the counterclaim of defendant were allowed, reducing the finding for the plaintiff to $505.24. Judgment was rendered for the plaintiff for this amount on June 9,1927, from which the first appeal was taken, being case No. 27,851. This judgment was corrected, as above stated, eighteen days later, and the motions to resettle journal entry, retax costs, and grant a new trial were overruled, with the exception of one item of costs, a few months later, from which rulings and orders the defendant again appealed, this appeal being docketed as No. 28,191.
There are fifteen assignments of error in the first appeal and twenty in the second.. The first one we will consider is No. 15 in both cases, where the appellant insists that the court erred in refusing to allow defendant to discontinue and dismiss without prejudice his counterclaim set out in his first defense, in his original answer and in the second count of his amended and supplemental answer. This' does not consist of all the items of the counterclaim of the deféndant, but includes many items on which evidence was heard and findings made, some of which are decided in favor of the defendant as credits. The first intimation of this request we find in the record is in- the journal entry of June 9, which includes the modifications and approval of the report of the referee and the overruling of the motion for á new trial. Paragraph 12 of this journal entry seems to have granted this request, but it was not permitted" to stand in that way, because the specifications of error complain of the refusal of the request. The motion for a new trial does not allege that as one of the errors, so that up to that time at least the court had not been requested to allow such withdrawal or dismissal; but, on the contrary, paragraph 11 of the motion for a new trial definitely urges as error the failure of the court to allow the several items of the defendant’s counterclaim, in the following language:
“For error of the court in refusing and disallowing the defendant’s account and several items thereof, set out as a counterclaim, and in denying and refusing judgment in favor of the defendant thereon and against the plaintiff.”
We think the defendant was entirely too late in making his request to withdraw his counterclaim or dismiss it without prejudice. That request must be made before the case is finally submitted to the court. A litigant cannot submit his cause to a court and, after failing in whole or in part, decide to withdraw or dismiss his claim without prejudice.
“An action may be dismissed without prejudice to a future action:
“First. By the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court.
“In all other eases, upon the trial of the action the decision must be upon the merits.” (R. S. 60-3105.)
This has been held to apply to defendants with counterclaims just the same as plaintiffs with claims in their petitions. (Taylor v. Danley, 83 Kan. 646, 649, 112 Pac. 595.)
Appellant urges that he ivas entitled to interest on the two notes payable to him for which he is given credit in finding No. 16. The other two notes mentioned in the same finding were paid to other brothers, and the referee and court correctly held defendant was only entitled to receive credit for the actual amount paid by him to the holders of the notes. The matter of right to interest on those notes is a question between plaintiff and the parties who held those notes. They are not parties here, and that question will not require any further attention in this case. But how about interest on the two notes held by the defendant which were found to have been paid by him out of funds in his hands belonging to the plaintiff arising out of the sale of crops from the farm? Conclusion of law No. 3 by the referee is as follows:
“The defendant is not entitled to recover any interest on the notes held by him for the reason that he had in his hands sufficient money to meet said notes.”
The finding shows that thesfe notes were paid the same day the other notes were paid to other parties, and the record shows the defendant did not disburse these funds until he had written plaintiff advising him of such intention and asking his consent. For the time that the defendant was actually representing the plaintiff and collecting rents and profits for him he cannot be considered as having such money for his own benefit. It was not his; it was only in trust until disbursed. Interest does not cease to be chargeable on a note in the bank when the maker thereof deposits in the same bank enough or more funds than necessary to pay the note. The defendant was not benefited in the least by having in his custody funds belonging to the plaintiff until they were disbursed. The judgment should be modified to the extent of allowing interest on these two notes until they were paid as a credit to the defendant.
We have examined each and every point enumerated in the motion for a new trial and every specification of error, among which are the failure of the record to show the oath taken by the referee, the delays in the hearing before him, the allowance of a fee- for his services, his rulings during the hearings, the errors of the referee and the court in allowing plaintiff’s claim and disallowing many of defendant’s items of counterclaim, mistakes in computation, the want of evidence to support many of the findings of fact, the illegal conclusions of law, and the failure of the court to grant a new trial, and it appears to us that the findings of the court are supported by the evidence and that there is no reversible error in the record.
As to the second appeal, which takes up the case after the rendition of judgment and overruling of the motion for a new trial, where-the record shows the court corrected the journal entry eighteen days later by allowing interest on the balance of accounts found due the plaintiff from the defendant at the rate of six per cent per annum until the date of judgment, namely, June 9, and at six per cent per annum on the total amount thereafter, and confirming the attachment issued at the commencement of the action and ordering the attached property to be sold and the proceeds to be applied on the plaintiff’s judgment, the journal entry shows this to have been done by the court as a correction of the journal entry of June 9, 1927, as was by the findings and conclusions of the referee approved by the court at that time intended to be included in the journal entry, but was omitted. To this journal entry of correction there was filed a motion to resettle the journal entry, retax the costs, and also a motion for new trial. The motion for new trial contains substantially the same grounds as were contained in the former motion for new trial, and additional ones with reference to the right and authority of the court to correct the journal entry and the failure of the court to retax the costs as requested by the defendant. The court overruled all these motions except the motion to retax the costs, which was sustained in one particular concerning an item of $6.
The specifications of error in this appeal are substantially the same as in the original case, with additions specifically applying to the correction of the journal entry and the failure to retax the costs in the particulars requested by the defendant. As to the re-taxing of costs, or rather the failure of the court to do so, as to items urged by the defendant, we see no error. As to the right of the court generally to correct the journal entry of judgment to make it speak the truth, even after the expiration of the term at which it was rendered, concerning matters and affairs that are within the knowledge of the judge who rendered the judgment and made the correction, there is no question in the state of Kansas; and there is nothing about this case that shows any advantage taken of any of the parties in making such correction. Service in this case was had by levying an attachment upon the land belonging to the defendant in the county where the action was brought. The findings of fact and conclusions of law made by the referee and approved by the court allowed interest to the plaintiff on the balance of the fund in his favor. The right for items to draw interest and the objection to the same were among the controversies in the case and fully decided by the referee and approved by the court. Their omission from the journal entry could be nothing more than an oversight or neglect which should in good conscience be corrected at the first opportunity after the omission was discovered. In this case it was done in eighteen days after the judgment had been rendered, and there was no error in doing so.
“A district court has the power to correct the entry of a judgment so as. to cause it to speak the truth after the expiration of the term at which it was rendered, and upon the personal knowledge of the judge of what took place in court at the time of its rendition.” (Christisen v. Bartlett, 73 Kan. 401, syl. J[ 1, 84 Pac. 530, 85 Pac. 594.)
■“After the expiration of the term at which a judgment was rendered, and after that judgment has been affirmed in the supreme court, the trial court, on personal knowledge of what took place at the time the judgment was rendered, has power to correct the journal entry so as to make it correctly recite the judgment that was actually rendered.” (State, ex rel., v. City of Stafford, 99 Kan. 265, syl. ¶ 1, 161 Pac. 657. See also, Amis v. Valerius, 118 Kan. 455, 235 Pac. 833.)
With the exception of the modification of allowing interest to the defendant on the two notes mentioned in the earlier part of this opinion, the judgment of the trial court and the orders made by the trial court after the rendition of judgment are approved.
The cause is remanded to the trial court, with instructions to allow interest to the defendant on the two notes mentioned herein,, and as so modified the judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
William Birzer was charged with shooting at named persons, with intent to kill, under R. S. 21-431, and was found guilty of endangering the lives of such persons under circumstances which would have constituted murder or manslaughter if death had ensued, under R. S. 21-435. He has appealed, and contends that the evidence does not support the verdict, and that under the showing made a new trial should have been granted.
On the evening of September 5,1927, Mary Zecha, a young woman about nineteen years of age, who resided with her parents on a farm about three miles southwest of Ellinwood, Kan., and five other young people of the neighborhood, drove to Ellinwood and attended a picture show. They were riding in a Lincoln touring car. As they were returning home about 10:30 o’clock, and when they were perhaps a mile from town, some one drove up behind them and fired a shotgun into the car in which they were riding, seriously wounding Mary Zecha and two other occupants of the car. This shooting formed the basis of the complaint against appellant. The evidence tending to show that appellant did the shooting may be summarized as follows: He had been acquainted with Mary Zecha for about three years, and had kept company with her for a year and a half. About six months prior to the shooting he had proposed marriage to her and had not been accepted. At that time, however, the parties agreed to be friends and to see each other occasionally. Appellant was of an exceptionally jealous disposition and complained that Mary Zecha was in the company of other young men. In October, 1926, she attended a social function in company with Earl Batchman. Appellant went to Mr. Batchman and said that he was going with Mary, and that Mary’s father didn’t like for her to go with anyone else, and that he had run some boys off with a shotgun. Some time shortly before harvest, 1927, Leonard Link accompanied Mary Zecha to the picture show on one occasion, and to a dance on another. Appellant was very angry about that. He complained to Link about intruding, and said to him: “If I ever find you up in this neighborhood again, God help you.” He also complained to Mary Zecha about it, and went to her father on three or four different occasions and talked with him about it. He complained that Link was taking Mary away from him; that Link was dropping in and talking with her where she worked, and said, among other things: “I can’t stand it any longer. . . . The whole country is talking about it.”' On the evening of September 4 Mary Zecha and her two sisters drove into Ellinwood. Appellant saw them and wanted to speak to Mary. She told him she was too busy. A little later the girls started to go to the picture show. He walked along with them. One of the girls started to buy the tickets; he stepped in and bought tickets for all of them and then excused himself. The girls went into the show. Later he came to the show and took a seat by the side of Mary. After the show he and Mary walked out together and sat in a car and talked for some time, perhaps an hour. It was raining. Their friendship had not been especially pleasant, and they talked of some matters concerning which they had arguments. The talk ended in a final breaking off of their courtship. She testified:
“Q. Now just what was it'you said to him to give him to understand your separation was final? A. Well, you mean that evening?
“Q. Yes. A. When he asked me for a date Sunday night I said ‘No,’ and for Monday I said ‘No,’ and he said ‘Any time?’ and I said, ‘Absolutely not.’ ”
She then got out of his car and got into her father’s car and went home with him. This was on Saturday evening. On Sunday evening some young people from the neighborhood and one or two who were visiting there met at the Zecha home and concluded to go to town to the picture show. There were ten of the young people. Four of them rode in a Ford coupé and six of them in the Lincoln touring car. They got to town a little before the show started, drove about town a few minutes, parked their cars and went to the show. After the show was out, about ten o’clock, appellant was séen watching the automobiles in which these young people went to town, as though , watching to see who got into the cars. The young people soon after the show was out drove to one of the drug stores, where they ordered refreshments, which were served in the cars, and were there perhaps twenty minutes. Defendant was seen to get into a car and drive out north, which was toward his home. Later, and about the time the young people started home, he and another young man were seen to get into his car, a Ford touring car of an early model, and start to drive south, following the car in which Mary Zecha and her friends were riding. In the car in which defendant was riding there was something sticking from the side, as much as a foot or a foot and a half, which looked like the barrel of a gun. The road from Ellinwood to the Zecha home was south to an east and west road and then west. ' The young people went south, but when they reached the east and west road they turned east and drove for about a mile, turned around and started to drive west. The young people in the Ford coupé pretended they were out of gasoline and stopped. The Lincoln car also stopped. While they were there a Ford touring car, with the lights out, passed by them, going east, at a speed of about thirty miles per hour. The young people had started west, and soon one or more of them noticed a car, without lights, approaching them from behind. When it got almost to them its lights were turned on, and almost instantly the shot was fired from it into the Lincoln touring car. The car from which the shooting was done then turned around and drove rapidly away. It was a Ford touring car. A day or two after this, when appellant was in company with another boy, one of them was heard to say: “If we get by with it we will be lucky.”
Immediately after the shooting the young people in the Lincoln car went back to Ellinwood to the doctor’s office, and from there to-Great Bend, where X-rays were taken, and then went to their homes. The next morning appellant, his father and brother Joe, went to theZecha home. There appellant made no inquiry as to how the injury occurred, nor did he talk about it. His brother and father talked, and asked questions. Mary Zecha, her sister, who was also injured, and their father were going to town to have the injuries treated. Appellant said he would take them in his brother’s car, and did so. On that day he stated to Mary Zecha, or her father, or both, that the evening before he had been in town until after the show was; out, then went to the drug store and got him a drink, and went directly home, about ten o’clock. A few days later he told the sheriff that he left Ellinwood about ten o’clock to drive to Great Bend, where he was to meet some one and get a pint of whisky, but that he had got stuck in the mud and high water on the road, and' was there for nearly two hours; did not get to Great Bend, but returned to his home, getting there about midnight. There was other evidence that he reached home about midnight that night. Within, the two or three days after the shooting, in talking to Mary Zecha’s father and to others, he stated, as many as three or four times, in substance, that the person who did the shooting would never be apprehended; that there were no clues; that the thing had been shrewdly planned, and that it would not be possible to learn who did it. When he and his father together were questioned as to whether they had a shotgun at their home, both of them stated that they had none. A day or two later appellant’s father told the sheriff he wanted to correct that statement; that they did have an old gun at the place which he thought of as junk, and which was kept out at a workshop and garage on the place. The sheriff went there to find it. It was not in the workshop proper, but was in the loft, where it was dark and where a flashlight had to be used to find it. When found there was fresh mud on the stock, and one barrel of the gun had been recently fired. We think this evidence justified the jury in concluding that appellant is the person who fired the shot.
George Stroh was one of the important witnesses for the prosecution at the trial. After the trial he went to-Colorado, and there appellant’s brother saw him, and he made an affidavit in which he recanted much of his testimony damaging to appellant which he had given at the trial. This affidavit was offered in support of the motion for a new trial. Some other affidavits were offered, but the matter contained in them was impeaching or cumulative to such an extent that the court would not be justified in granting a new trial by reason of them. As a reason or excuse for recanting his testimony by his affidavit, Stroh stated that he had not been sworn when he testified at the trial. The transcript of the record shows that he was sworn, and witnesses testified to that fact. Appellant contends that the court should have granted a new trial because of Stroh’s affidavit, and cites and relies on State v. Keleher, 74 Kan. 631, 87 Pac. 738, and allied cases. That case was an exceptional one. (State v. Fleeman, 102 Kan. 670, 171 Pac. 618.) Under our present code of procedure the court, rather than the jury, passes on the evidence offered by affidavit, or otherwise, in support of a motion for a new trial. (State v. Turner, 121 Kan. 364, 247 Pac. 427; State v. Stack, 116 Kan. 187, 226 Pac. 238.) We had occasion to consider the question in State v. Buton, 124 Kan. 509, 260 Pac. 634, where it was held:
“The recantation of his testimony, by a witness for the prosecution in a criminal case, does not necessarily entitle defendant to a new trial. Whether it does so or not depends on all the facts and circumstances disclosed by the evidence in the case, including that offered on the motion for a new trial.” (Syl. HI.)
At 33 A. L. R. 550 a number of cases are collected in which the courts have dealt with the affidavits or testimony of recanting witnesses offered on a motion for a new trial. It is said in the note :
“As a general rule the court will not grant a new trial on statements by a witness after a criminal trial tending to show that his testimony was perjured, whether the witness himself makes oath to the statement or not.”
Here the trial' court had heard the evidence in the case, including the testimony of the witness Stroh, and also considered the affidavits offered on the motion for a new trial. The court might very well have believed that Stroh testified truthfully on the trial rather than in his affidavit. If he so believed he was justified in overruling the motion for a new trial. Appellant argues that the testimony of Stroh was essential to the conviction. We do not so regard it. There was much other material evidence which tended to support the verdict. .
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Leona Hubbard was convicted of the larceny of an automobile of the value of $1,000 and appeals.
She contends that the denial of her motion to quash the information was error. The information alleged:
“That Leona Hubbard, at the county of Shawnee in the state of Kansas and within the jurisdiction of this court, on the-day of February, a. ». 1927, did then and there unlawfully, feloniously and willfully take, steal and carry away, and convert to her own use, one certain Nash sedan automobile, serial No. 70754, said property being held by Orville Shelfer as a pledge to him and under his control, said property being of the reasonable value of $1,000, contrary to the statute in such cases made and provided and against the peace and dignity of the state of Kansas.”
Defendant contends that the information was defective in that it did not fully define a pledge and state more fully the nature of it. The meaning of the term is not open to dispute. It is a delivery of property as security for a debt or other engagement, by which the pledgee acquires a special interest or ownership in the thing pledged, the general ownership remaining in the pledgor. • The pledgee obtains more than a simple lien, as he has possession and is in a sense a bailee who is entitled to hold possession until the obligation which it was given to secure has been discharged. We think the information was sufficient. The defendant could not have been misled as to the nature of the charge, and besides she had learned the claims of the state in respect to the charge at the preliminary examination.
The testimony tended to show that the defendant pledged the car to O. A. Sheffer for money advanced and legal services rendered. The defendant had previously been arrested for another offense. She employed Sheffer, who advanced $120 in connection with that litigation, and for this sum and for legal services rendered in her behalf the pledge was made and the car delivered into Sheffer’s possession. It was shown that the defendant, with some assistance, took the car from Sheffer’s possession without his knowledge or consent. It is contended that the court misconceived the nature of the charge and did not give proper instructions to the jury. Complaint is made of instruction number three which, after stating that the offense might be committed by feloniously taking and carrying away property belonging to another, proceeded as follows:
“By the term ‘belonging to another’ as used in the foregoing instruction, it is not intended to mean that the property must be owned by or the title be in such other person. It would be sufficient ¿f such other person had obtained possession from the owner of such property as a pledge or as security for indebtedness with a right to hold the same until such indebtedness was satisfied. In other words, one who holds property by the consent and agreement of the owner as a pledge, or as security for the payment of indebtedness, has such title in such property while so possessed that it could be said to belong to him within the meaning of the statute, and the unlawful stealing or taking of such property would constitute a larceny even if such stealing or taking was committed by the owner thereof.”
The complaint is that it did not properly present the subject of intent and that this should have been done in view of the testimony offered by her of an effort to settle with Sheffer before the automobile was taken, which it is insisted tended to show that there was no intent to defraud Sheffer. In other instructions the court advised the jury that one of the necessary elements of the crime charged against the defendant was the taking of the property by her with a felonious intent, and that if she wrongfully and feloniously took the automobile from the pledgee and from his possession without his knowledge and consent, it would constitute larceny.
The testimony sufficiently shows that the defendant pledged the car to Sheffer, as already stated, and that later she with some assistance took the car from Sheffer’s possession without his knowledge or consent. The fact that defendant was the general owner of the car did not justify her in taking it from the pledgee to whom she had given a special ownership, including the possession. Something is said by defendant of the common-law rule that a man cannot steal his own property, and it is argued that if defendant was prosecuted upon the theory that she was the general owner of the automobile, and as she had produced evidence that she had tried to settle with Sheffer, there necessarily was no intent to defraud him, which it is said was the gravamen of the offense. Under ordinary circumstances a person cannot commit a larceny by taking possession of his own property, but if the general owner has transferred a special interest or ownership to another, the taking of the possession of the property from the other, with the intent to deprive him of his rights and interest, may constitute larceny. In Railway Co. v. Hinsdell, 76 Kan. 74, 90 Pac. 800, the court said:
“It is familiar law that larceny may be committed by the wrongful taking of property by its general owner from the possession of one who has a lien upon it. (18 A. & E. Encycl. of L. 499.)” (p. 77.)
The charge of the court, in its entirety, fairly presented the case to the jury.
There is a criticism that parts of the charge are conflicting and prejudicial. In the fifth instruction the jury were told in effect that if the automobile was the property of her son Frank Robinson (which was one of defendant’s claims) at the time 'the pledge was made, the defendant had no authority to pledge his property, and if that was found to be the case she should be acquitted. The sixth instruction advised the jury in substance that if the defendant aided and abetted another in the commission of the offense charged, she would be guilty of larceny, the same as if she alone had committed the offense. We see no conflict or cause for complaint of these in structions. The fifth was given to meet a phase of defendant’s testimony that the pledge was ineffective because it was not hers to pledge. The sixth instruction related to another branch of the case, namely, the fact that a man named J. J. Robinson participated with the defendant in the wrongful taking of the pledged car. There is nothing substantial in the contention of defendant as to the charge to the jury.
Some requests for instructions were made by defendant, but, as stated, we think the case was properly submitted.
Another assignment of error is that O. A. Sheffer, the attorney to' whom the pledge was given, was allowed to give a statement made by defendant to him relating to the commission of another offense, and it is contended that it was a privileged communication and not admissible. The statement was that, “It would be worth $100 to her not to face the county attorney at the hearing of the case, for the reason she had committed abortion and that the officers had caught her in the act.” This was brought into the trial by the defendant’s counsel by an inquiry as to a part of the statement and the prose'cution only asked for the remainder of the statement which was all embraced in a single sentence. Defendant having brought it out waived any objection that there might have been to the question by the state, asking for the whole of the statement.
There is complaint of the conduct of the county attorney in referring, in his argument to the jury, to the matter of abortion. The defendant has little cause for complaint, since she brought the matter into the trial, but even if it was not justified, it appears the court struck out the remark and instructed the jury to give it no consideration. Under the circumstances it does not constitute a ground of reversal.
Another complaint is that a new trial was not granted, which was asked on the ground of accident and surprise, because J. J. Robinson, one of defendant’s witnesses, was not present at the trial although he had agreed to come, and would have come except for illness. The showing of diligence to obtain the evidence was insufficient, and besides no continuance was asked by the defendant because of the absence of the witness.
Some other matters are called to our attention, but we see nothing in them to require special comment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover a commission for the locating of certain cattle for a purchaser. Plaintiff prevailed and defendant appeals.
The facts are substantially these: In August, 1924, plaintiff, who resided in New Mexico, received a telegram from defendant asking him if. he was in a position to show them cattle, stating the commission to be paid him and asking him to begin (such service) at once and continue indefinitely. The plaintiff accepted. The contract of employment was contained in letters and telegrams. One Anderson, agent and purchaser for defendant, met plaintiff in Albuquerque and was taken by plaintiff to such ranches as he had reason to believe had cattle which could be purchased. Those in question, known as the Block cattle, were shown to Anderson about the middle of September, 1924. No purchase was made at that time as Anderson thought the owner desired too high a price. Anderson returned to Wichita but went back the latter part of October and purchased the cattle in question. They were brought to Wichita and sold November 13, 1924. Plaintiff testified that he loaded, cattle for defendant on October 16, and that Anderson said to him, " T believe I will go in and let this thing rest awhile.’ And I said, ‘All right, when you get ready to go again, I will be ready.’ ”
The defendant contends that the plaintiff is not entitled to recover a commission because the contract provided that his services should extend only until such time as they were desired by the defendant; that defendant had a right to discharge plaintiff at any time, and did so on or about the 16th day of October; that when Anderson went back into the same territory in the latter part of October and purchased the cattle in controversy, he did not request, the plaintiff’s services, and that the deal was altogether different from the original one at the time the plaintiff showed him the cattle.
The contract, among other things, provided that plaintiff was to. use his automobile in driving defendant’s purchaser about the country and to give the defendant the benefit of his acquaintance with stockmen, the benefit of. his knowledge of cattle, bring the parties together, and leave the subsequent negotiations to the defendant’s agent and the cattlemen.
The. only questions for determination are whether the plaintiff was entitled to a commission on the Block cattle purchased at the-later date. It is not disputed that the plaintiff took the defendant’s, agent to the Block ranch and pointed out the particular bunch of' cattle, nor is it disputed that these cattle were subsequently purchased by the defendant.
There appears no question but that the defendant received the benefit of the efforts of the plaintiff in complying with his contractual obligation. A reasonable conclusion follows that plaintiff is entitled to his commission (fifty cents per head) on the cattle-in question. Port Huron Co. v. Wilber, 75 Kan. 175, 88 Pac. 892, was a case where the plaintiff secured prospective purchasers for-the defendant’s machinery. The names of such prospective purchasers were supplied by the plaintiff to the defendant. Later the-plaintiff was dismissed from such employment. Subsequently the-defendant sold machinery to one of such prospective purchasers, and it was held that the plaintiff was entitled to his commission, as. he had fully performed his obligation. It was said in the opinion:
“The general rule is: When a sale is actually consummated, if the broker is so far the contributing or proximate cause thereof, that the particular sale would not have been made but for some act or effort of his, he is entitled to his commission, although he takes no part in the negotiations thereof.” (p. 178.)
The defendant contends that the plaintiff here was discharged prior to the consummation of the transaction and therefore is not entitled to his commission. It is not clear that the plaintiff was ever discharged. The only evidence on the point appears to be the statement of Anderson that he would let the plaintiff know if he needed him again. Plaintiff positively testified that the 'termination of his service was never discussed and that he was never discharged from the employment of the defendant, but that after his last meeting with Anderson he continued to locate cattle by mail, telephone and otherwise. There was evidence that the plaintiff was not working for anyone else during the months of October and November and that he did not consider that the defendant had abandoned the territory. Even though the plaintiff was not in the employ of the defendant at the time the deal for the Block cattle was consummated, we are of opinion he was entitled to his commission and that the court’s instructions to the effect that plaintiff could recover whether or not he was in the employ of the defendant at the time of the purchase, were correct. In Smith v. Plant, 216 Mass. 91, the headnote in 103 N. E. 58, reads:
“The rule that, at any time before the broker procures a customer or makes a sale, the principal may in good faith discharge the broker, does not apply to a case where the principal employed the broker to introduce him to specified individuals for the purpose of enabling the principal to make a sale but with the express understanding that after the introductions were made, the principal was to conduct negotiations for himself, in which case the principal cannot discharge the other after the meetings have been brought about, but before the sale is consummated.”
In another case it was said that:
“There is a marked difference between a contract by a broker to furnish a purchaser to his principal, and a contract to effect a purchase or sale. In the first instance, the- broker has earned his commission when he has introduced and brought together the principal and the proposed purchaser, between whom a deal is perfected, and in the second instance, it is the duty of the broker to perfect a sale upon the prescribed terms submitted to him by the principal before he is entitled to his commission. . . . If we keep in view the distinction between a contract of a broker to make a sale of his principal’s property upon prescribed terms, and his contract to furnish his principal a purchaser to whom the principal sells upon his own-terms, the solution of the question we are now considering becomes easy.” (Miller v. Stephens, 23 Ind. App. 365, 370, 371, 55 N. E. 262.)
“Though much alike in some respects, there are important distinctions between a broker’s undertaking to negotiate or effect a sale and one to merely find a purchaser, although they are often dealt with by the courts as being identical in nature and results. The failure to properly distinguish between these two differing classes of contracts, and the attempt to apply to one class all of the principles which regulate the other, have produced many of the inconsistencies and much of the confusion with which the reported cases on this subject seem to abound.” (Handley et al. v. Shaffer, 177 Ala. 636, 653, 59 So. 286.)
“Where a contract for broker’s services only required him to find and furnish a purchaser to whom a sale could be made by the defendant, plaintiff’s commissions were earned when á sale was effected to a customer introduced to defendant by him.” (Provident Trust Co. v. Darrough, [Ind.] 78 N. E. 1030.)
A complaint of certain instructions given and refusal to give others has been considered but furnishes no basis for reversal. Authorities cited and relied on by the defendant need not be distinguished. In our opinion, they are not applicable to the facts and circumstances under -consideration.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by the Consumers Sand Company to enjoin the enforcement of orders made by the executive council of the state, and also one made by the irrigation commissioner restricting the taking of sand by the plaintiff from the bed of the Arkansas river between Douglas avenue and Thirteenth street in the city of Wichita. Much testimony was taken upon which the court made elaborate findings of fact, and upon these the court found as conclusions of law in substance that the Arkansas river was a navigable stream, that the sand in the bed of the river is the property of the state, and in the absence of statutory restrictions all citizens have a right to take and use the same, but that no citizen has such a right to the exclusion of others. A conplusion was that the statute (R. S. 1923, ch. 71) relating to the taking of sand from the bed of navigable rivers vested the executive council with authority to sell the sand in accordance with the stated provisions, but did' not affect the right of any citizen to take sand for his own use without payment, nor prevent the taking of sand by others for commercial purposes if payment is made therefor in the manner prescribed by statute. It was further concluded that the statute confers discretionary authority upon the executive council to prescribe the conditions for the removal of sand — that discretion, however, being only incidental to the main purpose of the statute— and that the statute was not invalid because it did not provide fur ther standards, rules or tests for the guidance of the executive council. A conclusion of the court was that the right given for the removal of sand is in the nature of a special privilege which the executive council could legally grant. That it acts as an administration board, and that in the exercise of its discretion is required to prescribe as uniform conditions as practicable, and should not discriminate between the various citizens of the state in making such conditions. It was further found that the orders of the executive council of February 23, 1922, and September 20, 1926, as well as the one made by the irrigation commissioner on August 7, 1926, are void for the reason that they are discriminatory in favor of citizens of Wichita and against all other citizens of the state of Kansas, and in favor of the sand producers selling their product within the city of Wichita, as against similar producers selling their produce by shipment to points outside of the city. There was a finding that plaintiff was a producer of sand, selling its product by shipment outside of Wichita, and was entitled to maintain an action to prevent discrimination against it and for the protection of its property. Judgment was accordingly entered. The defendants appeal, and plaintiff has also filed a cross appeal, questioning the conclusions as to the extent of the authority vested in the executive council. In connection with its findings and judgment the trial court rendered a written opinion which fairly sets out a condensed statement of the facts, the issues in the case and an excellent discussion of the points of law arising on the facts as follows:
“This action is brought to enjoin the executive council from enforcing certain orders which it made with reference to the removal of sand from the bed of the Arkansas river at Wichita, the validity of such orders being directly involved. The council claims such orders were issued pursuant to the provisions of chapter 71, Revised Statutes 1923, which, in substance, provide that it shall be unlawful for any person to take from beneath the bed of any navigable river of the state of Kansas sand or other materials, except as therein provided. By section 2 of said act it is provided that any person desiring to take sand from such river bed shall first obtain the consent of the executive council ‘and upon such terms of payment to the state of Kansas and under such terms and conditions as said executive council may determine to be just and proper.’ The statute further provides that the council shall fix the compensation to be paid to the state for such sand, and excludes from its operation, so far as payment therefor is concerned, the removal of sand used exclusively for the improvement of public highways and buildings or for private domestic use. Section 3 authorizes the executive council to make and publish ‘all needful rules, terms and conditions for the. taking, purchasing or selling of the articles or products mentioned in this act, and to change the same as the rights of the state and the interests of the public may require.’ Pursuant to this statute the executive council made, but never published in the official state paper, an order dated February 23, 1922, directing that the removal of sand within the city of Wichita cease when the river bed had been lowered to certain specified elevations. On January 2, 1926, the executive council made, and on January 5, 1926, published a general resolution relating to the taking of sand and other products from river beds, containing appropriate provisions for the payment of royalties to the state for the sand taken, the keeping of records by parties taking the sand, giving of bonds to secure the payment therefor, the handling of such moneys by certain state officers, and the auditing of such accounts, etc. On April 9, 1926, the plaintiff company was given permission to take sand from the Arkansas and Kansas rivers upon the terms and conditions of a certain instrument executed on that day by the executive council and styled ‘contract,’ a true copy of which is attached to the plaintiff’s petition and marked Exhibit A. Thereafter and on August 7, 1926, George S. Knapp, the state irrigation commissioner, made an order reciting that the bed of the Arkansas river at Wichita had been lowered below the levels mentioned in the executive council’s order of February 23, 1922, and ordered that the further removal of sand therefrom at such locations should cease until such time as the river bed elevation recovered to the elevation set forth in its order of February 23, 1922; a copy of such order being also contained in the plaintiff’s petition.
“Thereafter the plaintiff filed an application before the executive council to remove sand notwithstanding such previous order, and a hearing on such application was had on September 20, 1926, the result of which was that the council made an order providing—
“ ‘That we, the executive council, do hereby order sand pumping from the bed of the river, above Douglas avenue, in the city of Wichita, for car loading for shipment from the city to cease on and after fifteen days from this date; said order to be effective until such time as the river-bed elevation recover to that set forth in paragraph two of the order of the executive council made on February 23, 1922.’
“In the order of February 23, 1922, certain elevations were established below which sand should not be taken at certain places within the city. By paragraph 2 of the order a different and higher set of elevations were established, below which sand should not be taken ‘for shipment from the city.’
“The plaintiff now challenges the validity of such orders, contending that the order of February 23, 1922, if valid when made, has been revoked or rescinded by the general order or resolution passed and published January 5, 1925; that the order of September 20, 1926, is void, as it limits the operations of the plaintiff under its contract of April 9, 1926, which contract was entered into under the general resolution passed January 5, 1926, and which did not contain any such limitation of restrictions; that the executive council in making the orders of September 20, 1926, and February 23, 1922, attempted to exercise the police power of the state for the protection of the water supply of the city of Wichita and flood control therein, which powers had not been conferred upon that body; that the order of February 23, 1922, authorizing the engineer of the executive council to issue an order prohibiting the further removal of sand from the river is void as being an unwarranted delegation of power to such officer; that the order of February 23, 1922, is void because it was never published; that if the removal of sand by the plaintiff imperils the water supply of the city of Wichita, the remedy of the state as well as of the water company, is by a suit in equity in the courts; and that the orders of the council, if otherwise valid, are void for the reason that they are unwarranted in fact, unreasonable, discriminatory and unjust. The defendants deny all of these allegations, and claim that the council acted within their statutory authority in making the orders herein involved, and that such authority has been legally delegated to it.
“The contention of the plaintiff that the order of the irrigation commissioner of August 7, 1927, prohibiting the further removal of sand, and the provision of the order of the council of February 23, 1922, authorizing the engineer of the council to make such orders were void, is not' material to the final determination of this case. Unquestionably the plaintiff’s contention is correct, and the engineer for the council was without authority to make such an order, and such authority could not be delegated to him by the council, as that would amount to a redelegation of authority by the council. Whatever authority the executive council may have in the premises could not by it be delegated to it's engineer, but in view of the fact that the council on September 20, 1926, reaffirmed its order of February 23, 1922, the action taken by the irrigation commissioner or his authority became moot questions and are immaterial. It. remains to determine the validity of the orders of the executive council and its powers under the statute.
“The proper approach to the law of the case requires a determination of the nature of the plaintiff’s rights alleged to have been violated by the action of the defendants. The title and ownership of the sand and other like materials in the bed of navigable rivers in Kansas lies in the state. The state holds such title in trust for the citizens of the state. By- a fiction of law the Arkansas river has been adjudged to be a navigable river. The state therefore holds title to the sand in trust for the people of. Kansas. Under chapter 71 it is unlawful to take such sand for commercial use except upon the consent of the executive council. The legislature has seen fit to confer upon the council the authority of permitting persons to take the sand upon such conditions as it may determine to be just and proper. The state was not required to permit the taking of sand and could have undoubtedly held the title thereto indefinitely, but desiring to realize revenue upon the sand which was being taken, the legislature enacted this statute.
“The so-called contract entered into between the plaintiff and the executive council under date of April 9, 1926, relates almost entirely to such matters as methods of keeping records, the making of reports, the inspection of books, the payment for sand taken and violation of the antitrust law. It' also contains the provision that the plaintiff agrees to comply in all respects with the regulations of the council determining the terms and conditions under which sand shall be removed, and that it shall not take sand within two hundred and fifty feet of a bridge; and that upon the violation of any of its provisions the contract may be revoked. Under this contract the plaintiff does not agree to take or pay for any definite amount of sand and neither does the council agree to sell any definite amount. The instrument is not susceptible to enforcement as a contract. It could not be enforced as it is unilateral and lacks that mutuality and definiteness necessary to its enforcement. Neither is the so-called contract a license revocable at will, but in my opinion is that form of an incorporeal hereditament known as a profit a prendre. It is a grant of the right to take sand, or, rather, is the giving of permission to take sand. The ownership of the sand does no't pass until it has been reduced to the possession of the plaintiff, whereupon it becomes the duty of the plaintiff to account for such sand as it may have taken. The plaintiff acquired no title to the sand in the bed of the river but only has the right to remove it from the bed, and when removed the sand becomes the property of the plaintiff. Plaintiff’s right consists merely of the privilege of removing the sand. The state is the absolute owner of the bed of the stream, holding such title in trust for its citizens, and may properly permit the sand to be removed and collect a royalty therefor. The legislature may properly prohibit the removal of sand except upon the consent of the state. The granting of this consent to the exercise of the privilege of removing the sand may properly be delegated by the legislature to an administrative board such as the executive council. But here the difficulty begins. Is it necessary to the proper delegation of such power that the legislature itself prescribe the terms and conditions under which such consent may be granted or refused by the executive council?- Or, having been once granted in general terms, is it necessary for the legislature itself to prescribe the conditions and fact's necessary to be found to exist by the executive council before such consent to the removal of sand may be withdrawn or restricted? In other words, is it necessary to the lawful delegation of the authority claimed by the defendant that the legislature prescribe the conditions under which the council may give or withhold consent to the removal of sand or under which the council may restrict or limit such privilege once’ given? The statute confers authority upon the executive council to consent to the taking of said sand ‘under such terms and conditions as the executive council may determine to be just and proper.’ By section 3 it is provided that the council may change these conditions for the taking of sand ‘as the rights of the state and the interests of the public may require.’ Are such statutory provisions sufficient to legally confer upon the council the authority attempted to be exercised by the defendant in this case? The plaintiff contends that the council is merely the sales agent of the state and has only such authority incident to the making of needful rules for keeping an accurate check of the amount of sand taken and to insure payment therefor; that the council had no authority to prescribe conditions for the taking of sand based upon a consideration of the welfare of others or the rights of individuals; that to construe the statute to grant such authority would be tantamount to holding that police power has been conferred upon the council, which must be done by express and appropriate provisions. On the other hand, the defendants do not claim that police power has been conferred upon the council, but rather that the council is vested with discretion in the matter as to where the sand may be taken and under what conditions. It is admitted by both parties that the right to exeroise the police power of the state must be conferred by the legislature in express terms or be necessarily and fairly implied in and incident to the powers expressly granted, and must be essential to the declared purpose of the board — not simply convenient but indispensable. (Anderson v. City of Wellington, 40 Kan. 173; Smith v. Hosford, 106 Kan. 363; and Julian v. The Golden Rule Oil Co., 112 Kan. 671.)
“It is not of much importance by what name the authority or power conferred upon the council by the legislature is designated, whether it be a delegation of police power or merely the vesting of discretionary authority. It is the nature and character of the power or discretion and the subject matter of its application that is of essential and foremost consideration. Generally speaking, a statute which vests discretion in an administrative body or public officer, conferring arbitrary power to regulate the conduct of a lawful business or the lawful use of private property, without prescribing a rule of action for the guidance of such board or officer, is unconstitutional and void. True, a statute which authorizes a public official to issue or withhold licenses, permits or approval as applied to a lawful business or the lawful use of private property, or the lawful exercise of private rights according to such official’s arbitrary action, without specifying the conditions, rules or necessary findings upon which such official shall base his action, is void.
“In my judgment the legislature by the clause contained in the statute ‘under such terms and conditions as the executive council may determine to be just and proper,’ has not furnished the executive council with any definite rule, standard or measure, or specific condition upon which to predicate its discretionary action. Under the statute the council itself determines what are just and proper conditions for the removal of sand, without the aid of legislative enactment. Such broad and unlimited discretion respecting the conduct of the ordinary lawful business or the exercise of the lawful use of property or personal rights, would make a statute invalid; but its application to the subject matter involved herein is somewhat different than involved in most of the cases supporting the general rule. As above stated, the instrument under which the plaintiff claims its right to remove sand and which is designated as a ‘contract,’ does not pass title to the sand while in the river bed. Plaintiff’s right consists merely of the privilege of removing sand from the state’s property. An absolute right to take sand has not been conveyed, but consent only has been given to its removal. Where the discretion of ihe officer relates to a business, the carrying on of which is a matter of privilege, or to a certain use of property, which-use cannot be insisted upon as a matter of right, a different rule appears to be recognized by the courts. This distinction is shown by the cited cases found in a note to State, ex rel. Makris, v. Superior Court, 12 A. L. R. 1428-1435.
“Of course, the plaintiff’s business is perfectly lawful, but the privilege of removing sand from the state’s property is a privilege or right in the nature of a special privilege not common to all. The law permits a person to do with his own property as he sees fit, so long as he does not transgress upon the rights of others or commit a public nuisance; that right is common to all, and the law requires that the discretion vested in an administrative body to regulate or restrict the use of such property right be expressly conferred and specifically detailed. Under that class of cases where the discretion with respect to matters of mere privilege is involved, we find these relating to the licensing of the sale of intoxicating liquors, the granting or withholding of arbitrary consent to the operation of pool halls, etc. (State v. Sherow, 87 Kan. 235.) Such cases refer more particularly to the character of the business engaged in by the party rather than the character and nature of the use or the right to a certain use of property. In this case, while the business of the plaintiff is lawful, yet the removing of sand from the state’s property under a permissive consent of the council is not an ordinary property right common to all.
“In the case of Port Royal Mining Company v. Hagood, 30 S. C. 519, a statute was considered which delegated to the board of agriculture the power to grant or refuse licenses to mine phosphate rock in the navigable streams of that state ‘as the board may in its discretion deem best for the interests of the state,’ and held valid against the objection that no standard or rule had been provided in the statute upon which the board was to base its discretion, leaving the granting of the license to the arbitrary and unregulated discretion of the board, upon the ground that the right to remove phosphate rock was not a common right but was in the nature of a special privilege. By section 3, chapter 71 the council is given authority to change the terms and conditions for the taking of sand ‘as the rights of the state and the interests of the public may require.’ By these provisions, although they are general and indefinite, the legislature has in a manner designated a rule or standard for the council to follow and prescribed a guide for its action. I would think that if it is necessary that the legislature prescribe conditions under which the council may act, that this provision would be sufficient, especially in view of the nature of the right involved.
“There are many causes holding that it is not always necessary that r.he statute prescribe a definite standard or specify a rule of action to be followed by an administrative board or by which it is to be governed, where it is difficult or impracticable to make a definite or comprehensive rule, or where the discretion relates to the regulation of matters of general welfare. It cannot be reasonably said that the removal of sand from a river bed ordinarily affects the general welfare, but it might be removed under such circumstances and conditions that would affect the general welfare of the community, as, for instance, in such close proximity to a public bridge as to impair its stability or so as to expose and thus tend to weaken public drainage or sewer mams and the like. Under such circumstances a statute authorizing a change of regulations or conditions under which sand may be removed ‘as the interests of the public may require’ would not necessarily be invalid because it omits to further prescribe the bounds of the authority that is arbitrarily vested in an administrative officer to whom the regulatory discretion has been committed.
“It is true that the order of September 20 does not expressly recite that the council found that-the ‘rights of the state and interests of the public’ required anything; it expressly ordered further taking of the sand to cease ‘until such time as the river bed elevation recovered to that set forth in para graph 2 of the order of the executive council made on February 23,. 1922.’ The order of February 23, 1922, provides that—
“ ‘For the purpose of controlling the removal of sand from the bed of the Arkansas river through the city of Wichita in a manner calculated to effect the most satisfactory adjustment of the problems of city water supply, flood control and sand production, as affected by the removal of sand from the bed of the river, the following orders are made.’
“The plaintiff contends that assuming that the board had the power to make the order involved, it is necessary to the validity of such order that it contains appropriate recitals of a finding of those matters upon which the council’s authority to act is based, citing Wichita Railway & Light Co. v. P. U. C., 260 U. S. 48. Whether an express finding is necessary to the validity of the order or whether the order made may be construed to contain such finding, is rendered immaterial to the decision in this case by reason of matters hereinafter discussed.
“Chapter 71 was passed primarily as a revenue measure and was intended to be a grant by the legislature of its power of regulation only in so far as such power was incidentally involved. In discussing this feature of the statute the court said in State, ex rel., v. Akers, 92 Kan. 169, 209:
“ ‘All persons well informed with the history of the discussion at the time, know that the principal object sought to be accomplished was to add to the revenue of the state; and there is nothing in the act itself indicating that the question of regulation is not merely incidental to the main purpose of revenue.’
“It does not necessarily follow because the main purpose of the statute was to procure revenue that the legislature might not properly vest discretionary power to be incidentally exercised by the executive council in prescribing conditions for the removal of sand when the interests of the public require. If, in the exercise of the discretion vested in it, the council sought to protect private investments or private rights, that would be an unwarranted exercise of their discretion, and if, in the issuance of its orders prohibiting the further removal of sand below certain levels, the executive council contemplated the prevention of interference with the operation of the Wichita Water Company’s wells, without regard to the public interests generally, its action would unquestionably be invalid. The council has no power whatever to protect private investments, and the redress of the water company would lie in the courts. The council can only take cognizance of the ‘rights of the state and interests of the public’ in the exercise of the broad discretion conferred upon it and in its determination of what conditions are ‘just and proper.’
"While the executive council may have considerable discretion in prescribing conditions for the removal of sand within the city of Wichita, yet those conditions must be uniform as to all persons removing sand from the river bed. The statute permits the taking of sand ‘without payment therefor,’ to be used in public improvements or for the taker’s own domestic use. It is upon the sand taken for commercial use and disposition that the statute attempts to collect a royalty. The conditions under which the sand may be taken, such as the place, depth, proximity to a bridge, etc., should be as uniform as practicable and not discriminatory against the citizens of the state. Under the order of September 20, 1926, sand may be taken to any depth, if not taken for the purpose of 'car loading and for shipment from the city.’ Under the order of February 23, 1922, two different elevations are established, the lower ones being applicable generally, while the higher ones apply to carload shipments from the city. It is not apparent, nor has any good reason been assigned, why this discrimination should exist. Certainly, the ‘city water supply or flood control,’ for the control of which the order of February 23, 1922, purports to have been made, would not be any differently affected, whatever the nature of disposition was made of the sand after removal. If the removal of the sand has any bearing or effect whatever upon either the water supply or flood control, such effect would not be increased by shipments from the city or lessened by local disposition. Such discrimination cannot be justified in theory, reason or fact. It creates an arbitrary preference in favor of the consumers of Wichita and against other citizens of the state receiving carload shipments from the city of Wichita. Whatever discretion the council has in reference to prescribing conditions for the removal of sand must be fairly and impartially exercised. A restrictive regulation based upon the locality where th'e sand is to be used is just as discriminatory, arbitrary, unjust and unwarranted as one based upon the color or sex of the party using it. In my opinion this feature of the order is an unwarranted abuse of discretionary power, and of itself entitles the plaintiff to the relief sought.
“The consideration of the case might well end here but for the request for findings of fact relative to the effect of the removal of sand below the elevations prescribed in the order upon the water supply available to the citizens of Wichita.
“A comprehensive discussion of the facts respecting the source and extent of the water supply and the causes of the varying fluctuations in the water table would serve no useful purpose to the determination of this case, but a few general observations might be pertinent to a proper understanding of the situation involved. The Arkansas river enters the city of Wichita from the northwest and consists of two branches, known as the Big Arkansas and the Little Arkansas rivers. The confluence of these two rivers is a short distance above Douglas avenue. The city of Wichita is built over a strata of sand and gravel, through which there is a constant flow of water. This underflow at the city of Wichita is several miles in width, and the sand and gravel through which it flows is from thirty-five to forty-five feet in depth. The evidence discloses that the source of this underflow originates either in eastern Colorado or at least in the western portion of this state, and the catchment basin extends many miles in width, varying in depth as the formation of the water-bearing strata itself varies. The rate of movement of the underflow is comparatively slow, being from five to eight feet per twenty-four hours.
“The bed of the Arkansas river is composed of sand and gravel of extraordinary coarseness, which gives it a great commercial value. For the last fifteen years a large amount of sand has been removed from the river bed at Wichita by various companies and individuals. This removal originally was south of the Douglas avenue bridge, but has continued up stream until most of the larger plants which are now operating are located a mile or a mile and a half above Douglas avenue. The A. T. & S. F. Railway Company has removed a large amount of sand which was used in certain of its improvements in the city, and other large quantities of sand were removed for the purpose of filling in several acres of ground adjacent to the river. The sand pumps of the plaintiff are operated from boats, and the sand is conveyed from the boats in the river to bins and hoppers on the south bank of the river, from which it is loaded into cars. As the sand is removed the boats are moved from bank to bank across the river. The company removes sand from approximately the entire width of the river bed. Such operations have been gradually extended up the river to beyond a point opposite Water Works island, upon which the Wichita Water Company, a private corporation, operates its plant, and from which it furnishes water to the citizens of Wichita.
“During the last ten or twelve years the grade line of the river bed has been lowered from four to seven feet. The operation of the sand pumps, while no doubt contributing largely to the lowering of the river bed, cannot be said to be the only cause of such lowered level. The river has been narrowed by the artificial filling in of the banks. The width of the river has been narrowed from eight hundred to five hundred feet, and this has caused a certain amount of scouring out of the river bed. But whatever the cause, whether artificial or natural, the level of the bed of the river has been lowered considerably within the last few years. As long as the water is flowing in the river, it would make no difference in the water supply of the city whether the bed of the river had been lowered or not by the removal of sand, and the possible effect of the removal of sand upon the water supply only arises when the table of the underflow is the same as or below the bed of the river. It- is claimed by the defendant that the further lowering of the river bed would lower the water elevation of the underflow and thus affect the system of wells at the water company’s plant, which effect the plaintiff denies.
“The Wichita Water Company has a system of forty-three siphon wells, comprised of two groups, one consisting of twenty-six wells located along the Big Arkansas river, and the other consisting of seventeen wells adjacent to the Little Arkansas river. These wells extend from forty to forty-five feet through the water-bearing sand and gravel to the top of the hardpan. Each well is connected by a system of piping to a central receiving well, and operates by syphonic action. In addition to the syphon .wells, the company has installed four motor-driven wells, which have a greater water-producing capacity than the syphon wells. Such a syphonic system of collecting water is limited by the elevation of the water in the receiving well and also by the elevation of the ground-water level. Upon the former of theáe two factors the removal of sand by the plaintiff could have no bearing and plaintiff’s operations could only affect the water supply by lowering the ground-water level. The lowering of the level of the water table reduces the head and decreases the flow of water into the wells.
“The principal issue of fact is whether the removal of the sand from the river bed has any substantial effect upon the elevation of the water table or groundwater level. Upon this point the opinions of the engineers who testified for the parties varied considerably. From the testimony of these gentlemen I am of the opinion that the removal of sand does not lower the water table of the underflow over the entire width of the water-bearing strata or catchment basin. At most, the lowering of the river bed might have the effect of acting to some extent as a drain for the underground water in the land immediately adjacent to the deepened channel, but does not affect the ground-water level generally throughout the plane of the underflow. From the evidence it appears that there has been a lowering of the elevation of the level of the underflow generally throughout the Arkansas Valley, due, no doubt, to the increased consumption of the various cities located along its course and the demands made upon, it by increased irrigation and more extensive vegetation. It would seem that the immense volume of water daily taken by thé water company would tend much more to reduce the water plane than the removal of sand in the river bed.
“It is apparent from the testimony that the volume of the water supply is not affected to any appreciable extent, if at all, by the removal of sand and that there is an abundance of available water to supply a city of many times the population of Wichita. The lowering of the river bed may affect the availability or accessibility of water in the underflow under the present system of syphon wells operated by the water company, but has no substantial effect upon the amount of available water for the city’s use. In other words, the supply of water is to no substantial degree affected by the removal of sand, but it is only the supply of water available to the water company under its present syphonic system that could be said to be to any degree' affected. Mr. Biggs, the chief engineer of the Wichita Water- Company, frankly admitted in his testimony that by spreading the pumping stations over a more extended area along the course of the underflow, there would be an abundant supply of water for the city. In his report to the executive council, Mr. Knapp, the irrigation commissioner, engineer for the defendant, stated that the local effect of the lowering of the river bed does not greatly decrease the quantity of ground water passing under the city water works plant. By the installation of more motor-driven wells, the water company could overcome any interference which is now experienced because of a lowered river bed. This situation presents the question of whether the cost of installing such new equipment would be a matter of public interest or private investment, to which there was only an incidental reference made in the testimony. The council’s order is predicated upon water supply and flood control and not upon the increased cost to the citizens of Wichita for water produced under a collecting system of greater capacity. Under the question of flood control, I think it must be admitted that whatever effect the removal of sand may have respecting such matter, it is to lessen the possibility of damage by floods. Mr. Knapp, the irrigation commissioner, in his report to the council, stated, ‘the pumping of sand from the river at Wichita has increased the flood-carrying capacity of the channel,’ and cites the instance of the Pueblo flood as illustrative of the benefit to the city of Wichita of a deepened river channel. Findings of fact have been made which cover the issues raised by the evidence, and a further discussion herein would add nothing to those findings.
“In accordance with the views heretofore expressed, it is my conclusion that the order of the executive council is invalid as being discriminatory and an arbitrary abuse of discretionary power, and that the plaintiff is entitled to the. relief sought.”
The quoted opinion of the trial court is deemed to be a fair and full treatment of the facts in the case and an admirable and sound discussion of the questions of law involved. That opinion is approved and adopted by this court.
None of the errors assigned by the appealing parties can be sustained, and, therefore, the judgment is affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action, so far as is involved on this appeal, on two promissory notes given for the purchase price of a tractor and plow, and to foreclose a mortgage to secure the notes on the property sold. The defense was a parol warranty, which was alleged to have failed, and fraud which induced the execution of the notes and mortgage and the written order for the purchase of the machinery. The jury answered special questions, and returned a general verdict for defendant. Plaintiff’s motion for judgment on the answers to the special questions, notwithstanding the general verdict, was sustained, and defendant has appealed.
The tractor sold was a secondhand, or used, tractor. The written contract by which it was purchased contained these provisions:
“Any machine or part thereof which is secondhand, rebuilt or repaired, is not warranted, by statute or otherwise. . . . There are no representations, warranties, or conditions, express or implied, statutory or otherwise, except those herein contained and no agreement collateral hereto shall be binding upon either party unless in writing hereupon and attached hereto, signed by purchaser and accepted by vendor at his office.”
There could be no parol warranties under this contract, unless the facts justified its being set aside on account of fraud. Such fraud was alleged, but the only fraud found by the jury was that plaintiff did not call defendant’s attention to the clause, “any machine . . . which is secondhand ... is not warranted.” This was not enough to justify setting aside the contract on account of plaintiff’s fraud. It was defendant’s business to know what was in the contract when he signed it. Were the rule otherwise written contracts would be of no value. (Stevens v. Inch, 98 Kan. 306, 158 Pac. 43; Tractor Equipment Co. v. Ayers, 115 Kan. 769, 225 Pac. 115.)
Appellant cites and relies on Manufacturing Co. v. Scranton, 116 Kan. 93, 225 Pac. 731—where the vendor fraudulently misread the contract to the vendee, who could not read — and allied cases. No such situation was found by the jury in this case, hence the cases relied upon are not applicable.
The result is that the jury found no fraud which would authorize or justify the setting aside of the written contract for the purchase of the machinery, and under the contract there was no warranty. Hence the defense failed.
Other questions argued need not be discussed. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, an employee of the defendant city, commenced this action to recover damages for personal injuries sustained by him while engaged in cutting branches off treés in a park owned by the city. Judgment was rendered in favor of the defendant on its demurrer to the plaintiff’s petition. The plaintiff appeals.
The petition, without its exhibits, is set out in eleven printed pages of the abstract. The defendant in its brief fairly sets out the facts alleged in the petition as follows:
“Plaintiff went to work for defendant on March 12, 1926, and was, at such time, ordered by defendant’s foreman to cut dead limbs out of trees in defendant’s public amusement park. Plaintiff was furnished with a saw and with a ladder which was not long enough to reach the limbs to be cut, but was not furnished with tree climbers, rope or safety belt. No rules or regulations were prescribed for the prosecution of the work and no system of warning was provided.
“Plaintiff worked at trimming trees with the tools provided and under conditions stated, without promise or inducement, until March 15, 1926, when plaintiff climbed a tree part way by use of a ladder, and part way without a ladder, and took a sitting position in the fork formed by the trunk of the tree and the limb to be sawed oS. Plaintiff sawed off the limb, and in falling the ends of the limb hit the roof of a pump house which stood fifteen feet above the surface of the ground and at a distance of about twenty feet from the tree, and when the ends of the limb so struck said pump house it caused the limb to instantly rebound. The recoil of the limb caused by striking the pump house crushed plaintiff’s leg between the sawed butt of the limb and the trunk of the tree, and the leg had to be amputated.
“Defendant’s foreman was informed of the details and circumstances of the accident thirty minutes after it occurred, and within ninety days from the time of the accident the city manager and officers of the city were informed of the details and circumstances of the accident. The defendant paid certain expenses incurred by plaintiff by reason of the accident from the time of the accident to August 1, 1926.
“On October 5, 1926, plaintiff filed with the city clerk a written notice of the injury and claim for damages. The plaintiff’s claim for damages was rejected.
“That defendant was negligent in that it did not furnish plaintiff with a safe place to work or with proper tools, and did not provide proper rules and regulations for the conduct of the work, and that such negligence was the proximate cause of plaintiff’s injury.”
The defendant urges that the petition failed to state a cause of action because the plaintiff assumed the risk of injury by the accident in which he was hurt, and because notice of the accident and injury was not given to the defendant by the plaintiff within three months as required by section 12-105 of the Revised Statutes.
Did the plaintiff assume the risk of being injured by the falling branch which he had cut from the tree? The petition alleged that prior to injury the plaintiff was an able-bodied man, in good health, and was thirty-seven years old. The work in which he was engaged was dangerous. He knew that as well as any other person. He was furnished with simple tools with which to do that work, a ladder to assist him in climbing the trees, and a saw with which to cut off branches of the trees. He knew that if he fell he was liable to be seriously injured. He knew that if a large falling branch of a tree struck him, serious injury might result. There was nothing in the petition to indicate that he in any way objected to or protested against doing the work with the tools furnished him. There was no promise to furnish other or different tools. Neither the saw nor the ladder was defective. Neither of those tools contributed to his injury. Defective tools did not cause his injury nor contribute to it. He was injured by an accident caused by a danger incident to the work in which he was engaged.
In Spear v. City of Wichita, 113 Kan. 686, 216 Pac. 305, the city was held liable under conditions somewhat similar to those existing in this case, but that case can be distinguished from the present one in the following particular: There the branch of the tree to be taken off had been partly sawed off on the under side, but the workman who was injured did not see or know that the branch had been partly cut off before he commenced working on it. That contributed to the accident which injured him. Here the plaintiff knew all about the conditions surrounding his work because they were open to his inspection and visible to anyone who looked. In the Wichita case the workman was urged to hurry with his work. That prevented his making any inspection of conditions. In the present action the petition alleged nothing to show that the plaintiff was prevented from making an inspection of conditions surrounding his work.
In Walker v. Scott, 67 Kan. 814, 64 Pac. 615, it was declared that—
“A servant assumes the ordinary risks of his employment in cases where its dangers are open to common observation and are as fully known to him as to his employer, and where he is as capable of knowing and measuring the dangers of such employment and is not induced to continue in the work by any promise of betterment or indemnity from his employer. In such a case the servant cannot recover from his employer damages for any injury that may come to him in the course of his employment.”
See, also, Gillaspie v. Iron-works Co., 76 Kan. 70, 73, 90 Pac. 760; Railway Co. v. Loosley, 76 Kan. 103, 112, 113, 90 Pac. 990; Railway Co. v. Stone, 77 Kan. 642, 647, 95 Pac. 1049; Railway Co. v. Click, 78 Kan. 419, 96 Pac. 796; Metz v. Railway Co., 90 Kan. 463, 465, 135 Pac. 578; Lively v. Railway Co., 115 Kan. 784, 791, 225 Pac. 103. Numerous other cases are referred to in the cases cited above.
The petition disclosed that the plaintiff assumed the risk of being injured by the falling of the branch which he had cut from the tree.
Was it necessary for the plaintiff to give to the defendant notice of the accident and injury? The pertinent statute, section 12-105 of the Revised Statutes, in part, reads:
“No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within three months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received and the circumstances relating thereto.”
The plaintiff sought to avoid the consequences which followed his failure to give notice by alleging two facts: First, that the injury so incapacitated him that he was unable to give notice sooner than he did; and second, that the defendant soon after the accident learned of it, acted on the information received, paid for medical attention and hospital services for the plaintiff, and paid for the care and maintenance of the minor children of the plaintiff.
The statute is positive in its command. It does not recognize excuses. In Dechant v. City of Hays, 112 Kan. 729, 212 Pac. 682, this statute was under consideration. There this court said:
“Chapter 143, Laws 1919, provides: ‘That no action, shall be maintained against any city of the second class, by any person or corporation in any court for damages on account of injury to person or property unless the person or corporation injured or damaged shall, within four months thereafter, and prior to the bringing of the suit, file with the city clerk a written statement giving the time and place of the happening of the accident or injury received and the circumstances relating thereto.’ Held:
“1st. To create a condition precedent to the maintenance of such an action;
“2d. To apply to minors as well as to adults;
“3d. The requirements of the statute cannot be waived by the mayor or any other city official; and
“4th. The legislature has power to enact a statute making such a condition precedent.”
The plaintiff argues that “the statute requiring the giving of such notice was never intended to, and does not apply, where the person injured is an employee of the municipality.” The plaintiff cites cases from Washington and Minnesota to support his argument. The defendant contends that those decisions do not apply to the present situation because of the peculiar wording of the statutes or charters under which they were made. An examination of those decisions reveals that the statutory or charter provisions requiring notice to the city of accident and injury applied only to accidents and injuries in streets caused by defects therein. The cases cited by the plaintiff hold- that notice to the city was not required to be given by an employee injured in the street where the injury was caused otherwise than by a defect in the street. Our statute is not so limited. For that reason, the cases cited by the plaintiff have no persuasive force in the present situation.
The plaintiff argues “that to give the statute the interpretation which appellee asks would be to deprive this appellant of his rights without the due process of law guaranteed by the constitution.” The statute was in effect when he entered the employ of the city. His employment was subject to the provisions of that statute. He had no right of action against the city for his injury until the accident occurred. When it did occur, he had a right of action against the city if it was liable, but that right of action was contingent on his complying with the statute. The statute did not take anything from him; it did not deprive him of any property or of any right of action. It did require him to give notice before he could successfully prosecute an action to recover for his injury. The statute is a valid one.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This action arose out of a written contract, by the terms of which defendant granted to plaintiff and another the privilege of hunting and fishing on 120 acres of defendant’s land in Meade county. The contract reads:
“Meade, Kansas, April 2, 1927.
“This lease made and entered into this second day of April, 1927, by and between Wm. Colgan, of Meade, Kansas, party of the first part, and J. L. Boyd, of Meade, Kansas, and J. A. Campbell, of Topeka, Kansas, parties of the second part.
“Witnesseth: That the said party of the first part agrees to lease unto the said parties of the second part, for the purpose and usage of hunting and fishing, the following-described land, to-wit: The N% of southwest quarter and the N% of west half of the southeast quarter of section nineteen (19), township thirty-one (31) south, of range twenty-seven (27) west of the 6th P. M. in Meade county, Kansas.
■“For a term of ten years from date hereof, with privilege of renewal at the expiration of that time.
“Said parties of the second part agree to pay to said party of the first part as rental for said premises the sum of fifty ($50) and no/100 dollars per year, payable February 1 of each year, and in case of nonpayment of rental as above mentioned this lease shall become null and void.
“Privilege is given to second parties to put down wells on said land; also to construct a dam on same, said dam not to be constructed so as to cause damage by flood to other land; second parties are not to cause damage by tearing down fences or other improvements on said land, and are to have the privilege of using what is known as the ‘hay road’ in going to and from said land.
“Witness our hands the day and year above written.
.“Wm. Colgan,
“J. L. Boyd."
[Notarial acknowledgment, and indorsement of register of deeds showing recording of the instrument.]
Campbell did not sign or join in this contract. Plaintiff paid $20 of the agreed annual rent at the time the contract was executed by himself and defendant. Plaintiff organized a gun club of 25 members and assigned the contract to the club. Members of this club, and other persons claiming to have oral permission from plaintiff to hunt on the land, began to overrun defendant’s premises to his great annoyance and to the detriment of his live stock and to the damage of his fences. Provoked by this state of affairs, defendant put a complete stop to all hunting on his property — taking that position because of Campbell’s failure to join in the contract and because the first year’s rent of $50 had not been paid in full. Defendant also took the ground that even if binding between himself and plaintiff the contract did not give plaintiff the right to grant indiscriminate permits to other persons to hunt and fish on the premises.
Hence this lawsuit. Plaintiff invoked injunctive relief to restrain the defendant from interfering with the use of the premises for hunting and fishing by plaintiff and his guests or any persons he might authorize to fish or hunt thereon during the life of the contract.
On issues joined the cause was tried without a jury. Evidence was offered which tended to show that plaintiff had entered into the contract with defendant in contemplation of organizing a gun club and charging the members an annual fee of $5 each; that he had brought Campbell’s name into the contract without any authority to do so because Campbell, who resided in Topeka (300 miles away), occasionally came out to hunt in Meade county; and that plaintiff had orally authorized various persons to hunt on the property, and that he and certain of his guests who had gone there to hunt had been ordered off the premises by defendant.
Judgment was entered in plaintiff’s behalf in the following terms:
“It is therefore by the court considered, adjudged, ordered and decreed that the plaintiff and his guests and assigns be granted a perpetual injunction against the defendant and all persons acting under him, from molesting or in anywise interfering with the plaintiff, his guests and assigns in their use and possession of N% of NW% and N% of WV2 of SEU, sec. 19 twp. 31 south, range 27, west 6th P. M. in Meade county, Kansas, as a hunting and fish lease, and that said injunction be and the same is hereby made perpetual during the life of this lease, and that the defendant pay the costs of this action, taxed at I-.”
Defendant assigns various errors which he summarizes into three main contentions, viz.:
“First: That the lease was never completely executed or delivered;
“Second: That the consideration for the lease was not paid in accordance with the agreement, and the rights of the plaintiff were forfeited thereby; and
“Third: That even if the lease had lawfully become effective, plaintiff’s rights were personal, and he could not transfer them to a gun club or issue permits thereunder.”
Touching the first of these, it is quite correct that a binding contract is not effected where a person merely signifies his willingness to contract with two designated persons and that proffered agreement is accepted by only one of them, or by one of them and a third, or by third persons to whom the offer was not made. It is every man’s right to select the persons with whom he will enter into contractual relations. (Corley v. Ehlers, 99 Kan. 748, 163 Pac. 140; 1 Page on Contracts, § 193; 13 C. J. 273; 39 Cyc. 1203.) But it is also the privilege of an offerer to waive any terms prescribed by hita as a basis for his assent to a proposed agreement; and when defendant signed and acknowledged this contract and permitted it to be recorded, although it only contained plaintiff’s signature and his own, and when he received from plaintiff the sum of $20 as part of the first year’s rental and retained it, this court is constrained to hold that the want of Campbell’s participation in the contract was waived and the agreement became effective between the signatories thereto. (Edwards v. Gildemeister, 61 Kan. 141, 59 Pac. 259; 13 C. J. 306.)
The second point raised in defendant’s behalf is even more easily disposed of. The contract did not prescribe that the $50 annual rental should be paid in advance. It was to be paid on February 1 of each year. The instrument was executed, delivered, and recorded on April 2,1927, and consequently no payment was due until February 1, 1928; and long before that date arrived defendant attempted to repudiate the contract and deny to plaintiff the rights which it conferred on him. We note in defendant’s answer his offer to return the $20, but that unavailing maneuver was made after the rights of the parties were crystallized for judicial determination.
Coming now to the main question in this lawsuit, was the trial court correct in reading into the contract a grant of the privilege of hunting and fishing on defendant’s farm for ten years and for a renewable term of ten years more to “the guests and assigns” of J. L. Boyd — whoever they may be — and to provide for the enforcement of such privilege by the all-powerful injunctive processes of a court of equity? We are familiar with the reluctant attitude of courts of equity to enforce improvident contracts whose strictly legalistic aspects are unassailable. They usually remand all disputants concerning them to their remedies at law. But the cases are rare, indeed, where equity will read into the plain and unambiguous terms of a contract free from fraud or mistake any matter which radically enlarges the obligations of one of the parties thereto, and at the same time lay an interdict against the breach of that contract thus amplified and modified by its decree.
There was testimony that plaintiff contemplated the formation of a gun club to take over the hunting and fishing privileges granted to plaintiff, and that plaintiff was aware of that project before he executed the contract. But the contract is not ambiguous and the preliminary negotiations, whatever they -were, were either set down in the written instrument itself or were abandoned by the negotiators. In Hudson v. Riley, 104 Kan. 534, 539, 180 Pac. 198, it was said:
“It appears that some evidence was received which varied and contradicted the written contract. Where parties, after negotiations, commit their agreements to an unambiguous written contract, it is to be presumed that they have included in it every material matter, and parol evidence of the preceding negotiations or declarations, in conflict with the written contract, is not admissible. (Milich v. Armour, 60 Kan. 229, 56 Pac. 1; Railway Co. v. Truskett, 67 Kan. 26, 72 Pac. 562.)”
Again in Utilities Co. v. Bowersock, 109 Kan. 718, 727, 202 Pac. 92, it was said:
“It is hardly necessary to refer to authorities that the contract must be construed as a whole, ... or that where it is not ambiguous the terms of the contract control, and extraneous evidence cannot be resorted to to explain the contract.”
The contract between the parties is denominated a “lease,” which is perhaps as convenient a designation as any, but the grant contained in it is merely a privilege or license, and is essentially personal in its nature. It is difficult to get more out of this contract than what the statute prescribes as a prerequisite to the creation of a right to hunt or fish on another man’s land. (R. S. 32-143.) Certainly the contract does not purport to grant an interest in the land to J. L. Boyd, his heirs and assigns. Heirs and assigns are not mentioned; nor is the contract fairly susceptible of an interpretation that defendant made over to plaintiff the right to sublet or grant to other persons the privileges of hunting and fishing on defendant’s premises which he himself was to enjoy. Such seems to be the general view of courts which have had occasion to examine such contracts, even where the hunting and fishing rights were conferred not alone upon the grantee but where the heirs and assigns were likewise named therein. The words “heirs and assigns” would not be a designation of grantees in such an instrument but merely words of limitation, under cardinal rules of construction. (Kirby v. Broadus, 94 Kan. 48, 145 Pac. 875, and citations.)
In Bingham v. Salene, 15 Ore. 208, where the grant was of “the sale and exclusive privilege and easement to shoot, take and kill wild fowl on the lakes, sloughs and waters of the grantor, executed to the grantees [plaintiffs] their heirs and assigns forever,” it was held that the grant did not authorize the indiscriminate granting of permits to others to exercise the same privilege. In Salene v. Isherwood, 55 Ore. 263, it was held:
“Under a deed granting to persons named, and ‘to their heirs and assigns,’ the right to hunt and take wild fowl on waters bordering on described lands, the grantees are not entitled to issue permits to hunt on such lands to servants or other persons.” (Syl. ¶ 5.)
And in Isherwood v. Salene, 61 Ore. 572 (Ann. Cas. 1914B, 542 and note), it was held that the grant of a profit a prendre such as a right of hunting over the land of another must be strictly construed and cannot be extended beyond the express terms of the grant.
In Mallet v. McCord, 127 Ga. 761, the ancestor of defendant had sold to somebody through whom plaintiff claimed the right in perpetuity to maintain a dam for a mill pond on the grantor’s land, reserving to himself the right to fish in the mill pond. It was held that the reserved right to fish in the pond was personal, and was neither assignable nor inheritable, and defendant’s claim of right to fish in the pond was denied.
See, also, Council v. Sanderlin, 183 N. C. 253; 32 A. L. R. 15, 27 n.; 27 C. J. 943; 12 R. C. L. 689, 690.
It seems clear that the injunction granted to plaintiff was altogether too broad. Plaintiff’s “guests and assigns” have no rights in the contract; they are altogether too indefinite to fall within the terms of the contract; and if that injunction were permitted to stand unmodified defendant would never be able to determine who were protected by the injunction and who were mere willful trespassers on his property. The suggestion intrudes that even under the personal grant of hunting and fishing privileges, members of defendant’s family might accompany him and participate in his hunting and fishing expeditions. Perhaps so. A court of equity would frown on too narrow a construction of this contract as readily as we are constrained to do against the too broad and indiscriminate construction given it by plaintiff and sanctioned by the trial court. Mayhap, too, the grantee would have the right to be accompanied by his servant to carry his game bag, lunch basket, and the like. The contract should be fairly interpreted, of course; but by none of the rules of construction nor principles of' equity can we assent to plaintiff’s contention that the members of a gun club, or plaintiff’s “guests or assigns” have or can obtain by assignment or otherwise any rights under the contract set out above. To that end the cause will be remanded for modification of the judgment in accordance herewith.
It is so ordered.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Hopkins, J.:
The defendant was convicted of robbing the Lecompton State Bank and appeals.
The conviction appears to have been secured largely through the testimony of one Byron Lacy, who at the time of the trial in the instant case was an inmate of the state industrial reformatory at Hutchinson, serving sentence for car theft. The defendant’s principal contention is that the evidence was insufficient to sustain the conviction.
Lacy testified substantially to the effect that he had known the defendant some three weeks before the robbery, which occurred on August 18, 1925; that on Saturday night before the robbery the defendant suggested to him that they meet at a small park in the southwest part of Topeka the following Tuesday morning; that de fendant had a job to be done in Lecompton; that he met'defendant in the park on'Tuesday morning about 10:30, got into defendant’s car with defendant and one Hearst, a stranger to Lacy, and drove to Lecompton; that the defendant told the witness, Lacy, he was to follow Hearst; that he did so; that he and Hearst each with a loaded revolver entered the bank, robbed it of some $1,400 while defendant remained in the automobile close by; that after the robbery the three drove away from Lecompton, and that he (Lacy) got seventy dollars of the money stolen from the bank.
The defendant argues that the testimony of Lacy was so unreasonable as not to be believed; that Lacy testified the defendant never suggested during the trip to Lecompton that they intended to rob the bank; that the question was not discussed; that after arriving at Lecompton, when the car was parked about a quarter of a block from the bank, no suggestion was made that the bank was to be robbed, but only that Lacy was to follow Hearst.
The testimony of Lacy was fully corroborated by that of other witnesses. For instance, Sarah Slavens, a fifteen-year-old girl who lived in Lecompton, testified that she remembered when the bank was robbed, saw a big blue touring car about two and a half blocks from the bank, driving about five miles an hour, and that she saw both Lacy and the defendant in the car; that there were three men in the car.
Margaret Baughman; another girl, with Sarah Slavens, also saw a blue touring car coming from the south; saw three men in it; that Lacy and the defendant were in the car. She was not as positive in her identification of defendant as Miss Slavens, but thought he was the one.
Charles Shaw testified that he saw a blue Packard touring car the morning the bank was robbed about fifty feet northwest of the bank; that a man was sitting behind the steering wheel and that he thought the defendant was that man.
Fritz Hill remembered that the bank was robbed about eleven o’clock; saw the blue Packard car; passed it several times; one man was in it; looked very much like defendant.
George Haynes, who is a blacksmith at Lecompton, saw a blue Packard car on the day of the robbery; identified Hearst from a picture, as being one of the men in the party; identified Lacy and believed that the defendant was one of the men in the car.
We are of- opinion that the evidence was ample to sustain the conclusion of the jury that the defendant was one of the party who robbed the bank. It was, of course, essentially a question of fact to be decided by the jury.
Complaint is made of misconduct by the county attorney in the argument to the jury, in that he directed attention to the fact that defendant’s wife was in court and did not take the stand and testify to certain things testified to by the defendant. On the part of the state it is contended that the defendant took no exception to the remark at the time it was made, and did not call the trial court’s attention thereto until the filing of a motion for a new trial. Also, that no showing of prejudice resulting from the alleged misconduct was made. It has been held:
“Misconduct of counsel in argument to the jury is not available as ground for reversal where no objection was made to it and no request was made for a ruling thereon, or for an instruction to the jury concerning it.” (State v. Vandruff, 125 Kan. 496, syl. ¶ 4, 264 Pac. 1060.)
It has also been held that although it was an error for the county attorney to refer to the fact that defendant’s wife did not testify, that before a judgment of conviction would be reversed it must affirmatively appear that some substantial right of defendant was affected by the error. (See State v. Peterson, 102 Kan. 900, 171 Pac. 1153; State v. Owen, 124 Kan. 533, 261 Pac. 600; State v. Messmer, 123 Kan. 201, 254 Pac. 378; State v. Ragan, 123 Kan. 399, 256 Pac. 169.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to foreclose a mechanic’s lien. A mortgagee was made a party defendant, and a mechanic’s lien-holder intervened. The intervener was awarded a first lien, the mortgagee a second lien, and plaintiff a third lien. Plaintiff appeals from the portion of the judgment giving the mortgage priority over plaintiff’s mechanic’s lien.
Parks let a contract to Hammond, the -intervener, to furnish the labor and material for the erection of a dwelling house. Hammond began construction of the building on October 12, 1925, and concluded performance of his contract on May 22,1926. The mortgage was given on November 12, 1925. On August 24, 1926, plaintiff put window and door screens on the building. The screens were ordered on April 17, were manufactured to be attached to the building, and the lien for the screens was filed on November 23, 1926.
The mechanic’s lien law does not regard dates of contracts to furnish labor or material. The statute reads as follows:
“Any person who shall, under a contract with the owner of any tract or piece of land, . . . perform labor or furnish material for the erection, alteration, moving or repair of any building, improvement or structure thereon, or who shall furnish material or perform labor ... in putting up of any fixtures or machinery in or attachment to any such building, structure or improvement, . . . shall have a lien. . . . Such lien shall be preferred to all other liens or incumbrances which may attach to or upon said land, building, or improvement, or either of them, subsequent to the commencement of such building, the furnishing or putting up of such fixtures, ... or the making of any such repairs or improvements.” (R. S. 60-1401.)
In the opinion in the case of Mortgage Co. v. Weyerhaeuser, 48 Kan. 335, 29 Pac. 153, the court said:
“Liens under our law date from the commencement of the building, when one is constructed; from the making of repairs, when a building is altered or improved; from the furnishing or putting up of fixtures or machinery, when they are attached to or put in any building; . . .” (p. 341.)
Hammond erected the dwelling house. The screens were not included in the plans and specifications, and the building was completed without screens three months before the screens were put on. The screens were furnished under a separate contract. While the screens increased desirability of the dwelling house as a place of residence, they were annexations to the structure rather than integral parts of it. Screens are usually removable without injury to the house, and are removed and stored for a portion of the year, in this latitude. They are provided, however, for permanent use with the house, and so are fixtures in the true sense of that term and within the meaning of the mechanic’s lien law. Under the circumstances, performance of plaintiff’s contract may not .be tacked to performance of Hammond’s contract, to enlarge, retrospectively, the time within which plaintiff’s lien was entitled to preference. Because plaintiff’s lien relates to annexation of fixtures to an erected building, and not to construction of the building, the decision in the case of Pickering Lumber Co. v. Eisenhour, 125 Kan. 738, 264 Pac. 144, does not apply, and none of the decisions of this court heretofore rendered is pertinent.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The proceeding was one to forfeit an automobile as a liquor nuisance. The court found the vehicle was a common nuisance, and ordered it sold, but ordered it sold subject to the chattel mortgage held by the Union Credit Corporation. The state appeals.
An information was filed charging Boucher with violation of the liquor law, and charging that the automobile had been unlawfully used for the purpose of transporting intoxicating liquor. Boucher was arrested, and gave bail for his appearance in the form of a deposit of $1,000 cash. When his case was called he did not appear, his bail was forfeited, and he has not since been apprehended. The case then came on for hearing as a proceeding against the automobile. The Union Credit Corporation appeared and claimed the automobile, as the holder of a mortgage to secure a sum of money, of which $329.70 remained due and unpaid. Under the terms of the mortgage the Union Credit Corporation was entitled to possession of the vehicle. The court found the automobile was a common nuisance, and ordered it sold. The court further found the intervener had no notice of Boucher’s unlawful use of the automobile, found the amount due the intervener, and ordered the sale to be made subject to the intervener’s mortgage.
The Union Credit Corporation has filed no brief on the merits. The statute contains no provision saving the rights of innocent mortgagees in proceedings to forfeit vehicles under the liquor law, and the court erred in ordering that the condemned vehicle be sold subject to the Union Credit Corporation’s mortgage. (State v. Peterson, 107 Kan. 641, 193 Pac. 342; State v. Stephens, 109 Kan. 254, 198 Pac. 1087; State v. Brown, 119 Kan. 874, 241 Pac. 112, affirmed by the supreme court of the United States in Van Oster v. Kansas, 272 U. S. 465; State v. Morris, 124 Kan. 143, 257 Pac. 731.)
A recent decision of the supreme court of Massachusetts, in accord with the decisions of this court, is instructive. (Commonwealth v. Certain Motor Vehicle, [Mass.] 159 N. E. 613.)
The cases of Commercial Credit Co. v. U. S., 276 U. S. 226, and Port Gardner Co. v. United States, 272 U. S. 564, have no application to the present controversy. They were decided under federal law, and the character of the decisions is indicated by the headnote to the report of the decision in the Commercial Credit Company case:
“Where a person discovered in the act of unlawfully transporting intoxicating liquor in a vehicle is proceeded against as prescribed by section 26 of the prohibition act, and convicted of the unlawful possession incident to the transportation, the vehicle must be disposed of under that section also, which provides protection for the interests of innocent owners or lienors, and not under Rev. Stats. § 3450, which does not provide such protection.” (276 U. S. 226.)
The United Credit Corporation has filed a motion to dismiss the appeal. It is said the record does not show that Boucher has had. a trial, or that any judgment has been rendered against him, and that no formal judgment has been rendered against Boucher which can be certified to this court. The vehicle was a common nuisance, and was seized as such. The notice which was given pursuant to R. S. 21-2164 was notice to Boucher as well as to all other persons claiming an interest in the vehicle, and the judgment of forfeiture is a judgment against him. The status and outcome of the criminal case against Boucher are of no consequence in this proceeding. The vehicle could be proceeded against even though Boucher, was not arrested (R. S. 21-2164), and even though he was acquitted of thé criminal offense. (State v. Powell, 120 Kan. 731, 244 Pac. 1053.)
It is said the record does not show the Union Credit Corporation was a party to the action. The action was commenced by information charging Boucher used the vehicle as a common nuisance, and by. issuance of a warrant for Boucher’s arrest and for seizure of the vehicle. The state’s remedy then took two forms, one a criminal proceeding to punish Boucher, and the other a civil proceeding to abate the nuisance. The title of the action remained the same (R. S. 60-738). The Union Credit Corporation became a party to the civil feature of the case by appearing and filing an answer, in which it claimed the vehicle under its mortgage. While the Union Credit Corporation called its pleading a motion, the pleading was in fact an answer, under R. S. 21-2164. The name given the pleading is not important.
It is said the state reserved no question to be considered on appeal, as provided by R. S. 62-1703. The court has repeatedly held, in cases like this one, that the proceeding against the vehicle is a civil proceeding, and in civil proceedings reservation is not essential.
The motion to dismiss the appeal is denied. The case is remanded to the district court with direction to modify its judgment by striking out of finding 8 and the order of sale the reservations making the sale subject to the mortgage of the Union Credit Corporation. As modified, the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
General Sheppard was convicted of having a narcotic in his possession, and appeals. He contends the evidence did not establish possession, as defined in the opinion in the case of State v. Metz, 107 Kan. 593, 193 Pac. 177.
Sheppard lived on West Chestnut avenue, outside the city limits of Arkansas City. Maggie Crawford, the wife of another man, lived with him. Sheppard and the woman engaged in a fight, and were arrested. At the time of the arrest, the woman said narcotics were planted by a tree northwest of the house. Sheppard and the woman were placed in jail, and an officer returned to Sheppard’s house and searched for narcotics, but found none. Soon after Sheppard was placed in jail, Jim Price remembered be owed Sheppard $2.50, and went to the jail to pay Sheppard. Price had a conversation with Sheppard, which Price, as a witness for the state, related:
“Q. What did he say? A. He asked me to go out to the place — told me just exactly, that is, just right by the yard ... to see if the law had been there and found his stuff.
“Q. Did he tell you what the stuff was in? A. Yes, sir; it was buried there —I could find it easy by the signs — looked like chickens had been scratching. “Q. Did he tell you what it was in? A. Told me it was in a bottle.
“Q. Whereabouts did he tell you you would find it from the bodoek tree? A. Told me I would find it before I got to the bodoek tree in the gutter — he didn’t say how far.
“Q. What did you say to him? A. I told him I didn’t want to go; he says he was just asking for me to go out there to see if the law had found it.
“Q. Did he tell you it was under a brick? A. No; he didn’t say positive; he said it was near a brick.
“Q. Near a brick? A. Yes, sir.
“Q. He mentioned a brick? A. Yes; he told me.”
Price left the jail, did a little janitor work, and then went out on West Chestnut to Sheppard’s place. Price gave the following account of what occurred there:
“Q. After you got out there what did you do — what happened? A. After I got out there I began to look for this stuff. I seen a car setting west of the railroad there, about a couple of hundred yards, something like that, and I didn’t get interested in looking for it on account of this car. I didn’t know who it was in it; I didn’t want to let any one see me.
“Q. Tell what you did. A. I looked for the stuff, but I didn’t find it.
“Q. What did you do then? A. I first kicked around with my foot; after that I raked around with my hand.
“Q. Did anything happen while you were doing this? A. Yes, sir; the officers ran in on me.
“Q. What did you do then? I got up and walked off when I seen the car coming; I didn’t see who it,was, and I started to walk.
“Q. Where did you go? A. Started up towards the house; when they seen me they just jumped out of the car and had me to come back to them.
“Q. What conversation did you have with the officers, and what happened? A. They asked me what I was doing out there. I told them I was out there to see Sheppard. Speedy says, you are a liar.
“Q. Did you get hit out there? A. Yes, sir.
“Q. You first lied about it, did you? A. Yes, sir.
“Q." Where did you get hit? A. Right up over the eye.
“Q. What hit you? A. A black-jack.
“Q. Did you tell him this story after that? A. I told him my business out there; I told him I was out looking for stuff — Sheppard sent me out to see about it.
“Q. What did you do after that? A. I didn’t do nothing but sit there and hold my wounded place.
“Q. Did you get in the car? A. Yes, sir.
“Q. Where did the officers go? A. One of them stood at the car and one was over looking in the gutter for this stuff, and which he found it.
“Q. Who was looking for the stuff? A. Dewey.
“Q. Was there any other officers there looking for it? A. I can’t remember whether Morey was looking for it at that time or not; he was still nearby.
“Q. Did anybody find anything? A. Yes, Dewey found it.
“Q. Did you see him when he found it? A. Yes, sir.
“Q. You didn’t tell them anything about this until they had hit you on the head? That is right? A. That’s right.”
The bottle which the officer found contained morphine sulphate, a derivative of opium. Price testified he had been around dope fellows and heard what they said, and they would be apt to. Call morphine “stuff.”
Taking into account the fact that the narcotic was contraband, the fact that it was kept at a place near Sheppard’s home which he described with particularity, the fact and manner of concealment of the bottle, Sheppard’s claim of ownership — -“my stuff” — and Sheppard’s anxiety concerning possible discovery by the officers after the angry woman had turned informer, all the elements of corporeal possession were well proved.
The court is not concerned with credibility of witnesses nor conflicts in testimony, nor with interpretations of the evidence which the jury did not accept, such as that Sheppard was the innocent victim of a conspiracy.
Defendant complains the instruction given the jury respecting possession was incomplete, and dealt with constructive possession rather than possession in fact. The instruction is not recommended for insertion in a form-book, but defendant was willing to go to .the jury without suggesting to the court wherein it might be improved, and it is now too late to complain.
Other criticisms of the proceedings reveal nothing prejudicial to defendant’s substantial rights.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 9th of April, 1873, the defendant
in error commenced his action against the plaintiff in error to recover an alleged balance of $667.50, with interest, for macadamizing Commercial street in said city, in 1872, under a contract between the parties to the action dated July 25th, 1872. On February 22d, 1877, an amended petition was-filed for work done, alleging the amount due; that the city had not collected from the abutting owners the cost of the maeadamization; that the work was performed in every respect in accordance with the plans and specifications of the-city engineer, and under his direction, and to his acceptance and satisfaction; that the defendant in error complied with all the conditions and specifications of the contract; that the-city did not perform its part in any respect, but wrongfully and negligently failed and refused to make the necessary assessments for the payment thereof or issue bonds therefor to-the contractor. On June 13th, 1877, the plaintiff in error filed its answer, containing a general denial; also, alleging that defendant in error failed to perform the contract on his-part, and that a settlement was had with him in December,. 1872, for all the work done by him, and that he was paid in full. A reply was filed June 19th, 1877.
At the June term, and on July 16th, 1877, the case came on for trial before the court and jury, and on July 17th, 1877, the jury returned a verdict in favor of the plaintiff for “$334, with interest from December 24th, 1872, at the rate of seven per cent, per annum.” The court rendered judgment on the verdict for $439, and $66.95 costs.
On July 19th, 1877, a motion for a new trial was filed on the part of the city, which embodied all the statutory grounds except the allegation of accident or surprise. This motion was heard August 14th, 1877, and overruled. No exception was taken to the overruling of this motion, or to the rendition of the judgment. Certain bills of exceptions were approved, signed and filed in the case during the June term of court, and plaintiff in error, among other reasons, seeks a reversal of the judgment on account of errors alleged to have occurred during the trial. Counsel for defendant in error object to the consideration of these alleged errors, because no exceptions were taken to the overruling of the motion for a new trial. Counsel for the plaintiff in error answer by earnestly challenging the rule adopted in Nesbit v. Hines, 17 Kas. 316, that any matter for which a new trial may be granted is waived by the neglect of the party to move for a new trial, and insist that the failure to except to the overruling of such a motion is not a waiver of error to the ruling of the court, or of the previous rulings on the trial. Elaborate briefs have been furnished us in support of these views, and the questions are thoroughly and learnedly discussed, as if they were original subjects for our determination. Being merely questions of practice, and having been once settled in this state, we deem it better to adhere to our previous rulings; especially is this best upon the points presented, in view of the numerous decisions of other states supporting our own in this regard. We therefore approve . ° x the rule of practice recognized in Nesbit v. Hines, supra. In addition to the cases there cited, we refer to Fowler v. Young, 19 Kas. 150; State v. Swarts, 9 Ind. 221; Henly v. Kern, 15 Ind. 391; Heron v. Saucer, 13 Ind. 148; Robinson v. Hadley, 14 Ind. 417; Woodfield v. Barbee, 18 Ind. 320; Torr v. Torr, 20 Ind. 118; Harderle v. Lafayette, 20 Ind. 234; Lures v. Botte, 26 Ind. 343; Railroad Co. v. McCartney, 1 Neb. 398; Mills v. Miller, 2 Neb. 317; Wells, Fargo & Co. v. Preston, 3 Neb. 444; Horbach v. Miller, 4 Neb. 31; Cropsey v. Wiggenhorn, 3 Neb. 108; Creighton v. Newton, 5 Neb. 100; Gibsen v. Arnold, 5 Neb. 186; Hull v. Miller, 6 Neb. 128; Hosford v. Stone, 6 Neb. 378; Benoist v. Powell, 7 Mo. 224; Floersh v. The Bank, 10 Mo. 516; Lancaster v. Ins. Co., 62 Mo. 121, 127; opinion of Dillon, J., in Rindskoff v. Lyman, 16 Iowa, 260.
Again, the absence of any exception to the ruling of the court upon the motion for a new trial, is fatal to any review of the errors therein alleged, as the decisions of our courts have been frequent and uniform, that the failure of a party 1° exoepf to a decision is a waiver of his right to object. After having waived it once, he cannot afterward interpose any objection on that score. (Brown v. App, McCahon’s Rep. 174; Garvey v. Schollkopf McCahon’s Rep. 179; Bliss v. Burnes, McCahon’s Rep. 91; Osgood v. Haverty, McCahon’s Rep. 182; Small v. Douthitt, 1 Kas. 335; Grandstaff v. Scoffin, 5 Kas. 165; Lalonde v. Collins, 5 Kas. 361; Crowther v. Elliott, 7 Kas. 235; Lyons v. Badenhamer, 7 Kas. 455; Lee v. Loveridge, 11 Kas. 485; Hostetter v. Hoke, 17 Kas. 81.)
With this view of the questions of practice which have been presented, we can only consider upon the record whether the amended petition is fatally defective. This presents, mainly, the inquiry whether the only remedy of the defendant in error was by mandamus to compel the levy of a special assessment for the improvement, or the issue of bonds for the costs of such macadamizing.
This inquiry is virtually disposed of in favor of the right of the defendant in error to recover upon his claim against the plaintiff in error, by the case of the City of Leavenworth v. Mills, 6 Kas. 288, and the case recently decided of the City of Wyandotte v. Zeitz, 21 Kas. 649.
When the city of Atchison failed to levy a sufficient tax to pay for the work done, and refused to issue all the special assessment bonds to which the contractor was entitled, or otherwise provide any means for paying the balance due him, he had no other alternative, except bringing suit; and as the city was liable to him for the balance unpaid, his action was rightfully brought and prosecuted in the court below against that corporation.
We have examined all the other questions submitted, but in the condition of the record nothing further need be said. The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Upon the trial of this case, the plaintiff in the court below, defendant in error here, rested his title upon a certain tax deed which he introduced, and which was received by the court as evidence against the objection of the defendant, plaintiff in error. The court based its judgment-on this tax deed, and the only question presented is as to its validity. The deed purported to have been issued under and in accordance with the provisions of an act entitled “An act to provide for the sale of lands for taxes due and unpaid thereon,” approved February 27, 1872. It is apparent from the face of the deed that all the proceedings attempted to be had under said act of 1872, including the sale, were premature. The first section of said act provides, that “whenever any lands or town lots that may have been or shall hereafter be sold for any taxes due thereon, that have been or shall hereafter be bought in by any county for such taxes, shall be or shall hereafter be unredeemed for the term of five years from such sale, and no person shall offer to purchase the same for the taxes, penalties and costs due thereon, it shall be the "duty of the treasurer of such county to sell such lands or lots at public auction to the highest bidder for cash, after having first given at least four weeks’ notice of such sale and of the property to be sold, with a statement of the taxes, penalties and costs due on such lands or lots, up to the date of such sale, in some newspaper of general circulation in such county.”
By these provisions, the property to be sold thereunder must have been unredeemed for the term of five years from the sale to the county, before the treasurer is authorized to take steps to sell it again; in other words, the notice of sale, •as well as the sale, must be subsequent to the term of five years after the property has been bought in by the county. The authority given the treasurer to proceed under the act, -rests upon the precedent conditions, that the property has 'been unredeemed for five years, and that no person has •offered to purchase the same for the taxes. He has no power to anticipate that the property will not be redeemed within the five years, and prior to the expiration of the five years •commence making costs and expenses, by giving notice of a future sale. In order that a tax deed shall be valid under said act, there must be a substantial regularity in all the proceedings. The deed accepted in evidence showed that the premises therein described were bought in by Doniphan •county, on the first Tuesday of May, 1869; that the second sale of the property was made on the 9th day of May, 1874; and that the notice of sale was given prior to the expiration •of the five years the property must remain unredeemed, before proceedings could be taken under the act of 1872. The •officers, in their eagerness tp hasten the day of sale, did not defer all proceedings until the expiration of the term of five years, and therefore failed, to comply with the law. The ■deed therefore was invalid, and ought not to have been accepted as the basis of title in Rullman.
It is very doubtful whether the deed was otherwise sufficient in form. It did not recite that the land was subject to taxation, or.that any taxes were assessed thereon. But it is unnecessary to notice the matter further.
Eor the fatal defect appearing upon the face of the tax ■deed, the judgment of the district court must be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant was convicted, in the district •court of Atchison county, of the crime of burglary in the second degree, and from such conviction has brought this .appeal. /■
The first question which we shall notice is that sought to be raised in the district court by a demurrer to the state’s-evidence. Waiving any inquiry into the propriety of such a practice as that pursued by counsel, let us inquire whether,, upon the testimony presented, there was a case which ought-to have gone to the jury, and which now will support a verdict of guilty. The facts are these: On the night of the 2d of August, 1878, M. Marcus, the proprietor of a saloon, was-hidden with two policemen in a coal shed in the rear of his saloon. The front door of the saloon was locked; the rear-door shut, but not bolted. About two o’clock, one Samuel Wiles came through the back yard, opened the rear door,, waited a moment, and then closed it and retired. In a few minutes, Wiles and defendant returned (the latter in advance), opened the door, and entered the building. In the-building-was a safe, with some money in it. After Wiles- and defendant had gone into the building, Marcus and the-policemen came out of their place of concealment, and arrested them. On their persons, was found a number of burglar’s tools. Defendant stated to Marcus, after being arrested, that he was hard up, pressed for money, and had come-to make a raise. If these facts stood alone, there could be no question of the correctness of the court’s ruling. Here-were all the elements of the crime of burglary, as charged —a breaking and entering in the night-time, with an obvious and expressed intent to steal. The two points around which the objections of counsel gather are, the relations of Wiles to this matter, and the condition and fastenings of the door through which the parties entered. In relation-, to the former, counsel claim that Wiles was a decoy, leading defendant on to do what he did; that Wiles disclosed the intended visit to the officers, and thus enabled them to-be present and arrest Jansen, as also that when Wiles and defendant were taken to jail that night, the former was not placed in custody, but permitted to go at large, with a firing of pistols under a pretense of an escape; but beyond this, Wiles’s relations to the affair are a mere matter of conjecture. As to-them the record is silent. How long Wiles and Jansen had. been acting together, who planned this burglary, who was chief and who assistant, what division of the proceeds had been agreed upon, what motive induced Wiles to divulge the place of the intended crime, are all undisclosed by the testimony. A jury might be justified, perhaps, in inferring that he was a detective, but the court could not say absolutely that he was. Nor could anyone say, from the testimony, that he prompted, planned or induced the crime. Even if he were a detective, and acting solely as such from the commencement to the close of his relations with Jansen, that would not necessarily purge the latter of guilt. The act of a detective may, perhaps, not be imputable to the defendant, as there is a want of a community of motive. The one has a criminal intent, while the other is seeking the discovery and punishment of crime. But where each of the overt acts going to make up the crime charged, is personally done by the defendant, and with criminal inte'nt, his guilt is complete, no matter what motives may prompt , ....... i • • i or what acts be done by the party who is with and apparently assisting him. Counsel have cited and commented upon several cases in which detectives figured, and in which the defendants were adjudged guiltless of the crimes charged. But this feature distinguishes them, that some act essential to the crime charged, was in fact done by the detective, and not by the defendant; and this act not being imputable to the defendant, the latter’s guilt was not made out. Intent alone does not make crime. The intent and the act must combine; and all the elements of the act must exist and be imputable to the defendant.
Counsel for the state has very clearly analyzed some of these cases, as follows: In Regina v. Johnson and Jones, 41 Eng. Com. Law, 123, all that the court pretends to decide is, that where a door was opened by an employé of the owner of the house, acting under the orders of policemen in waiting, and thereafter the accused entered through the door so opened, no burglary was committed. Certainly not; because the opening of the door was legally done by an authorized person, without any illegal opening or breaking. The mere fact- that the servant of the owner of the house falsely pretended to sympathize with and participate in the criminal'intent, and to assist in the perpetration of the projected crime, was not, however, held sufficient to discharge the defendants from responsibility for the criminal acts they did in fact consummate. One of them got possession of certain plate, and was arrested instanter and relieved of his booty. The other was arrested before he laid hold of anything. The one was held for larceny in a dwelling house, the other as accessory before the fact. In the case cited, the policemen did direct and dictate the course pursued by the detective. The detective did, by joining the proposed expedition, bring about the alleged criminal act. Nevertheless, as to acts constituting the only crime or apparent crime completed — i. e., larceny — the court disregarded the circumstances securing the apprehension of of the offenders, and held that the crime was in law complete, upon proof of the facts constituting fully its ingredients. To analyze this decision in a few words, it decides — 1st, that inasmuch as the door was opened by a person without criminal intent, and not by persons having a criminal intent, it was not burglariously opened; 2d, that the persons who came to the premises with a criminal purpose, and pursuant to and in the execution thereof did those acts in law constituting larceny, were guilty in law of larceny, notwithstanding the fact that a person they believed an accomplice was in fact, throughout the enterprise, a spy upon their actions, counseling but to deceive them and secure their capture.
The case cited in 40 Ala., p. 344, (Allen v. The State,) is precisely similar. The detective unlocked and opened the door with the keys furnished by the owner, who was the detective’s employer. Here there was no breaking. In this case, the defendant (Allen) was assiduously persuaded to engage in the enterprise by the detective, who was acting under orders from his employer. The defendant was reluctant to undertake and timid in the execution of the alleged criminal act; so reticent and fearful was he, in fact, that about all he did was to accompany the detective to the building and witness what* were unquestionably the authorized acts of the detective. The court expressly adopts the rule in the English case above referred to, citing that case and others in its opinion. Here, as in the English case, it is held that there is no breaking of the building, actual or constructive, because the opening of the door was at the request, by the procurement, and with the consent of the owner, and by a person acting in his employment.
In the case cited in the 3d Texas Court of Appeals, p. 157, (Speiden v. The State,) no different rule is announced. In this case the detectives did the breaking by the procurement of the bank officials, who not only consented thereto, but paid the detectives to do their bidding in working up the case — a portion of the programme in doing which was to break open and enter the building. Afterward, the defendant Speiden entered, or rather was taken into the building by the detectives. The court held that there was not in law a burglarious breaking of the building, citing the above cases.
This analysis fully illustrates the principle we have noticed, and makes it clear that there was no error in the ruling of the district court, so far as this branch of the case is concerned.
In reference to the condition and fastenings of the door which defendant opened in entering the building, it appeared that ordinarily it was fastened on the inside by a bolt and a lock; that in the evening prior to the entry, the policeman told Marcus that he must leave it unfastened, as the parties expected would not break a lock; that in obedience to this direction, Marcus, though with some hesitation, left the door unfastened, but shut and latched. In that condition the defendant found it, and the only breaking consisted in lifting up the latch and opening the door. Was this a breaking within the meaning of the word, as used in the definition of burglary? That the lifting of a latch may, when that is the ordinary mode of fastening, constitute a breaking, will not 'be questioned. (1 Bouvier Law Dict., p. 196, title, Burglaryy, 4 Bl. Com. 226, note 15; 2 Wharton Cr. Law, § 1532.)
But the contention of counsel is, that while ordinarily so fastened as to exclude and repel entrance, it was at this time-in such a condition as to invite entrance; that there was an implied consent to the entry; that it was left unfastened so that the defendant might enter. And the case of The State v. Newbegin, 25 Me. 500, is cited, in which there are some expressions in the opinion of the court which may be construed as lending countenance to this claim. It is evident that this was the vital- point in the case, for as no larceny was-actually committed, if there was no burglarious breaking into the building the defendant was guiltless of crime. We think the ruling of the district court was right in respect to this matter. It left the question as x one °f ^act to the jury, to say whether there was- ’ any consent on the part of Marcus to the defendant’s entry, and refused to hold that as matter of law the omission of the ordinary fastenings rendered the opening of the door by the lifting of the latch a non-burglarious breaking. And the finding of the jury that Marcus did not consent to the entry was warranted, if not compelled, by the testimony. His willingness to assist in and facilitate the detection and arrest of a criminal was no consent to the commission of the crime. If he had left the door open, then, as there would have been no breaking, there would have been no burglary; but still would that have been a consent to the entry of the defendant with intent to commit a crime? Can it for a moment be imputed to him that he was consenting to the perpetration of a crime upon himself? Was his motive that of a willingness to assist, or a desire to detect and arrest the criminal? He left his door so that an entry could be accomplished only by a breaking. Was he thereby consenting to the breaking? The time and circumstances explain the motive. The storekeeper who in the morning unlocks and opens his front door thereby invites the public to enter,. and consents to its entry. Is his motive the same when, at 2 o’clock of a hot, sultry night, he throws the back door open for the cooling breeze to enter? The same act at different times and under different circumstances may spring from entirely .different motives, and the jury could fairly say that Marcus was in no sense consenting to the breaking into his store, but was only striving to facilitate and secure the arrest of an expected criminal. And as the opening of a door by the lifting of a latch may be a burglarious breaking, it would not do for the court to hold that such an opening was not a breaking, unless the other circumstances proved either a consent to the act or the want of a burglarious intent. It will not do to lay down the universal rule that an omission of the ordinary fastenings divests a breaking of its burglarious character. The motive of the omission and the intent of the breaking are always to be considered. A housekeeper, expecting some member of the family to return late at night, may leave the front door unlocked. One with criminal intent may open the door and enter. Is it any less a burglary because ordinarily at night the door is locked? The breaking must always be with intent to commit a crime, to make it a burglarious breaking, and there must also always be some force, however slight, to remove the obstacle to entrance. We see nothing in the ruling of the court or the decision of the jury in these matters of which appellant has any just cause of complaint.
One other matter alone demands our attention, and that is the first instruction. This, as it. stands, is confessedly erroneous. It attempts to define burglary, but omits therefrom the unlawful entry, and makes the mere breaking open of the building with felonious intent the A. ° crime; yet, under the circumstances, we think that this error was without prejudice, and no ground for reversal ; and for these reasons the correct definition of the crime was elsewhere given in the instructions, and of the fact of the entry there was no dispute. The error was in reference to a matter concerning which there was no contra dictory testimony. It is as though the court had omitted the venue or the time, when both were unquestioned. Indeed, some of the instructions asked by the defendant and given by the court assume the fact of the entry as unquestioned, as, for instance, the 7th: “If there is a reasonable doubt in the minds of the jury as to whether the entering of the building by Jansen was the result of a plan on the part of Marcus and Dunkin to entrap the defendant into the commission of the alleged burglary, then it will be your duty to acquit the defendant.” The case does not therefore come within the rule laid down in The State v. Horne, 1 Kas. 73, as to the effect of contradictory instructions.
Some other matters are alleged as error by the learned counsel for appellant, but in none do we perceive any ground for disturbing the sentence, or any reason to doubt the guilt, of the defendant.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
In the case of Morrill v. Douglass, 14 Kas. 293, it was decided that the property which cannot be sold to individuals at a tax sale, and is therefore struck off to the county, does not become thereby, like ordinary property of the county, subject to the control of the commissioners, and that, in the absence of any statute giving such authority, the county commissioners are not authorized to contract for the transfer and assignment of tax-sale certificates for lands struck off to the county at prior tax sales; and a contract therefor is ultra vires, and void. In 1877, the statute in this regard was like that in force in 1868, and within the decision of Morrill v. Douglass, supra, the order of the commissioners of Doniphan county of December 3d, 1877, allowing the defendant in error, Charles Cain, to purchase the lots in controversy for :a sum less than the cost of redemption as then provided by the statute, was utterly void. Cain acquired no rights by •such order, nor were the treasurer and county clerk of Doniphan county justified thereby in disregarding the provisions -of the statute. Cain was not entitled to any tax-sale certificate or any assignment of such certificate on the property struck off to the county at a tax sale, until he had paid into -the county treasury a sum of money equal to the cost of redemption of the land at that time. (Laws 1876, ch. 34, 1117.)
The void order of December 3, 1877, and the money paid in accordance therewith, were the only consideration for the tax certificate of December 4, 1877, and the assignment of •the same. The tax deed was issued upon this tax certificate. The certificate was void; the assignment thereof was void; .■and the tax deed, being issued without warrant of law, was ¡also void. It transferred no title to the defendant, and was no valid defense to the action of plaintiff. In obtaining the tax certificate and tax deed, the defendant assumed to disregard the law, and must be presumed to have known that the officers of the county with whom he contracted acted without authority. “The limits of an officer’s authority are found in the law,” and they who deal with officers are •chargeable with notice of the limits of such authority, and •can receive no protection from acts done by such officers beyond the limits of their authority. (City of Eureka v. Davis, 21 Kas. 578; Hartford Fire Ins. Co. v. State, 9 Kas. 210; Commissioners of Shawnee County v. Carter, 2 Kas. 115, 128.)
The judgment of the district court will be reversed, and the cause remanded with directions to the court to render judgment upon the findings of fact in favor of the plaintiff-
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The questions in these cases are like those in the case of The Meredith Village Savings Bank v. Wm. A. Simpson, et al., supra, and therefore the decision in that case is decisive in these. The judgment in each case will be affirmed accordingly, with costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The errors alleged are, that the court refused to allow the jury to be conducted to and have a view of the premises appropriated for the route of the railroad, and that the jury were misdirected in a material point of law.
In regard to the first allegation of error, it is sufficient to say that the matter of viewing the premises is left by the statute to the discretion of the court. Section 227 of the code provides:
“Whenever, in the opinion of the court, it is proper for the jury to have a view of the property which is the subject of litigation, ... it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that purpose.”
In this case the court did not think it necessary for the jury to view the premises, and owing to the great inconvenience attending such a view, both in regard to the long distance the jury would have been compelled to travel and the great delay involved in the disposition of the cause in the trial court, by the absence of the jury in another county, we perceive no abuse of discretion on the part of the court in this action. The direction complained of is as follows:
“Now as to the right of the company and the plaintiff to the strip of land taken and appropriated by the company: After the strip of land is appropriated, the exclusive use of this strip vests in the company. No legal right or privilege to cross over or under it is reserved or left to the plaintiff. The company has a perfect right to fence up its road, except at public highways or public crossings. In this respect the right of the company differs materially from the rights of the public in land taken for a common highway. The railway company, the defendant, must, from the very nature of its operations, for the security of its trains, its passengers and its employés, and its free use of its road, have the right at all times to the exclusive occupancy of the land taken, and to exclude all concurrent occupancy by the plaintiff in any mode and for any purpose.”
From the record it is shown that the plaintiff testified:
“That the farm was worth twenty dollars per acre before the construction of the railroad across it, and fifteen dollars per acre after its construction. He also testified that there were two drains crossed by the road on his land, one near the easterly entrance to the land, and one near the center of the land; that the railroad company had filled up the eastern one, and made a trestle-work over the one near the center; that the one near the center of the farm was deep enough below the railroad trestle-work for stock to pass under the road, by making a little expenditure, but that the railroad company had not prepared it for such purpose, nor given him any right of way under or over said road; that the road cut off a part of his farm from Elk creek, and left him without access to it for his stock from the main part of his farm; that he had crossed the road with his teams and hauled a part of his crop across it the present season, and stacked it on the south side of the railroad near the creek, and that the railroad company never gave him any right or privilege to cross the road under or over the road.”
Other witnesses were called as to the damages, who gave their opinions — some of them much above that of the plaintiff, and some of them much below it; and upon the testimony so given, it became a question of importance, as affecting the damages to be assessed, whether, under the appropriation made, as shown by this proceeding, the railway company had the right to the exclusive possession of the right of way appropriated, and to prevent the owner of the farm from passing under or over the said railroad with his teams or his stock.
To decide the question involved, it becomes necessary to determine the nature and extent of the interest which railroad companies acquire in lands obtained by condemnation proceedings, under the law of 1868 and the amendments of 1870. Sec. 84, ch. 23, Laws of 1868, provides that the perpetual use of the land condemned shall vest in the railroad company to which it is appropriated for the use of the railroad. The law of 1864 provided that a title in fee simple might be acquired by railroad companies by virtue of their compulsory powers in taking land. Under the law of 1868, a mere easement only is granted; under the old law of 1864, an absolute title could be secured. Some reason must have existed in the minds of the law-makers for the change which has been made in the statute, and we have no right to extend by judicial construction an easement into an absolute title. There is a wide difference between the two. Under an absolute title in fee simple, the owner of the soil owns from the center of the earth up to the sky.
An easement merely gives to a railroad company a right of way in the land • that is, the right to use the land for its purposes. This includes the right to employ the land taken for the purposes of constructing, maintaining and operating a railroad thereon. Under this right, the company has the free and perfect use of the surface of the land, so far as necessary for all its purposes, and the right to use as much above and below the surface as may be needed. This would include the right to tunnel the land, to cut embankments, to grade and make road-beds, to operate and maintain a railroad with one or more lines of track, with proper stations, depots, turn-outs, and all other appurtenances of a railroad. The former proprietor of the soil still retains the fee of the land and his right to the land for every purpose noj- incompatible with the rights of the railroad company. Upon the discontinuance or abandonment of the right of way, the entire and exclusive property and right of enjoyment revest in the proprietor of the soil. After the condemnation and payment of damages, the soil and freehold belong to the owner of the land, subject to the easement or incumbrance, and such land-owner has the right to the use of the condemned property, provided such use does not interfere with the use of the property for railroad purposes. In some cases, the right of the owner of the soil would practically not amount to anything, because the purposes of a railroad company might require the use of all the land taken to such a degree as to forbid the owner from any benefit whatever. The paramount right is with the railroad company, and the land-owner can do nothing which will interfere with the safety of its road, appurtenances, trains, passengers, or workmen.
With these views of the interest which railroad companies acquire in lands obtained by condemnation proceedings, it is evident that the court erred in instructing the jury that “no legal right or privilege to cross over or under [the railroad] is reserved or left to the plaintiff,” (defendant in error.) Under this instruction, the land-owner could not erect a suspension bridge over the road, or float in a balloon over it in the air; or even dig coal, or mine minerals, or quarry rock, in the bowels of the earth beneath the road-bed. The law is otherwise. After the strip of land was appropriated to the plaintiff in error, the perpetual use of the land vested in the railway company, its successors and assigns, for railroad purposes. The defendant in error had no legal right or privilege to cross over or under the road so as to interfere with the use of the property for those purposes. The company had a perfect right to fence up its road, except at public highways or public crossings. In the usé of the land, the railroad company had the paramount right, but the defendant in error had also the right to the land for every purpose not incompatible with the rights of the road. If the railroad company required exclusive occupancy of the land taken for the use of its railroad on account of the nature of its operations, or for the security of its trains, its passengers or its employés, it was entitled to such occupancy'. On the other hand, if the company had built its bridges and trestle-work so high in places as to allow the free passage of stock or teams under the road, and their entry and passage were of no detriment to the railroad, and in no way interfered with the use of the land for the purposes of the railroad, the defendant in error, as the land-owner, had the right to enter upon such land and pass under such 'bridges or trestle-work with his teams and stock without being a trespasser. He had also the right to widen the drain ■or passage under the trestle-work, if this in no way interfered with the rights of the. railway company. The trial •court followed the authority of Jackson v. Railroad Company, 25 Vt. 150; but that is an exceptional case. It goes too far. It transfers an easement into an absolute title. It announces :as a matter of law, that a railroad company has the right at all times to the exclusive occupancy of the land condemned for its purposes, and excludes all concurrent occupancy by the land-owner in any mode or for any purposes. We are unwilling to approve that doctrine. It is our opinion that it is .a question of fact, not of law, whether the necessities of the railroad demand exclusive occupancy for its purposes, and what use of the property by the owner is a detriment to, or .interference with the rights of the road. Again, this authority is in conflict with the majority of eases, and if adopted as the law in this state, now so sparsely settled, and where in many of the frontier counties but a single track is necessary, .and public highways and public crossings are at great distances from each other, would work severe hardship and injustice. (Blake v. Rich, 34 N. H. 282; Washburn on Easements, 159, 214; Lance’s Appeal, 55 Pa. St. 16; Evans v. Haefner, 29 Mo. 141; Railroad Company v. Burkett, 42 Ala. 83; 1 Redfield on Railways, 247; Railroad Co. v. Kip, 46 N. Y. 546; Cemetery v. Railroad Company, 68 N. Y. 591.)
The direction to the jury by the court below, inconsistent with this opinion, being erroneous, the judgment is reversed, .•and the cause remanded for new trial.
Valentine, J., concurring.
Brewer, J., not sitting. | [
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The opinion of the court was delivered by
Horton, C. J.:
The only allegation of error discussed in the briefs is, that the finding of the trial court is not sustained by evidence, and is contrary to law.
It is asserted by counsel for plaintiff in error, that there was no testimony produced upon the trial to sustain the rendition of a personal judgment against John A. Halderman. In brief, that the allegations of the petition to the effect that Halderman was the principal debtor, in the first instance, and that he also became liable to the insurance company by a promise to Earr, and again by a promise to the company, to pay the said $40,000, were unsupported by any evidence. An examination of the record sustains this view. The testimony of the plaintiff in the court below was so short, we give it entire. It is as follows:
The plaintiff read in evidence the promissory note of G. D'. Earr, and mortgage deed of John' A. and Annie B. Halderman, and then said Halderman and Farr admitted that G. D. Farr was secretary, and E. Hensley president, of the Kansas insurance company, on November 1,1873, and that they executed and delivered, as such officers, to Geo. D. Farr the certificate of 400 shares of stock, of November 1,1873, No. 18,, and that said Geo. D. Farr signed his name on the back of the certificate, where it appears on the copy set forth in the petition; and also admitted, that Edward Russell was secretary, and John A. Halderman vice president of the insurance company, on August 16,1875, and that they, as such officers, signed and delivered to John A. Halderman the certificate of stock, No. 48, set forth in the petition.
Thereupon said Geo. D. Farr testified that — “Soon after it (certificate No. 18) was issued to me, I assigned the certificate to Halderman, as collateral security, on account of the execution by himself and wife of the mortgage they gave to-secure the payment of the note. He kept the certificate for some considerable time, and then returned it to the company, and received in lieu thereof the aforementioned certificate No. 48. At the time certificate No. 18 was assigned to Halderman as collateral security, nor at any time thereafter, was anything said about his assuming payment of the note; but when it was agreed between us that he should have the stock abso lutely, it was understood that the whole matter, as betweeA ourselves, was settled.”
The plaintiff here rested his case.
On the part of John A. Halderman, his deposition was read. He stated:
“The note for $40,000, described in plaintiff’s petition, was executed by George I). Farr to the Kansas insurance company, in consideration of a like amount of the stock of said company,- and, so far as I know, for his own use and benefit, and not as my agent or trustee; that I had no claim or interest in the note, or the stock issued therefor, or in any stock issued to or held by said Farr; that at the time said stock was issued, nor at any other time, did I promise or agree to or with said Farr, or to or with said Kansas insurance company, to pay said note of $40,000, or any part thereof, or any other sum whatever; that I executed a mortgage to secure the payment of said note as a matter of form simply, for the accommodation of said George D. Farr.”
Other matters appear in his cross-examination, but nothing to materially affect the case.
This testimony, giving it the most liberal construction in favor of the finding of the court, fails to establish any personal liability on the part of John A. Halderman. Counsel for defendant in error, Woodward, suggests that when Halderman received the certificate of stock No. 48, of the date of August 16, 1875, there was an implied promise to the insurance company to pay for it. The transaction simply shows au exchange of the certificates of stock. Certificate No. 18, held by Halderman as security for the mortgage executed by him and wife, was surrendered to the insurance company, and in lieu therefor the certificate No. 48 was taken. Certificate No. 18 was in the name of Geo. D. Farr, certificate No. 48 was in the name of John A. Halderman, but both represent like amounts of stock. In this, we perceive no implied promise on the part of Halderman to pay $40,000, or any other sum, to the insurance company for the stock.
Counsel for plaintiff in error further contend that the mortgagors were released and discharged by the acceptance of interest from Farr on the note, and the delay in bringing suit.
Counsel assume without proof, that there was an express or an implied extension of time upon the note, on account of the payment of interest. Such is not the fact.
The indorsements of interest are as follows: '“Interest paid to Dec. 31, 1873; interest paid to Dee. 31, 1874; interest paid to June 1, 1876.” There are no presumptions that such interest was paid prior to their dates. No agreement to extend the time of payment to Farr was proved. All the record shows, is the payment of parts of the amount due on the note on Dec. 31, 1873; Dec. 31, 1874, and June 1, 1876. At these dates the whole note was overdue. The acceptance of these various sums did not extend the time of payment of the residue; nor were said payments any consideration to sustain an agreement to extend the time of payment. (Royal v. Lindsay, 15 Kas. 591; Jenness v. Cutler, 12 Kas. 500.)
A simple delay is no ground to release a surety. The objection presented to the foreclosure of the suit upon that ground is not tenable. (Ray v. Brenner, 12 Kas. 105.)
The judgment of the court below will be modified in accordance with the views herein expressed. The evidence amply sustains the judgment of foreclosure and order of sale of the mortgaged premises.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hokton, C. J.:
This is the second time that this case has been in this court. (Krutz v. Paola Town Company, 20 Kas. 397.) Upon the return of the case to the court below, and after judgment of reversal had been entered, the plaintiff, with leave of the court, filed an amended petition. To this the defendant demurred. The court sustained the demurrer, .and the plaintiff brings the case here. Different questions are submitted for our determination than when the case was considered on the former occasion. Then the principal question involved was, whether “The Paola Town Company” had any legal corporate existence at the time this suit was commenced. We decided adverse to the legal existence of the corporation, and also held that the defendant Krutz was not precluded by his conduct from interposing as a defense, the non-existence of ■the plaintiff as a corporation, and its incapacity to maintain the action.
The material amendments to the original petition are, that the last corporate election of the company was held in June, 1858; that thereafter the officers held over to the expiration ■of the charter and the dissolution of the corporation; that the charter expired in 1865; that at the time of its dissolution, W. E. Wagstaff was the secretary and sole manager of the affairs of the corporation; that the company was greatly indebted for taxes and on other account; that no distribution of any of the assets of the corporation had been made among the stockholders; that owing to the fraudulent conduct of •said Krutz, in refusing to pay over the proceeds of sales of lots in his hands belonging to the late corporation, no distribution of its money or other property could be made — at least, none could be made until a recovery was had of the defendant. The allegations that the manager of the corporation had the right to describe the suit by the name of the corporation, may be treated as mere surplusage. At most, .these are statements of assumed or supposed conclusions of law.
The amended petition also states, that at the time the action ■was commenced, the stock of the town company was held as follows:
•John M. Ellis, 1 share,............... §500
J. L. Hobson, administrator of A. T. Ward, 4 shares, .... 2,000
. J. B. Hobson, 11 shares, .............. 625
Wm. G-. IGrutz, 18 shares,............... 9,000
W. B. Wagstaff, 471-shares, ■ ••...........23,875
Total, 72 shares,...........•. . . . §36,000
These amendments to the original petition, and the other .allegations added, state sufficient facts under the statute to constitute a cause of action in favor of W. E. Wagstaff, as manager of the late Paola town company, against the defendant. Sec. 30, ch. 23, Comp. Laws 1879, provides that “all bodies corporate may sue for, recover and receive from their respective members, all arrears or other debts, dues and other demands, which now are or hereafter may be owing to-them, in like mode, manner and form, as they might sue for, recover and receive the same from any person who might not be one of their body.”
And § 42 of the same chapter further provides that, “ upon the dissolution of any corporation already created by or under the laws of this state, unless a receiver is appointed by some court of competent authority, the president and directors, or managers of the affairs of the corporation, at the-time of its dissolution, by whatever name they may be known; in law, shall be trustees of the creditors and stockholders of such corporation, with full power to settle the affairs, collect the outstanding debts, and divide the moneys and other-property among the stockholders, after paying the debts due- and owing by such corporation, at the time of its dissolution, as far as such money and property will enable them; and for this purpose they may maintain -or defend any judicial proceeding.”
- Within the very words of the latter section, upon the dissolution of the Paola town company, in the absence of the-appointment of a receiver, the relation of W. R. Wagstaff, the sole manager of the affairs of the corporation, to the creditors and stockholders, was that of trustee, with the-power on his part to settle the business of the corporation, to collect and pay its debts, and finally to divide the moneys- and other property among the stockholders. To successfully accomplish all this, as sole manager, the said Wagstaff had. the additional authority to maintain an action of the character set forth in' the amended petition. The only defect in the petition — unless we style as defects its unnecessary prolixity and the alleged conclusions of law therein set forth — is found in the name of the party plaintiff. The plaintiff is denominated “The Paola Town Company.” In the body of the petition the expiration of the existence of the corporation-is stated, its date of dissolution specified, its manager at the-time of its dissolution named, and his relation to the late cor poration fully described’. The name of the party plaintiff, therefore, to correspond with the allegations of facts in the petition, should be “W. R. Wagstaff,” as manager of the late corporation known and designated as “The Paola Town Company.” The demurrer did not reach the caption of the petition, and therefore the name of the party plaintiff can be corrected.
The only question remaining is, whether the district court committed error in permitting the amended petition to be filed. We think not. Sec. 139 of the code evidently contemplates all such amendments as are clearly in furtherance of justice, and consistent with the rights of all parties interested. The theory of our system of practice under the code is founded upon the leading idea that the action once pending shall not be permitted to fail, if by amendment any defects or omissions in the pleading can be remedied. In the City of Atchison v. Twine, 9 Kas. 350, the action was originally brought in the name of Eliza Ann Johnson, the widow of George Johnson, deceased. This was improper, as the said party had no legal right to bring the action. Afterward, William M. Twine, as administrator of the estate of George Johnson, deceased, was substituted as plaintiff, instead of Eliza Ann Johnson. In that case it was said, “the court very properly permitted an amendment making the administrator the plaintiff.” That the authorities justify the amendment, see Hanlin v. Baxter, 20 Kas. 134, and the many cases there cited.
We have not thought it necessary to discuss all the questions presented in the voluminous briefs of the counsel for the plaintiff in error, because the conclusions we have reached permit' the manager of the late corporation to obtain, under the amended petition, as treated and interpreted by us, all the benefits which could be derived, had we held that the suit was maintainable simply in the name of the defendant corporation.
The judgment of the district court will therefore be reversed, and the case remanded with direction to permit the name of the plaintiff to be corrected to conform to the allegations of the petition, and thereon to overrule the demurrer •of the defendant.
All the Justices concurring. | [
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Per Curiam;
This case is dismissed, upon the authority of the cases of Transportation Co. v. Palmer, 19 Kas. 471; State v. Ruth, 21 Kas. 583. | [
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case are substantially as follows: On the 27th day of April, 1878, the defendants in error filed before a justice of the peace of Osage county the following bill of particulars (the exhibit A only, being omitted), to wit:
“ R. A. Wheat and Joseph Wheat v. James H. Burke. —The above-named plaintiffs complain of the said defendant, and say that on the 18th day of February, A. D. 1878, the said defendant was indebted to them in the sum of $314, upon a certain order in garnishment made on the 18th day of February, A. D. 1878, in a certain proceeding wherein R. A. Wheat and Joseph Wheat were plaintiffs, and A. J. Tanner was defendant, before H. H. George, a justice of the peace in and for Burlingame township, Osage county, Kansas. A certified copy of said proceedings is hereto attached, and marked ‘.Exhibit A/ and made a part of this bill of particulars. Defendant, though often requested, has not complied with the order of the court iu said proceedings, nor paid the said sum of $300, or any part thereof. Wherefore plaintiffs pray judgment against said defendant for the sum of $300, the excess over said $300 being and is hereby remitted.”
James H. Burke was afterward personally served with a summons in the action, and on the return day thereof, to wit, May 1st, 1878, a trial was had (said Burke making default), which resulted in a judgment against Burke in favor of the Wheats for $300 debt, and $3.35 costs. On the 25th day of June, 1878, Joseph Wheat assigned his interest in the judgment to H. D. Shepherd and C. J. Bodine, which was spread on the docket on June 27, 1878. On the same day, an execution was issued against Burke upon the judgment. On the 23d day of August, 1878, Burke, as plaintiff, brought this action in the district court of Osage county, against R. A. Wheat and the other defendants in error, to perpetually enjoin the collection of said judgment, on the ground that the judgment was rendered without warrant of law, and was absolutely void. On August 23, 1878, the probate judge of Osage county granted a temporary injunction in favor of the plaintiff in the case. On March 1, 1879, the district judge of that county dissolved said injunction, for the reason that the petition of plaintiff did not state facts sufficient to constitute a cause of action. The plaintiff excepted to the ruling and decision of the district judge, and brings the case here for review. The petition recited all the above facts. These facts do not support the allegation in the petition, that the judgment against the plaintiff of the date of May 1, 1878, was rendered without warrant of law, and was absolutely void. It is clearly apparent the justice had jurisdiction of the subject-matter of the action, and of the persons of all the parties, and the most that can be urged is, that there was error in the exercise of such jurisdiction. This does not make a judgment void. The statute'in regard to garnishment provides that if the garnishee fails to comply with the order of the justice to pay into court the money owing, the plaintiff may proceed against him in an action in his own name, as in other cases. (Dassler’s Comp. Laws 1879, p. 709, §43.)
The bill of particulars in the justice’s court was based upon this provision, and although somewhat informal, was sufficient for all purposes. Whether the judgment was obtained upon proper proof cannot be litigated here. The validity or invalidity of the proceedings in the original case of Wheat, et al., v. Tanner, is also immaterial at this time. If said proceedings were void, they would have been a good defense for the plaintiff. He was in default, and made no defense. Conceding that the judgment sought to be enjoined was erroneous, it. cannot be said to be void, and must be held operative until, in accordance with the ordinary rules of procedure, it is reversed by a court of error. Errors in proceedings in trials, or in the rulings of a court, cannot be revised or corrected in an action to enjoin the collection of a judgment.
The order of the district judge will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Atyeo & Herman against E. P. Bancroft for a balance due on an account for meat. The action was commenced before a justice of the peace, where judgment was rendered in favor of the plaintiffs and against the defendant for the amount claimed. The defendant then took the case to the district court on petition in error, where the judgment of the justice was affirmed. The defendant (plaintiff in error) then brought the case to this court on petition in error. The defendant (plaintiff in error) now claims, and claimed in the courts below, that the plaintiffs’ bill of particulars filed in the justice’s court was and is insufficient, on the alleged grounds that in it “there was not one single fact stated; neither was there any conclusion of law stated.” The bill of particulars is in form as follows:
Mr. E. P. Bancroft,
1875 To Atyeo & Herman, Dr.
Oct. 11 — 4 lbs. pork.........................'...............;...................... 50
“ —9 “ steak.............................................................. 72
12— 3 “ steak, 6 pork................................................... 72
“ — 8 “ “ 41- suet................................................... 89
13— 9J lbs. roast, 1.
—tongue....................;..........1.................................... 96
“ —10 lbs. steak............................................................ 80
14— meat...................................................................... 88
8f lbs. beef, 70, 3 saus., 37........................................................ 1 07
[Here follow two or three hundred more items, all being charges for meat, of various kinds and in various amounts, • and running from October 14, 1875, up to April 18, 1876. The account is then footed up as follows :]
156 77
89 43
Bal. due. ' 67 24
[On the back of the account, ten different credits are given, as follows:]
1875.
Oct. 18 — Credit by cash........................................................... 1 43
27— “ “ “ .......................................................... 6 00
[The credits continue (ten in number) up to April 6,1876, and foot up as follows:]
I I 89 43
Why this is. not a good bill of particulars, counsel for plaintiff in error do not inform us in their brief, except in such general terms as We have already quoted. One of the. special reasons, however, as given in their oral- argument, is, that there is nothing in the bill of particulars to designate what the figures therein contained mean. This is purely technical; for, however defective the bill of particulars may be supposed to be, still, no person can misunderstand its import. But we do not think that the claim of counsel is strictly correct. The action was commenced on September 28,1877. The docket of the justice shows that the plaintiffs on that day “filed their bill of particulars herein, claiming judgment for $67.24, for meat.” A summons was then issued, and served on the same day by delivering to the defend ant (plaintiff in error) a copy thereof with the indorsements thereon. This summons informed the defendant that the action was brought “on an account for meat;” .and the amount claimed by the plaintiffs, to wit, $67.24, was indorsed on the summons. But the bill of particulars) we think, explains itself. It means that “Mr. E. P. Bancroft” is indebted— debtor, “Dr.” — “to Atyeo & Herman” for various items of meat (giving the items in detail) —total, $156.77, less “credits by cash” (to be deducted), $8.9.43, leaving a balance due — “Bal. due” — of $67.24, for which amount the plaintiffs sue. Everybody is familiar with the form of a running book account, and knows what it means, and courts ought to know what everybody else knows. “Dr.,” in such an account, means “debtor,” and means indebted for something in money. Th.e perpendicular lines on the right are used to divide the dollars from the cents. “Cash” can only be deducted from cash; and “Bal. due” means balance due in “cash” — or in money. For the decision of a similar question, see Hunt v. Smith, 9 Kas. 138, 151, et seq.- We think the bill of particulars is sufficient. The prayer for relief, in a pleading, does not of course constitute any part of the statement of the cause of action, but sometimes it may help to explain it. Atyeo & Herman may recover as partners, or as joint promisees, or as joint owners of the account; the evidence showed that they were all three. It must be remembered that the same strictness with regard to pleadings is not required in a justice’s court as is required in the higher courts.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an attachment brought by Campbell against Warner. The affidavit charged the defendant with having assigned and disposed of and with be ing about to dispose of his property and a part thereof, with the intent to defraud, hinder and delay his creditors, and with having property and rights in action which he concealed. The defendant denied on oath the grounds laid for the attachment, and the justice after hearing the evidence produced by the parties on the issue thus formed decided that these grounds were not sustained by the evidence, and forthwith discharged- said attachment. Afterward the case was taken to the district court on error, and this order was affirmed.
The dissolving of the attachment by the justice, and the affirmance of such order, are the main causes of complaint before us. We perceive no error in the action of the district court. The evidence presented to the justice was all oral except a single deposition, and the well-established rule of this court applies, that said judgment ought not to be disturbed by us, if there is any evidence to sustain it. In the case, the justice was the trier of all the questions of fact. On the part of the defendant it was shown, that after the commencement of this action, and before the issuance of the order of attachment, viz., on the 23d of September, 1878, the defendant sold and disposed of all his property in good faith, to pay certain of his creditors, to the exclusion of plaintiff and others, without an intention to defraud, but simply to prefer some creditors to others. If the justice believed the evidence of defendant (and of that the justice was the judge), the order discharging the attachment was properly made, as such a disposition of property, although to the advantage of one creditor in preference to another, is not contrary to the law, and is not a ground for attachment. (Avery v. Eastes, 18 Kas. 505.) Perhaps upon a trial upon all the evidence, this court might have come to a conclusion different from that of the justice; but this is not a sufficient cause for a reversal.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Bjrewer, J.:
Prior to August 23, 1873, plaintiff was the owner of a large amount of stock in the German Savings Bank, of Leavenworth. On that day, he made a sale of it, and delivered the certificates thereof assigned in blank. The questions in this case are: To whom was such sale made? and, Are the defendants liable as purchasers or otherwise for the price of this stock? The district court sustained a demurrer to the evidence, and from this ruling the plaintiff brings error. The defendants were directors of the bank, and their claim is that the sale was made by plaintiff to the bank; and that whether that sale was a valid contract on the part of the bank or not, no personal liability was assumed by them. The plaintiff, on the other hand, contends that the sale was made to the defendants personally; and also that if made to the bank, that as such a purchase of its own stock without the consent of the stockholders was ultra vires, the directors who made the contract were bound, and not the bank. In other words, he insists that they in fact bought for themselves; and that if they attempted to buy for the bank, as the bank could not buy, they bound themselves instead of it. Involved in this are two questions — one of fact, and the other of law. What, as a matter of fact, was the contract? Between what parties was it attempted to be executed, and what responsibilities did the defendants assume thereby ?
Upon the first question there is little room to doubt. The transaction, as understood and intended by the parties at the time, was a sale to the bank. While the plaintiff in his direct testimony does not say so in so many words, yet he does not assert the contrary; and a paper is offered in evidence, signed by him, in which he recites the sale to the bank; and there is also offered the record of a suit brought by the bank to set aside certificates of deposit issued for this stock, in which suit the bank obtained' judgment. It were idle to say that, at the time, the parties did not understand and intend a transaction between the bank and Mr. Abeles.
We pass, therefore, to the second question. The parties who represented the bank, and made the purchase for it, were the defendants. They were its directors; yet as directors they had no power to bind the bank by a purchase of its stock, and the attempted sale was a nullity, and the bank properly recovered in an action to set aside the certificates of deposit issued on such attempted purchase. Now the contention is, that inasmuch as the defendants attempted to bind the bank and failed, they therefore bound themselves; that the case comes within the rule, that an agent who acts without authority, binds himself, and not his principal. This rule, however, is not of universal application. -There are exceptions to it, and this case comes within.one of those exceptions. It will be noticed that the failure of the directors to bind the bank arose from a lack of .power in them as directors, and not from any failure to pass the proper resolution as a board, or to take any other prerequisite step. The law under which the corporation was organized gives no such power to directors. (German Savings Bank v. Wulfekuhler, 19 Kas. 60.) It is something the directors may not do. They cannot create the power. Their acts or omissions in no manner affect the question of its existence. And this want of power, growing out of the law, is a matter of law as open to the knowledge of the plaintiff as of the defendants. Further, there is no pretense of any false representations made by defendants, or of any concealment of facts — nothing to show any willful wrong on their part. Both parties, in fact, supposed the power existed in the directors to make the purchase, contracted upon that basis, and contracted in good faith. The power did not exist, and the bank repudiated the purchase. And the defendants can be held only upon the bare proposition, that because the principal was not bound, the agent must be. But this does not necessarily follow. It is familiar law, that where there is an express contract the law will not imply one. In other words, when parties have definitely put their intentions into the shape of an express agreement, the law accepts that agreement as the measure of their respective rights, and will not attempt to infer the existence of some other agreement which the parties ought to have made. Here the contract as made was in the name of the bank, and for the bank. That was the express agreement. Will the law imply another? Will not the contract actually made determine the rights of the respective parties ?
Where there is no wrong imputable to the agent, no action will be against him: not on the contract, for the contract was not his, nor for any wrong of act or omission, for he is guilty of none.
In Ogden v. Raymond, 22 Conn. 384, in which, as here, was an attempt to hold an agent- on a contract made for and in the name of his principal, the court says:
“If the form of the contract is such that the agent personally covenants, and then adds his representative character, which he does not in truth sustain, his covenant remains personal and in force, and binds him as an individual. But if the form of the contract is otherwise, and the language when fairly interpreted does not contain a personal undertaking or promise, he is not personally liable; for it is not his contract, and the law will not force it upon him. He may be liable, it is true, for tortious conduct, if he has knowingly or carelessly assumed to bind another without authority; or when making the contract has concealed the true state of his authority, and falsely led others to repose in his authority; but, as we have said, he is not of course liable ou the contract itself, nor in any form of action whatever.”
In Aspinwall v. Torrance, 1 Lans. 381, we find this language iu the opinion: “In no case that I have been referred to, has the agent been held liable as the principal where the extent of the agency was as well known to the one party as the other.”
In Smout v. Ilbery, 10 M. & W. 1, the facts were, that in the absence of her husband, and with his authority, the wife had been in the habit of purchasing meat from the plaintiff. The husband died while on his journey, and the wife, ignorant of the fact, continued her purchases in like manner. It was held that no action could be maintained against her upon these last purchases. The court says:
“On examination of the authorities, we are satisfied that all the cases in which the agent has been held personally responsible, will be found to arrange themselves under one or other of these three classes. In all of them it will be found that he has either been guilty of some fraud, has made some statement which he knew to be false, or has stated as true what he did not know to be true, omitting at the same time to give such information to the other contracting party as would enable him equally with himself to judge as to the authority under which he proposed to act.”
And again:
“ If, then, the true principle derivable from these cases is, that there must be some wrong or omission of right on the part of the agent in order to make him personally liable on a contract made in the name of his principal, it will follow that the agent is not responsible in such a case as the present.”
In Sandford v. McArthur, 18 B. Mon. 411, it appeared that the directors of a bank ordered the issue of notes in excess of the authority given by the law of the bank’s incorporation, and they were held not personally liable, and that a person dealing with the bank was bound to take knowledge of the powers granted by law to its agents. See also, Story on Agency, § 265; McCurdy v. Rogers, 21 Wis. 197; Rashdall v. Ford, 2 L. R. (Eq. Cases) 750; Beattie v. Lord Ebury, 7 L. R. (Ch. Appeals) 777.
The doctrine of these last two cases is, that a misrepresentation as to a matter of law is not such a one as will cast a personal liability on the agent, and that on the ground that each party is bound to know the law.
It is unnecessary to pursue this examination of authorities further. The doctrine is clear, that where the' contract is made in the name of the principal, and without any personal covenant on the part of the agent, and without any wrong on his part, either in act, statement or omission, the latter is not responsible, even though the former be not bound.
The judgment will be affirmed.
"Valentine, J., concurring.
Horton, C. J., not sitting, having been of counsel in the court below. | [
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The opinion of the court was delivered by
Horton, C. J.:
The main question presented is, whether the trial court rightfully directed the jury to return a verdict for the defendant in error? After he proved title in-himself through various conveyances running back to the-United States, plaintiff in error introduced in evidence a tax deed, covering the lot in controversy, and lot No. 2, county park, in Salina, dated May 7, 1874, but purporting to have-been acknowledged on May 14th of the same year; then a warranty deed from Sarah Sebrin'g to her, dated February 19r 1877, and rested. Defendant in error proved in rebuttal, that on May 8, 1874, he made application to redeem the lot,, and then tendered to the treasurer of Saline county the amount for which- the property was sold, together with the subsequent taxes, charges, and all interest, and that the tax deed was not acknowledged or delivered until after said date.
In an action of this character, the plaintiff in the court below must have recovered upon the strength of his own title; but when that title was once established, the court was-right in directing a verdict for such plaintiff, if no evidence was offered to militate against it, or overthrow it. No defect appeared in any of the conveyances through which the defendant in error derived his title. The objections to these conveyances made by the plaintiff in error are not tenable. If there were any irregularities in the issuance of the patent of August 4, 1866, from the United States to the probate-judge of Saline county, or from the other grantors, including the deed of the Salina town company, it was incumbent on the plaintiff in error to offer proof of them. Counsel claim, the patent was void, for the alleged reason that the sale of the town site took place prior to its entry, yet there is nothing in the record sustaining this assertion, while the recitals in the-conveyances show the reverse to be the case. As the law presumes that every man in his private and official character does his duty until the contrary is proved, both the-patent and the town company deed were properly admitted.. No preliminary proof of the proceedings upon which the patent and town company deed were based, or of the organization of the town company, was necessary for their introduction. ' This disposition of these matters leaves only for consideration the character of the tax deed, upon which plaintiff in error relied. This deed is void because it shows-upon its face that two separate and distinct lots or tracts of land were sold together. It discloses that it was executed in violation of law. (Hall’s Heirs v. Dodge, 18 Kas. 277.)
Further than this, the undisputed facts show the deed ought never to have been executed. The defendant in error had the right, as owner of the premises, to redeem the lot from the tax sale, at any time before the execution of the deed. (Gen. Stat., p. 1051, § 100; Laws 1876, ch. 34, § 127.) The application to redeem, and the tender of all the money necessary therefor, was made on May 8, 1874. The deed was not acknowledged until May 14,1874, and not delivered till some days thereafter; so it was not executed when, the tender was made. The treasurer should have accepted the money when offered, and the plaintiff in error ought to have received this instead of the deed, which was without validity.
As the title of the lot was complete in the defendant in error, and as the tax deed was void, there was no evidence in the case to sustain a judgment for the plaintiff in error, and therefore the trial court committed no error in directing judgment for the defendant in error.
The attent-ioh of the court has never been called to any application under the occupying-claimant law, and no error-can be based upon its non-action in that regard.
As the plaintiff in error agreed that the originals of the deeds and conveyances were not, at the time of the trial, in the possession or under the control of the defendant in error or his attorneys, all objections founded against the introduction of copies of the same in their absence was waived, and we need not comment further on the allegations of error in receiving such copies.
The judgment of the district court will be affirmed; but upon the entry of the mandate of affirmance, the court below is directed to order the defendant in error to pay to the plaintiff in error the taxes, charges and penalties tendered May 8, 1874, before such party shall be let into possession of the lot recovered under the judgment in the case.
All the Justices concurring. | [
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The opinion of the court was delivered by
•Brewer, J.:
The question in this case is, whether a tax deed, regular on its face and of record for more than two years, can be avoided by proof of the fact that the description of the land conveyed, which is full and correct in the deed, is fatally defective both on the assessment roll and in the sale certificate. The description in the case at bar, on the roll and in the certificate, was simply eighty acres in S. E.|of section 11, township 18, range 11; in the deed the metes g,nd bounds of- the tracts were added. The contention of counsel is that the limitation law by its terms applies only in case of “lands sold for taxes;” that here the description was so defective as to render the proceedings void; that there was therefore no sale; that without a sale there can be no deed, and that a deed executed without any sale is void, and never starts the statute. The cases of McNamara v. Estes, 22 Iowa, 246, and Case v. Albee, 28 Iowa, 279, are cited j in which it was held that where there had been no sale, the fact could be shown to avoid the deed, although the bar of the statute had apparently attached. Still we cannot concur with counsel. And it may be remarked in passing that in both the cases cited, the offer was to show that there had been no sale, and the supreme court in commenting oh this says that it understands from the offer, not that the sale was irregular or the proceedings defective, but that in fact as well as in law, there had been no sale. But the case at bar is different. There was in fact, though not in law, a sale. It is not contended that the land was not taxable, or that the taxes had been paid, nor can it be disputed that the taxing officers attempted to sell the land. Conceding all that may be claimed as to the effect of the description upon the legality of the sale, and still the fact remains that every step was taken and every act done by the various taxing officers, at the same time and in the same manner that- they would have been taken and done to make a legal and binding sale. The defect may vitiate the proceedings,, but still proceedings were had, and the case is essentially different from that of one where no proceedings were had and no attempt made to sell. If the proceedings must be so regular as to make a valid sale before the statute of limitations will start to run upon a tax deed good upon its face, then the statute has but little virtue in these cases as a statute of repose, for upon a valid sale a valid deed can be compelled, and the statute will rarely be invoked except-in cases where it is not needed.
It is unnecessary to restate the argument in favor of .the statute in tax cases, or the various possible exceptions to its application. This has been fully done in the cases of Bowman v. Cookrill, 6 Kas. 311, and Taylor v. Miles, 5 Kas. 498. What we have said in this opinion is in reference to the second tax deed offered in evidence. That being good upon its face, and of record more than nine years before suit, is protected by the statute, and we need not inquire as to the validity of the first deed.
The judgment of the' court will be reversed, and the case remanded for further proceedings in accordance with the views herein expressed.
Valentine, J., concurring.
-Horton, C. J., dissenting. | [
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Per Curiam:
The decision in the case of The Kas. Cent. Rld. Co. v. Allen, ante, p. 285, is decisive of this; and the judgment of the district court must be reversed, and the case remanded for a new trial.
Brewer, J., not sitting. | [
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The opinion of the court was delivered by
Brewer, J.:
Action to set aside a will; trial by a jury, and verdict against the will. The first matter which we shall notice is the alleged error in the admission of testimony. The will was challenged on the ground of undue influence, as well as on the ground that the decedent, at the time of its execution, was not of sound mind and memory. It appeared that the decedent was taken sick July 3d, and died on the :8th; that Dennis Mooney and Mrs. Mary McCarthy, the principal devisees and legatees under the will, were in attendance upon her during most of this time, and that the will was written the day before her death. Over objection, the court permitted testimony of the conduct of these devisees, not merely at the time of making the will, but also while present at the house of decedent during the sickness and immediately after her death; also, of the statements of the decedent made prior to her sickness, (some a long time prior,) showing estrangement from and ill-feeling toward Dennis Mooney; also, of letters from him to her, tending to show the same •state of facts; also, of an engagement of marriage, expected to be consummated on the 10th of July, to one who was present during most of the sickness, and was not mentioned in the will. The testatrix was, at the time, of making the will, very much debilitated from loss of blood, and was in what the attendant physician called a semi-comatose state. The preparation of the will lasted some hours, although, when written, the instrument itself fills scarcely a page. As she roused from a state of stupor, she was asked to whom she wished to give certain property, and her answer noted. It would seem as though, after nearly every answer, she became insensible, and was rallied only by the use of stimulants. When her answers had all been noted in this way, the .will was placed in form and her signature affixed, though she was so weak that, after writing her first name, she swooned, and had to be rallied again by the use of restoratives before finishing her signature. Of course, there will always be a doubt whether a will executed under such circumstances really expresses the deliberate purpose and desire of a testator in the distribution of his property; yet mere feebleness and weakness like hers do not of themselves prove fraud or undue influence — they merely show a condition easily accessible to undue influence. The power of resistance is weakened, and the mind yields to fear or pressure: which ordinarily would make no impression. The question of undue influence is one of peculiar character; it does not arise until after the death of the one who alone fully knows the influences which -have produced the instrument; it does not touch the outward act, the form of the instrument, the signature, the acknowledgment: it enters the shadowy land of the mind in search of its condition and processes. Was the mind strong, or weak? clear of comprehension, or only feebly grasping the facts suggested? Was the will resolute and firm, or enfeebled by disease and bodily weakness? What prompted the making of the will? Was it the thought of the testatrix, or the suggestion of interested parties? What influences were brought to bear to secure its execution, or the disposition of any specific property? These are inquiries always difficult of solution, often made more so by the fact that the parties most competent to give information are the ones most interested to withhold it. To fully inform the jury, they should know the condition of the testatrix’s mind at the time of the execution, the circumstances attending the execution, the relations and affections of the testatrix, and such other matters as tend to show what disposition, if in health and strength, and uninfluenced, she would probably have made of her property. This opens a broad field of inquiry, and gives to such a contest over a will a wider scope of investigation than exists in ordinary litigation. “Put Yourself in His Place,” is the title of a recent popular novel, and is appropriate to indicate the scope of such an inquiry. Much of the testimony above referred to was properly admitted as part of the res gestee, as matter surrounding the execution of the will, and properly throwing light upon the mental condition of the testatrix, and the influences under which she was acting. So far as her prior statements are concerned, they were properly admitted, but under a different rule and not as part of the res gestee. It is sometimes broadly stated that the declarations of a .testator, whether prior or subsequent to the execution of the will, are inadmissible for the purpose of impeaching it. In a certain sense, this is doubtless true. As a mere matter of impeaching the will, they are hearsay, and inadmissible. They are not like statements of an ancestor in derogation of title or limitation of estate, which, being declarations against interest, are admissible against the heir, .for there is no adverse interest in a devisor against the will or the devisee. They are more like declarations of a grantor, after grant in limitation of his grant, and are strictly hearsay. Thus, if a testator, after executing a will, should say that the will was forced from him, or that it was executed against his will and through undue influence, such statement of itself would be hearsay, and inadmissible. (Jackson v. Kniffen, 2 Johns. 31; Stevens v. Vancleve, 4 Wash. C. C. 265; Hayes v. West, 37 Ind. 21.) In the case from 4 Wash., supra, Mr. Justice Washington thus stated the law: “The declarations of a party to a deed or will, whether previous or subsequent to its execution, are nothing more than hearsay evidence, and nothing could be more dangerous than the admission of it, to control the construction of the instrument, or to support or destroy its validity.”
But while declarations are not admissible as mere impeach- men't of the validity of a will, they are admissible as evidence of the testator’s state of mind. A man’s words show his mental condition. It is common to prove insanity by the party’s sayings as well ag ^ aolg> One’s likes and dislikes, fears and friendships, hopes and intentions, are shown by his utterances.- So that it is generally true that whenever a party’s state of mind is a subject of inquiry, his declarations are admissible as evidence thereof. In.other words, a declaration which is sought as mere evidence of an external fact, and whose force depends upon its credit for truth, is always mere hearsay if not made upon oath, but a declaration which is sought as evidence of what the declarantthought or felt, or of his mental capacity, is of the best kind of evidence. Thus, in the case of Waterman v. Whitney, 11 N. Y. 157, which presents a careful analysis of this matter, Mr. Justice Selden says: “The difference is certainly very obvious between receiving the declarations of a testator to prove a distinct external fact, such as duress or fraud for instance, and as evidence merely of the mental condition of the testator. In the former case, it is mere hearsay, and liable to all- the objections to which the mere declarations of third persons are subject, while in the latter it is the most direct and appropriate species of evidence. Questions of mental competency and of undue influence belong in this respect to the same class, because, as is said by Jarman in his work on Wills, “The amount of undue influence which will be sufficient to invalidate a will, must, of course, vary with the strength or weakness of the mind of the testator.” (1 Jarman, 36.) So the mental strength and condition of the testator is directly in issue in every case of alleged undue influence, and the same evidence is admissible in every such case, as in cases where insanity or absolute incompetency is alleged. And in a later case, Shailer v. Bumstead et al., 99 Mass. 112, Mr. Justice Colt, discussing this matter, says:
“The declaration of the testator accompanying the act, must always be resorted to as the most satisfactory evidence to sustain or defend the will whenever this issue is presented. So it is uniformly held that the previous declaration of the testator, offered to prove the mental facts involved, are competent. Intention, purpose, mental peculiarity and condition are mainly ascertained through the medium afforded by the power of language. Statements and declarations, when the state of the mind is the fact to be shown, are therefore received as mental acts or conduct.”
Therefore, where, as in a case like this, the circumstances attending the execution raise a doubt as to the mental strength of the testatrix, evidence that the disposition of the property runs along the line of her established friendships and previously-expressed intentions tends strongly against the idea of any undue influence, while evidence that it is contrary to such friendships and intentions makes in favor of improper influences. The testimony of her declarations shows a state of mind unfriendly to one of the principal devisees, and his letters to her indicate a mutual understanding of this estrangement and ill-will. Such estrangement is out of harmony with the recognition in the will. It is not often that a dying person forgets the obligations of kinship and affection, to reward with her property a more distant and unfriendly relative. It may indeed be done, ex mero motu, from a heightened and morbidly-active spirit of forgiveness, but as likely through the influences of solicitation, pressure, and fear; and which was in fact the cause, was for the jury, under all the circumstances of the case, to determine. See further in support of the competency of this testimony, Howell v. Barden, 3 Dev. 442; Hester v. Hester, 4 Dev. 228; Rambler v. Tryon, 7 Serg. & R. (Penn.) 90; Beaubien v. Cicotte, 12 Mich. 459; Cawthorn v. Haynes, 24 Mo. 236; Davis v. Calvert, 5 Gill & J. 269.
We pass to a second question upon which counsel place much reliance. The verdict of the jury, as returned to the court, was in the words, to wit:
“Question 1st; Was Lydia Foster, at the time the alleged will was made and signed, of sound mind and memory? Answer: Yes.
“Question %d: Was it made and signed without undue influence on the part of the defendants or others? Answer.No.
“This is the verdict rendered by the jury.
“Thomas Plowman, Foreman.”
On this verdict the court said in substance that the answer entitled the plaintiff below to a general verdict, and the clerk wrote over the signature of the foreman, with theaggent 0f j UIy; the wor¿[s; “ We, the j ury, find for the plaintiff.” Upon this counsel contend that the court-misinterpreted the verdict actually returned, and improperly directed a general verdict for the plaintiff. They say that the jury did not indicate the extent of the undue influence,, and that the mere fact of improper influence does not vitiate a will. But the verdict must be taken in connection with the instructions in which the court tells the jury that “the-phrase ‘undue influence’ has a well-defined legal meaning, and may be stated thus: It is that which compels the testator to do that which is against his will, through fear, coercion,, or the desire of peace, or some feeling which he is unable to-resist.” Again, undue influence “ must be such as in a measure destroys free agency.” These instructions were asked by plaintiffs in error, and they were given. Similar instructions-were asked by the plaintiff below, and given, as follows r “Undue influence is anything which either places the party in fear of her life and health, or overpowers her nervous sensibility to such an extent as to deprive her of doing as she desired.” With this definition of the words “undue influence,” such as to vitiate a will, the jury were bound by the instructions, and are not presumed to have disregarded them in their deliberations on the answers, or the legal meaning of the words thus defined by the court.
Counsel further complain of the manner in which the verdict was received and completed. It appears that when the jury were first sent out for consultation, three questions were submitted to them; that the court sent for them about midnight, in the absence of defendants’ counsel, and was informed that they could not agree upon the answer to the third question, and instructed them that if they could agree upon the answers to the other two, they might let the third question pass; that at eight o’clock the next morning it called them in, and they returned the verdict as above, neither client nor counsel being present, and after its completion discharged the jury without their being polled. But it also appears that the ■court, before the jury retired in the first instance, instructed them that if they answered all three questions in the affirmative, then the form of their general verdict would be, “We, the jury, find for the defendants;” and also that if they answered any one in the negative, then their verdict must be, "We, the jury, find for the plaintiff;” so that in completing the form of the verdict, and in construing the effect of their answers to the questions, it was only carrying out its previous instructions. It did not attempt in the slightest to dictate their answers or control their judgment, but placed in the form it had previously indicated was proper, the conclusions they had freely reached and returned. In this was no error, but only the due discharge of its duty.
Again, at the close of the afternoon session when the jury retired, it does not appear that the court adjourned to the next morning. On the contrary, the record recites that the court took a recess, and then at midnight called the jury in. The record nowhere shows that the court in any manner misled counsel, or ordered a recess until one hour and then called the jury in at another. For all that appears, the court notified counsel of the time when the recess would end, or it may have itself waited in the court room for some communication from the jury. The fact that no adjournment was ordered, and only a recess taken, was notice to them to remain in attendance and watch the proceedings. And, as the record shows, their client, Dennis Mooney, was present in the court room at midnight when the jury came in. The duration of a session, the time of adjournment and of convening, and the length of any recess, are matters within the discretion of the trial court, and until it appears that such discretion has been abused, its action is conclusive. No abuse of discretion is shown; none will be presumed.
In reference to the instructions challenged, we remark that some refer to questions which the jury decided in favor of the defendants; and that the others, when construed in connection with the entire charge, would not have misled the jury.
We see nothing in the record to justify a reversal of the judgment, and it will be affirmed.
Valentine, J., concurring.
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The opinion of the court was delivered by
Harvey, J.:
This is a common-law action for damages, alleged to have resulted from defendant’s negligence. The trial court overruled a demurrer to the petition. Defendant has appealed.
The petition alleges in substance: That plaintiff and her husband were for many years residents of Hale, Carroll county, Missouri; that her husband died at Hutchinson, Kan., August 8, 1925; that she desired, in accordance with his wish, that he be buried at his old home; that she purchased from defendant a ticket by which defendant contracted and agreed to receive at Hutchinson, Kan., and to deliver over its line and the Chicago, Burlington & Quincy Railway, from Kansas City, via Laclede, to Hale, Mo., the body of her husband; that she delivered the body to defendant at Hutchinson for that purpose; that she notified the undertaker at Hale to meet and take charge of her husband’s body on the arrival of the train, the minister at Hale to arrange to officiate at the funeral, and her friends there that the funeral would be at the church soon after the train arrived; that she and her daughter purchased from defendant tickets over the same route, and as passengers boarded the same train from Hutchinson on which her husband’s body was being transported; that at Kansas City, through defendant’s negligence, the body of her husband was not transferred to the Chicago, Burlington & Quincy Railway Company; that plaintiff was not there informed of that fact; that when the train stopped at Laclede, Mo., plaintiff had her daughter make inquiry if her husband’s body was on the train, and learned that it was not, and the agents and employees of the railway company there knew nothing of it; that plaintiff “was terribly shocked and instantly, and because of said shock, she lost consciousness and fell heavily upon the platform.” with resulting physical injuries; and that for several hours thereafter she was unable to discover the whereabouts of her husband’s body, although she endeavored to do so. The body reached Hale one day later. The action is for the mental and physical pain and suffering of plaintiff resulting from the alleged negligence of defendant.
The demurrer was on the ground that the petition does not state a cause of action. Appellant contends, (1) that there can be no recovery in such an action for mental suffering alone, and (2) that the negligence complained of was not the proximate cause of the physical injuries alleged.
On the question of proximate cause appellant quotes from Milwaukee, etc., Railway Co. v. Kellogg, 94 U. S. 469, 475, as follows:
“But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.”
And from Corpus Juris as follows:
“Proximate damages include all damage directly and immediately caused by the wrongful act, and such consequential damage as results from intermediate causes, where the natural and probable effect of the act complained of is to set in operation the intervening cause from which the loss directly results.” (17 C. J. 714.) •
“Remote damages are such as are the result of accident or an unusual combination of circumstances which could not reasonably be anticipated, and over which the party sought to be charged had no control.” (17 C. J. 715.)
And from other authorities of like tenor and contends that under these authorities the damages claimed are too remote. It is argued that it was not the delay which caused plaintiff to faint and fall, but the announcement to her that the body of her husband was not there, and appellant asks, “Can any one say that this fall and the injuries arising therefrom could have been probably anticipated by the persons responsible for the delay?” A fair consideration of the question seems to require an affirmative answer, or at least it cannot be said as a matter of law that the answer must be in the negative. Those responsible for the delay must be held to have anticipated that grief-stricken relatives would learn of it. Vertigo, or fainting, from the shock of such information, by one whose nerves were already shattered by grief, is not so unusual that it can be said as a matter of law that it could not have been anticipated. That physical injuries may result from a fall is common knowledge.
Much has been said first and last on proximate and remote cause. There is no purpose in writing extensively on the subject here. Perhaps as good a general statement as is contained in any of the opinions is found in Light Co. v. Koepp, 64 Kan. 735, 737, 68 Pac. 608, as follows:
“The negligent acts cannot be the proximate cause of an injury to one unless, under all the circumstances ordinary prudence would have admonished the person sought to be charged with negligence that his acts or omissions would result in injury to some one. The general test as to whether negligence is the proximate cause of an accident is said to be such that a person of ordinary intelligence should have foreseen that an accident was liable to be produced.”
It is not essential to recovery that the specific injury suffered should have been foreseen, but an injury of some character. (Gas Co. v. Dabney, 79 Kan. 820, 826, 102 Pac. 488; Walmsley v. Telephone Association, 102 Kan. 139, 143, 169 Pac. 197.) It cannot be said, as a matter of law, that the injury complained of is too remote.
Appellant contends that the mental suffering of plaintiff in itself could not be a basis for the recovery of damages, neither could the physical injuries which occurred as a result thereof. With respect to mental suffering, sucb as fright, terror, and the like, resulting in physical injury, the courts of the various jurisdictions have not been uniform in the rules which govern the question of recovery, and perhaps not always uniform in application of rules -announced. Many cases dealing with the question are collected in the annotations of 11 A. L. R. 1119; 40 A. L. R. 983. We shall not attempt even a general résumé of them. It has been repeatedly held in this state in substance that in an action where no physical injury is alleged or proved, no damages for mental suffering or anguish are recoverable. (West v. Telegraph Co., 39 Kan. 93, 17 Pac. 807; Cole v. Gray, 70 Kan. 705, 79 Pac. 654.) Where the mental suffering is an element of physical pain, or the natural and proximate result of physical injury, it forms the basis of recovery. (City of Salina v. Trosper, 27 Kan. 544; Hendren v. Arkansas City, 122 Kan. 361, 252 Pac. 218.)
Some courts have gone so far as to hold that where there is fright or mental anguish which results in bodily injury there can be no recovery even for the bodily injury. This court has stated the rule thus:
“In general there can be no recovery for fright or mental anguish unless it results in or is accompanied by bodily injury.” (Whitsel v. Watts, 98 Kan. 508, 159 Pac. 401.)
But several of the courts which hold that there can be no recovery for physical consequences of fright, unaccompanied by contemporaneous physical injury, particularly point out that the rule is not applicable to cases such as the one before us.
In Conley v. United Drug Co., 218 Mass. 238, a girl working in a factory at which an explosion occurred could not remember whether she was struck by anything or was thrown down, but on examination a physician found bruises on her body which could have been caused by a fall or by being thrown violently against some object in the room. It was held:
“If a girl is so frightened by an explosion that she faints and falls unconscious to the floor, where she sustains some physical injury, she has a cause of action against a person who wrongfully caused the explosion.”
In the opinion it was said:
“The defendant contends that the plaintiff’s injuries were due wholly to fright, and that she is precluded from recovery under the rule established in the case of Spade v. Lynn & Boston Railroad, 168 Mass. 285. . . . In view of the effect of the explosion upon the plaintiff and the fear and fright caused thereby, a jury might find, notwithstanding the absence of direct testimony to that effect, that she was thrown to the floor or against some object and so received the physical injuries described. Upon such a finding, manifestly the rule laid down in Spade v. Lynn & Boston Railroad, ubi supra, would not be applicable. If, as the defendant contends, the physical injuries which the plaintiff received were due to her falling upon the floor when by reason of fright she fainted and became unconscious, still we are of the opinion that the rule adopted in Spade v. Lynn & Boston Railroad does not apply. We think that if the effect of the excitement and fright under which the plaintiff labored was to cause her to faint and fall to the floor and thereby sustain physical injuries, she would not be barred from recovery.” (pp. 239, 240.)
In Kisiel v. Holyoke Street Railway, 240 Mass. 29, the court had occasion to discuss at some length the rule with respect to recovery for fright. In the opinion it was said:
“In this commonwealth it is settled beyond doubt that, in actions for injury by negligence such as is here involved, there can be no recovery for ‘fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury’ from without to the person; but in case there is such injury, damages are assessed with reference to the results immediately arising therefrom and from those ‘attributable to the mental shock or disturbance.’ (Spade v. Lynn & Boston Railroad, 168 Mass. 285; Mullin v. Boston Elevated Railway, 185 Mass. 522; Driscoll v: Gaffey, 207 Mass. 102.) Such physical injury need not be indicated upon the surface of the body by bruises or otherwise. (Driscoll v. Gaffey, supra.) It may be caused by a fall when by reason of fright one faints. (Conley v. United Drug Co., 218 Mass. 238.) It may be slight so far as the physical injury is concerned. (Hunnewell’s Case, 220 Mass. 351; Megathlin v. Boston Elevated Railway, 220 Mass. 558; McCarthy v. Boston Elevated Railway, 223 Mass. 568. See, also, Berard v. Boston & Albany Railroad, 177 Mass. 179; Cameron v. New England Telephone & Telegraph Co., 182 Mass. 310.) While under the decisions above cited, mental suffering or other injury akin thereto does not constitute an independent cause of action, largely because of the ‘remoteness of such damages and . . . the metaphysical character of such an injury,’ if there was an actual invasion of the plaintiff’s rights by the appreciable and wrongful application of violence to her body causing mental suffering or like injury as its proximate result, such elements may be considered in assessing damages. (See Stiles v. Municipal Council of Lowell, 233 Mass. 174, 185; Warren v. Boston & Maine Railroad, 163 Mass. 484, 487; Steverman v. Boston Elevated Railway, 205 Mass. 508.) As said by Holmes, C. J., in Homans v. Boston Elevated Railway, 180 Mass. 456, 457: ‘It is an arbitrary exception, based upon a notion of what is practicable, that prevents a recovery for visible illness resulting from nervous shook alone.’ (See Driscoll v. Gaffey, supra.) In the Homans case it was recognized that the ultimate basis of the rule was whether there had been a wrongful application of force to the plaintiff.” (p. 31.)
In Sider v. Reid Ice Cream Co., 211 N. Y. Supp. 582, after re ferring to the general rule that damages may not be recovered for mere fright or physical conditions resulting therefrom, announced in Mitchell v. Rochester Railway Co., 151 N. Y. 107, being the same rule as stated in Spade v. Lynn & Boston Railroad Co., 168 Mass. 285, it was said:
"Where, however, there is a physical injury caused by the negligent act of the defendant, and also fright producing illness, recovery may be had both for the physical injury and the results of the fright. (Jones v. Brooklyn Heights R. Co., 23 App. Div. 141, 48 N. Y. S. 914.) If fright, produced by defendant’s negligence, causes one to lose his balance and thus become physically injured, the defendant is liable. (Cohn v. Ansonia Realty Co., 162 App. Div. 791, 148 N. Y. S. 39. See, also, Mundy v. Levy Bros. Realty Co., 184 App. Div. 467, 170 N. Y. S. 994; Wood v. New York Cent. & H. R. R. Co., 83 App. Div. 604, 82 N. Y. S. 160.)” (p. 583.)
In Mollman v. Light & Power Co., 206 Mo. App. 253, 261, where the action was based on damages caused by negligence of defendant which caused fright, fainting and a fall, with resulting injury, defendant contended for the rule announced in Spade v. Lynn & Boston Railroad Co., 168 Mass. 285, the court declined to apply it. In the opinion it was said:
“There are many conflicting decisions on the right to recover for physical injuries resulting from fright caused by a wrongful act, but the general rule is, in cases of this character, that' if the injury is directly traceable to the unlawful invasion of plaintiff’s rights, then such recovery may be had.” (Citing and quoting authorities.)
To the same effect is Sternhagen v. Kozel, 40 S. Dak. 396; Hanford v. Omaha & C. B. Street R. Co., 113 Neb. 423, and Pankopf v. Hinkley, 141 Wis. 146.
See, also, Kenney v. Wong Len, 81 N. H. 427, where the rule contended for by appellant is discussed, and it is noted that the rule is not enforced where the immediate physical injury was sustained in a fall consequent upon a fainting induced by fright, citing Conley v. United Drug Co., supra.
A somewhat similar situation was presented in Whitsel v. Watts, supra, where the rule contended for by appellant here was sought to be invoked. In the opinion the court said (p. 510):
“There is a conflict in the authorities in regard to whether there can be a recovery for physical injuries resulting from fright where the act causing the fright was merely negligent and not willful, and differences of opinion as to what constitutes a physical injury, and whether certain injuries can be regarded as the proximate result of the negligence which caused the fright; but the great weight of authority is that if the bodily injury is the direct and reasonable consequence of the fright caused by the negligence a recovery may be had although the negligence may have been unintentional.” (Citing au-. thorities.)
Appellant argues that this language was dictum in the case. We do not so regard it; but if it were that would not change the correctness of the statement made. The basis of the decision in that case is found in excerpt from the opinion on page 509, as follows:
“The plaintiff is seeking to enforce a civil liability for the consequences of the wrong, and the general rule is that a wrongdoer is liable in damages for injuries which are the natural and reasonable consequences of his wrongful act, whatever name may be fittingly applied to the wrong.”
And as before noted herein, it was there held that there can be recovery for fright or mental anguish if “it results in or is accompanied by bodily injury.”
Here the fright, terror, grief, shock, and the fall with resulting physical injuries were substantially simultaneous, and by the allegations of the petition all of them resulted naturally and directly from the negligence of plaintiff. To say that the mental anguish preceded the physical injuries by a second or two, and therefore that there is no liability for either, is to make too much of a refinement for practical purposes, and one that would tend to defeat justice rather than to promote it.
The order of the court below overruling defendant’s demurrer to plaintiff’s amended petition is sustained.
Burch, J., concurs in the result. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one by Orpha E. Cracraft, as administratrix of the estate of her husband, Charles Cracraft, to recover for his death. Plaintiff prevailed, and defendant appeals.
The deceased met his death through an explosion which entirely wrecked the building in which Howard & Cracraft operated a grocery store. The facts, developed by the evidence indicated that gas entered the basement of the building in which the store was operated, through a soil pipe connecting with the .city sewer and that the gas escaped into the basement through holes cut in the soil pipe. It was ignited by a match or candle in the hands of the plumber. The principal question presented is whether the evidence was sufficient to sustain the special findings and verdict of the jury.
Special questions pertaining to this inquiry were answered by the jury as follows:
“1. If you find for the plaintiff and that the explosion was due to defendant’s negligence, state in detail in what manner and things the defendant was negligent. A. Failure to locate leaks and make repairs necessary after same had been reported as coming from their mains or pipes, and in permitting the escape of natural gas on the premises known as 315 East Lewis street.
“2. If you answer the above question to the effect that defendant’s negligence consisted in allowing gas to leak from its mains or pipes, state the location of such leak. A. In the vicinity of Howard & Cracraft’s store, on or prior to April 18, 1927.
“3. If you have answered any of the foregoing questions to the effect that gas leaked from defendant’s mains or pipes and caused the explosion, state whether or not defendant had notice of such leak or leaks, and in what manner such notice was received by defendant. A. Reported in person by T. C. Weidenbach to the offices of Wichita Gas Company in New York Rite Temple building; also by Donald Habert to P. B. X. operator of Wichita Gas Company several days prior to April 18, 1927.
“4. Did the gas which caused the explosion enter the basement of the Howard-Cracraft building through the soil pipe connecting such building with the sewer? A. Yes.
“5. If you answer the foregoing question in the affirmative, state how such gas escaped from the soil pipe. A. Through holes cut into soil pipe.
“6. Did the escaping gas from the source which caused the explosion stop escaping on Wednesday or Thursday following the explosion on Monday. A. Yes.
“7. If question No. 6 is answered in the affirmative, state what caused the escape of gas to stop. A. Some mechanical means unknown to jury.”
The findings in our opinion, were amply sustained by the evidence. For instance, by a process of elimination the plaintiff showed that the explosion was not caused by gasoline fumes nor sewer gas, but that it was caused by natural gas, and that it was not possible for the natural gas to have come into the building from the high pressure lines of the Wichison Gas Company a few blocks distant, and must therefore have come from defendant’s lines. Following the explosion, a kind of vapor was observed rising from a vent pipe. This was lighted and burned steadily to a height of about eighteen inches. Immediately after the explosion the defendant company began work on its lines in that vicinity. No change occurred in the premises and no work was done on the lines of the Wichison Gas Company in the vicinity, but within two days following the gas ceased to flow through the vent pipe. We think the jury was justified in its conclusion that the flow of gas was stopped by the efforts of the defendant, also in its finding that the flow of gas was stopped by some unknown mechanical means.
Other questions as to whether or not defendant had notice of a leak in its lines, and whether or not the escape of natural gas was the proximate cause of the explosion were, we think, properly determined in favor of the plaintiff. A contention that there was a fatal variance between the pleadings and the proof cannot be sustained. Other questions raised by the defendant, all centering on the proposition as to whether or not its gas caused the explosion, we think were properly disposed of by the trial court and do not require elucidation.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This appeal is concerned with the right of a landowner to deal with surface and drainage waters where the rights of an adjacent landowner are concerned.
The plaintiff, A. C. Skinner, owns a quarter-section farm some two miles southeast of Belle Plaine in Sumner county. The defendant Jennie Wolf owns a quarter-section farm immediately south of plaintiff’s. A section line road running east and west separates these farms. Defendant’s farm has a slightly lower elevation than plaintiff’s, so that in times of heavy rainfall the natural drainage of plaintiff’s farm and of a considerable area in addition thereto from the vicinity of Belle Plaine flows southeastwardly across defendant’s farm, although there is no well-defined watercourse thereon. There is a stream known as the Cowskin creek somewhere northeast of plaintiff’s and defendant’s farms, and part of the natural drainage of the Belle Plaine neighborhood would be in the direction of that stream. There are roadside ditches thereabout, and an artificial embankment about a mile northwest of plaintiff’s farm hinders the natural flow towards the Cowskin and increases the flow southeastwardly over plaintiff’s farm and into a roadside ditch running easterly on the north side of defendant’s farm. In times of much rainfall that ditch will not carry all the water which comes its way, and in consequence it flows across defendant’s farm. To prevent this, defendant and her agent and codefendant, E. L. Foltz, constructed a low dike or embankment on her land, paralleling the ditch, at the place where the surplus surface and ditch waters were wont to enter her property. The result of this obstruction to the natural flow, whenever the rainfall is.beyond the capacity of the roadside ditch to carry away, has been to back up the surface water on plaintiff’s farm, to his serious detriment and injury.
Hence this lawsuit. Plaintiff’s petition stated his conception of the facts. He alleged that there was a natural watercourse running from northwest to southeast across plaintiff’s farm and onward across the Wolf farm, and that defendants caused a dike to be built immediately south of the north line of the Wolf farm, and that during freshets this dike caused an overflow on the land of plaintiff, on account of which he pi’ayed for damages and for an injunction forbidding the maintenance of the dike.
Defendant answered admitting the construction of the dike, but denied that it was created across a natural watercourse or that it impounded water on plaintiff’s land or otherwise injured him. The answer also alleged that prior to the construction of the dike by defendants the surface and flood waters on the land of plaintiff and of third persons to the northwest which would naturally flow towards Cowskin creek had been obstructed by an embankment and diverted by dikes, ditches and drains toward and upon the land of defendant Wolf, and but for such action on the part of plaintiff and others such additional waters would not reach defendant’s land. Defendant Jennie Wolf amplified these latter allegations in a cross petition, charging plaintiff with the maintenance of dikes, tile drains and embankments on his property whereby waters were collected into a dug ditch adjacent to defendant’s property on the north, and by recurring overflows thereof she was greatly and irreparably damaged, for which grievance defendant prayed for injunctive relief against plaintiff.
On these issues the trial court heard the evidence of the litigants, made some twenty-four findings of fact, and gave judgment for plaintiff.
Defendants appeal.
It would have greatly expedited and simplified the task of this court in reviewing this judgment if a free-hand sketch had been furnished us showing the relative locations of places familiarly referred to in this record by witnesses, litigants, trial court and counsel, but which are unknown and hardly discoverable by this court from the record- — -Belle Plaine, Cowskin creek, the Nye land, Foltz’s land, Bishop’s land, Will Nye’s land, as well as the courses of the roadside ditches and the like. Such a sketch would not be evidence, but would helpfully illuminate the testimony, the findings and the arguments of counsel. If the accuracy of such a sketch were disputed each party could furnish one of his own.
So far as the judgment in favor of plaintiff rests on disputed issues of fact supported by some evidence, it is, of course, unassailable, in this review. So far as concerns defendant’s cross appeal, also, the judgment is in effect a finding that plaintiff is not responsible for the obstruction somewhere to the northwest which diverts the flow of surface and drainage waters coming from the vicinity of Belle Plaine and which would naturally flow north and east of plaintiff’s farm towards Cowskin creek. The net result is that plaintiff does have a redressible grievance against defendant because defendant’s dike does prevent the free passage of surface waters from plaintiff’s higher land to defendant’s lower land. And since the court refused to find that the obstruction northwest of plaintiff’s farm prevented part of the surface and drainage waters around Belle Plaine from flowing towards Cowskin creek, these defendants must receive those waters — at least so far as plaintiff is concerned. • They may, indeed, have redress against whoever has created the obstruction which diverts part of this drainage from its natural course towards the Cowskin, but that is of no present concern in this lawsuit.
Defendants press on our attention a finding of the trial court that the lay of the land thereabout is such that in seasons of much rainfall plaintiff’s land would be subjected to overflow even if defendant’s dike and ditch did not exist. But even so, since these did tend to dam or retard the flow of water on plaintiff’s land (finding 15) he was entitled to injunctive relief to abate them.
Defendant propounds a constitutional question whether the statutes, Laws 1911, chapter 175, and Laws 1917, chapter 176 (R. S. 24-105, 24-106), do not, without compensation, deprive a landowner of the right formerly enjoyed by a property owner under the settled law of this state to repel surface waters coming on his land from the higher land of adjacent proprietors? This question was considered in Martin v. Lown, 111 Kan. 752, 208 Pac. 565, and there held that the substitution of the rule of the civil law for that of the common law concerning the disposition of surface waters was not unconstitutional, and as no substantial injustice has been brought to this court’s attention because of the application of the civil-law rule, we are not disposed to reconsider that decision. In this particular case the civil-law rule (R. S. 24-105, 24-106) certainly is as beneficial to defendants as it is to plaintiff. It effectively prevents the defendants’ neighbors owning lands at a lower level than theirs from damming up surface and ditch waters on defendants’ land just as these statutes and this judgment protect the plaintiff from the dike sought to be maintained by defendants.
A painstaking review of this record and of the brief of appellants’ counsel discloses no prejudicial error on the part of the trial court which would permit this judgment to be disturbed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action to recover damages for injuries sustained by the plaintiff in a crossing collision between a coal car being switched by the defendant and an automobile in which the plaintiff was riding and which was driven by her husband. The cause was submitted to a jury, which returned a verdict in favor of the plaintiff for $1,000 and answered special questions as follows:
“1. Was the driver of the automobile, C. M. Blue, intoxicated immediately before the collision? Answer: No.
“2. Was the plaintiff, Marguerite Blue, intoxicated immediately before the collision? Answer: No.
“3. In what distance could the automobile have been stopped when it was at a point 150 feet north of the point of collision? Answer: Fifty to sixty feet.
“4. In what distance could the automobile have been stopped when it was at a point 75 feet north of the point of collision? Answer: Twenty to thirty feet.
“5. If your verdict is against the defendant, state in what the negligence of the defendant consisted? Answer: Not proper control of the car.
“6. At what speed was the automobile in question traveling when it was at a point 150 feet north of the point of collision? Answer: Twenty-five miles.
“7. At what speed was the automobile in question traveling when it was at a point 75 feet north of the point of collision? Answer: Twelve miles.
“8. How far to the east of the point of collision could the plaintiff, Marguerite Blue, have seen the approaching railway car from a point 150 feet north of the point of collision? Answer: One hundred and fifty feet.
“9. How far to the east of the point of collision could the plaintiff, Marguerite Blue, have seen the approaching railway car from a point 75 feet north of the point of collision? Answer: Two hundred feet.
“10. At what speed did the coal car approach the point of collision? Answer: Three to five miles.”
On the motion of defendant, the verdict was set aside, and judgment was rendered in favor of the defendant on the special findings of the jury. The plaintiff appeals.
The only question argued is: Was judgment rightfully rendered in favor of the defendant on the answers to special questions submitted to the jury? A brief analysis of the answers is necessary. When the automobile in which the plaintiff was riding was 150 feet north of the point of collision, she could have seen the approaching coal car 150 feet away from that point, and the automobile could have been stopped within 50 or 60 feet. The coal car was then 30 feet from that point. When the automobile was 75 feet north of the point of collision, the plaintiff could have seen the approaching coal car 200 feet away from that point, aAd the automobile could have been stopped within 20 to 30 feet. The coal car was then 15 feet from that point. At both times, the coal car was almost directly in front of the automobile in which the plaintiff was riding. The accident occurred at 11:45 p. m. It is assumed that the lights on the automobile were shining. The coal car was necessarily within the light given by the automobile. The coal car could have been seen by both the driver of the automobile, the husband of the plaintiff, and the plaintiff. It could have been seen long enough in advance of the collision for the plaintiff to have warned her husband of its presence. If the coal car was not seen by everyone in the automobile, it was because they failed to look.
In Ewing v. Railroad Co., 117 Kan. 200, 231 Pac. 234, this court, in discussing the contributory negligence of a wife riding in an automobile with her husband, said:
“Concerning the answer to question No. 2, it must be said that Hattie E. Ewing could have seen the train long enough before going upon the track to have notified her husband two or three times of the approaching danger. She either saw the train in ample time to have avoided the danger or she did not look in time. In either case she cannot recover.” (p. 206. See, also, Fair v. Traction Co., 102 Kan. 611, 171 Pac. 649; Kirby v. Railway Co., 106 Kan. 163; 186 Pac. 744; Knight v. Railway Co., 111 Kan. 308, 206 Pac. 893; Rathbone v. Railway Co., 113 Kan. 257, 214 Pac. 109; and Ferguson v. Lang, 126 Kan. 273, 268 Pac. 117.)
It follows that the judgment should be affirmed; it is so ordered. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action by H. W. Skinner against his brother, J. F. Skinner, for specific performance of, and an accounting under, the following contract, designated as exhibit B:
“ ‘Exhibit B.’
“agreement. ,
“I hereby agree to transfer back to H. W. Skinner three hundred eighty (380) shares of the stock of the Medicine Lodge Milling and Warehouse Company, or to his heirs or assigns, at a time when all the indebtedness of said milling company are liquidated, and H. W. Skinner had his personal business in such shape that said transfer back of said shares will not jeopardize said stock for any other liabilities outside of said milling company.
“That said H. W. Skinner is to be president of said milling company same as before and the business of the said milling company, so far as the public is concerned, is to be run as in the past. “jj, Skinner
“J. F. Skinner.”
The defendant in his answer pleaded want of consideration and that the contract was void for want of mutuality. In addition to exhibit B, the petition set out another contract between the same parties, designated as exhibit A, as follows:
“ ‘Exhibit A.’
“agreement.
“This agreement, made and entered into on this 28th day of February, 1924, by and between H. W. Skinner of the first part and J. F. Skinner, party of the second part;
“Witnesseth: That for and in consideration of the sum of one dollar ($1), the receipt of which is hereby acknowledged, paid by the party of the second part to the party of the first part, and for the further consideration of the party of the second part refinancing the indebtedness in the sum of thirty-four thousand nine hundred dollars ($34,900) and interest held by the Commerce Trust Company, of Kansas City, Missouri, against the Medicine Lodge Milling, Warehouse and Supply Company, and the release of the said H. W. Skinner and J. N. Tincher of personal liability on said indebtedness, which, which said party of the first part hereby sells and assigns to the said party of the second part all of his right, title and interest, including stock held by him in the Medicine Lodge Warehouse and Supply Company, a corporation.
. “That in the receipt of said stock and the interest of the said H. W. Skinner, in said company by the said J. F. Skinner, the said J. F. Skinner is to receive all notes, accounts and all property of every kind and nature belonging to the said The Medicine Lodge Milling, Warehouse and Supply Company, as shown on the books of said company of this date. That the said J. F. Skinner is to have, own and control the same, and have exclusive control of said corporation as per the stock held by the said J. F. Skinner. That the said J. F. Skinner shall transfer on the books of the company into the name of the said J. F. Skinner all of the shares of stock delivered to him belonging to the said first party, except that certain shares, the number to be in the discretion of the said J. F. Skinner, to remain in the name of H. W. Skinner for the purpose of permitting the said H. W. Skinner to act as president. «H. W. Skinner,
Party of the First Part.
“J. F. Skinner,
Party of the Second Part.”
The trial court found in favor of the plaintiff for specific performance. Defendant appeals.
Nothing has been done as to an accounting. Considerable evidence was introduced to show the business relation of these brothers and the facts and circumstances leading up to and surrounding the making of these two contracts, exhibits A and B. There were no special findings of fact made by the court, but there is no' substantial disagreement about the general relations and transactions until about the time of the making of these contracts.
H. W. Skinner had owned and operated an elevator and coal and lumber yards in Medicine Lodge for many years. Later he employed his brother, J. E. Skinner, to work for him, and still later he was in active charge of these enterprises for the owner. In 1917 H. W. Skinner organized a milling corporation with $50,000 capital stock — 500 shares of $100 each — J. K. Richardson and J. N. Tincher each owning one-fourth of the stock and he owning one-half of it. The corporation built a flour mill in Medicine Lodge. Later J. F. Skinner acquired the interest held by Richardson, it being in dispute as to who paid for it. This corporation became involved, and in order to effect a loan the plaintiff turned over to the corporation his elevator and his coal and lumber yards as assets. The loan at the time of the making of these contracts amounted to $34,900, on which foreclosure suit was later commenced in federal court. The plaintiff was also indebted to the St. Joseph Cattle Loan Company for more than $1,000,000, and to satisfy the cattle loan company he had the other two stockholders with him assign all the milling company stock to it indirectly through a local cattle company belonging to plaintiff. The cattle loan company declined to advance the necessary funds to protect the milling stock from the foreclosure sale of the milling company property, but turned the stock back to plaintiff, and he had the assignment of it all made to his brother, J. F. Skinner, because he himself Was still financially embarrassed. This was the purpose and occasion of the making of exhibit A, together with the proposition and plan of J. F. Skinner to raise $10,000 himself to apply on the mortgage foreclosure indebtedness of $34,900 and get time to pay the balance by earning it from the profits of the mill, elevator and coal and lumber yards. Considerable evidence and some correspondence shows there was hope in this way of saving sthe equity in this property, valued in the evidence at $100,000, and at the same time release all three stockholders from personal liability as indorsers of the notes. They all continued to sign the renewal notes until the indebtedness was paid. The evidence further shows that H. W. Skinner liquidated his indebtedness prior to his making demand for the return of the 380 shares of stock mentioned in exhibit B.
As to an interpretation and legal construction of exhibit B, taken alone as quoted -above, the argument of the appellant is convincing. It does not name any consideration, and there seems to be nothing whatever in it which the appellant could enforce. It lacks mutuality of obligation, and, standing alone, is nudum pactum, The ap pellant, however, alleges a consideration which he says failed of fulfillment, and considerable evidence pro and con seems to have been introduced on the subject. He alleges that there was an oral agreement between him and his brother that his brother should pay a debt owing the milling company by him and a copartner of his in the sum of $16,000, and that “in consideration of the fulfillment of said oral promise the defendant caused a statement to be prepared and signed only by the defendant and not by plaintiff, wherein defendant promised to deliver to the plaintiff three hundred and eighty shares of the capital stock,” etc. The evidence on this point is very conflicting. Plaintiff in his reply and testimony says there never was any such oral agreement. It is immaterial whether there was or not, because it could not supply the want of a consideration when the plaintiff says there was no such agreement and the defendant says it was not fulfilled.
It will be observed that exhibit B is not dated. Plaintiff says it was handed to him by the defendant a day or two after February 28,1924, when exhibit A was executed. Defendant says he prepared it “sometime in March and about the middle of Márch, 1924.”
One thing in exhibit B forcibly compels the reader to conclude that the writer had in mind some prior incident in connection with. the same subject matter when he twicé refers to transferring back the shares, which conclusively connects it up with the fact of their having been transferred to the writer. Another unmistakable intention of connection with exhibit A is the reference in both instruments to the plan of having H. W. Skinner continue to act as president of the company.
The theory of the appellee is that these two separate instruments should be construed together as referring to the same transaction, and that exhibit A furnishes a full and complete consideration for the promises of the defendant in exhibit B. Appellant maintains that exhibit A, being complete in itself, cannot be coupled up with another instrument which makes no specific reference to it with the purpose and effect of undoing or overturning the matters fixed in the former; that it takes a new consideration to support a supplemental contract or one which seeks to modify, amend, or change the terms of the former, and also stresses the fact that exhibit B was executed some days later than exhibit A. We have carefully considered all these objections to construing the two together as one contract and are satisfied that such construction is not only in fairness to the parties litigant but fully in accord with the authorities on this subject. 'If the separate instruments are shown to be a part of the same transaction,- as the two in this case undoubtedly are, then they should be construed together.
“Where several instruments are made as part of one transaction, they will be read together, and each will be construed with reference to the other. This' is true, although the instruments do not in terms refer to each other. So if two or more agreements are executed at different times as parts of the same transaction they will be taken and construed together.” (13 C. J. 528.)
“When different instruments are executed at the same time, but are all parts of one transaction, it is the duty of the court to suppose such a priority in the execution of them as shall best effect the intention of the parties. Moreover, the general rule is that in the absence of anything to indicate a contrary intention, instruments executed at the same time, by the same parties, for the same purpose, and in course of the same transaction, are, in the eye of the law, one instrument, and will be read and construed together as if they were as much one in form as they are in substance. . . . When two written contracts are entered into between the'same parties concerning the same subject matter, whether made simultaneously or on different days, they may, under some circumstances, be regarded as one contract, and interpreted together.” (6 R. C. L. 850-851.)
The benefit accruing to one of the parties in one instrument may be the consideration for the promise of such party in another instrument.
“The situation of the parties and the circumstances under which written' instruments are executed and delivered may be shown by parol in aid of interpretation. The deed, the agreement, and the will are to be considered as integral parts of a single transaction, so far as disposition of the land is concerned.” (Roseman v. Nienaber, 100 Kan. 174, 176, 166 Pac. 491.)
“When a will, lease and deed are made about the same time, and appear to be parts of one transaction, the court may consider all of them, and the circumstances under which they were executed, in interpreting the deed and in determining the purpose that it was intended to accomplish.” (Jack v. Hooker, 71 Kan. 652, syl. ¶ 4, 81 Pac. 203. See, also, Insurance Co. v. Hanks, 83 Kan. 96, 110 Pac. 99; White v. White, 103 Kan. 816, 176 Pac. 644.)
There can be no question, either from the contents of the two exhibits or from the evidence, that these two instruments were executed near the same time, by the same parties, relate to the same subject matter, and effect but one transaction, and in such case the execution of one of the contracts can be the consideration for the other.
“Where two or more written instruments are executed at the same time, between the same parties, relating to the same subject matter, and embodying blit one transaction, and the execution of one is expressed to be the consideration for the other, a court, in construing one of them, should read them all together as though all the parts were contained in one writing.” (Kurt v. Lanyon, 72 Kan. 60, syl. ¶ 1, 82 Pac. 459.)
Exhibit B is really a complementary or reciprocal part of the single transaction between these two parties. Exhibit A did not mention the obligation or duties of the defendant, whereas exhibit B did, and the two together make a full and complete contract, without the second part of which it would be a very unreasonable business transaction.
“In an action to quiet title to the gas and oil rights in a half section of land, the record examined and held to justify a judgment that a deed of general warranty conveying the premises to the grantee, and the instrument executed by the grantee reconveying to the vendor all the oil and gas rights in the premises, were properly construed as complementary * and reciprocal parts of a single transaction having their inception in a written contract for the sale of the property but reserving the oil and gas rights therein to the vendor.” (MacLorinan v. Finley, 124 Kan. 637, syl. ¶ 1, 261 Pac. 587. See, also, Lampe v. Lumber Co., 97 Kan. 376, 155 Pac. 918; Rhoades v. Railway Co., 49 W. Va. 494.)
We conclude that, construing these two instruments together, there is a sufficient consideration for exhibit B to make the obligations therein imposed on the defendant enforceable. The appellee is entitled to specific performance.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an appeal from an order setting aside a verdict and one of the findings of fact returned by a jury and granting a new trial. The action is one to recover twenty-five cents a bushel damages provided for in a wheat growers’ contract entered into under sections 17-1601 to 17-1625, inclusive, of the Revised Statutes.
The evidence was submitted to a jury, which returned a verdict in favor of the defendant and answered special questions as follows:
“1. Do you find that the defendant was induced to sign the contract with the plaintiff by the fraudulent representations made by plaintiff’s agent at the time he entered into the contract? Yes.
“2. If you answer question No. 1 in the affirmative, state what the false representations were. A. That a representative of said association falsely and fraudulently represented to defendant that all of the other farmers of Kiowa county living in the vicinity of said defendant had signed a similar contract.
“3. State when defendant discovered that said representations were false. A. Last part of June, 1924.
“4. Did the defendant sign plaintiff’s exhibit No. 2 on or about November 5, 1924? A. No.”
The plaintiff filed a motion for a new trial in which it alleged that “the special findings are contrary to the evidence,” and that “because of abuse of discretion of the court, misconduct of the jury and the defendant, and for accident and surprise which ordinary prudence could not have guarded against, . . . the plaintiff was not afforded a reasonable opportunity to present its evidence and be heard on the merits of the case.” In response to the motion for a new trial, the court set aside the general verdict and the answer to special question No. 4, sustained the motion, and granted a new trial. The reasons for granting a new trial are not disclosed by the record. One of the issues presented to the jury was whether or not the defendant signed the exhibit, a proxy from the defendant to another to represent the defendant in meetings of the association. The court evidently thought that the answer to the question was contrary to what it ought to have been, and thought that the verdict was wrong.
In Shore v. Shore, 111 Kan. 101, 205 Pac. 1027, this court declared that—
“When reviewing a verdict or special finding, the district court acts according to its own independent judgment, and should set aside either or both when satisfied the jury has not properly discharged its functions.” (Syl. fll.)
See, also, K. P. Rly. Co. v. Kunkel, 17 Kan. 145, 172; U. P. Rly. Co. v. Diehl, 33 Kan. 422, 425, 6 Pac. 566; Lee v. Bermingham, 39 Kan. 320, 323, 18 Pac. 218; Bass v. Swingley, 42 Kan. 729, 732, 22 Pac. 714; and Yard v. Gibbons, 95 Kan. 802, 814, 149 Pac. 422.
In K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 30 Pac. 108, this court declared that—
“If the trial judge is dissatisfied with the verdict of the jury, upon weighing the evidence presented, it is his duty to set aside the verdict and grant a new trial.”
See, also, Coal & Mining Co. v. Stoop, 56 Kan. 426, 428, 43 Pac. 766; Richolson v. Freeman, 56 Kan. 463, 465, 43 Pac. 772; Caldwell v. Brown, 56 Kan. 566, 570, 44 Pac. 10; Luse v. Railway Co., 57 Kan. 361, 369, 46 Pac. 768; Railway Co. v. McClure, 58 Kan. 109, 112, 48 Pac. 566; Railroad Co. v. Matthews, 58 Kan. 447, 452, 49 Pac. 602; White v. Railway Co., 91 Kan. 526, 527, 138 Pac. 589; Bank v. Goodrich, 96 Kan. 719, 720, 153 Pac. 541; Walsh v. Railway Co., 100 Kan. 232, 233, 164 Pac. 184; Butler v. Milner, 101 Kan. 264, 266, 166 Pac. 478; Hudson v. Riley, 104 Kan. 534, 537, 180 Pac. 198; State v. Frey, 111 Kan. 798, 802, 208 Pac. 574; Loit v. Reno Township, 113 Kan. 492, 494, 214 Pac. 1110; Bowman v. Foundry Co., 117 Kan. 66, 67, 230 Pac. 320; Davis v. Central States Fire Ins. Co., 121 Kan. 69, 70, 245 Pac. 1062; Stroup v. Northeast Oklahoma Rld. Co., 122 Kan. 587, 592, 253 Pac. 242.
The defendant complains of the introduction of expert evidence on the hearing of the motion for a new trial to show that the signature to the proxy was that of the defendant. A discussion of this question would be useless because it was the duty of the court to set .aside the verdict if not satisfied with it, even if the evidence complained of had been erroneously admitted.
Under repeated declarations of this court, the order granting a new trial in the present action cannot be reversed. It is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover on a surety bond. Plaintiff prevailed and defendant appeals.
The facts are substantially these:
Alice N. Houser died October 5, 1920, leaving a will which was duly admitted to probate, and Jacob C. Houser was appointed ad-' ministrator of her estate. His bond was fixed in the sum of $74,000. Personal bond was given for a portion of the amount and surety bond executed by the defendant in the sum of $33,500, which was approved by the court. Houser qualified, entered upon his duties, and in due time filed an inventory of the estate, showing total assets to be $44,015. In January, 1922, he filed with the probate court his annual report, showing that he had received from the assets of the estate, $38,000; that he had made distribution thereof, except $7,250, which remained in his hands. On January 16, 1922, upon his application, an order was made by the probate court discharging the defendant from liability under its bond. The application was made by Houser with no notice upon the parties interested. The estate- had already paid the premium on the bond for two years.
The sole question presented is whether the defendant was released by virtue of the order made by the probate court. The rule is stated in 11 R. C. L. 306, that “a surety desiring to be released may on. his own motion, obtain such release only by strict compliance with the statutory provision on the subject.” In 24 C. J. 1073, it is stated that “in the absence of statute the court is without authority to discharge a surety.” Our statute provides that: “It shall be lawful for any surety of any executor or administrator . . . at any time, to make application to the probate court to be released from the bond of such executor or administrator, by filing his request therefor with the court, -and giving at least five days’ notice in writing to such executor or administrator.” (R. S. 22-1007.) In Surety Co. v. Cole, 106 Kan. 782, 189 Pac. 957, this court has said that:
“The duties of the probate court with respect' to a guardian’s surety bond are purely statutory.” (Syl. If 1.)
Also:
“On the application of the guardian, the probate court entered an order discharging the surety on the guardian’s bond and directing a new bond to be filed. Held, that the order is void,- as there is no statutory authority for the release of the surety on petition of the guardian alone.” (Syl. ¶ 3.)
What was said in the Cole case is applicable here. In that case the court discussed the statute and held that a surety could not be released from liability on the application of the guardian or administrator. There suit was brought by the company to recover the premium, and the court held it was entitled to do so and said, “there can be no doubt that if the guardian in the present case had wasted the estate, the surety company would have been liable on its bond and could not have set up as a defense the fact that the guardian had procured an order from the probate court discharging the surety.” (p. 786.) In the instant case, the trial court reduced his opinion to writing and quoted from an Oregon case as follows:
“After a bond has been given, the heir, legatee or creditor of the estate acquires and has a vested interest' in it, and the power of the county court over it ceases, except in a proceeding authorized by law. When, therefore,. an executor or administrator has given a bond for the performance of his duties as such, he cannot after it has been accepted and filed, upon his own motion, to suit his own convenience, or his own interest, apply for and obtain an order of the county court setting it aside and discharging the sureties thereof and substituting a new one in its stead. If such was the rule, there would be no security for the estate, and the authorities abundantly show that no such power is -vested in the probate court.” (Bellinger v. Thompson, 26 Ore. 320, 345. See, also, Commonwealth v. Rogers, 53 Pa. St. 470.)
The statute (R. S. 22-1007), as-amended by chapter 194 of the Laws of 1927, .expressly authorizes the court to release the surety on the application of the executor or administrator on notice. This amounts to a construction by the legislature to the effect that under the statute, in vogue at the time of the transaction in this case, the court was without authority to release the surety.
There is no question here but that the administrator made default; that he absconded with $7,250 belonging to the beneficiaries of this estate. We are of opinion the trial court reached the correct conclusion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
E. S. Stanley asks a review of a decision of the trial court approving a survey made by the county surveyor. The case was tried upon an agreed statement of facts, from which it appears that Stanley owned the northwest quarter of section seven, township six, range thirty. The original monuments were found at each corner of the section, and quarter-section stones were also found on the east and west sides of the section, but no quarter- section stones were found on the north and south sides of the section. The surveyor finding the absence of the stones on the north and south lines and a discrepancy between the exterior limits as shown by the monuments found and the field notes, so that there was an excess of area within the section, established the line between the northwest quarter and the northeast quarter of the section on a proportionate basis. He took the distance from the stone at the northeast corner of the section to the "northwest corner and placed the quarter-section stone at a point on that line equidistant from the established government corners of the section, and the south line of the section was treated in like manner by placing the quarter-section stone halfway between the south corners of the section. The intersection of the lines leading north to south and from east to west was established as the center of the section. The government field notes did not correspond with the established lines as indicated by the original survey or those established by the resurvey in question. The government field notes as to the south line of the section are as follows:
“West on random line between sections seven and eighteen, Va. 12D 40' E. 40.00 chains set temporary one-fourth sec. cor. 77.40 chains intersected west boundary 11 Iks south of comer to sec. 7 and 18, from which cor. I run S 89D 55' E. on a true line between sections seven and eighteen, 37.40 chains set sandstone 18x9x4 inches for a one-fourth sec. comer. 77.40 chains the corner to sections 7, 8, 17 and 18.”
The government field notes of the north line follow:
“West on random line between secs. 6 and 7, Var. 12D 40' 40.00 chains set temporary one-fourth section cor. 77.10 chains intersected west boundary, 18 Iks south of com. to secs. 6 and 7, from which cor. I run S 89D 52' E. on a true line between sections six and seven 37.10 chains, set sandstone 18x9x4 inches for one-fourth section comer. 77.10 chains, the corner to section 5, 6, 7 and 8.”
Finding the discrepancy mentioned and the surplus of territory within the established exterior lines of the section, the surveyor placed the quarter-section stone between plaintiff’s quarter section and the one east of it on the proportionate basis. In the agreed statement the parties stipulated:
“That the only question to be decided in this case is as to whether the survey is correct in establishing the quarter-section corner stones on the basis of proportionate measurements as was done in this case, or whether such quarter-section stones should have been established 40 chains or 160 rods west from the northeast corner of section seven, and 40 chains from the southeast comer of section seven, as contended for by the appellant, E. S. Stanley.”
The surveyor undertook to find and establish the boundary line between the northwest and the northeast quarters of section seven.
“It is the duty of the county surveyor notified under the statute (Gen. Stat. 1909, i 2272) to survey land and establish its corners and boundaries, to proceed according to the statutory rules.” (In re Martin’s Appeal, 86 Kan. 336, 120 Pac. 545. See, also, Roadenbaugh v. Egy, 88 Kan. 341, 128 Pac. 381.)
The pertinent statutory rule provides:
“In the resurvey of lands surveyed under the authority of the United States, the eountj' surveyor shall observe the following rules, to wit: First, section and quarter-section corners, and all other corners established by the government survey, must stand as the true corners. Second, they must be reestablished at the identical spot where the original comer was located by the government surveyor, when this can be determined. Third, when this cannot be done, then said- corners must be reestablished according to the government field notes, adopting proportionate measurements where the present measurements differ from those given in the field notes.” (R. S. 19-1422.)
The surveyor, it appears, followed the rules prescribed by this section. Whether the quarter-section stones had ever been placed on the north and south lines of the section is not shown, but it is certain that they could not be found. It is the duty of a county surveyor in such a resurvey to scrupulously follow the original survey and adopt the corners established by the government as the true corners. He cannot correct what the government surveyor has actually done, but when that which was done by him cannot be ascertained the county surveyor should follow the rules prescribed by the statute. There being no question about the location of the corners of the section as established by the government except-as to the quarter-section corner on the north and south sides of the section, it seems quite clear that the resurvey was correctly made.
Plaintiff argues that as the section adjoins a township line a different rule should be followed, but there is no such exception in the statute referred to, and we think the statute must control in a resurvey of the section. The lines marked on the ground are to be regarded as the true survey, and unquestioned monuments must prevail over courses and distances expressed in field notes. In a somewhat similar case where there was a variance, we said:
“Where, on a line of the same survey and between remote corners, the whole length of which is found to be variant from the length called for, it is not to be presumed that the variance was caused from a defective survey in any part, but it must be presumed, in the absence of circumstances showing the contrary, that it arose from imperfect measurement of the whole line, and such variance must be distributed between the several subdivisions of the line in proportion to their respective length.” (Miller v. Land Co., 44 Kan. 354, syl. ¶ 2, 24 Pac. 420. See, also, McAlpine v. Reicheneker, 27 Kan. 257.)
In speaking of an excess or deficiency in a tract where there is a variance between known corners on a line and the calls of the field notes, it was said:
“On a line of the same survey and between remote corners, the whole length of which is found to be variant from the length called for, it is not to be presumed that the variance was caused from a defective survey of any part, but it must be presumed in the absence of circumstances showing the contrary that it arose from imperfect measurement ’of the whole line and such variance must be distributed between the several subdivisions of the line in proportion to their respective lengths.” (9 C. J. 295.)
The unquestioned markers established at the Corners and two sides of the section indicate a purpose to divide it into four equal parts and whether there be a surplus or a deficiency in the section, each subdivision should share in the benefit or burden of any excess or deficiency of the area within the section.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff's sued the First National Bank of Wetmore and F. P. Achten and Lillian Achten, agents of the bank, to have a $2,300 note given by the plaintiffs to the First National Bank of Wetmore declared to be a fraud upon the rights of the plaintiffs, to cancel á chattel mortgage given by them to secure the payment of the note, and to enjoin the defendants from conveying or selling the note or mortgage. F. P. Achten and Lillian Achten filed disclaimers. Judgment was rendered in favor of the First National Bank of Wetmore, and the plaintiffs appeal.
The allegations of the petition to show fraud were that the plaintiffs were indebted to the Citizens State Bank of Sabetha in the sum of $757; that the note was secured by a mortgage on personal property owned by the plaintiffs; that Lillian Achten, acting for the First National Bank of Wetmore, went to the plaintiffs and represented to them that the bank owned the note and mortgage given to the Citizens State Bank of Sabetha and demanded that a new note secured by chattel mortgage be given to take up that indebtedness and another note for $1,462.67 previously given to the First National Bank of Wetmore; that the plaintiffs believed the repre sentations of Lillian Achten concerning the ownership of the $757 note; that, acting on that belief, a new note for $2,300 was given to the First National Bank of Wetmore; that the new note was secured by a mortgage on property owned by the plaintiffs; and that in truth and in fact the First National Bank of Wetmore did not own the note for $757, which had been given to the Citizens State Bank of Sabetha. The answer of the defendant bank was a general denial.
The evidence of the plaintiffs, who both testified, was to the effect that the representations were made by Lillian Achten as alleged in their petition. The evidence of Lillian Achten, who testified for the defendant bank, was directly contrary to that of the plaintiffs. At the time the- note for $2,300 was given to the defendant bank, the plaintiffs were indebted to that bank in the sum of $1,462.67, which indebtedness was included in the new note for $2,300. On the trial it appeared that the defendant bank did not have nor own the note for $757. There had been negotiations between the Citizens State Bank of Sabetha and the defendant bank in which the former bank had agreed to transfer the note to the defendant bank. The transfer had not been completed at the time the note for $2,300 was given by the plaintiffs to the defendant bank, and was never completed, because the plaintiffs went to the Citizens State Bank of Sabetha and objected to the $757 note being transferred to the defendant bank. That bank had given its check to the Citizens State Bank of Sabetha for the amount of the $757 note and interest thereon. That check was returned by the Citizens State bank to the defendant bank, which credited the amount of the check on the $2,300 note that had been given by the plaintiffs to the defendant bank.
The case turns on what was said by Lillian Achten to the plaintiffs at the time the $2,300 note was given. The evidence of the plaintiffs and of the defendant bank was irreconcilably conflicting concerning the representations made by Lillian Achten. The judgment recites that —
“The court after hearing the evidence, argument of counsel, and being fully advised in the premises, finds for the defendants and against the plaintiffs.”
That brings this case within the often declared rule that findings of ‘fact supported by evidence will not be disturbed in this court where the findings are supported by competent evidence. When the trans action was completed the plaintiffs owed the Citizens State Bank of Sabetha the $757 note, or the amount that remained unpaid thereon, and owed to the defendant bank the $1,462 note, which note, however, was secured by a chattel mortgage on property which had not theretofore been pledged to secure the payment thereof. The court, in effect, found that the chattel mortgage had not been secured by any fraudulent practice.
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment convicting him of grand larceny. He was charged with stealing harness of the value of one hundred dollars and was convicted of stealing harness of'the value of seventy-five dollars.
The defendant’s first complaint is that the information was not properly drawn because it failed to allege the exact day on which the theft was committed. The information charged that the stealing was done “on the-day of October, a. d. 1925.” In State v. Bowman, 106 Kan. 430, 188 Pac. 242, the information charged the stealing of cattle "on the-day of November, 1915.” There this court said it was not necessary to allege the exact date of the offense. See, also, State v. Barnett, 3 Kan. 250; State v. Brooks, 33 Kan. 708, 7 Pac. 591; Topeka v. Crawford, 78 Kan. 583, 96 Pac. 862; State v. Bisagno, 121 Kan. 186, 246 Pac. 1001.
Evidence was introduced which tended to prove that the defendant, at about the time of the alleged larceny, had stolen harness from a number of other parties. The defendant complains of the admission of that evidence. In State v. Mall, 112 Kan. 63, 209 Pac. 820, where the defendant was convicted of both grand and petit larceny, this court said:
“As part of the state’s case on the particular larcenies charged against her, it was competent to show that she had a S3rstem of thieving and that the particular thefts charged were pursuant to that system.” (p. 65.)
See, also, State v. Ridgway, 108 Kan. 734, 197 Pac. 199; State v. King, 111 Kan. 140, 206 Pac. 883; State v. Bartholomew, 116 Kan. 590, 227 Pac. 366. The evidence was competent; but if it had been error to admit it the error was cured by the court in instructing the jury not to take that evidence into consideration in arriving at the verdict.
The defendant complains of the conduct of the jury in arriving at the value of the harness stolen. There was evidence which tended to prove that each juror marked on a piece of paper his judgment of the value of the harness; that these amounts were added together, the sum divided by twelve, and thereafter an amount slightly in excess of the quotient was agreed on as the value of the harness; and that no juror placed the value of the harness at less than fifty dollars. The evidence did not show that there had been any agreement on the part of the jurors that the quotient should be the agreed value of the property. The value was agreed to after the quotient had been ascertained. That takes this case out of the rule declared in Werner v. Edmiston, 24 Kan. 147, cited by the defendant, and places it under the rule found in Hamilton v. Railway Co., 95 Kan. 353, 357, 148 Pac. 648, where this court said:
“It has been held that a verdict obtained by marking the amount each juror thinks the amount of the verdict should be, adding these amounts together and dividing the sum by twelve, under an agreement that the quotient shall be the verdict, should be set aside and a new trial granted. (Johnson v. Husband, 22 Kan. 277, 283; Werner v. Edmiston, 24 Kan. 147, 150; Ottawa v. Gilliland, 63 Kan. 165, 166, 65 Pac. 252.)
“In the case at bar there was no previous agreement to make the quotient the verdict. After the addition and division had been made, a definite amount, a little more than the„quotient, was fixed. This is not sufficient to warrant this court in granting a new trial. (Bailey v. Beck, 21 Kan. 462, 464; City of Kinsley v. Morse, 40 Kan. 588, 20 Pac. 222; Taylor v. Abbott, 85 Kan. 198, 115 Pac. 979; Campbell v. Brown, 85 Kan. 527, 534, 117 Pac. 1010; Rambo v. Electric Co., 90 Kan. 390, 394, 133 Pac. 553; Sims v. Williamsburg Township, 92 Kan. 636, 643, 141 Pac. 581.)”
The defendant complains of the exclusion of evidence offered by him. He was a witness for himself and was questioned by his counsel concerning the amount of property he owned. On objection, the evidence was excluded. The evidence was not produced on the hearing of the motion for a new trial; and, under section 60-3004 of the Revised Statutes, its exclusion cannot be considered. (State v. Wellman, 102 Kan. 503, 512, 170 Pac. 1052; State v. Schroeder, 103 Kan. 770, 176 Pac. 659; Stale v. Ball, 110 Kan. 428, 204 Pac. 701; and State v. Atteberry, 117 Kan. 650, 232 Pac. 1020.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This action is brought by a cooperative'marketing corporation, organized under sections 17-1601 to 17-1625 of the Revised Statutes, to recover stipulated damages of twenty-five cents a bushel from R. C. Leslie for his failure to deliver to the plaintiff all of the wheat raised by him in 1921, 1922, 1923, 1924 and 1925, and to enjoin him from selling to anyone other than the plaintiff the wheat raised during those years which he then had on hand and which fiad not been sold. The evidence was submitted to a jury, which returned a verdict in favor of R. C.,Leslie, and judgment was rendered accordingly. The plaintiff appeals.
The first complaint concerns the introduction of evidence. The contract-provided:
“3. The grower [R. C. Leslie] expressly warrants that he is now in a position to control said crops, and has not heretofore contracted to sell, market or deliver any of his said wheat to any person, firm or corporation, except as noted at the end of this agreement. Any wheat covered by such existing contracts or crop mortgage shall be excluded from the terms hereof for the period and to the extent noted, if the lien holder refuses to permit delivery thereof.”
There was no notation at the end of the contract. The court, over objection, permitted R. C. Leslie to introduce evidence which tended to prove that at the time the contract was signed there was a mortgage on the wheat for the year 1921, which had then been sown. The plaintiff argues that the introduction of that evidence was a violation of the rule which forbids the introduction of evidence to add to, change, alter, or vary the terms of a written contract in the absence of accident, fraud or mistake. The contract in effect said that there was no encumbrance of any kind against the crop. Leslie was thereby estopped from saying there was a mortgage on the wheat when he signed the contract. The introduction of the evidence to show the mortgage did tend to add to, change, alter and vary the terms of the contract. The, introduction of the evidence by Leslie was prejudicially erroneous.
Another complaint is made of the introduction of evidence. In connection with his testimony concerning the mortgage and over the objection of the plaintiff, R. C. Leslie testified that, after the wheat had been threshed, he informed the president of the plaintiff association that the wheat had been threshed, that there was a mortgage thereon, and that he was ready to deliver the wheat to- the plaintiff if the latter would discharge the mortgage. Leslie further testified that the president of the plaintiff association then informed him the wheat could not be accepted under those conditions, and told him he could deliver the wheat to the mortgagee. On this subject, the court instructed the jury as follows:
“With reference to the crop harvested in the year 1922, you are instructed that if you find and believe from the evidence that this crop was mortgaged by the defendant, and prior to the sale or disposal of the same by the defendant he mortgaged said crop, and after said crop had been mortgaged he had ah agreement with the plaintiff, through its president, in which agreement the plaintiff, through its president, authorized and directed the defendant to have the said wheat sold and applied upon the mortgage covering said wheat, and in pursuance of said direction and authorization the defendant sold or caused to be sold said wheat to satisfy said chattel mortgage thereon, then I say to you that the plaintiff would not be entitled to recover any sum from the defendant on account of the disposal of such wheat to satisfy said chattel mortgage thereon.”
It is argued that the president of the plaintiff had no authority under the law to enter into any such agreement with R. C. Leslie íd the absence of instructions from either the stockholders or the board of directors.
Whether or not the president of the association informed R. C. Leslie that he could deliver the wheat to the mortgagee was immaterial, because R. C. Leslie contracted to deliver the wheat to the plaintiff and warranted that he was in a position to control the wheat and had not contracted to sell, market or deliver any of it to any other person. Under the contract to the plaintiff, R. C. Leslie was bound to deliver the wheat to the plaintiff. The mortgage previously executed did not relieve him of that obligation. His failure to comply with his contract rendered him liable for the payment of the twenty-five cents per bushel for wheat not delivered to the plaintiff. The admission of the evidence complained of was error.
In 1923, R. C. Leslie raised 2,400 bushels of wheat, 1,437 bushels of which was sold to another person for seed, which was permitted under the contract. There remained 963 bushels, which the plaintiff argues should have been delivered to it, but which was taken by the man who threshed the wheat and was sold to realize the amount that was due him for threshing it. On this subject the court instructed the jury that—
“If you find and believe from the evidence that any part of the balance of such wheat was appropriated by others other than the plaintiff to pay such expenses without the consent of the defendant and that the defendant did not consent to such appropriation of said wheat for such expenses, then I say to you that the plaintiff would not be entitled to recover any damages for wheat so appropriated without defendant’s consent.”
There does not appear to have been any evidence which tended to prove that the thresher sold the 963 bushels of wheat without the consent of R. C. Leslie.
Section 58-203 of the Revised Statutes reads:
“That any person operating a threshing machine, or engaged in the business of threshing and harvesting grain or grain crops, for others, who shall, under contract with the owners of any such grain or grain crop, or with the mortgagee thereof, thresh and harvest such grain or crop, shall be entitled to a lien thereon from the date from such harvesting or threshing, to secure the payment of any amount due for threshing and harvesting, from and after the date of such threshing or harvesting. Such lien shall be preferred to that of any prior chattel mortgage or encumbrance.”
Section 58-204 prescribes the manner in which such a lien is ob tained — by filing a lien statement in the office of the register of deeds — and prescribes the manner in which such lien may be enforced. The evidence did not disclose that the statutory method had been followed by the man who did the threshing. The contract with the plaintiff provided that—
"(c) If the grower places a crop mortgage upon any of his crops during the term hereof, the association shall have the right to take delivery of his wheat and to pay off all or part of the crop mortgage for the account of the grower and to charge the same against him individually.
“The grower shall notify the association prior to making any crop mortgage; and the association will advise the grower in any such transactions.”
The man who did the threshing was not a chattel mortgagee; he was entitled to a statutory lien. His rights were no greater than if he had held a chattel mortgage placed on the wheat after it was threshed and of which the plaintiff had been previously notified. The record does not disclose that the thresher had any knowledge of the rights of the plaintiff under its contract with R. C. Leslie. If he did have such knowledge, the principle of daw governing his rights would be the same as if he were a mortgagee with notice and would be controlled by Wheat Growers Association v. Floyd, 116 Kan. 522, 227 Pac. 336, where this court said:
“The rights of a mortgagee of harvested wheat are inferior to the rights of one holding a contract under section 17-1616 of the Revised Statutes, where the mortgagee had knowledge of the contract at the time the mortgage was made.” (Syl. ¶ 2.)
If the wheat was taken to pay the threshing bill, without the consent of R. C. Leslie, it would be inequitable for him to be obliged to pay the twenty-five cents a bushel damages provided for in the contract for failing to deliver that wheat to the plaintiff. If it was taken with his consent, he would be liable because the wheat should have been delivered to the plaintiff if it had desired such delivery and because the man who did the threshing should have filed his lien as prescribed by statute. The instruction should not have been given.
There was an issue raised concerning the ownership of the crops raised in the years 1924 and 1925. R. C. Leslie claimed that the crop for those years was raised by his wife. The plaintiff claimed that the transaction by which the wife acquired title to the crops raised in those years was fraudulent, because the transaction had been entered into by R. C. Leslie, his wife, and the banker with which R. C. Leslie did business, for the purpose of avoiding the con tract with the plaintiff. There was that connected with the transaction which would uphold a finding by the jury that the transaction was fraudulent as against the plaintiff, but there also was evidence which tended to prove that the transaction was entered into in good faith and one into which R. C. Leslie was practically compelled to enter. This was a question of fact for the jury, and a further discussion of the evidence will not be beneficial.
Because of the introduction of the evidence concerning the existence of the mortgage at the time the contract was entered into; because of the introduction of the evidence concerning the transaction with the president of the plaintiff corporation; and because of the instruction given without any evidence on which .to base a material part of it, the judgment is reversed, and a new trial is granted. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a suit to have a contract construed to be an equitable chattel mortgage and for appropriate relief. The trial court sustained a demurrer to plaintiff’s amended petition, and it has appealed. The petition named Will Coslett, the Commerce Trust Company and Charles May, as sheriff of Harper county, as defendants, but the only defendant served with process was the sheriff; hence we must treat the case as between the Danville State Bank as plaintiff and Charles May, as sheriff, as defendant.
The original petition alleged that on September 9, 1926, Will Coslett became indebted to the plaintiff bank in the sum of $684.25 and executed his note, due November 9, 1926, therefor, and also executed a contract with plaintiff which recited, among other things, that the indebtedness was created and the credit extended upon the specific understanding that it was to be secured by a chattel mortgage to be executed by Coslett on 105 acres of wheat to be sown by him in the fall of 1926 on certain described real property in Harper county; that the wheat was not then sown, but Coslett agreed to sow the wheat and as soon as it germinated and became growing wheat to execute the chattel mortgage thereon, and in this instrument Coslett nominated and appointed one E. E. Wulf, an officer of plaintiff bank, his attorney in fact, to execute such mortgage (if he did not do so); and the instrument further provided that if neither Coslett nor his attorney in fact executed such chattel mortgage, the instrument itself should become and be treated as a chattel mortgage and constitute the first lien on the crop of wheat. The instrument contained further covenants and provisions usual in chattel mortgages. It was recorded in the office of the register of deeds of Harper county, September 10, 1926. The petition further alleged that on November 13, 1926, the Commerce Trust- Company, which had previously obtained a personal judgment against Coslett in Sedgwick county for $575.84, with $12.35 costs, caused an execution to be issued thereon and placed in the hands of the defendant Charles May, as sheriff, and directed him to levy the execution upon the wheat, and that in pursuance thereof the sheriff did make such levy-on November 22, 1926, immediately after the wheat was sown; that the sheriff was advertising the same for sale, and intended to sell it, and would sell it on January 11, 1927, unless prevented from doing so by an order of the court; that before the issuance of the execution and the levy thereof the Commerce Trust Company and Charles May, as sheriff, were each notified of plaintiff’s contract and agreement with Will Coslett, and that each had full and complete knowledge thereof; that plaintiff had made demand of the sheriff for the possession of the growing wheat, which demand had been refused; that the Commerce Trust Company claims the right to insist upon the sheriff holding possession of the wheat, but it was outside of the jurisdiction of the court, and no demand could be made upon it; that the wheat was growing upon real estate and could not be fully taken possession of; that there was no ready sale for such growing wheat, and that the value thereof and the measure of plaintiff’s damages were speculative and uncertain. The prayer was for a personal judgment against Coslett for the amount of the note to the bank, with interest; that the contract be declared to be a chattel mortgage to the same extent and purpose as though a chattel mortgage had been actually executed after the wheat had germinated, and the same be adjudged a first lien on the crop, and that the defendant'Charles May, as sheriff, be enjoined from selling or disposing of the crop pending the litigation.
A temporary restraining order was ' obtained from the probate judge, in the absence of the judge of the district court from the county. On January 10, 1927, the sheriff’s motion to set aside this order (and we presume plaintiff’s motion for a temporary injunction) came on for hearing before the district court. It appears that no record was made of what was then done, but we are advised by plaintiff’s counsel that his recollection is that the court made an order continuing the restraining order as a temporary injunction conditioned on the plaintiff giving bond in the sum of $500. The bond was not given, and the restraining order was in effect thereby set aside.
Thereafter plaintiff filed an amended petition, which contained the allegations substantially as the original petition, and further alleged that the sheriff had, on January 11, sold the wheat pursuant to his levy under the execution previously discussed. The allegations with reference to notice of plaintiff’s contract with the Commerce Trust Company and the sheriff were amplified, and it was alleged that the nature of the property, being growing wheat, unmatured, could not, at the commencement of the action, or at the time of the filing of the amended petition, be transferred from one to another by actual possession. The prayer was similar to that in the original petition, with" the addition that plaintiff recover the property, or in the event the same could not be had, the reasonable value thereof, and for such other equitable relief as would be proper.
The sheriff filed a demurrer to the amended petition, which, upon hearing and consideration, the trial court sustained. Plaintiff complains of that ruling.
Appellee contends that the appeal should be dismissed for the reason that the controversy has become moot.. It appears that at some time while the case was pending in the court below the deposition of the president of the plaintiff bank was taken, which disclosed that the purchaser of the wheat crop at the sheriff’s sale harvested the same in the summer of 1927 and sold the wheat so harvested at the elevator on July 7, 1927, for $1,634.50; that the president of the plaintiff bank had personal knowledge of that fact, and that moreover the purchaser of such crop deposited the proceeds to the credit of his own personal account in the plaintiff bank. From that it is argued that if plaintiff had any lien on this wheat crop it could have taken the money out of the proceeds of this sale. But we cannot dispose of this appeal on that showing. The right of the respective parties under such evidence has not been determined in the court below. In fact, the deposition relied upon was never presented to the court. The case before us is an appeal from an order sustaining a demurrer to an amended petition, and involves no consideration of evidence either in the court below or in the court here.
Turning now to the questions presented on the appeal, it is argued by appellee in support of the court’s ruling that the plaintiff had no lien on the wheat crop, for the reason that in this state a chattel mortgage cannot be given upon a crop which is not then sown; and this point must be conceded as being well taken. (Long v. Hines, 40 Kan. 216, 220, 16 Pac. 339, 19 Pac. 796; Holt v. Lucas, 77 Kan. 710, 96 Pac. 30.) It is further argued that a mortgagor’s interest in personal property may be sold on execution if the sale be made subject to the mortgage; and, generally speaking, this point may be conceded as being well taken. (Walker v. Braden, Sheriff, 34 Kan. 660, 9 Pac. 613; Kemmerle v. Wilson, 110 Kan. 247, 249, 203 Pac. 297.) But these matters do not dispose'of the question before us.
While the contract executed by Will Coslett to the bank on September 9, 1926, was not a chattel mortgage upon the wheat crop, it is the kind of a contract which the parties were competent to make under the law, and was a valid contract as between them (Dodge v. Smith, 5 Kan. App. 742; Cameron, Hull & Co. v. Marvin, 26 Kan. 612; Live Stock Co. v. Guthrie, 50 Kan. 467, 474, 31 Pac. 1071; Holt v. Lucas, 77 Kan. 710, 714, 96 Pac. 30; Beall v. Spear, 106 Kan. 690, 189 Pac. 938; 11 C. J. 434, et seq.) and one which a court of equity would enforce unless the rights of third parties intervened. (See 11 C. J. 440, and cases last cited.) If this were a class of personal property subject to levy and sale on execution, the situation would be different. But growing, immature crops, which need the substance of the earth perhaps for months before they are of real value to anyone, are not, from their nature, susceptible of being taken possession of under execution, and that possession transferred to a purchaser at an execution sale. (Isely Lumber Co. v. Kitch, 123 Kan. 441, 256 Pac. 133.) It is not, therefore, properly subject to levy upon under execution. The result is that no lawful rights of third parties intervened in this case. The act of the sheriff in going onto these premises and undertaking to take possession thereof, and to transfer that possession to another, to the injury of plaintiff, was just as wrongful as though the property had been exempt as real or personal property for which the exemptions had been claimed, or property that belonged to another than the execution debtor. (Kemmerle v. Wilson, 110 Kan. 247, 203 Pac. 297; Jones v. Simmons, Sheriff, 115 Kan. 505, 223 Pac. 284.) The act of the sheriff in doing so amounted to a conversion of the property, in that he interfered with the lawful contract rights of the plaintiff with respect to it, to the damage of plaintiff. In Shannon v. Jones, 34 N. C. 206, it was held:
“If an officer sells under execution a growing crop, and the purchaser after-wards gathers it, the officer, if he had no authority to sell under his execution, is as liable in an action of trover as the purchaser.”
Generally speaking, a sheriff is liable for selling property which he had no authority to sell under his process. (35 Cyc. 1682.) Here the sheriff had no authority to sell under the execution in his hands the crop of wheat recently sowed by Coslett.
The amended petition states a cause of action against the sheriff for conversion. The judgment of the court below will be reversed, with directions to overrule the demurrer to the amended petition. | [
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The opinion of the court was delivered by
Brewer, J.:
This is one of those petty cases that never should come to this court, and one which reluctantly we are compelled to reverse. The action was replevin; the defense a carrier’s lien, and the verdict and judgment against the lien. The facts are these: The goods were shipped from Roselle, Illinois, to Girard, Kansas. The M. R., Ft. Scott & G. Rid. Co., whose agent the plaintiff in error was, carried the goods over its road from Kansas City to Girard. A portion only of its charges therefor was paid, and for the balance, $1.40, it claimed a lien, and refused to deliver the goods until it had received payment of such balance. To avoid the otherwise unquestioned right to retain possession for its carrier’s lien, the plaintiff showed that when the goods were shipped at Roselle, a place on the line of the Chicago & Pacific railroad, the agent of the latter road received what he said were the freight charges through, and issued to the shipper a receipt which stated that such charges were paid through to Girard. Would this destroy the lien? Manifestly not. There was not a scintilla of evidence that the agent at Roselle was the agent of the M. R., Ft. Scott & G. Rid., or authorized in any manner to contract for it, or that he claimed to be so authorized, nor that there was any partnership or agreement of any kind between the two railroads as to the shipment of freight or the making of contracts nor that the Gulf road had any knowledge or notice of the terms of the shipment at Roselle. True, when Hough demanded the goods at Girard, he showed the agent there the receipt, but this was after the carriage was completed and the rights of the parties fixed. Conceding that this receipt was a binding contract on the C. & P. road, and that that road is liable in damages for a breach of such eon-tract^.yet before the Gulf road could be held to its terms it mu,sl/"a£>pear either that it had given authority in the first instance to make such a contract, or that it had undertaken the transportation with notice that such a contract had been made for it. The mere fact that it received and transported the goods, does not tend to prove that it had notice of any contract which an agent of another road in another state had assumed to make for it, or of any contract which'’such other road might have made in regard to such shipment, or that the goods were received to be transported under such contract. It may be conceded, as counsel claim, that the Gulf road was under no obligation to receive and transport the goods without prepayment of its charges, but still a failure insist on prepayment was no waiver of its lien. A carrier may always receive goods, and trust to its lien for the payment of its charges.
The judgment will be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This action was originally commenced in the probate court of Miami county, by the plaintiff, Eobert McBratney, against the defendants above named, for moneys had and received by Charles Sims, in his lifetime, belonging to the said McBratney, as attorney’s fees, in the prosecution of the matter of the Miami Indians of Kansas, in the city of Washington, D. C., as follows:
May 12, 1872, cash,.................§170
Dec. 15, 1873, cash,.................175
Nov. 1, 1874, cash,.................950
§1,295
_ # With interest on the respective sums from the dates given.
No pleadings were filed other than a simple statement of an account, in the language just quoted. The probate court disallowed the claim, and McBratney appealed. In the district court, after the plaintiff had rested, a demurrer to the evidence was sustained, and from this ruling plaintiff brings' error. We think the court erred, and that the case was one which ought to have been left to the jury. ■ That McBratney was employed, that he rendered services, and that Sims received money in payment of services from the Miamis, the testimony abundantly establishes. Whether Sims employed McBratney on his own account, or for and by authority of the Indians, and what the amount of McBratney’s compensation was to be — whether one-half of all that Sims received, or simply a reasonable compensation for his services — are questions which the testimony leaves open to doubt. Of course, upon all such doubtful questions of fact, a party has a right to the opinion of the jury. Thus far we presume there would be no dispute between counsel, but the contention of the counsel for defendant in error is that the services which were rendered were such as are forbidden by public policy, and that therefore any contract to pay therefor was void. We quote from counsel’s brief:
“Now the propositions proven by all "the testimony are these: 1. Sims eniployed McBratney. 2. Sims employed plaintiff to influence legislation, and to use his personal influence with senators, members of congress and the heads of executive departments. 3. The pay of plaintiff was contingent upon success.”
Doubtless it was upon this theory that the demurrer was sustained, and while there is abundant testimony to justify such a conclusion, yet we are constrained to think that it does not all tend in that direction. And because it does not, the court was not warranted in withdrawing the case from the jury. It appears that certain matters were pending before the department at Washington, and congress, in which the Miamis were interested, and in these matters Sims was employed by the Indians. To assist Sims, McBratney was employed. The exact terms of the contract and the exact nature of the services performed are in doubt. If all that was contemplated was the preparing of briefs, the making of oral arguments before the department or a committee of either house, the contract was valid and the services legitimate. If the employment of plaintiff was as a lobbyist, and to render the services usually rendered by such parties, the contract was against public policy, and void. We had occasion to notice this question, and draw the line of distinction between the two classes of services, in the case of K. P. R. W. Co. v. McCoy, 8 Kas. 543, and it is unnecessary to more than refer to that case. See also the cases of Marshall v. B. & O. R. R. Co. 16 How. 314; Tool Co. v. Norris, 2 Wall. 45; Trist v. Child, 21 Wall. 441, in which the supreme court of the United States has fully and clearly discussed the question.This briefly may be stated to be the- law: The contract of an attorney for services- as such, whether the services are to be rendered before a court, a department of the government, or a legislative body, is valid, and upon performance of the services a recovery can be had. The contract of a lobbyist, in the sense in which that term is now used, for his services as such, is against public policy, and void. Where there is a single contract, and the services contracted for and rendered are partially those of an attorney and partially those of a lobbyist, and blended together as part and parcel of a single employment, the entire contract is vitiated. “That which is bad destroys that which is good, and they perish together.” 'There is no presumption that a contract is illegal. He who denies his liability under a contract which he admits having made, must make the fact of its illegality apparent. The burden of showing it wrong is on him who seeks to deny his obligation thereon. The presumption is in favor of innocence, .and the taint of wrong is matter of defense.
Because the testimony is riot all one -way, the question should have been submitted to a jury, and there was error in sustaining the demurrer.
The judgment will be reversed, and the case remanded for :& new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Beewee, J.:
The question in this case is as to the powers of the district board of a school district in reference to repairs on a school house. The repairs consisted in fixing a door and window, and painting over some obscene writing on the wall, and the contract price therefor was five dollars. The contention of the defendant is, that the district board is limited to the amount of money voted for repairs at the school meeting, and to the kind of repairs specified in such vote, and the testimony shows that the board had already exhausted the moneys voted for the repairs specified. Hence it claims that the powers of the board were exhausted, and the contract not binding on the district. The statute provides (Laws 1876, p. 248, §11) that the.school meeting shall have power — “Fifth, To vote a tax annually, not exceeding-one per cent, on the taxable property in the district, as the meeting shall deem sufficient, to purchase or lease a site, . . . and to build, hire or purchase such school house, aud to keep in repair and furnish the same with the necessary fuel and appendages.” And (p. 253, § 22) that “ the district board shall have the care and keeping of the school house and other property belonging to the district;” and (page 254, §25) that “the district board shall provide the necessary appendages for the school house during the time a school is taught therein, and shall keep an accurate account of all expenses thus incurred, and present the same for allowance at any regular district meeting.”
These two sections impose a duty as well as grant a power. “Shall have the care and keeping of the school house,” not merely authorizes but requires the board to preserve and care for the school house. And this duty is not like that of a janitor, one of personal attention and manual labor, but like that of trustees, one of supervision. They are not personally to sweep and dust and clean, or bring wood and make fires, but to see that it is done, and to that end may employ assistants, and bind the district for their pay. They are not chosen because of their physical strength and dexterity, but because of their good sense and intelligence. And “care and keeping,” when used in connection with a trust like this, imply the right to preserve the building in the condition in which it is placed in their custody, to make good the waste and injury to which all buildings, and especially public buildings like a school house, are subject; in other words, to repair. It may not imply the right to remodel or improve, but it implies the right to do all that may- come fairly and strictly within the term “repair.” They are to “keep” the school house, and to keep it in good order and repair. If a pane of glass be broken, they may employ a glazier to put in a new one. If the door be off the hinges, they may employ a carpenter to fix it. If some miscreant has defiled the walls with obscene writing, they may employ one to remove the writing or repaint the wall. And in this they are but performing the duty cast upon them of the “care and keeping” of the school house, and are creating a liability against the district, and not upon themselves personally. We do not think that the board can be considered as simply a special committee to expend certain moneys placed in their hands, and with no power beyond. The district is a corporation, (Laws of 1876, p.245, §2,) with the “usual powers of a corporation for public purposes,” and the board is its managing authority. “True, its powers are few and limited, but still reasonable construction must be given to the powers which are granted. And where a duty is imposed, especially one so vital as this to the well-being of the district, it will be understood that it is to be performed in the ordinary manner, and by the ordinary means. It will be noticed by § 21, p. 253, that when the board builds, hires or purchases a school house, it is expressly stated that it shall be done “out of the funds provided for that purpose,” but no such limitation is expressed when the duty is cast of the care and keeping of the school house. The reason is obvious. In mere matter of repairs and preservation, there is little room for expenditure; in building, hiring or purchasing, there may be great extravagance. Again, it is in the very nature of repairs, that they cannot be foreseen, and the necessary amount determined in advance. Who can tell when, and to what extent, just such injuries as appear in this case will occur? Discretion as to these matters must be vested somewhere, and nowhere more appropriately than in the district board. And so Ave understand the legislature has provided.
The judgment will be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a trustee to obtain an interpretation of a will with respect to the trustee’s power to sell and convey real estate. Existence of the power was denied, and the trustee appeals.
The scheme of the will, so far as now material, was this: Specific bequests of real estate and money; gifts of annuities to be paid to beneficiaries during their lives; devise of the residue of the estate, real, personal and mixed, to the board of hospitals and homes of the Northwest Kansas Conference of the Methodist Episcopal Church, in trust, to constitute and to remain intact as a perpetual trust fund, the net income of which shall be perpetually used and applied for the benefit of the worthy and deserving poor who may become inmates of hospitals under the control of the board. The scheme for execution of the will was this: The board was named as executor and trustee. After the specific bequests and annuities were paid the estate was to be closed, and the corpus of the estate was to vest in the board in trust for the charitable purposes indicated. The fifteenth paragraph of the will read as follows:
“In order to provide for the execution of the directions, bequests and conveyances as hereinbefore stated, and in order to enable my said executor and trustee hereinafter named to fully carry out and perform the provisions of this my last will and testament, I give, devise, bequeath and convey to the board of hospitals and homes of the Northwest Kansas Conference of the Methodist Episcopal Church all of my estate with full power to sell and convey at public or private sale and execute good and sufficient instruments and deeds of conveyance therefor without asking or obtaining authority or order of any court or judge, hereby making and constituting and appointing the said board of hospitals and homes of the Northwest Kansas Conference my true and lawful attorney in fact and agent to do any and all things necessary in the premises to fully carry out and perform my wishes, will and bequests as hereinbefore made, and hereby giving and granting unto my said executor and trustee full authority and power to make, execute and deliver any and all instruments, conveyances, deeds, releases, or other papers, and to receive and collect all moneys and property due and belonging to my estate and issue acquittances therefor, and to do and perform any and all other acts which may be necessary to administer my estate and perform my said will, the same as I could do if personally present and acting for myself.”
The board qualified as executor, but resigned because of doubt of its-legal capacity to serve, and an administrator with will annexed was appointed. The administrator performed his functions, closed the estate, was discharged by the probate court, and made distribution to the board as trustee. The final, account and the receipt of the distributee show personal property of the value of $110,656, and real estate of the value of $70,000. The personal property consisted of money, bonds, bank stock and mortgages. The bank stock has ceased to pay dividends, and some of it could not be sold on the market, although it has a book value. Since the estate was closed annuities have been regularly paid out of income.
The board as trustee contracted to sell lots in the city of Concordia on which stands a two-story building used for business purposes, and which is rented for $125 per month. The net income was not disclosed. The sale price was $25,000. The reason for making the sale was that the price was advantageous, and the proceeds can be safely invested in bonds or mortgages producing a better return.
The will appointed the board executor and testamentary trustee to collect assets, pay debts, and hold and administer the estate for the several lives of the annuitants. The will then devised the residue to the board in trust for charity.
“An executor as such, except under special provisions of statute, has nothing to do with the real estate of his testator. If real estate, or a power over real estate, is devised to him as executor, he takes it as a devisee, and not in his general capacity as executor.” (Jones v. Atchison, Topeka, &c., Railroad, 150 Mass. 304, 307.)
With the closing of the estate by the administrator with will annexed, the purpose of statutory administration was accomplished, and no beneficiary may complain that the estate was closed before annuities were paid, because the property is now in the hands of the very trustee appointed by the will to hold, manage, and pay annuities.
Trustees have no power to sell land for the purpose of reinvesting the proceeds unless the power is granted by the will. The limitation is a vestige of feudal conception of landholding. It is now universally held the grant may be express, or may be implied Usually it is said the implication must arise from necessity. But now that society is no longer conceived as static, that land has become a commodity, and that, for investment purposes, other forms of property more nearly combine maximum of safety with maximum of return, there is a tendency to imply power of sale whenever sale would be in aid of the purpose of the trust, unless there is clear indication of intention to withhold power of sale. (2 Perry on Trusts, 6th ed., § 766, p. 1270, note b.) In the case of Robinson v. Robinson, 105 Me. 68, cited in the note just referred to, the first paragraph of the syllabus reads:
“While it is true that under the original theory of a trust the powers and duties of the trustee were confined substantially to holding and caring for the property, it is equally true that the purposes of the modern trust are of a much broader character, requiring ordinarily much greater powers on the part of the trustee, including a power of sale, which is generally expressly given.”
Subject to the annuity charge, the destination of the property disposed of by the will was an income-producing trust fund. No distinction was made between classes of property, real, personal and mixed, as components of the fund. Money must be invested and reinvested, mortgages fall due, bonds mature, banks reorganize and go out of business. None of the personal property could be retained perpetually in specie as part of the fund, and there is nothing in the will to indicate that improved city lots were to be inalienable forever. The fund was to be perpetually preserved intact, but not each piece of property, whether real, personal or mixed, which the testatrix owned at her death.
The trustee for the lives of the annuitants owed the ultimate trustee the duty to manage the estate in the most beneficial manner. Every provision in the will could be carried out without the fifteenth paragraph. It was inserted for the specific purpose of giving legal title, so that power of sale might be exercised as freely and simply as if the property were privately owned. The power granted is general and plenary. It applies equally to all classes of property and to effective accomplishment of every object of the will. Reading the entire will, intention to restrain exercise of the power, at the present stage of administration of the trust, to sales of land to raise funds to pay annuities, is not disclosed.
Bad faith is not imputed to the trustee, and the court may not substitute its judgment of what is the best method of administering the trust for the judgment of the trustee.
.The judgment of the district court is reversed, and the cause is remanded with direction to sustain the power of sale. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff sued defendant for damages sustained in a collision of automobiles on a public highway. A demurrer was sustained to her evidence, and she appeals.
The facts were to this effect: There is a paved road in Reno county which runs north and south. A few miles north of Sylvia this road is intersected at right angles by an east and west road. On April 6, 1927, plaintiff and her husband were journeying northward in a touring automobile on this paved road, en route from Los Angeles, Cal., to their home in Peoria, Ill. Plaintiff’s husband was driving, and she rode at his side. As they approached the crossroad at about eighteen or twenty miles an hour, the defendant came from the west driving his car at a speed of about forty miles per hour and struck the Ferguson car, wrecking it, and severely injuring the plaintiff.
Plaintiff’s husband testified:
“I saw this [defendant’s] car to my left. . . .
“And I figured I had plenty of time to cross this road, as I wasn’t going more than eighteen or twenty miles an hour. I hadn’t been driving at any excessive speed at any time. And just as I saw I was going to get hit, I couldn’t help myself, I just cramped on my wheel and held my car as steady as I could.
Cross-examination:
“Q. Now, you say you were driving about eighteen or twenty miles an hour when you approached the crossing? A. Yes, sir.
“Q. And you saw Mr. Lang to the west, did you? A. Yes, sir; to my left.
“Q. And you figured you could get across before he got there? A. Well, without any bother. . . .
“Q. You didn’t change your speed? A. No, sir. . . .
“Q. Did you give any notice to how rapidly he was approaching you? A. I should judge he was running in the neighborhood of forty miles an hour. . . .
“Q. Did your wife call your attention to how fast he was coming? A. She didn’t see him. She was looking the opposite way.
“Q. She could have seen him if she had looked? A. If she had been looking that way she could have seen him. . , .
“Q. You knew, of course, there was a crossroad there? A. Yes, sir; and I always watch them.
“Q. At this time you simply made a mistake as to how fast the fellow was coming? A. That is the idea; yes, sir.
“Q. Did your wife usually watch the roads a little and speak to you about them? A. Yes, sir; she usually did, but she was looking to the right instead of to the left.
“Q. You would listen to her suggestions as to what was coming or what wasn’t coming? A. I would whenever she spoke to me. I always paid attention to her.”
Plaintiff testified in her own behalf as follows:
“That at the time of the accident she was riding in the front seat with her husband; that she wasn’t paying a great deal of attention to the way her husband was driving, but that she thought he was driving all right; that she didn’t see the Lang car approaching; . . .
Cross-examination:
“Q. Now, you say you didn’t see Mr. Lang’s car? A. No, sir.
“Q. Which way were you looking at that time? A. Well, I was kind of looking straight ahead of me. . . .
“Q. Did you look to the west or pay any attention to where you were going? A. No, sir; not in particular, I didn’t. I was just kind of sighting through — looking straight ahead of me. . . .
“Q. How many roads had you crossed since you left Sylvia, running across the pavement? A. I couldn’t tell you that.
“Q. Had you crossed any? As a matter of fact, you hadn’t paid any at tention to the crossroads, had you? A. I couldn’t tell you. I didn’t pay any attention to the crossroads. . . .
“Q. But as a general thing you didn’t pay any attention to the crossroads? A. Well, not unless I saw rigs coming; and I would say ‘Don’t drive over there; let them go ahead first.’ . . .
!‘Q. But you didn’t see this one? A. No, sir.
“Q. That means, of course, that you didn’t look? A. No, sir; I couldn’t say that I was looking — thinking about any rig coming on the road.”
By the arguments of counsel it would appear that plaintiff was nonsuited in the trial court because of her own negligence and that of her husband, and that she and her husband were engaged in a joint enterprise.
From the testimony quoted above it is obvious that the plaintiff’s husband was guilty of negligence. Although he saw the defendant racing towards the crossing at forty miles per hour, he drove ahead at eighteen or twenty miles per hour, on the miscalculation that he could effect a crossing ahead of the speed fiend. This was a plain breach of the statute which provides;
“Upon approaching a railroad crossing or intersection of highways outside of any village or city, or turning comers, the person operating a motor vehicle shall reduce the speed of such vehicle to a rate not exceeding eight miles an hour, and shall not exceed such speed until entirely past such crossing or intersection.” (R. S. 8-122, as amended by Laws 1925, ch. 84.)
Passing for the moment the question whether plaintiff and her husband were engaged in a joint enterprise so that his negligent driving-might likewise be attributed to her, we are confronted with the question whether plaintiff herself was negligent. By the testi7 mony of plaintiff and her husband, she could have seen the defendant racing towards the intersection at breakneck speed, but she ignored that road crossing. She looked ahead, and to the right, not to the left. She gave no word of caution to her husband to slow down to the speed prescribed by the statute. If she had done so, her husband would have responded to her suggestion. He testified that he always did:
“Q. You would listen to her suggestions as to what was coming or what wasn’t coming? A. I would whenever she spoke to me. I always paid attention to her.”
It is a rule of law that even a passenger in a vehicle on a public road must exercise ordinary care. And where he has an opportunity to see approaching danger it is his duty to warn the driver and to use his influence to induce the driver to take whatever precautions are necessary to avoid it. In Bush v. Railroad Co., 62 Kan. 709, 64 Pac. 624, it was said:
“Where one person is riding with another for the mutual pleasure of both, with equal opportunity to see and ability to appreciate the danger, and is in fact looking out for herself, but makes no effort to avoid the danger, she is chargeable with the want of care which results in injury.” (Syl. ¶ 3.)
In 29 Cyc. 551 the rule is thus stated:
“Notwithstanding the fact that the negligence of the driver will not be imputed to a passenger, yet it is necessary that the passenger himself must exercise ordinary care. And the rule denying the imputation of the negligence of the driver to the passenger has no application where such passenger has an opportunity to discover the danger, it being his duty in such case to discover and avoid it.”
This rule is the one familiarly applied in cases of passengers who are hurt or killed at railroad crossings over public roads by collisions between railroad trains and automobiles driven by negligent chauffeurs (Fair v. Traction Co., 102 Kan. 611, 171 Pac. 649; Cooper v. Railway Co., 117 Kan. 703, 232 Pac. 1024, and citations), and it is not easy to develop a logical rule which would relieve automobile passengers of the duty of exercising due care for their own safety against the possibility of collision with another automobile on the highway. It was plaintiff’s duty to look out for herself as far as that was practicable to do so. And she testified she paid no attention to the crossroads, or to this crossroad:
“Q. But as a general thing, you didn’t pay any attention to the crossroads? A. Well, not unless I saw rigs coming, and I would say, ‘Don’t drive over there; let them go ahead first.’ ...
“Q. That means, of course, that you didn’t look? A. No, sir; I couldn’t say that I was looking — thinking about any rig coming on the road.”
This failure to look, failure to see the obvious danger, and to give a word of caution to avert it was contributory negligence on plaintiff’s part. She made out a strong case of culpable negligence against the defendant, one for which he is, of course, criminally liable; but under the facts developed by the testimony defendant cannot be subjected to civil damages in behalf of plaintiff.
Appellant suggests that in testing the propriety of a demurrer only the evidence favorable to the party adducing the evidence is to be considered, and any evidence to the contrary is to be ignored. But here we have no contradictory evidence. All the evidence was to one effect — the negligent and excessive speed of defendant, and plaintiff’s negligent disregard of the crossroad over which the defendant was approaching; her failure to look and see the manifest and imminent danger into which her husband was carrying her at eighteen or twenty miles an hour, and her failure to do anything to avoid that danger.
This conclusion renders it needless to consider another point relied on by appellee to sustain the judgment of the trial court — • the so-called joint enterprise in which she and her husband were engaged at the time of the collision.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The question in this case is whether or not the recording of certain instrumente in the office of the register of deeds was sufficient to charge the purchaser of a crop grown on rented land with constructive notice of the landlord’s lien.
This action is brought by the owner of the land against grain dealers who purchased from the tenant clover seed and corn grown on the land in question during the year in which they were purchased. There is no contention in the case as to the plaintiff being the landowner, as to the purchase by the defendants of the clover seed and the corn, the value of it, that it was purchased from the tenant, and that the rent due the landlord had not been paid and is not yet paid in full. The contention of the defendants is that they did not at the time of the purchase have any knowledge or notice of such facte, or any facts, entitling anyone to a landlord’s lien on the grain purchased. The case was tried to the court and it was stipulated that defendants had no actual knowledge or notice of such lien. The court found there was no knowledge or notice of any kind. Plaintiff appeals.
Plaintiff relies upon the constructive notice imputed by the recording of two instruments, one on June 20 and the other on July 31 of that crop year. Our statutes provide for a landlord’s lien on growing crops and for recovery of the value thereof from the purchaser thereof with notice of the lien.
“Any rent due for farming land shall be a lien on the crop growing or made on the premises. Such lien may be enforced by action and attachment therein, as hereinafter provided.” (R. S. 67-524.)
“The person entitled to the rent may recover from the purchaser of the crop, or any part thereof, with notice of the lien the value of the crop purchased, to the extent of the rent due and damages.” (R. S. 67-526.)
There is no longer any question in this state as to the right of a landlord to enforce his lien and recover from the purchaser of crops grown on his land and sold by the tenant when the rent has not been paid, and when the purchaser has the necessary notice, actual or constructive. (Neifert v. Ames, 26 Kan. 515; Scully v. Porter, 57 Kan. 322, 46 Pac. 313; Nessley v. Taylor, 63 Kan. 674, 66 Pac. 993; Stadel v. Aikins, 65 Kan. 82, 68 Pac. 1088; Maelzer v. Swan, 75 Kan. 496, 89 Pac. 1037; Mangum v. Stadel, 76 Kan. 764, 92 Pac. 1093; Firstenberger v. McBee, 113 Kan. 110, 213 Pac. 813.)
In this case A. B. Cummings owned the land in question prior to June 20, when he and his wife sold it to the plaintiff, giving him a warranty deed therefor, which deed was acknowledged and recorded that same day. The plaintiff and Cummings had, prior to the execution and recording of the deed, entered into an agreement dated May 27 whereby plaintiff leased the land to Cummings and wife until the first of March following for $1,500, for which a note was given. This lease, to secure the payment of the rent, contained a paragraph giving to the lessor a lien on all the crops grown on the place. This lease was not acknowledged but was filed and recorded, then returned to the agent of the plaintiff, who had left it with the register-of deeds to be recorded and with the request that it be returned to him after it had been recorded.
The appellant contends that the recording of the deed from Cummings was constructive notice that he no longer owned the land, and that his remaining on the land and growing crops thereon necessarily showed that he was only a tenant, because the record showed that he had parted with the title. This- might, under some circumstances, be sufficient to constitute notice, but not as a general proposition. He might have had an oral reservation of the growing crops, as in the case of Soeken v. Hartwig, 124 Kan. 618, 261 Pac. 590, and doubtless many other circumstances might prevent such a conclusion following the mere giving and recording of a deed.
The references to R. S. 67-222 and Burdette v. Corgan, 27 Kan. 275, 283, are hardly applicable here, as that statute has particular reference to real property and notice to subsequent purchasers and mortgagees; likewise, the Burdette case concerns a forcible entry and detainer, and the matter of reference to notice was based upon an examination of the records by an agent or principal coadjutor, as he is called, while in this case the question is whether the recording of a deed will in and of itself constitute notice to a grain merchant of a landlord’s lien. We think it will not.
Appellant claims the recording of the lease was not only constructive notice of the landlord’s lien, but the special paragraph in it giving a lien on the crops made it in effect a chattel mortgage, which would impart notice to the purchasers of the existence of a lien. The trouble with this instrument as a lease is the fact that it was not acknowledged and not entitled to record, and in that condition the recording of it does not impart the required constructive notice.
“The recording of an unacknowledged assignment of a mortgage will not impart constructive notice of such assignment; it is not an instrument authorized to be recorded.” (Fisher v. Cowles, 41 Kan. 418, syl. ¶ 3, 21 Pac. 228.)
“The provision of section 20 of the act relating to conveyances, to the effect that the filing of written instruments with the register of deeds for record imparts notice to all parties and persons of the contents thereof, applies to such instruments only as are certified in the manner prescribed by law.” (Wickersham v. Chicago Zinc Co., 18 Kan. 481, syl. ¶ 2. See, also, Banister v. Fallis, 85 Kan. 320, 116 Pac. 822, and cases therein cited; Nordman v. Rau, 86 Kan. 19, 119 Pac. 351.)
This instrument, in form as a lease, with the special paragraph giving the lessor a lien on all the crops until the rent is paid, might make a good chattel mortgage because no acknowledgment is required for such, but was it properly filed to give it the effect of a chattel mortgage and impart notice of a lien as required by statute? R. S. 58-301, 58-302 and 58-306 provide that such instrument must be “deposited in the office of the register of deeds”; that the register of deeds “shall file the same in his office, to be kept there for the inspection of all persons interested”; and, further, that the register of deeds shall keep a book and an index thereto showing certain things as to such instruments.
It was held in Implement Co. v. Parlin & Orendorff Co., 51 Kan. 566, 576, 33 Pac. 363, that if the chattel mortgage had been deposited with the register of deeds and he had failed or neglected to file it, the rights of the mortgagee would not be affected or prejudiced thereby. Under the facts in this case the failure to have this instrument filed and kept for inspection as a chattel mortgage cannot be charged to the register of deeds. The evidence shows it was left with the register of deeds by the agent of the plaintiff to be recorded, with the request that it be mailed to him after it had been recorded.
It was held in Implement Co. v. Parlin & Orendorff Co., supra, that the leaving of an instrument with the register of deeds with any other or different instructions than those prescribed did not constitute a filing as required by law. The recording of a chattel mortgage not required by our statutes to be recorded will not take the place of the requirement that it be deposited, indexed and kept for inspection, and the failure to comply with these statutory requirements is a failure to impart the required notice.
“In general, to constitute a valid filing or record of a chattel mortgage, there must be a compliance with the statutory requirements.” (11 C. J. 534.)
“Since filing a mortgage often takes the place of the more elaborate and expensive operation of having it copied into a book of records, withdrawal from the files will destroy the validity of the registration, provided the mortgagee is responsible for such withdrawal and has no valid excuse therefor.” (11 C. J. 541.)
We think the recording of the lease, considered either as a lease or as a chattel mortgage, was not sufficient under our statutes to constitute constructive notice to the defendants of the landlord’s lien.
Our attention is called to the inconsistency between the ruling of the court in overruling the demurrer to the evidence of the plaintiff and the rendition of judgment in favor of the defendants at the close of the plaintiff’s testimony without the introduction of any additional testimony. It is inconsistent, but it is explained as having occurred by taking the demurrer to the evidence under advisement, and later, when no evidence was offered by .defendants, it was for the time being overlooked and judgment was rendered in the case for the defendants. Later, to complete the record, the demurrer was overruled. The decision is in effect a sustaining of the demurrer. The appeal and cross appeal bring both rulings here. If the rulings had been at one sitting the court would undoubtedly have sustained the demurrer and then rendered judgment for the defendants as he did; or he could have changed his mind after overruling the demurrer and rendered judgment as he did. The final action results in a judgment for defendants, in which we concur.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a judgment creditor of Martin S. Snow, now deceased, to set aside a transfer to his brother, N. D. Snow, of all of Martin S. Snow’s real and personal property, and to subject the property to payment of the judgment. The court set aside the transfer, but held certain appropriations of the property to the use and benefit of Martin S. Snow by N. D. Snow were valid,, and rendered judgment fully and finally determining the rights of all claimants. Plaintiff appeals.
On March 31, 1925, Martin S. Snow killed Arthur Seals. On -the same day Snow was arrested on the charge of murder in the first degree, and on April 3, a self-constituted committee made a demand on behalf of the Seals family for damages for the killing of Seals. Martin S. Snow was suffering from physical and mental disabilities which rendered him incapable of coping with the crisis in his affairs, and on April 3 he transferred all his property to his brother, N. D. Snow, to be handled and used for his benefit. Among other things, N. D. Snow contracted to employ counsel to defend Martin S. Snow in the criminal prosecution, to pay the expenses incident to the prosecution, and to defend Snow in the civil suit for damages which was imminent and which was filed the next day. The deed of real estate and the contract transferring the personal property and expressing the obligation of N. D. Snow to support and to provide for the defense of Martin S. Snow, were filed for record on April 6. Mr. John A. Hall, of Pleasanton, was employed to defend Martin S. Snow in the criminal case, under a contract for a fee of $8,000 and expense money up to the sum of $3,000. N. D. Snow executed a mortgage on the real estate to Hall to secure payment of the fee, and Hall was employed to defend the civil action. The mortgage was not recorded; and it may as well be said here that it was of no consequence to Cora Seals whether the mortgage was recorded or withheld from record. Martin S. Snow was convicted of murder in the first degree, and judgment was rendered against him in the-civil action, in favor of Cora Seals, for $10,000. Execution on the judg ment was returned unsatisfied, and on June 29, 1926, the present suit was instituted against Martin S. Snow and N. D. Snow.
The petition alleged the transfers of real and personal property were made pursuant to a conspiracy between Martin S. Snow and N. D. Snow to defraud plaintiff, and prayed that the transfers be declared void and of no effect. The petition further prayed judgment against defendants for the amount of her judgment, $10,000, for an attorney fee of $2,500, and for expense money, $13,000 in all;, that the judgment be decreed to be a lien on the real estate, and that the real estate be sold to satisfy the judgment.
The answer of the defendants denied fraud, and exhibited a full accounting for the money and property, real and personal, of Martin S. Snow. The contracts with Hall, and the note and mortgage given as security for his fee in the criminal case, were pleaded, and copies were attached to the answer. The items of Hall’s expense account were pleaded, and disclosed a balance due him for money paid out in excess of what he had received in the sum of $258.04. N. D. Snow paid out money for the expenses of Martin S. Snow and for his support amounting to $672.21, an itemized account of which was attached to the answer. The answer alleged that Martin S. Snow was indebted to his sister, Lena Snow, with whom he lived, for support and care, and in June, 1925, N. D. Snow gave Lena Snow a mortgage on the real estate to secure the indebtedness. A copy of the mortgage was attached to the answer. The result was that by virtue of his contract with Martin S. Snow, N. D. Snow paid and obligated himself to pay, out of the money and property he- received under the contract, the following sums:
Attorney fee to John A. Hall in criminal case..................... $8,000.00
Attorney fee to John A. Hall in civil case......................... 1,000.00
Expenses to John A. Hall........................................ 2,658,54
Payments made by N. D. Snow.................................. 672,61
To Lena Snow, for care, support, maintenance, and nursing of Martin Snow ................................................. 2,139.00
Total .....................................................$14,269.65
N. D. Snow also claimed compensation for time spent in caring for Martin S. Snow and in looking after his defense, an itemized account of which was attached to the answer. The prayer of the answer was that plaintiff take nothing, and that N. D. Snow’s title be quieted in him, subject to the liens which had. been pleaded in the answer.
The reply denied indebtedness of Martin S. Snow to N.'D. Snow and Lena Snow, and alleged the claims presented on behalf of N. D. Snow and Lena Snow were fictitious, and were made to defraud plaintiff and to hinder and dela3 her in the collection of the amount of her judgment. The reply alleged that Hall had full knowledge of the facts relating to the liability of Martin S. Snow to plaintiff as the result of the homicide, and was aware of the intent and purpose of Martin S. Snow, N. D. Snow and Lena Snow to defraud plaintiff; and alleged Hall had no interest in the land superior to plaintiff’s claim upon it.
The court returned, among others, the following findings of fact:
“The personal property conveyed by Martin S. Snow to N. D. Snow on April 3, 1925, consisted of 81,397.37 cash in the bank; United States treasury certificates for 8600, which were cashed for $522; and other personal property which was sold for the sum of 8266; the total proceeds amounting to 82,185.37.
“The 330 acres of land conveyed to N. D. Snow by Martin S. Snow on April 3, 1925, was, at the time of that conveyance, reasonably worth from $35 to 840 per acre, or of a total value of approximately $12,000.
“Martin S. Snow had no debts or liabilities on April 3, 1925, other than his liability for the killing of Arthur Seals, and his liability to John A. Hall for his defense of that charge.
“The conveyance of all the real estate and personal property of Martin S. Snow to N. D. Snow on April 3, 1925, was made for the purpose and with the intent, on the part of Martin S. Snow and N. D. Snow, to hinder, delay and defraud the creditors of Martin S. Snow, and particularly to evade the payment of any judgment that might be recovered against Martin S. Snow for the killing of Arthur Seals.
“The note and mortgage executed and delivered by N. D. Snow to Lena Snow on July 20, 1925, for $2,139, was made with the consent and approval of Martin S. Snow, and was made with the intent and for the purpose, on the part of Martin S. Snow, N. D. Snow, and Lena Snow, to hinder, delay and defraud the creditors of Martin S. Snow, and particularly to evade the payment of any judgment that might be recovered against Martin S. Snow for the killing of Arthur Seals.
“The note and mortgage from N. D. Snow to Lena Snow for $2,139 was executed and delivered without consideration and was wholly voluntary.
“From July, 1921, to April 3, 1925, Martin S. Snow and N. D. Snow were living together as a part of the same family, in the home of Lena Snow, and there was no express agreement between Martin S. Snow and N. D. Snow that N. D. Snow should receive compensation for any services rendered Martin S. Snow.
“N. D. Snow has paid out in cash, from his own funds, for the benefit of Martin S. Snow, the sum of $737.61.
“Martin S. Snow and N. D. Snow are brothers, and were living together in the same family, except during the time that Martin S. Snow was temporarily at the state hospital of Osawatomie, and there was no express agree* ment between them that N. D. Snow should be paid for any services rendered to Martin S. Snow.
“At the time of the conveyance of all the real estate and personal property of Martin S. Snow to N. D. Snow, on April 3, 1925, the said N. D. Snow, with the consent and approval of Martin S. Snow, entered into a written contract with John A. Hall, an attorney at law, of Pleasanton, Kan., to defend Martin S. Snow in the case then pending against him, in which he was charged with the murder of Arthur Seals.
“Martin S. Snow consented and agreed with N. D. Snow that the amount of John A. Hall’s attorney fee for the defense of Martin S. Snow on the murder charge be fixed at $8,000, and the necessary expenses up to the amount of $3,000, and that such fee and expenses be paid from the property conveyed by Martin S. Snow to N. D. Snow.
“John A. Hall has paid out in expenses in the defense of Martin S. Snow the sum of $2,458.04, and he has been advanced for expenses by N. D. Snow, from the personal property conveyed to him by Martin S. Snow, the sum of $2,200, leaving a balance due John A. Hall on expenses of $258.04. This expense account was all incurred in good faith and in an honest effort' to do all that could be done in the defense of his client.
“Martin S. Snow consented and agreed with N. D. Snow that John A. Hall should be paid a fair and reasonable fee for his services in defending Martin Snow in the civil action for damages for the killing of Arthur Seals, and that such fee should be paid from the property conveyed by Martin S. Snow to N. D. Snow.
“A fair and reasonable attorney fee for the services rendered by John A. Hall in the civil action against Martin S. Snow for the killing of Arthur Seals is $1,000.
“The employment of counsel provided for in plaintiff’s exhibit F, the contract between Martin S. Snow and N. D. Snow, was not a general employment for future services of an uncertain nature, but the parties had in mind only the criminal charge then pending against Martin S'. Snow and the civil action for damages against Martin S. Snow for the killing of Arthur Seals, which all of the said parties had reason to believe would be filed, and which was in fact filed the next day.
“A fair and reasonable attorney’s fee for the services rendered by John A. Hall in the defense of Martin S. Snow in the criminal case is $4,000, and the fee of $8,000 agreed upon was excessive to the amount of $4,000, and therefore is constructively fraudulent to that amount.
“There was no actual fraud in fixing the amount of John A. Hall’s fee for the defense of Martin S. Snow in the criminal action at $8,000 and expenses. John A. Hall knew, at the time he named his fee, that the case would be a very difficult one to defend, and in good faith valued his services at $8,000, and in good faith estimated the expenses in the neighborhood of $3,000. Martin S. Snow and N. D. Snow had known Mr. Hall about all of his life, and evidently had a high regard for Mr. Hall’s legal ability. They made the best bargain they could make, under the tension of the circumstances, for the lawyer of their choice, and in good faith agreed to pay the amount named by Mr. Hall as his fee.”
The court returned, among others, the following conclusions of law:
“John A. Hall is entitled to a first lien upon the real estate described in finding No. 3, as follows: $4,000 with six per cent interest from April 3, 1925, to this date, amounting to $4,545.33; fee in the civil action against Martin S. Snow, $1,000; balance of expenses, $258.04; total, $5,806.70.
“The defendants should pay the costs of this proceeding.
“All of the real estate described in finding No. 3 should be sold, and the proceeds applied as follows: First, in the payment of the costs of this proceeding and the taxes upon the said land; second, in satisfaction of the lien of John A. Hall, in the sum of $5,803.37; third, the balance to be applied upon the judgment of Cora Seals against Martin S. Snow.”
Judgment was rendered accordingly.
As indicated, Hall was not named in the petition as a party defendant, and plaintiffs chief grievance is that the case was tried in all respects as if he were a party.
Plaintiff sought to subject the land to payment of her judgment and, as a means to that end, to avoid the conveyance to N. D. Snow. The primary question was whether the land was available as a source of satisfaction of the judgment. The removal of an obstacle to appropriation was a subsidiary matter. The answer of Martin S. Snow and N. D. Snow raised the question whether, because of pleaded facts, the land ought not to be appropriated first to satisfaction of obligations having priority over plaintiff’s claim. In equity, the land was regarded as a sequestered fund, and the extent to which plaintiff might participate in it depended on judicial determination of the question raised by the answer. The court having come into possession of the controversy, it was authorized, under well-settled principles of equity practice, to make an end of it by finally adjudicating the rights of all claimants.
N. D. Snow, who had nominal possession of the fund, and Martin S. Snow, who was interested in what became of it, proposed Hall’s claim on the fund. Hall was their attorney. The answer proposing Hall’s claim was signed by Hall. Hall not only participated in the litigation, but conducted the case, and was the chief witness by whose testimony validity of his claim was established. To the extent of his claim, Hall was the real party in interest, and any judgment rendered in the action in favor of plaintiff would be conclusive upon him, although he was not a formal party. The general principle that persons who are parties in fact are bound, although not parties of record (Crane v. Cameron, 71 Kan. 880, 881, 87 Pac. 466; Rullman v. Rullman, 81 Kan. 521, 525, 106 Pac. 52), applies to attorneys the same as to other persons. (1 Freeman on Judgments, 5th ed., § 434, p. 948.) The court had no discretion with respect to the nature of the issues or” Hall’s relation to the case, and at the conclusion of the trial properly ignored informality, and rendered judgment according to the rights of those who were litigants in fact.
Plaintiff contends the only issue in the case was whether Martin Snow, as grantor, made the conveyance to N. D. Snow, as grantee, to defeat plaintiff as a creditor. She overlooks the answer to the petition. Plaintiff also contends the good faith of Hall, and whether he was a bona fide holder of his mortgage, were not presented by the pleadings. She overlooks the reply to the answer. Plaintiff further contends she had no opportunity to present any evidence she may have had in reference to Hall’s interest and intent. In opposition to an answer disclosing Hall’s interest, plaintiff charged him with notice if not participation in fraud of the Snows, and pleaded broadly he had no interest in the land superior to plaintiff’s interest. Hall’s interest and intent were fully presented on his side of the case. Plaintiff did contest the amount of his fee in the criminal case, and if she had anything else to offer, the court was in session hearing the case.
Plaintiff complains that the court regarded the case as similar to the case of Bank v. Greene, 102 Kan. 202, 170 Pac. 391. The two cases were strikingly alike. In the Greene case, Mrs. Greene needed attorneys, not for herself, but for her sons. In this case, Martin S. Snow needed an attorney. Mrs. Greene induced Doctor Helper to assume obligations to the attorneys to the extent of $7,000. N. D. Snow signed an obligation to Hall as attorney for Martin S. Snow of $8,000, and assumed other obligations. To secure Doctor Helper, Mrs. Greene gave him a bill of sale of personal property. Martin S. Snow conveyed land to N. D. Snow so he could hire Hall. In the' Greene case, a creditor attached the chattels as the property of Mrs. Greene in order to subject them to payment of a debt of Mrs. Greene which was not contested. In this case, plaintiff brought a suit in equity to subject the land to satisfaction of a debt of Martin S. Snow which was not contested. In the Greene case, the ground of the attachment was that the bill of sale of personal property to Doctor Helper was fraudulent. In this case, the charge is the conveyance to N. D. Snow was fraudulent. In her brief plaintiff makes the following remarkable statement: “In the Greene case fraud was not charged.” The opinion of this court in the Green case states the issue as follows: “The question was whether or not the bill of sale was made to defraud creditors.” (p. 203.) The issue was tried, and the court sustained the bill of sale. The bank appealed, and the contention in this court still was that the bill of sale was fraudulent:
“The plaintiff contends that the bill of sale was given with intent to defraud; that Mrs. Greene was insolvent at the time she made the bill of sale, and that the consideration for the bill of sale was of a character to render it fraudulent.” (p. 204.)
In this court, however, fraud in fact was not greatly stressed, and the principal question on appeal was whether the bill of sale was fraudulent in law.. The result is, the district court entered on the trial of this case confronted by issues essentially the same as those which the district court was called on to investigate in the Greene case. That plaintiff misconceived the decision in Bank v. Greene, and that the district court did not, is revealed by the proceedings at the trial.
Plaintiff quotes the following from the second Green case in which a mortgage for $8,000, to cover an attorney fee of $7,000 and attorney expenses of $1,000, was contested on the ground of fraud:
“The difficulty with the bank’s case is that Mrs. Greene was solvent, and the contracting parties acted without fraud, actual or legal, upon unimpeachable consideration. Every argument advanced by the bank either ignores, or assumes to be untrue, one or more of these facts, and it is not necessary to extend this opinion further, except to say that the findings of fact were sustained by sufficient evidence, and the conclusion of law followed as a matter of course.” (Bank v. Greene, 105 Kan. 303, 304, 182 Pac. 404.)
That was said of the result of the trial in the district court, and may be said of the result in the trial in this case. In Bank v. Greene, Mrs. Greene had assets in excess of liabilities in the sum of $3,018. In good faith and on unimpeachable consideration she incurred an obligation to attorneys in the sum of $8,000. In this case, Martin S. Snow rested under an unliquidated tort liability to plaintiff, his only creditor, which could not exceed $10,000. He had assets in excess of that sum amounting to $4,185. In good faith and on unimpeachable consideration, an attorney was employed for a fee of $8,000, and expenses not to exceed $3,000, in one case, and for a reasonable fee in another case. In the first Greene case the opinion reads:
“The need for the employment was instant, and for all the purposes of the law the services were due at once. The employer was not insolvent. She was not prohibited from making new engagements, and the attorneys simply became Mrs. Greene’s creditors. They became creditors of equal rank with the-plaintiff, and could take and hold security for their claim, if given in good faith and not as a ruse to hinder, delay, or defraud other creditors.” (Bank v. Greene, 102 Kan. 202, 207, 170 Pac. 391.)
The court held the deed of real estate and the contract between Martin S. Snow and N. D. Snow, so far as it transferred personal property, were void for fraud in fact. Plaintiff contends a transfer void in part is entirely void, which is true to the extent that neither of the parties may derive any benefit from it. It does not follow, however, that Hall could not recover. A fraudulent vendee may lawfully dispose of the property in any manner in which the fraudulent vendor might have disposed of it if the fraudulent transfer had not occurred. (Dolan, Sheriff, v. Van Demark, 35 Kan. 304, 309, 10 Pac. 848.) If Martin S. Snow had been insolvent, he could have employed an attorney to defend him in the civil and criminal actions, and could have made a transfer of property to secure his obligation to the attorney. Exercise of this privilege would have been subject to two conditions — first, that the transfer was made in good faith; and second, that the obligation to the attorney was a reasonable one so far as could be anticipated. (Yeiser v. Broadwell, 87 Neb. 583.) The fact that in retrospect the court reached the conclusion Hall’s fee for defense of Martin S. Snow in the criminal case was too large did not entail forfeiture of the entire fee. The findings of fact establishing Hall’s entire good faith are approved.
There is a cross appeal by the Snows. The findings of fact establishing the bad faith of the Snows are approved. Because of his participation, in the fraud, N. D. Snow was not entitled to reimbursement out of the property wrongfully acquired.
The elaborate briefs for the respective parties have been fully considered. The foregoing disposes of the matters of most importance and which determine the decision. It is not practicable to extend this opinion further.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The action is one by the plaintiffs, house movers, to enjoin the defendants, the city of Wichita and officers thereof, from enforcing an ordinance requiring each house mover to deposit with the city clerk of Wichita a bond in the sum of $500 conditioned that he will pay to any person, firm or corporation all expense incurred in the removal, cutting or raising of wires, pipes or other equipment, made necessary by reason of moving any building along the streets. Judgment was rendered in favor of the defendants, and the plaintiffs appeal.
Several propositions are argued by the plaintiffs, but they are all embraced within one contention — that is, that the ordinance requiring a house mover to give a $500 bond is invalid. That ordinance is No. 9303. An old ordinance, No. 4588, contained the following provisions:
“If [in] the removal of any building along any of the streets or alleys of the city, such building cannot be made to pass under any telegraph wire, or other wire or wires, by raising the same for such purpose, the person moving such building shall give four hours’ notice to the person owning or controlling said wire or wires, and such person so owning or controlling said wire or wires shall then cut or remove same, provided that the street railway com pany shall, after receiving the four hours’ notice aforesaid, cut or remove its wires promptly at 1 o’clock a.m. Said wires may be cut and remain separated a reasonable length of time for said building to pass, and shall then be repaired and put in as good condition as before the cutting or removal of same at the expense of the person moving said' building, said expense to be only the actual cost of such cutting or removal; providing further, that all wires lower than specified by ordinance must be raised free by the person, firm, company or corporation owning the same.”
Those provisions of ordinance No. 4588 have not been repealed, and are still in effect. The pertinent parts of ordinance No. 9303 are as follows:
“Section One. That on and after the passage and publication of the ordinance, every person, firm or corporation engaged in the business of moving houses, bams or other buildings, and any other person, firm or corporation not so engaged in the business of house moving, who shall occupy streets, alleys, boulevards and highways of the city of Wichita, for the purpose of moving houses, barns or other buildings over, along or upon streets, highways or public grounds of the city, shall file a bond with the city clerk of the city of Wichita with good and sufficient sureties thereon, approved as to form by the city attorney, and as to sufficiency by the board of commissioners in the sum of five hundred dollars ($500), which bond shall be conditioned that the person, firm or corporation who shall be engaged in such business, or engaged in the moving of a building over, along or upon the streets, alleys and public grounds will pay to any person, firm or corporation all bills owing to such firms or corporations incurred in the removal, cutting or raising of wires, conduits, pipes or other equipment of such person, firm or corporation, by reason of the moving of said buildings along the streets, alleys or public grounds of the city, together with all other expenses or bills which may be incurred by reason of the changes, removing or relocating such equipment to allow the passage of such building.
“Sec. Two. That it shall be unlawful for any person, firm or corporation to occupy the streets, highways or public grounds of the city of Wichita for any of the purposes provided for in section one hereof, without' having first complied with the provisions of section one hereof, and any person who shall be convicted of a violation of the terms hereof shall be deemed guilty of a misdemeanor and upon conviction thereof be fined in any sum not exceeding five hundred dollars ($500), and the costs of the action, and be imprisoned in the city jail and workhouse until such fine and costs are paid.”
Cities of the first class have control over the streets therein. They are not used primarily for the purpose of moving houses over them. That is an extraordinary use of the streets.
In Railway Co. v. Sproul, 99 Kan. 608, 610, 162 Pac. 293, the following is found:
“The moving of buildings, derricks, and such structures on the streets and other highways is not an infrequent or uncommon use. While the use may not be regarded as ordinary, at least not so common as travel over the streets by wagons, carriages, automobiles and like vehicles, it is a frequent and a proper use.” (See, also, 3 McQuillin Municipal Corporations, § 1360.)
Moving houses over streets obstructs ordinary traffic thereon and endangers property that in any way interferes with house moving. In cities of the first class there are numerous telephone, telegraph and electric wires strung over, across and along the streets. They are not placed at such a distance above the surface of the ground as will permit an ordinary two-story house to pass under them without interfering with them. To permit such houses to be moved over streets it is necessary to raise or cut those wires. That interferes with telephone, telegraph and electric business during the time that the houses are being moved past them. This entails expense on the part of the person whose duty it is to put the wires in such condition that a house can be moved. That expense should-be paid by the person who desires to move the house. A city has power to make such regulations as may be necessary to protect the streets and all property thereon against injury or damage by any person who desires to move a house. It is for the city to say what regulations are necessary to secure that result. The city could require that a person desiring to move a house deposit with the owner of wires a sum of money sufficient to cover all expense incident to the removal of them before the owner could be required to do anything to permit the house to be moved through them. The city can also require that a bond be given providing for the payment of that expense. This case comes within the principle declared in Desser v. City of Wichita, 96 Kan. 820, 153 Pac. 1194; Decker v. City of Wichita, 109 Kan. 796, 202 Pac. 89; and Slocum v. City of Wichita, 114 Kan. 260, 217 Pac. 297. The city had authority to pass the ordinance that is in question, and for that reason it is not invalid.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to determine who of four claimants was entitled to a reward for the capture and conviction of one Everett Bible. The court, to whom the case was tried, found that each of the claimants was entitled to one-fourth of the. entire reward. Johnson appeals, contending that he is entitled to the entire reward, and the other defendants appeal, contending the reward should have been allowed, one-third to each of them.
The facts are well stated in the court’s findings to the effect that:
“On July 4, 1926, Everett Bible killed Charles Faurot near Tyro, Kan., and fled the state a fugitive from justice. On November 10, 1926, W. F. Johnson was running a lunch stand on Peoria street, in the north part of Tulsa, Okla. At that time defendants Crabaugh and Hamilton were constables in that district and Hopkins was a special deputy sheriff, a nonpay officer, without giving bond and serving without salary. Everett Bible on last date named with companion drove up to Johnson’s place, purchased lunch, drove away without paying for same. Whereupon Johnson armed himself and gave chase, overtaking Bible, when a conversation ensued, Bible shooting at Johnson who returned the shots, and afterwards both parties clinched, scuffled and fell to the ground. Bible’s gun having locked had been thrown away and both parties were then hold of and grappling for Johnson’s gun, when the other defendants, Hopkins, Crabaugh and Hamilton drove up. Bible was partly on top and trying to bend the gun around so that when it was discharged it would shoot Johnson. They were separated by the three officers and taken into custody. That had it not been for Johnson Bible would not have been intercepted by the officers, and had it not been for the timely assistance of the officers Bible would probably have killed Johnson or done him great bodily injury and escaped. There is no law prescribing fees or salary for a special deputy sheriff in the state of Oklahoma, and there is no law in the state of Oklahoma making it the duty of such special deputy or of constables to arrest a person who is a fugitive from justice from another state. On November 8 Montgomery county had offered a reward of $300 and the state of Kansas for $200 for the arrest of Everett Bible for the killing of Charles FauroJ, and both state and county have paid said sums into court to abide the decision of this,case.”
The court concluded:
“That each of the above-named defendants, W. F. Johnson, H. H. Hamilton, E. O. Crabaugh and Roy Hopkins, are entitled to one-fourth of said reward after the costs of this.action have been first paid.”
The defendant Johnson contends that he was the primary, proximate and sole cause of Bible’s apprehension; that he knowingly tackled Bible with the intention of turning him over to the authorities, and that the formal placing of Bible under arrest by the other defendants who were officers was not auch an act as would entitle them to share in the reward.
There -was an abundance of evidence to sustain the court’s finding that “if it had not been for the timely assistance of the officers Bible would probably have killed Johnson or done him great bodily injury and escaped.” On the other hand, it appears clearly that if Johnson had not intercepted Bible the latter, in all human probability, would not have been arrested by the other defendants, and none of them would have been in position to claim the reward. Johnson argues that Bible was not arrested on the ground that he was a fugitive from justice, but because he had violated the law of Oklahoma; that when'they took Bible into custody they did not know he was a fugitive from Kansas. It is also argued that the other defendants were not entitled to the reward because it is against public policy for a constable or other peace officer acting within his jurisdiction and within the authority conferred on him by law to peceive rewards other than the compensation allowed by law for making the arrest. It appears, however, that there is no law in Oklahoma requiring a constable or special deputy sheriff to arrest a fugitive from justice from another state or for a crime committed in another state. Ordinarily to preclude the officer from the reward it should appear that he acted in his official capacity and that the service for which the reward was claimed was part of his official duty. In Williamson v. Labette County Comm’rs, 122 Kan. 349, 252 Pac. 466, where the officers were held not to be entitled to the reward, it was said in the opinion: “It has been held that where an officer is under no obligation to discover and arrest the perpetrator of a crime, arising from his official character, the policy of the law does not preclude him from recovering a reward.” (p. 351, citing authorities.) In Marsh v. Express Co., 88 Kan. 538, 129 Pac. 168, it was said:
“Where a suspected felon is arrested without a warrant by a deputy sheriff of a county other than the one wherein the Arrest is made, he is not debarred from recovering a reward therefor merely because he is such officer. . . . (Syl.)
“On the other hand, no rule of public policy forbids such recovery where the officer is under no obligation arising from his official character to perform the service.” (p. 541.)
“Evidence that a person was a ‘special and nonpay’ deputy sheriff implies that his activities in that regard were limited to performing acts specifically directed, and that he was under no obligation to devote time to investigating criminal offenses.
“Such a deputy sheriff is not precluded by his office from claiming a reward offered for the arrest and conviction of an offender where by his own efforts he has discovered by whom a crime was committed and by what evidence this can be proved.” (Elkins v. Wyandotte County, 91 Kan. 518, syl. ¶¶ 1, 2, 138 Pac. 578.)
See, also, Smith v. Fenner, 102 Kan. 830, 172 Pac. 514; Forsythe v. Murnane, 113 Minn. 181, 129 N. W. 134; Burkee v. Matson, 114 Minn. 233, 130 N. W. 1025, 34 L. R. A., n. s., 924; Kasling v. Morris, 71 Tex. 584, 9 S. W. 739, 10 Am. St. Rep. 797; Morris v. Kastling, 79 Tex. 141, 15 S. W. 226, 11 L. R. A. 398.
We are of the opinion there was ample evidence to sustain the court’s findings and that the court arrived at a proper conclusion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The defendant was convicted on three counts of violating the intoxicating liquor laws — possession, sale, and maintaining a nuisance. He appeals, contending that the information did not state a public offense in the possession count because it did not set out that the intoxicating liquor was “for his personal use or otherwise.” He cites and relies on State v. Munson, 111 Kan. 318, 206 Pac. 749, wherein it was stated that the statute does not punish personal use of intoxicating liquor. The contention cannot be sustained. The trial court in its instructions very clearly and specifically defined the necessary elements involved in the unlawful possession of intoxicating liquor, and there is nothing in the Munson case which can be said to support the defendant’s argument. The con tention amounts to an argument that the state must negative the exceptions provided in the statute, which is not necessary. (State v. Perello, 102 Kan. 695, 171 Pac. 630; State v. McCloria, 111 Kan. 379, 207 Pac. 645; State v. Nossaman, 120 Kan. 177, 180, 243 Pac. 326.)
Testimony of other sales than that alleged in the information was introduced for the purpose of showing maintenance of a nuisance. The defendant contends that this was a grievous error. Since the evidence was introduced for the purpose only of proving the nuisance charge and the jury was specifically told the purpose, defendant’s contention is without merit.
A further contention is made that the evidence was insufficient to warrant the finding of the maintenance of a nuisance, for the reason that only one witness gave the legal description of the land upon which the defendant lived. While but one witness was asked the legal description of defendant’s farm on which the nuisance was maintained, there was evidence from other witnesses showing that the nuisance was maintained on the defendant’s farm south of Oxford and near Geuda Springs. This contention, like the others, cannot be sustained.
A contention that the court erred in not permitting a more extensive cross-examination of one of the state’s witnesses is without merit and needs no elucidation. A careful examination of the record discloses no error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to foreclose a mortgage given by Blanch Howlett and Roy Howlett, her husband, to the plaintiff to' secure the payment of a promissory note for $2,000. Judgment was rendered in favor of the defendants on the evidence introduced by the plaintiff, which appeals.
Facts established by the pleadings were as follows: William C. Willard in his lifetime owned the real property in .controversy. On May 20, 1909, he executed a will, which contained the following provisions:
“I give and bequeath to my beloved wife, Mary, all of my personal property to be hers absolutely. I further bequeath to my wife, Mary, all of my real estate for her sole use and maintenance during her natural lifetime.
“After her death, I will and direct that the distribution of my real estate be made as follows: To my granddaughter, Blanch, I give and bequeath the north half of the northeast quarter of section twelve (12), township nineteen (19), range ten (10) west of the sixth P. M., and after her death to her children; if there be no living children at the time of her death, then I give and bequest said [same] to my son Fred.
“All of the rest of my said real estate I give and bequeath to my son Fred, after the death of my wife.”
William C. Willard died September 24, 1909. His wife, Mary Willard, died May 8, 1927. His granddaughter, Blanch Howlett, died October 4, 1924. She left surviving her the defendants, Dale Howlett, Chester Howlett, and Velma Fern Howlett, minors (her children). They were in possession of the property at the time this action was commenced.
Facts were disclosed by the evidence as follows: The note and mortgage sued on were executed by Blanch Howlett and Roy Howlett, her husband. All of the children of Blanch Howlett were born after the death of William C. Willard. The children were all minors, for whom Paul R. Nagle was appointed guardian ad litem.
The plaintiff contends that the will created an estate tail in Blanch Howlett. If this contention fails, the judgment must be affirmed.
In Gardner v. Anderson, Trustee, 116 Kan. 431, 227 Pac. 743, an estate tail was defined as follows:
“An. estate tail or fee tail is a freehold estate in which there is a fixed line of inheritable succession limited to the issue of the body of the grantee or devisee, and in which the regular and general succession of statutory heirs at law is cut off.” (Syl. ¶ 3.)
To the same effect is Gardner v. Anderson, Trustee, 114 Kan. 778, 781, 227 Pac. 743, and authorities there cited.
The will in the present case did not fix a line of inheritable succession limited to the issue of the body of Blanch Howlett, the granddaughter of the testator. The will gave the land to her for life and after her death to her children, but if she should not have any children then the land should go to Fred, a son of the testator. That took the estate here conveyed out of the class known as estates tail.
Purl v. Purl, 108 Kan. 673, 197 Pac. 185, gives some support for the conclusion here reached. This court there said:
“The will of a testator who resided in Illinois gave land in Kansas to his son, ‘to have during .his life, and at his death it goes to his children, if he has any living; if not, it goes to his brothers and sisters or their heirs.’ Held, the remainder was contingent until death of the life tenant, whether the will be interpreted according to the law of Illinois or according to the law of Kansas.”
However, it should be noted that Purl v. Purl did not discuss the law of estates tail.
The old rule of law known as the rule in Shelley’s Case, taken from 1 Coke 104, is found in 24 R. C. L. 887, and reads as follows:
“When the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately to his heirs in fee or in tail, 'the heirs’ are words of limitation of the estate, and not words of purchase.”
Continuing the discussion of the rule, 24 R. C. L. 892 says:
“The word ‘limitation’ as used in the rule in Shelley’s Case must be understood, not in the sense of restriction, but as a word describing the extent or quality of the estate conveyed; and ‘purchase’ as any means of acquiring property other than by descent. With this understanding of the meaning of the terms ‘limitation’ and ‘purchase,’ the rule announced in Shelley’s Case would read, ‘When the ancestor by any gift or conveyance takes an estate of freehold and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, that always in such cases “the heirs” are words describing the extent or quality of the estate conveyed, and not words designating the persons who are to take it.’ ”
In 10 R. C. L. 659 the following language is found:
“Whenever it appears in the instrument creating the estate that it was intended that the issue of the first taker should take by inheritance in a direct line, and in a regular order and course of descent, so long as his posterity should endure, and an estate in fee or in tail is given in remainder, upon an indefinite failure of issue, then the estate first created will be construed to be an estate tail. But if, on the other hand, the limitation over is not postponed until an indefinite failure of issue, but on failure of children only, or on failure of issue within a given time, it is well settled that the estate will not belong to the class known as the estate tail.”
In 28 R. C. L. 250 it is said:
“ ‘Children’ is a technical word, primarily one of purchase, not of limitation, and imports only immediate descendants.” (See, also, 2 Words and Phrases, 1st series, 1139; 1 Words and Phrases, 2d series, 667, 681; 11 C. J. 753.)
In 24 R. C. L. 894 the author says:
“According to the prevailing view in this country, the rule in Shelley’s Case is a rule of law and not merely a rule of construction. Consequently it may operate to defeat a testator’s intent, and for this reason it is strictly construed.”
Under the will, the children of Blanch Howlett took as purchasers, beneficiaries under the will, not as her heirs in the event that they survived her. Taking as purchasers, their interest could not be alienated by any conveyance that Blanch Howlett might make. This conclusion accords with section 22-256 of the Revised Statutes, which reads:
“When lands, tenements or hereditaments are given by will to any person for his life, and after his death to his heirs in fee, or by words to that effect, the conveyance shall be construed to vest an estate for life only in such part taken, and a remainder in fee simple in his heirs.”
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought to set aside a will signed by John W. Kitchell, by which he gave all of his property to Samuel N. Bridgeman. Its validity was challenged by the plaintiffs, who were his brothers and sisters, or the heirs of those who stood in that relation to him. The will was assailed on several grounds, only one of which was sustained by the court. That ground was that the will was not attested and subscribed in the presence of the testator by the witnesses. It was adjudged that the will and the order of probate be canceled and set aside.
Kitchell was a veteran of the Civil War and for years had been drawing a pension from the United States government of $50 per month. Prior to the execution of the will he had accumulated from his savings a number of bank certificates of deposit, amounting to $2,200. He became ill in October, 1924, and went to the National Soldiers’ Home at Leavenworth, and was received and cared for in the hospital of that institution. The ward to which he was admitted is a large room containing some twenty-eight beds, and he occupied a bed in a small room or inclosure in the comer of the general ward, where he remained until the time of his death on December 23,1924. During his stay in the hospital he told his physician that he wanted-to make his will, and in accordance with the custom of the home the physician communicated this request to Captain Berry, the chaplain of the institution. Berry visited him a number of times and discussed the making of the will, but the draft of the will made by Chaplain Berry was not satisfactory to him. Bridgeman, who had been a long-time friend of his, was asked to bring to him his certificates which had been deposited in a vault in Topeka, and a few other articles. When they were delivered to him he expressed the desire to give all of them to Bridgeman and asked him to send for J. C. Conly, a lawyer of Wichita, to prepare his will. Kitchell had previously told Conly that he was going to leave his property to Bridgeman. Conly prepared a will, went to the hospital and there read the will to Kitchell, which he had prepared, and Kitchell said that it was all right. The will was then signed by the testator in the presence of Conly and H. L. Stocks, the witnesses who saw the testator sign the will. The finding of the court respecting the attestation of the will by the witnesses, the location of the room in which Kitchell was and the place in which witnesses signed the will, was found to be as follows:
“The dimensions of the room referred to above, occupied by John W. Kitchell, were twelve and one-half feet north and south by nine feet east and west. In the north wall, opening from the general ward was a door-three feet wide, the west side of which was about one foot from the west wall. When the will was signed as above described, Kitchell lay on a bed standing with one end against the north side of the room. The west side of the bed came up to the east casing of the door opening into the general ward. Kitchell lay with his head to the north, in front of the door, and just inside the room, a screen was usually kept for the purpose of obstructing a view into Kitchell’s room from the general ward, but which was usually set back away from the bed when visitors entered the room, and at the time of the signing of the will stood back from the bed so that Kitchell’s view from the room was not obstructed. There was no unoccupied table in the room, but in the general ward was a nurse’s table, standing, at the time of the execution of the will, about two and one-half or three feet west of the west wall of Kitchell’s room, and about nine feet back from the north wall of the room, making the same a little over nine feet from the door. The table was in such a position that it was impossible for Kitchell to see the same. After the will was signed by the testator as above described, the witness Conly immediately took it from the testator and carried it to the nurse’s table, where he and the other witness, Stocks, affixed their signatures to the same as witnesses, sitting down to do so at the north side of the table and facing the south wall of the general ward. After this was done, Conly took the will into Kitchell’s room, but did not read or exhibit the same to him or show him the signatures of the witnesses. The will was taken away by Conly, who brought the same to Topeka, where he handed it over to Samuel N. Bridgeman.
“Kitchell did not see the witnesses to the will at the time they were affixing their signatures to the same, nor the will itself or the signing of the same, and from the position he occupied it was impossible for him to do so.”
Shortly after the death of Kitchell the will was presented to and admitted to probate in the probate court, which found that it had been duly executed. The plaintiffs contested the will upon the grounds of incapacity of the testator to make a will, undue influence in procuring its execution and that its execution had not been duly attested. The trial court found:
“At the time Kitchell executed his will he was of sound mind, fully conscious, realized what he was doing and the consequences of his act, and desired and fully intended by the execution of his will that the defendant, Samuel N. Bridgeman, should have all of his property after his death.”
Upon the question of undue influence the court found:
“At no time was Samuel N. Bridgeman in any fiduciary or confidential relation with the testator and no undue influence was brought to bear upon the testator by Bridgeman or anyone acting in his behalf to induce the execution of the will by the testator.”
The court, however, concluded that the will should be set aside for the single reason -that it was not attested and subscribed by the witnesses in the presence of the testator. The statute relating to execution and attestation of a will provides:
“Every last will and testament except such as is mentioned in section 69 of this act, shall be in writing and signed at the end thereof by the party making the same or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of such party by two or more competent witnesses, who saw the testator subscribe or heard him acknowledge the same.” (R. S. 22-202.)
In the instant case the will was duly signed by a testator who was of sound mind, fully conscious, realized that he was making a will and the effect -of his act. It was done in the presence of the witnesses who sawi him sign the will. The witnesses signed their names at a table just outside the door of his room, there being no table in his room, and only about nine feet away from him. The testator did not see the witnesses subscribe their names, nor were they within the line of his vision when it was done. It appears that the will was attested immediately after it was signed by the testator and then brought back into the room where he was. It was in fact a single transaction. The question is whether in this proximity and under the circumstances mentioned the will was signed by the witnesses in the presence of the testator. It is argued that it cannot be said to have been signed in the presence of the testator because it was outside of the room in which he lay and because he did not see them in the act of subscribing their names. The statute does not require that the attestation shall be in the same room where the testator is, nor that he shall watch them as they attach their names to the will. All that is required in that respect is that it shall be in such proximity that it can be said to have been signed by them in his presence. Some courts interpret the requirement that a will must be attested in the presence of the testator with great strictness, and hold that if the witnesses sign the will in the same room but out of the sight of the testator it is insufficient. Some hold that a will is not duly attested where it was signed by the witnesses in another room with an open door, however close to the position of the testator. Still others hold that an attestation, whether in or out of the room occupied by the testator, is not valid unless there is an unobstructed view between him and the witnesses. Some of the courts are more liberal and less technical in the interpretation of the requirement and place more importance on the purpose of an attestation and a substantial compliance with that purpose. The purpose, it is said, is to prevent the fraudulent switching or substitution of a surreptitious will. It has been said that:
“The object of the provision of the statute requiring that the witnesses sign in the presence of the testator is to prevent imposition. The requirement of the statute, therefore, is met if the testator understands what the witnesses are doing when they affix their names to his will, and may, if so disposed, see them while signing. It is the result as a whole that controls, and not the mere matter of juxtaposition.” (Bullock v. Morehouse, 19 Fed. [2d] 705, 708.)
The diversity of judicial opinion upon the question is well illustrated in an extended annotation in L. R. A. 1916C, 950, in which it is said:
“The strict rule that the attestation must be in such a position that the testator may see it if he so desires has been modified in several cases, and wills attested in a room adjoining that in which the testator lay in such a situation that he was not able to see the attestation sustained. The statutory requirement that the will must be attested in the presence of the testator is treated as not necessarily implying that the testator and the witnesses must be in the same room, nor that actual sight or inspection of the process is peremptorily required; that where the facts are such that a complete security against fraud and imposition is shown, a liberal construction will be given to the requirement of the statute.” (p. 959.)
This court having in mind the purpose of the statutory requirement has taken the liberal view of presence and absence, and where it is clear that there was no imposition, no substitution of a surreptitious will and no intention to do other than attest the will which they had seen executed, a substantial compliance is enough and slight or trifling departures from technical requirements will not operate to defeat a will. In Smith v. Holden, 58 Kan. 535, 50 Pac. 447, one of the witnesses to the will did not see the testatrix sign the instrument, but did see the signature after it was written. Another witness saw the testatrix sign the will but could not say that she signed it in the presence of the testatrix. We said:
“These departures from the technical requirements of the statute are trivial. The witnesses were all in attendance upon the sick woman; if not at all times within her sight and hearing, they were within the circle and contiguity of her presence. Because a person in attendance upon another, during the execution and attestation of a writing with which they are both concerned, happens for a moment to step into an adjoining room, while some act in the process of certification is performed — an act contemplated by both of them and necessary to accomplish their mutual purpose — and, returning, finds the act done, they cannot be said to be without each other’s presence.” (p. 543. See, also, Colman v. Lindley, 115 Kan. 802, 224 Pac. 912.)
We think the same view should be taken in the interpretation of the will in question. While the witnesses affixed their names outside of the room and out of the line of his vision, it was done within a few feet of where he was lying. The witnesses and some others had gone to the hospital for the execution and attestation of the will. The testator understood the purpose of the meeting and participated in the operation. His mind was sound, he was conscious of what was going on and knew that the witnesses had moved three or four feet over to a table to attest the will, which he had just signed while they stood by his bedside. The execution and attestation may well be considered as a single transaction and can be said to have been done within his hearing, knowledge and understanding. The prox imity and the circumstances were such that we feel compelled to hold that the certification of the will was made in the presence of the testator. The judgment will therefore be reversed and the cause remanded with directions to enter judgment in favor of the defendant.
Harvey, J., dissenting. | [
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The opinion of the court was delivered by
Dawson, J.:
Appellant was convicted of the offense of having unlawful possession of intoxicating liquor.
The evidence for the state was to- this effect: By authority of a search warrant, the sheriff, undersheriff and the county attorney searched the defendant’s residence in Robinson and found therein a basket containing four one-gallon cans of alcohol.
Defendant contends that under the rule announced in State v. Gendusa, 122 Kan. 520, 253 Pac. 598, a verdict and judgment based solely on such testimony cannot stand. But in that case the instructions were faulty and prejudicial and apparently induced the verdict. Here the instructions are not complained of, and it would never do to declare as a matter of law that the facts set out above did not make a prima fame case of guilt. (State v. Giroux, 75 Kan. 695, 698, 90 Pac. 249; State v. Doebele, 109 Kan. 617, 201 Pac. 64; State v. Hards, 125 Kan. 364, 263 Pac. 1055; 33 C. J. 744, 747.)
We note the testimony given in behalf of defendant which tended to show that some unknown person was seen to slip furtively into defendant’s house carrying a basket and to leave a few moments later without the basket. But apparently the jury either did not believe that story ,or attached no exculpatory significance to it so far as concerned the accused. (State v. Nossaman, 118 Kan. 157, 233 Pac. 1038.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover a balance of the purchase price for a combine harvester-thresher. Defense that the contract of purchase executed by the defendants was procured by fraud and misrepresentation. A demurrer to the defendants’ evidence was sustained, and they appeal.
Without entering into an extensive and detailed ' statement of the facts, it appears that prior to the harvest of 1926 the defendants entered into a contract for the purchase of a combine harvester. - They paid $750 on the purchase price and signed notes and a mortgage on the machinery to secure the balancé; received the machine and proceeded therewith to harvest. Difficulties were en countered, but they procured repairs and assistance from the plaintiff and continued the harvest. Upon their declining to pay the balance on the contract, plaintiff repossessed the property, sold it, credited defendants with the proceeds of the sale and sued to recover the balance due.
The defendants admit that they failed to comply with the terms of the written contract in such manner as to enable them to reply upon a written warranty contained therein, but contend they were relieved from the provisions of the contract because they were induced to sign it by fraudulent misrepresentations. The misrepresentations pleaded appear to be precisely the same as the stipulations of the warranty. The written contract also contained a provision to the effect that “there are no representations, warranties or conditions, express or implied, statutory or otherwise, except those herein contained.” It is clear .that the statements and representations .alleged by the defendants as a basis of their claim of fraud are identical with the written warranty inserted in the contract which they signed, and therefore, merged in the written contract on which they admit they cannot recover. They now say that “they abandon any issue of rescission or warranty; that the only question submitted is their right to avoid the contract on the ground of fraud in its inception.” We are of opinion the defense of fraud in the procurement of the contract cannot be sustained. Having made the representations part of the warranty, it is apparent the defendants did not refy upon the oral representations.
The general rule is that where express warranties covering the identical representations of the seller are inserted in the contract, the buyer is presumed to have relied upon the warranty and not upon the representations, and cannot therefore base a charge of fraud on the falsity of the representations. (See 24 R. C. L. 339.) The warranty in the instant case covered precisely the ground embraced in the alleged false representation, and shows rather conclusively that the plaintiffs did not rely on the verbal statements, but elected to protect themselves by the express written warranty. (See Reeves v. Corning, 51 Fed. 774.) Not being in position to rescind or rely on the written warranty, the defendants had no ground of defense.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
An opinion in this action was filed June 9, 1928, Stidham v. State Bank, 126 Kan. 336, 268 Pac. 106. An application to modify that opinion has been filed by the defendant. The opinion is adhered to, but the following is added to it: The plaintiff can recover for injury to herself only — she cannot recover for any injury to the bank of which she was a stockholder. Her cause of action is entirely independent of any cause of action in favor of that bank.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Hopkins, J.:
The question presented here is whether the abutting owner of property is liable for personal injuries suffered by one who falls upon a slippery sidewalk. The action was against the city of Sterling and the owners of the abutting property. A demurrer by the city to the petition was sustained because it failed to show written notice or demand to have been made on the city within three months as required by the statute. (R. S. 12-105.) After the filing of an answer by the owners of the property and a reply by the plaintiff the court sustained a motion of the defendants for judgment on the pleadings, and the plaintiff appeals.
The answer of Mrs. Frank Stivers alleged substantially that she is one of the owners and in possession of the lots in question; that in front of the premises there is a cement sidewalk approximately twelve feet wide in which there is inserted a slab for advertising purposes which is a part of the sidewalk; that the slab was constructed long prior to the time when she acquired an interest in the property; that it was not constructed by her nor for her nor under her direction, and that since acquiring her interest in the property there has been no change, alteration or repair of the sidewalk or slab; that the sidewalk and slab are in a public street of the city of Sterling.
The defendant, Heffner, filed an answer making substantially the same allegations as those by Mrs. Stivers except that he has long since disposed of his interest in the property; that he was interested in it when the sidewalk and slab were constructed; that the slab which is for a sign was put in by a tenant; that the defendant had nothing to do with the insertion of the slab nor with the selection of the materials nor the work in inserting it, nor was it done under his direction nor at his cost, but that it was constructed under the direction of and paid for by the tenant; that since it was constructed, there has been no alteration of it by him or anyone else.
The plaintiff in reply alleged that Heffner obtained his interest in the abutting real estate by inheritance and has had title for many years, and that for many years Heffner lived on the second floor of the building which he used and occupied as his home, and with the other defendants received the rents, income and profits from the tenants 'on the first floor of the building; that upon conveying the property he caused to be inserted in the deed of conveyance a provision whereby he retained' an interest in the property during his natural life, which was a part of the actual consideration of the conveyance; that he had lived there for many years, and used the sidewalk as a means of egress and ingress to his premises, and that by reason of the circumstances which were open and public, he ought to have known that the advertising slab of marble in the sidewalk rendered it dangerous to pedestrians walking thereon, and knew that in times of snow and rain many people walking on the sidewalk had slipped and fallen on the advertising slab and received injuries; that the defendant with others had jointly maintained the advertising slab in the sidewalk for the use and benefit of the building for many years, and that the plaintiff’s fall was caused by their negligence in that respect; that the defendants had continued to use the building, rented it to a drug company and permitted the sidewalk to be and remain in a dangerous condition.
It is contended that the court erred in sustaining the motion of defendants for judgment on the pleadings and rendering judgment in favor of the defendants. A similar question appears to have been considered in Dixon v. Railway Co., 104 Kan. 404, 406, 179 Pac. 548. It was there held that the owner of the abutting property was not liable for personal injuries suffered by a pedestrian through a defect in the sidewalk unless the defect or obstruction was such as to constitute a nuisance. It was said in the opinion that “persons injured through defects in the sidewalk have no ground of action against the abutting owner merely by reason of his ownership.” (Citing Jansen v. City of Atchison, 16 Kan. 358, 385, 13 R. C. L. 321.)
In City of Rochester v. Campbell et al., 123 N. Y. 405, 25 N. E. 937, it was remarked:
“. . . That there seems t'o have been, quite a common impression in which judges and lawyers have shared, that abutting owners are in some way liable to an injured party for damages occasioned from their neglect to keep sidewalks in repair when that duty is in any way enjoined upon them. It seems to us that there could never have been any logical cause for such impression, and it seems it has no foundation in the reported cases. Any other conclusion than that reached by us would, we think, be most unfortunate, as it would tend to relax the vigilance of municipal corporations in the performance of their duties in respect to the repair of streets and highways, and impose that duty upon those who might be utterly unable to discharge it. It would tend directly to demoralize the public service,, and lead to disorder, decay, and the impassability of the public highways.” (p. 420.)
In the second paragraph of the syllabus in the Dixon case, supra, it was said:
“An ordinance which requires the abutting owner to repair sidewalks, which become dangerously defective, and authorizes the city to make such repairs at his charge, if he fails to do so within ten days of the receipt of an official notice of what has been determined to be necessary, does not render such owner liable to a pedestrian who is injured by reason of the defect in the walk.”
In the opinion this language was used:
“The prevailing view is that under such a law a person injured in consequence of a defective walk cannot maintain an action against the owner of the abutting property; the weight of authority to that effect is so great that it may be regarded as definitely establishing the rule. . . . The authorities to which reference has been made declare a liability under the common law on the part of the abutting owner where the defect in the walk by which an injury is caused is due to his own act, on the ground that he has created an obstruction, or a nuisance in the street. ... In the present case, there was no allegation or proof th£\t the teams which were driven across the walk belonged to or were controlled by the defendant.” (pp. 406, 407.)
In denying a rehearing the court further said:
“The rule by virtue of which one who has assumed the duty of keeping a part of the street in repair, in return for some privilege granted, is held liable to persons injured in consequence of his neglect to do so, does not apply to an abutting owner upon whom an ordinance imposes the duty of keeping the sidewalk in repair, with the proviso that in case of his failure to take action, after having been officially notified of the necessity thereof, the city may make the repairs and charge the cost to the property.” (p. 787.)
(See, also, 43 C. J. 1104, 1438; 15 A. & E. Encyc. of L. 437; 13 R. C. L. 323 et seq., and note, 41 A. L. R. 212.)
It is insistently argued that the instant case is clearly to be distinguished from those above cited; that the owner of the building owed a duty to build a sidewalk and pay for it, and had to consent to the insertion of the marble slab therein; that he acquiesced in it; received benefits from it, and permitted it to continue for years without abating it. We think the facts are more nearly comparable to those in Atkinson v. Sheriff Motor Co., 203 Ia. 195, 212 N. W. 484, where it was said in the opinion:
“It is a general rule almost universally recognized that an owner or tenant in the occupancy of a building abutting upon a public sidewalk or street, who by some affirmative act or perhaps by some act of negligence creates a nuisance is liable to persons injured in consequence of such nuisance. (Citing authorities.) Instances in which this rule has been applied are numerous, and include excavations and obstz-uctions in streets and highways, coalholes, basement areas and excavations near highways, falling buildings, negligence in building, and many other instances of like character. . . . Neither the owner 'of a building abutting upon a public street or highway, or his tenant, was charged at common law with the duty to repair such sidewalk or street, or to remove defects therefrom. It follows necessarily that in the absence of a statute or a city ordinance imposing the duty upon a landlord or his tenant to repair the sidewalk and maintain the same in a safe condition, no liability exists on account of injuz-ies occasioned to travelers as the result thereof. (Citing authorities.) . . . The defect in question being only about one .and a half inches deep, with gradually sloping sides, and without any elevations likely to tzúp pezsons going thereon, did not constitute a nuisance. (Citing authorities.)” (pp. 196-198.)
The court concluded there was no liability because nothing affirmative had been done to cause the depression in the sidewalk. In the instant case there was no action, affirmative or otherwise, on the part of the defendants or either of them. The alleged defect was •due solely to the act of the tenant who, for his own purposes and at his own expense, had inserted in the walk the slab carrying his name.
The plaintiff cites and relies upon City of Topeka v. Sash & Door Co., 97 Kan. 49, 154 Pac. 232, where the city recovered indemnity from an abutting property owner whose active fault caused a defective condition in the sidewalk, but we are of opinion the instant case falls within the rule announced in Dixon v. Railway Co., supra, and similar cases, and no good reason appears for changing the rule.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The plaintiff brought this action to reform an insurance policy issued by the defendant insuring the plaintiff against burglary and robbery and to recover the loss sustained by plaintiff in a robbery of its messenger. This is the second appeal of the case. In the first appeal there was a review of a decision overruling a demurrer to plaintiff’s petition in which the nature of the case and the issues formed were stated and to which reference is made. (The Kansas Amusement Co. v. The Maryland Casualty Co., 122 Kan. 800, 253 Pac. 405.) The policy issued insured against loss for robbery from a custodian outside of the premises, occurring during the hours beginning at 7 a. m. and ending at 7 p. m. of each day. On September 2, 1924, at about 9:30 o’clock p. m., a messenger of the plaintiff carried the receipts of the day from the Novelty theater, and while doing so was held up and robbed of the sum of $472.59. The defendant contested its liability on the ground that the robbery occurred after the hours for which insurance was agreed upon and written. Plaintiff claimed that a mistake was made in writing the policy in that it was intended to be a coverage for the receipts of the theater for the day, including the evening entertainment. Three performances were given at the theater, a matinée in the afternoon and two night performances, and plaintiff also was operating the Grand theater in another part of the city. The agent of the casualty company was solicited by a representative of the plaintiff named Schober, who was a man experienced in the writing and placing of insurance, and was familiar with the insurance upon the plaintiff’s property. Schober told the agent of the defendant that he desired insurance to protect the receipts of the two theaters; that they had a policy which protected the funds while in the safe in the business office, but were wanting some holdup insurance to protect the receipts of the theaters while they were being carried from the box office to the business office, and from the business office to the bank. There was no discussion as to the period of the day for which protection was desired nor any mention made of the time when the funds were to be taken from the theaters to the business office or from the business office to the bank, and the agent of the defendant did not know the times of day or night in which money was transferred from one place to another. The insurance agent thought that a certain standard combination messenger interior robbery policy would furnish the protection which was desired by plaintiff, and prepared it accordingly. He told Schober the price or regular premium for the policy to be $20.25, and the policy was so written and delivered to Schober. A like policy was issued on the Grand theater for inside and outside robbery. As written the policy assured against loss by robbery during the hours mentioned from 7 a. m. to 7 p. m. from a custodian outside of the premises, and also against robbery occurring within the premises between the hours of 7 p. m. and 12 at midnight. The policies were delivered, but were not read by Schober because he thought the agent had comprehended what insurance he desired and had written policies which would afford such protection.
The court found on the evidence that the representative of the insurance company at no time intended to have written for and delivered to the plaintiff policies indemnifying them against loss from robbery for any other or further time than the time set out in the policies which were written and delivered. There was a further finding that there was no mutual intention and agreement between Schober and the representative of the insurance company to insure the proceeds of the theater against robbery occurring outside the premises at any and all times during the day, and that there was no mutual mistake between them concerning the terms of the insurance policy as to the time of day covered. Accordingly the court denied a reformation of the policy and held that the defendant was not liable for the amount of plaintiff’s loss.
There is a point made that -the court was not warranted in discharging the jury and taking the case from its consideration, but as the principal relief asked was the reformation of the policy because of mistake or oversight, it is quite clear that it was not a jury case. The case was submitted in this court upon the findings. The plaintiff is not asking that the findings be set aside, but that their true meaning and legal effect be determined, and that this be done in the light of some testimony which is said to be uncontradicted and which is included in the abstract.
It is conceded that the insurance policy as written did not cover the loss sustained by plaintiff. The policy by its terms protected only against robbery occurring during the hours between 7 a., m. and 7 p. m. from a custodian outside of the premises, and also against robbery occurring within the premises between the hours of 7 a. m. and 12 o’clock midnight. The robbery in question occurred about 9:30 p. m. from a messenger who was carrying the receipts of the Novelty theater from the box office of the theater to the office of the plaintiff, to be placed in a burglar-proof safe in that office. Not being entitled to recover under the terms of the policy, plaintiff asks for its reformation claiming that it did not correctly represent the contract actually made, in that there was a mistake in limiting the coverage of a robbery from a custodian outside of the theater during the hours between 7 a. m. and 7 p. m. Plaintiff claims that it was the intention of the insured as well as the insurer that it should cover such a robbery at any hour of the day. If through mistake the policy does not contain the contract actually entered into by the parties, it may be reformed to accord with their intention if such intention is shown by clear and satisfactory proof. But where there is no fraud claimed, as here, the mistake must be one common to both parties. It is not enough to show that there was a misconception or a mistake of one of the parties as to the contents of the policy. To justify a reformation the mistake must be mutual. The findings of the trial court upon which the case must be determined shows that the agent of the plaintiff may have been mistaken as to the contents of the policy, but they also show that there was no misconception or mistake on the part of the agent of defendant. The policy executed and delivered by defendant’s agent accorded with his intention and was the coverage for which payment was made. The circumstances under which the contract was made were found by the court to be that Schober, the agent of the plaintiff, applied to Bailey Brothers for insurance. He had experience in the writing of and placing of insurance on the theaters and properties of plaintiff. He met and talked with the agents of defendant on two occasions and the negotiations respecting the insurance is stated by the court as follows:
“In the first of the two conversations mentioned in finding 7, Mr. Schober told George Bailey that the Crawfords desired insurance to protect the receipts of the two theaters, that they had a policy in force which protected the funds while in the safe in the business office, but that he wanted some holdup insurance to protect the receipts of the two theaters while they were being carried from the box office to the business office and from the business office to the bank. The period of the day during which it was desired protection from robbery was not discussed, nor was the time when the funds were taken from the theaters to the business office or from the business office to the bank referred to, and George Bailey was not informed and did not know the times of day or night that they transferred the said receipts from the box office to the business office or from the business office to the bank.
“The defendant company, at this particular time, was issuing what was called a ‘standard combination messenger and interior robbery rider,’ which could be attached to and be made a part of a burglary insurance policy.
“Prom a generality of the description Mr. Schober gave of the protection he desired and from his want of knowledge of the manner and time the funds from the two theaters were transferred and handled, George Bailey thought that the defendant’s ‘standard combination messenger and interior robbery rider’ would furnish the protection against robbery which was desired by plaintiff, and therefore posted himself as to the premiums upon burglary policies covering the theaters with the robbery riders attached, computed for a one- and three-year term and on the day following the first conversation with Mr. Schober, he went again to the Crawford business office and quoted to Mr. Schober, rates on the policy with the robbery rider attached and which George Bailey had in his mind to write for the protection of the Crawfords. Mr. Schober indicated that he wanted a policy for a one-year term, and George Bailey quoted him the price for the same at $20.25, which was the regular premium charged for the policy which was after-wards written by defendant company and delivered to Mr. Schober, and a copy of which is attached to plaintiff’s petition. At the same time there was also written and delivered to Mr. Schober a policy covering loss by burglary occurring in the Grand theater, with the same inside and outside robbery rider attached.”
After describing the terms of the policy written and delivered, the court found that—
“While Mr. Schober desired protection from robbery occurring at all times during the day, George Bailey, as representative of Bailey Brothers and the defendant company, at no time intended to have written for and delivered to L. M. and Roy Crawford policies indemnifying them against loss from robbery for any other or further time than the time set out in the policies which were written and delivered.”
These findings make it clear that there was no mistake on the part of the defendant as to the terms or contents of the policy. It accorded with the intention of the defendant’s agent. He understood that the policy would furnish the coverage which the plaintiff’s agent desired and the coverage which he understood had been agreed upon. No additional coverage was discussed by the parties, and defendant’s agent was not informed and did not know the times of day or night when plaintiff carried its funds from the box office to the business office, or from there to the bank. It is contended by plaintiff that as the offices of the defendant’s agent were only one and a half blocks away from the theaters, he necessarily knew that the receipts of night performances were not intended to be transferred before 7 p. m., but the court’s findings expressly negative such knowledge or that both parties intended that protection at night was to be included in the policy. Schober did desire such protection, but he did not discuss the matter of time with the agent of defendant. Schober was not illiterate nor was he ignorant as to insurance contracts, but had had experience in insurance matters. He did not examine the policy delivered to him as ordinary care required, but assuming that his negligence does not estop him nor preclude defendant from obtaining reformation where there was mutual mistake as to the contents of the policy, the remedy is not available where there is no mutuality in the mistake. As to one of the parties the policy conformed with the agreement actually made, while the other thought that a different agreement had been made. As to the coverage for night as well as day the minds of the parties did not meet, and to grant the relief asked by plaintiff would be to make an agreement which the parties had not made. In Reeder v. Gorsuch, 55 Kan. 553, 40 Pac. 897, it was decided that:
“In order to establish that a deed absolute on its face is in fact only a mortgage, it must be shown either by direct evidence or by the circumstances of the case that it was the intention and understanding of the grantor and the grantee that it should so operate. It is not enough that one of the parties so considered it; both must concur; otherwise the deed will be treated according to its import unless tainted by fraud or the result of accident or mutual mistake.”
In Waddle v. Bird, 122 Kan. 716, 253 Pac. 576, it was stated:
“Under the evidence the contract sought to be established is not the one which was in the minds of the parties when the contract was executed. The remedy of reformation may be invoked to ascertain and enforce a contract actually made, but it can never be employed to make a new contract nor to supply terms upon which the minds of the parties never met. As to the measure of proof necessary for the reformation of an instrument on the ground of mutual mistake, it has been determined that it must be clear and convincing. ‘It is not enough that it shows a probability of mistake, but there must be a moral certainty of it; in other woi'ds, it must be established beyond a reasonable doubt.’ ” (p. 719.)
See, also, Kratz v. Padfield, 111 Kan. 396, 207 Pac. 776; Algeo v. Employers’ Indemnity Corporation, 119 Kan. 186, 237 Pac. 879.
It follows that the judgment must be affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This action involves the question of priority of right to the balance of funds due a contractor from a county for building a road, as between two assignees of such funds and one furnishing labor and material. Two actions were consolidated and tried together by agreement in the district court. The first was by the Citizens First National Bank, of Independence, against the board of county commissioners of Jefferson county to recover from the county the balance due J. K. Shinn on a road-building contract by virtue of an assignment by Shinn to the bank of all sums due or to become due and payable to him under such contract. The other action was brought by Land & Skilbred against Shinn, the board of county commissioners of Jefferson county, the iEtna Casualty and Surety Company, surety on the bond of the contractor, and the county clerk and county treasurer of Jefferson county, to collect for material furnished and labor performed in connection with the construction of the road at the request of the contractor. The first suit was commenced May 17, 1926, and the other September 10, 1926. All defendants except Shinn appeared and answered, the surety company on October 7, 1926, and the board of county commissioners, the county clerk, and the county treasurer on February 7, 1927. The State Bank of Oskaloosa, by leave of court, filed an interplea January 24, 1927. The consolidated case was tried to the court without a jury, findings of fact and conclusions of law were made, and judgment was rendered against the plaintiff bank and in favor of the other litigants, from which judgment the plaintiff bank appeals.
The contract for constructing the road was let to Shinn on May 17, 1924. His surety bond was given the same day. On July 24, 1924, Shinn, on the strength of such contract, borrowed $13,500 from the appellant bank and assigned to it all sums of money due or to become due and payable to him by virtue of such contract, representing that he needed the amount borrowed to pay for material and labor on the project. This amount was placed to his checking account, as were payments on estimates from time to time to the extent of $100,000 or more, none of which was applied to the payment of the amount borrowed. The assignment was filed with the county board and indorsed by the chairman and county clerk with the county seal affixed. The balance due the contractor from the county at the completion of the contract was $13,311.54, and this is the amount for which the plaintiff bank prays judgment against the county.
Shortly before the final settlement was made, Shinn arranged with the State Bank of Oskaloosa for a loan for the purpose of paying all claims for labor and material, and directed the county to deliver to the State Bank of Oskaloosa the warrant when issued. This loan amounted to $3,682.50, and was found by the trial court to have been entirely used- in paying labor and material claims on the road project. Because of the conflicting demands of the two banks for the final warrant, the Oskaloosa bank indemnified the county and was given the warrant for $13,311.54. It took out its $3,682.50 and, under instructions from the county, sent the balance to the plaintiff bank, which returned it, claiming to be entitled to the whole of the final payment under its assignment. It thus reached the county treasurer and is still in his hands. The claim of Land & Skilbred seemed to have been overlooked, hence their suit. The court found they were entitled to recover $5,879.61 for material and labor that went into the road project. The trial court directed that the balance of less than $4,000 should be paid by the county to the plaintiff bank, that the surety company recover its costs, and that the county pay all the costs. The court also found that the evidence does not show that any part of the funds loaned Shinn by the plaintiff bank was used by him for the purpose of paying for labor or material used in the construction of the road; also that the concrete work on the project'was completed in December, 1925, and the project was otherwise completed at that time except for the placing and painting of certain guard rails thereon, and that such work was completed March 24, 1926.
Appellant raises the question of the statute of limitations as to the claim of Land & Skilbred and those alleged to be contained within the interplea of the State Bank of Oskaloosa, because the petition of the former and the interplea of the latter were filed more than six months after the completion of the work. (R. S. 60-1414.) Appellant urges that some of the evidence shows it was only the repainting of the guard rails that was done after December. Regardless of the amount of work done, the matter is determined by the fact of whether the unfinished work was a part of the original contract, necessary to be done to complete the job and comply with the requirements of that contract. (Badger v. Parker, 85 Kan. 134, 116 Pac. 242; Dickey v. Guaranty Co., 107 Kan. 605, 193 Pac. 346; Sonner v. Mollohan, 112 Kan. 148, 210 Pac. 649; White Lumber Co. v. Fulton, Adm’r, 116 Kan. 694, 229 Pac. 363; Sash & Sales Co. v. Early et al., 117 Kan. 425, 232 Pac. 232.) There is no question here of any subsequent contract. It was simply a matter of com•pleting an unfinished part of the original and only contract, and the statute does not commence to run until the unfinished portion thereof is completed, which in this case, by the evidence and findings, is March 24, 1926.
“Where, even after the contract is substantially completed, claimant does further work or furnishes further material which is necessary for the proper performance of his contract, and this is done in good faith, at the request of the owner or his agent or architect, or in the case of a subcontractor at the request of the contractor, or for the purpose of fully completing the contract, and not merely for the purpose of fixing a later date from which to compute the time for filing the lien claim or statement, or as a gratuity or act of friendly accommodation, the period for filing the lien will run from the doing of such work or the furnishing of such materials, regardless of the value thereof, at least where there are no intervening rights.” (40 C. J. 204.)
The action of Land & Skilbred was commenced September 10, 1926, which was less than six months from March 24, 1926. If the interplea of the Oskaloosa bank was the first assertion of the claims mentioned therein against the county, the interplea would not be within the required time, but these claims were, by direction of the .contractor, asserted by the Oskaloosa bank before the county board on May 4, 1926, and allowed and paid by the board at that time. The interplea simply related such assertion and allowance to the court for its confirmation and approval.
Reference is made in the findings and one of the briefs to a possible defect in the assignment by the contractor to the plaintiff bank, but the decision in this case does not hinge upon that point. So, regardless of that suggested defect, we shall for this case consider the assignment to the Citizens First National Bank as good and valid — such an assignment as would have entitled it to hold any of the funds coming into its hands thereunder. But the plaintiff bank is here claiming a right to the recovery of such funds from the county as against the claims of the laborers and materialmen, directly and indirectly. Is it, as against such claims, entitled to the funds under its assignment? That question can easily be answered by substituting for the bank the name of the contractor. Could he recover this balance from the county against such claimants? Certainly not. The assignee occupies no higher or more advantageous position than its assignor. It stands in his shoes. The only question decided by the trial court in this connection was one of priority of right to this fund.
“It was held, however, that the rights of the surety were superior in law and equity to those of the bank, which took no rights superior to those of the contractor as against the owner of the building or the surety.” (Bank v. Insurance Co., 109 Kan. 562, 564, 200 Pac. 281.)
The surety in this case is concerned to the extent of the payment of the claims for labor and material, and certainly the surety company and the county can legally and properly insist upon the funds on hand being used for that purpose rather than going to the assignee of the contractor. It is said in Citizens State Bank v. Cheyenne County Comm’rs, 122 Kan. 302, 252 Pac. 228, that “a claim against the county for money to be paid for building a public road may be assigned to a bank by the contractor to obtain money to pay for labor and material used on the road, and the bank can maintain an action against the county to recover on the claim.” (Syl.) The difficulty with the assignment in this case is, there is no satisfactory proof to establish that the money borrowed by the contractor from the plaintiff bank was used to pay for material and labor to construct the road. Such was the finding of the trial court, and under these authorities the county and surety have the right to insist that the claims for labor and material be paid first before honoring the assignment.
“The assignee, however, takes the claim subject to all defenses; and where • claims against a fund more than sufficient to absorb it have been assigned, the county cannot be made to pay until all the rights are adjudicated.” (15 C. J. 663.)
As between the plaintiff and Land & Skilbred' the claim of the .latter is superior in every way to the claim under an assignment; .and as between the two banks the Oskaloosa bank showed all the funds advanced or loaned by it went into the construction of the road, whereas the court did not find such to be established as to the .loan of the plaintiff bank.
It is urged that some of the findings are not supported by the • evidence. We have examined them and the evidence to determine this matter and find sufficient evidence to support the findings as .made.
We find no error in overruling the demurrer of plaintiff to the evidence of Land & Skilbred and the motion for judgment against -.the county. The contractor himself could not, under the evidence and findings, have recovered against Land & Skilbred nor the inter-pleader, and therefore we conclude his assignee could not go farther than he against the demands of the county and the surety on the contractor’s bond.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
Defendant was convicted of murder in the first degree, and appeals. His principal contention is that the court erred in admitting testimony that he was sane, given by nonexpert witnesses.
On August 24, 1922, Paine shot and killed his neighbor, Jack Heath. Heath lived at 1213 Park avenue, Kansas City, Kan. W. B. McFarland and his wife lived at the next number on the east. The McFarlands had an adopted daughter Helen, and McFarland’s stepdaughter, Mrs. LeGuette, lived at his home. Paine and his family lived directly across the street. Mrs. LeGuette was a stenographer in an office in Kansas City, Mo. On the afternoon of the killing, her mother, Mrs. McFarland, telephoned her that Paine had been saying Helen was Mrs. LeGuette’s child. As Mrs. LeGuette was going home in the evening, she saw Paine standing in his yard. She went to him, and told him what her mother had said. He said he knew nothing about it. Mrs. LeGuette said he would have to prove it; and he replied she might start something, but he would finish it.
This conversation occurred about 5:15 p. m. Later, McFarland came home, and after talking with Mrs. LeGuette, went across the street to see Paine. Paine denied making the derogatory statement. McFarland said Jack Heath had told Mrs. McFarland that Paine had circulated the slander. Just then Heath came down the street, and Paine suggested that Heath be asked about it. Heath came across the 'street, and an angry conversation ensued. Heath said, “Yes, he did tell it. He told my folks.” Paine still denied making the statement, and Heath said, “Clyde, no use sitting there and lying about it; you did say it.” McFarland then interfered, said this was neighborhood gossip, with not a word of truth in it; they all knew it, and they might as well forget it, shake hands, and be friends. The men then shook hands, and parted. This occurred about 6 or 6:15 p. m. Heath went home, Mrs. Heath prepared dinner, and after dinner Mr. and Mrs. Heath went out on the porch of their home. Mrs. Heath sat in the porch swing. Paine was sitting on the porch steps of his house, reading, or apparently reading a newspaper. Heath talked for a few minutes with some friends who were passing by, and then sat in the swing with his wife. Paine got up, went into his house, reappeared in a short time, and then went directly across the street toward the Heath home, with his right arm behind him. The Heath home stood on a terrace. When Paine reached the terrace steps, he said to Heath, “Jack, you are going on a long journey,” and began shooting. Heath arose, started across the porch, and his wife placed herself between Paine and her husband. Paine stepped to one side, and continued to shoot. Heath tried to get over the porch bannister, but fell over it, and fell on his knees. While on his knees, Paine shot him. Heath arose, staggered into his backyard, and fell dead. He had been shot five times.
Paine was a car inspector for the Rock Island Railway Company at its Kansas City shops, and joined the strike of July 1, 1922. There was testimony that he was a superior mechanic, a devoted home and family man, and a genial companion. The defense to the action was that Paine was afflicted with syphilis in the ultimate stage of development; the disease affected his nervous system, causing mental instability; turmoil and agitation attending the strike, and sickness in his family, had caused mental derangement, so that he became a changed man, and was insane when he killed Heath.
Paine was arrested on a warrant issued August 28, 1922. On November 9, he waived preliminary examination, and was held for trial in December. On December 4, and before trial, application was made to the court for appointment of a commission to ascertain his mental condition. A commission duly appointed found him to be insane, and on December 27 he was committed to the hospital for the dangerous insane, at Lansing, for treatment and safe-keeping. About two years later he was examined by an institution commission, which reported that he should be held for further treatment. In June, 1926, an institution commission found he was sane. A bench warrant was issued, he was returned to Wyandotte county, and an information for murder in the first degree was filed against him. He was tried, and was convicted, but the court granted a new trial. At the second trial the jury disagreed. In February, 1928, he was tried again, was found guilty, his motion for new trial was denied, and he was sentenced to the penitentiary for life.
At the trial the state proved the homicide and the circumstances under which it was committed. Defendant offered testimony to support the defense of insanity, as outlined above. In rebuttal, the state offered the testimony of two medical expert witnesses and the testimony of seven nonexpert witnesses, to prove sanity. No objection was made to the testimony of five of the lay witnesses. The two physicians expressed opinions, based on a hypothetical question, that Paine was sane when he killed Heath. The abstract discloses no objection to the qualification of either witness. The hypothetical question is not abstracted. It is described in the abstract as follows:
“Doctor Breset'te was then asked a lengthy hypothetical question by the learned county attorney, embracing the same matters involved in other hypothetical questions in this record, detailing the actions of the defendant and the details of the homicide.”
The other hypothetical questions in the record are those framed by defendant’s counsel. It does not appear that any objection was made to the question propounded to the state’s medical experts.
McFarland had known Paine for twenty years, helped build the house Paine lived in, lived directly across the street from him, and they were friends. McFarland saw Paine every day or two as he walked up and down the street, as he was about his yard, and as he sat on his porch, and saw him during the strike period. There was no change in his demeanor, actions, conduct, or manner of walking. McFarland visited Paine at the city jail the day after the killing, and later had a ten- or fifteen-minute conversation with him at the county jail. Over objection, McFarland expressed the opinion that Paine was sane when the killing occurred. Aside from the matter of the trial judge’s discretion to permit the witness to testify, and allow opportunity for and extent of his observation to be considered by the jury in weighing his testimony, the witness was abundantly qualified to express an opinion regarding sanity.
It was not necessary, in order that the witness might express an opinion regarding sanity, that he first give the data for his opinion.
“This court has never decided that a lay witness who has had opportunity to observe the conduct of a person whose sanity is called in question may not give an opinion upon the matter without first stating in detail the facts that have been observed, although this has sometimes been assumed in a general statement of the rule. [Cases reviewed.]
“In Commercial Travelers v. Barnes, 75 Kan. 720, the rule was thus stated:
“ ‘Nonexpert witnesses shown to have had especial, opportunities of observation are allowed to give opinion evidence of the mental condition of one under investigation in this respect, having first stated the facts upon which such opinions are based, or without stating such facts when opportunity is given to cross-examine in reference thereto.’ (Syllabus.)
“This in accordance with the weight of authority and the better reason. (See 3 Wig. Ev. §§ 1933, 1935, 1938, 1922.)” (State v. Rumble, 81 Kan. 16, 19, 20, 105 Pac. 1.)
In the opinion in the case of Stafford v. Sutcliffe, 103 Kan. 592, 175 Pac. 981, the text of 3 Wigmore on Evidence, § 1935, is quoted. The author there said the rule of a few courts that testimony of observed data must precede the expression of opinion, is unsound, and that in a few states the requirement has been expressly negatived. The decision in the case of State v. Rumble is cited in support of the latter statement, a fact not noted by the writer of the opinion in the Stafford case. While the opinion in the Stafford case is not very clear, the syllabus is in accord with the decision in the Rumble case.
The basis of McFarland’s opinion was in effect mere negation of abnormal or peculiar conduct. The basis was adequate. Normal conduct displays no external indicia of aberration, and is consistent with normal mental condition; and it was for the defendant to cross-examine concerning glassy eye, distorted countenance, shambling gait, wild walk, or manifestations of somber kind. This is true in jurisdictions which require statement of observed data as a basis for an opinion that the subject of observation was insane.
“A nonexpert witness cannot give an opinion as to the sanity or insanity of the individual inquired of, based in whole or in part upon an abstract hypothetical question, but must base his opinion solely upon his own personal knowledge, observation, acquaintance, experience, etc., with the individual inquired of. [Citing cases.]
“Nonexpert witnesses, to give an opinion as to sanity of a party, must first state the facts claimed to show or indicate an abnormal condition of the mind; but such witness may give an opinion that the person inquired of was sane, by first merely denjdng generally the existence of any facts showing, an abnormal or unnatural state of mind, and without specifying any of such facts. [Citing cases.]” (Parrish v. The State, 139 Ala. 16, 42.)
“There seems to be no' controversy about the general rule that one who shows an acquaintance with the person whose mental capacity is in question and is familiar with his general conduct may testify affirmatively that in his opinion such person was of sound mind, while the opinion that such person was of unsound mind must be based on facts consisting of particular acts or conduct indicating unsoundness.” (Hull v. Hull, 117 Ia. 738, 745.)
“Ordinarily, a lay witness is required, when giving an opinion that such a person is of unsound mind, to give the facts on which he founds that opinion. Not so, however, when he gives expression to an opinion that such person is sane, for in that case the subject of the testimony would not give manifestations of certain eccentricities which usually mark the conduct of mind diseased.” (State v. Soper, 148 Mo. 217, 235.)
Helen McCallum lived next door to Paine’s house. She had known Paine about thirteen years. She testified as follows:
“I remember the occasion of the shooting of Jack Heath, and saw Mr. Paine that evening around 6 o’clock. He was sitting on the, front porch of his house, just sitting there talking with his wife. I spoke to him as usual, saying ‘Good evening,’ and he spoke, and I did not notice anything different in his manner and demeanor that evening from other evenings. I saw him again after he shot the man, he was walking across the street from his house in his usual manner of stride like. He started across the street with a revolver behind his back, and walked up to the man on the front porch, spoke to him (I did not hear the words — said something), and began shooting the man as he was sitting in his front porch swing. Then he walked up the street, and that was the last I saw of him. He walked just like he walked across the street, his natural stride.”
The witness was then asked if she had observed Paine’s conduct and demeanor during the time she had known him. She answered she had not. She was then asked if she had noticed how he had acted before, and she said she had never observed anything peculiar about him. The court struck out the answer, and required her to answer yes or no. She said no. When asked if she had seen him prior to the date of the killing, she answered “numerous times.” When asked if she noticed his actions and demeanor that evening, she said no. When asked if she noticed what he was doing that evening, she said she did. On the basis of this testimony, the court declined to permit her to express an opinion respecting Paine’s sanity. She then testified she was familiar in a general way with the conduct of sane people, and she had seen somebody who was insane. She was then asked whether, from her knowledge of Paine before August 24, 1922, and keeping in mind what she knew about the actions of the sane and the insane, she had an opinion whether Paine was sane or insane when he shot Heath. She said she had an opinion, and over objection, she said Paine was sane.
As indicated, Miss McCallum had known Paine thirteen years, lived next door to him, and observed him numerous times. She observed and described in detail his conduct the evening of the killing. She described part of his conduct by reference to a background of familiarity. They greeted each other “as usual,” she observed nothing differing from his answer and demeanor “other evenings,” and he went across the street in his “usual” and “natural” gait. In view of this testimony, the court might well have permitted her to give opinion evidence. Subsequent examination disclosed nothing which added to her qualification. Observation of sane people generally was beside the point. Seeing some person afflicted with some type of mental derangement enabled her to do no more than compare the conduct of two individuals. It is not likely the witness intended to deny flatly that she had noticed Paine’s action and demeanor the evening of the killing, which she fully described, and doubtless whatever it was that led her to make verbal denial, led to verbal denial that she had observed his action and demeanor during the time she had known him. For the purpose of the decision, let it be conceded the witness should not have been permitted to express her opinion that Paine was sane. The worst that could be said of the testimony is that it was of little or no value. Being of little or no value, this court cannot declare that the jury must have regarded it as important. The instructions to the jury are not brought up for review. Presumably the court properly instructed the jury how it should deal with nonexpert opinions, and the result is, prejudicial error is not disclosed.
Defendant offered in evidence the reports of the institution commissions. Perhaps he intended to offer also the report of the court’s commission, but the abstract does not show that he did so. The report is printed in the abstract, and may be considered as offered. The offer was rejected, and defendant assigns the ruling as error. Authorities are cited to the effect that an inquisition in lunacy is admissible in any kind of litigation to prove mental condition at the time of the inquisition. The court does not reach consideration of these authorities.
The issue was whether defendant was sane or insane on August 24, 1922, when the homicide was committed. The testimony of two members of the commission which examined defendant in December, 1922, and the testimony of the diagnostician who made the Wassermann test of defendant for the commission, covered in detail the proceedings of the commission. The members of the commission were unanimous in the opinion that defendant was insane in December. The state admitted they all signed a report to that effect, and there was no dispute about the fact. The parties stipulated concerning the three examinations and the results, and the stipulation was read in evidence. The report of the first institution commission is not abstracted, and this court has no knowledge of its contents beyond what the stipulation shows. The report of the second institution commission and the final certificates concerning recovery are abstracted, and they show nothing of any importance except recovery of mental health. The result is, it is of no consequence that the various documents were not admitted in evidence.
In arguing the case to the jury, the county attorney twice referred to the Hickman, Remus, and Leopold-Loeb cases. He said this one was just another Hickman case, in which the defendant had committed a dastardly murder and then tried to hide behind a plea of insanity, and said the jury should not countenance such practice in Wyandotte county. On objection by counsel for defendant, the court said the remárks were not objectionable and did not constitute misconduct of counsel. The court, however, admonished the jury that the statements were not evidence, that they were merely argumentative, that they should have no weight as evidence, and that they should be considered merely as argument of counsel, in so far as they were applicable to the case, if at all. Whether the defense of insanity was meritorious depended on the evidence. Presumably, the instructions which the court had already read to the jury fully covered the defense. It is possible that without admonition from the court the argument of the county attorney might have had some tendency to divert the minds of the jury from the merits of the defense. The instruction given distinguishing between evidence and argumentative characterization was sufficient to confine the jury’s consideration of the case to the evidence, and this court cannot declare that the instruction was not heeded.
An assignment that the court erred in approving the verdict is without merit.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover on a rural high-school district warrant issued by the defendant district in the sum of $2,000. The defendants pleaded payment and alleged that the warrant was at no time a valid or legal obligation of the school district. Judgment was rendered for the defendants, and the plaintiff appeals.
The action was tried without a jury. The court made findings of fact and conclusions of law as follows:
“1. That the school-district warrant in controversy and sued on in this case was paid by a check of the same date signed by Hart, as treasurer ol said school district, and charged to the account of said school district.
“2. The school warrant in controversy was issued for a loan made by one Utterback through the said Ralph Hart, and that at such time the said Hart was directed by the said Utterback to loan his money and to get ten per cent interest thereon and avoid the payment of taxes.
“3. At the times referred to the said Hart was treasurer of said school district, financial agent of the said Utterback, and cashier of the Farmers State Bank of Cunningham.
“4. That on the 11th day of April, 1923, the same being the date of the annual school meeting and when the annual financial report of the said school district was read, it was announced that the Utterback loan had been paid and that the district was out of debt; and at such time the said Utterback was present and talked to one or more of the members of said board other than Hart, and stated that he knew the loan, meaning the debt for which the warrant in question was issued, had been paid.
“5. The records of both the clerk and treasurer of said school district show that the warrant in question had been paid, but do not show the payment thereof at the time it was actually paid, but such state of facts is.explained on account of Utterback’s instructions to Hart as to how he wished to have the matter handled.
“6. The money borrowed as represented by the warrant in controversy was used for general maintenance expenses, and no authority from the state tax commission to borrow this money was ever obtained.
“Conclusions of Law.
“1. The court finds as a matter of law that the plaintiff is not entitled to recover herein upon the warrant sued on and that judgment should be rendered in favor of the defendants for costs.”
Afterwaid the court made additional findings of fact, one of which was as follows:
“That beginning about the year 1911 the said James A. Utterback was a stockholder and director in the Farmers State Bank of Cunningham, and also was the dominating factor in the management of said bank; that it was through his influence that the said R. W. Hart obtained and retained the position of cashier of said bank during said times. That-during the most of said times the said James A. Utterback had on deposit in said bank about $100,000, not altogether in his name but partly in the name of eight other individuals, of whom Omer Berry was one; that the said James A. Utterback kept in said bank three tin boxes, one wooden box, and one safe, in which he kept large sums of money, large amounts of notes, bonds, warrants and other securities in papers. That the said Utterback authorized the said R. W. Hart to handle his property under his direction, and to this end some seventy-five to eighty thousand dollars was handled by the said Hart for the said Utterback, transferring the same from one account to another as might seem advisable by him and the said Utterback. That the said Utterback at different times instructed the said Hart to put out money for him so that it would bring ten per cent and pay no taxes. That the said Hart for the said James A. Utterback loaned to the defendant school district the sum of $2,000, upon which the said Utterback received in the way of interest and bonus the sum of ten per cent. That said loan was evidenced by a warrant issued by said school district, and thereafter renewed, and finally resulted in the obligation evidenced by school district warrant No. 212, being the warrant set out and sued on in plaintiff’s petition. That prior to the issuance of said last warrant the said James A. Utterback had told the said Hart that there was some question about the validity of the warrant by him held against said school district, and instructed him to get the money on said warrant and invest the same in bonds or farmers’ notes, and that in pursuance of the direction of said Utterback as aforesaid, and in order to get said money promptly, the said R. W. Hart drew the following check, in words and figures as follows, to wit:
“Cunningham, Kan., 9-7-1922.
The Farmers State Bank.
Pay to R. W. Hart or order ($2,000) two thousand dollars. For O. Berry vs. Utterback. Rural High No. 3.
R. W. Hart.
Indorsed on back: R. W. Hart, Gr.
“That the said R. W. Hart, payee in said check, received from the funds of the defendant high school district the sum of $2,000, which sum was placed to the credit of the said R. W. Hart in the Farmers State Bank of Cunningham; that at said time no authority had been given to the said R. W. Hart by said school district for the withdrawal of said sum of money from the funds of said school district. That after the said R. W. Hart had received the said sum of $2,000 of the funds of said school district he was directed by the said James A. Utterback to hold said $2,000 and invest it in bonds or farmers’ notes, which, to some extent at least, the said R. W. Hart proceeded to do; that after receiving said sum of money the said R. W. Hart requested of the said Utterback, and the said James A. Utterback at .numerous times promised said Hart, that he would surrender to the said Hart the said school warrant so numbered 212, sued on herein, but that the said Utterback never surrendered the same. That in order that the records of the treasurer of said school district should show proper authority for the issuance and payment of said check for $2,000, at the first meeting of the school district board thereafter the said R. W. Hart procured the school district board to issue the order or warrant in words and figures following, to wit:
“Rural High School District Order on District Treasurer.
4-11-1923. No.--
State of Kansas, Kingman County,
To R. W. Hart, treasurer of rural high school district No. 3.
Post office, Cunningham, Kansas.
For loan. Order 212. 8-8-22.
Pay to the order of Omer Berry ($2,000), two thousand and no/100 dollars, out oí-fund. By order of the rural high school district board.
-, Director.
-1 Clerk.
Countersigned: R. W. Hart, Treasurer.
“That said order or warrant was issued for no other purpose except to satisfy and ratify the said check for $2,000 drawn by the said Hart under date of 9-7-1922 as above stated.”
Although eight assignments of error are set out in the abstract, there is only one proposition argued by the plaintiff. That proposition is summarized in his brief as follows:
“Appellant’s position regarding this point in this case- is simply this: If this court, after reading the abstract, can say that the. perjury staining its page is worthy of a shadow of credence, appellant will be content. If this court, after reading the abstract, can say that the judge who' tried this case had sufficient credible testimony before him to support this judgment, appellant’s voice, already hoarse, will not rise in protest, but until that unlooked for •event does happen, appellant will continue to insist that the district court of Kingman county, Kansas, through its erroneous and unsupported findings has reached a result which works an entire injustice.”
The last quoted finding of fact, the one numbered eight, is in effect a summary of the evidence on which the first six findings of fact were based. It is unnecessary for this court to again summarize or analyze the evidence which tended to support the finding of fact made by the trial court that the warrant sued on had been paid. There was sufficient evidence to support that finding. Further discussion of that evidence is unnecessary.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
A petition for a rehearing calls our attention to an inaccuracy in our statement of facts which is reflected in syllabus No. 3. The jury returned no general verdict. The general finding in favor of defendant was that of the trial court' itself, and syllabus No. 3'should be corrected to read:
“The jury’s special findings considered and held not at variance with the trial court’s general finding, and plaintiff was not entitled to judgment thereon.”
The argument in behalf of a rehearing suggests nothing which would justify a disturbance of the judgment, nor of the conclusion already reached by this court. It is therefore denied. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover the purchase price of a Fordson tractor and a set of plows. The Ford Motor Company was originally made a party to the action, but went out of the case on the sustaining of a motion to quash service. A second cause of action went out of. the case on a requirement at the close of the plaintiff’s evidence that he elect. From a judgment for plaintiff based on his first cause of action, the defendant appeals.
A history of the transaction is stated in the court’s findings as follows:
“. . . On October 19, 1925, the plaintiff purchased from defendant, Linley. Motor Company, a Fordson tractor and a tractor plow and . . . gave to said defendant his check for $661, which covered the agreed price of said tractor and plow ($657), and $4 for five gallons of oil, and at the time . . . defendant gave to plaintiff cash amounting to $17.85 by way of rebate or interest money. That the agreement . . . was verbal.
“That said tractor and plow was sold to plaintiff to be by him used in plowing land on his farm in Atchison county, and was orally and impliedly warranted to be fit for the purpose for which it was sold.
“That said tractor was not reasonably fit for the purpose for which it was sold to plaintiff, and plaintiff so advised defendant; and thereupon defendant sent its agent to plaintiff’s farm, where the tractor was located, and replaced the carburetor which was on said tractor with a new one; and at the time of so doing defendant’s agent stated to plaintiff that the trouble he had been having with the tractor had been caused by the carburetor, and the replacement of the carburetor would and had remedied said trouble and that henceforth the tractor would work satisfactorily.
“That thereafter said tractor failed to perform the services for which it was sold and purchased, and that plaintiff again notified defendant of such failure; and thereupon defendant again sent its agent to the farm of plaintiff, where said tractor was located, and attempted to operate same, and then discovered that said tractor contained no lubricant in the transmission case.
“That the lack of lubricant in the transmission case was caused by the negligence of the defendant’s agents and employees prior to the time of delivery of the tractor to the plaintiff and during the demonstration thereof by the defendant’s agents and employees, without the knowledge of plaintiff, and that such lack of lubrication caused such damage to the tractor that it was not reasonably fit for the purpose for which it was sold and purchased.
“That thereafter plaintiff notified defendant that said tractor had failed to do the work for which it had been purchased, and that said tractor was unsatisfactory, and demanded that defendant replace said tractor with one that was fit for and would do the work for which the tractor in question had been purchased.
“That thereafter, defendant’s manager, with other agents of defendant, went to the farm of plaintiff, where said tractor was located, drove said tractor off of said farm and into the public road and then attempted to drive said tractor into and upon plaintiff’s premises, whereupon plaintiff refused to permit defendant’s agent so to do, and then and there tendered and returned the tractor to defendant’s manager and other agents present, and thereupon defendant’s manager refused to accept such tractor, and allowed it to be placed and remain in the public road.
“That said tractor has remained at the place where it was left by defendant at all times since being so left by defendant, except on one occasion when it was by plaintiff moved into a garage on his premises for the purpose of examination by mechanics and determination, if possible, the condition of the mechanism, and this without permission or consent of defendant. That immediately after such examination said tractor was by plaintiff returned to the place in the public road where it had heretofore been left by defendant and has remained at the place where it was so left by defendant and now remains there.
“That by the acts of defendant in refusing to accept the return of said tractor and the statements made by defendant to plaintiff at the time return of said tractor was tendered, the plaintiff understood and knew that an offer to return the plow, which was purchased with the tractor, would be useless and futile and unavailing, and that plaintiff makes no claims to said plow.
“The court finds that at the time plaintiff paid for the machinery involved herein he gave in payment for said machinery the sum of $657, and then immediately received back in cash as a refund or rebate the sum of $17.85, and that he has not at any time returned or offered to return said money or any part thereof to the Linley Motor Company.
“That [by] the acts of the defendant in refusing to accept return of said tractor and the statements made by defendant to plaintiff at the time return of said tractor was tendered, the plaintiff understood and knew that an offer to return said refund or rebate of $17.85 would be useless, futile and unavailing.”
The court concluded:
“. . . . That the acts and statements of the parties constitutes an offer by plaintiff to return the property purchased'and a refusal of defendant to accept it and a waiver of tender on the part of defendant; that the acts and statements of defendant in refusing to accept return of said tractor, and the statements made bs^ defendant to plaintiff at the time return of said tractor was tendered, constituted a waiver on the part of defendant of any right it may have had to a tender of said refund or rebate of $17.85; . . , that the acts and statements of the parties constitutes a rescission of the contract on the part of the plaintiff in proper time and before the commencement of the action. The court finds the issues in favor of the plaintiff, and that plaintiff is entitled to have and recover judgment of and from the defendant for the sum o£ $639.15, with interest at six per cent per annum from October 10, 1925, and costs of suit, and that, the defendant is entitled to said tractor and plow.”
The defendant contends that the first count of plaintiff’s petition did not state a cause of action. It appears that no demurrer was filed thereto, but on plaintiff’s first offer of testimony defendant objected that the petition failed to state facts sufficient to constitute a cause of action. No specific defect in the petition was pointed out until consideration of the motion for a new trial, when it was argued and is now insisted that the petition disclosed no tender back by the plaintiff of the purchased property. The plaintiff al leged that he received the tractor and plow and paid for them; that they were placed on his premises; tried out; that the tractor did not do the work for which it was purchased; that defendant attempted to make it. work; that during the course of the last demonstration by defendant the tractor was pulled into a public road, and that plaintiff refused to permit the defendant to again bring it upon his land.
The plaintiff contends that if the defendant seriously contended that the first count of the petition failed to state a cause of action, the question should have been raised either by demurrer thereto or by presentation of the point on the objection to the introduction of evidence; that nowhere in the record does'it appear what the claimed defect of the petition was except by reference to plaintiff’s brief in this court.
The rule has frequently been announced, and should be applied here, that whenever a litigant has a meritorious proposition of law which he is seriously pressing upon the attention of the trial court he'should raise that point in such clear and simple language that the trial court may not misunderstand it, and if his point is so obscurely hinted at that the trial court quite excusably fails to grasp it, it will avail naught to disturb the judgment on appeal. (See Threshing Machine Co. v. Francisco, 106 Kan. 704, 189 Pac. 981; Livingston v. Lewis, 109 Kan. 298, 198 Pac. 952; Emery v. Bennett, 97 Kan. 490, 492, 155 Pac. 1075; Bremen State Bank v. Loffler, 121 Kan. 6, 245 Pac. 742; State v. Bell, 121 Kan. 866, 250 Pac. 281.)
It is contended that á demurrer to the evidence should have been sustained because it failed to show a return or offer to return the plow or any excuse for not returning or offering to return it. There was evidence that on one occasion when plaintiff and defendant’s agents were discussing the transaction on plaintiff’s place, plaintiff said:
“We went to the alfalfa field and then to the tool house, and I said, ‘What are you going to do now?’ and he (Linley) said, ‘I am not going to do anything’; and I said, ‘Here is the plug that was found; all I want you to say is what you are going to do.’ I said, ‘Here is the plow; if you want to give me a new tractor it is all right, but if you do not, I do not want the plow.’ ”
We are of opinion there was sufficient evidence to sustain the court’s findings. (See Rowan v. Rosenthal, 113 Kan. 604, 215 Pac. 1008; Walker v. Eckhardt, 122 Kan. 453, 251 Pac. 1093.)
A contention that the plaintiff failed to prove the incorporation of the defendant cannot be sustained. The defendant filed its separate answer which stated, among other things:
“Comes now the Linley Motor Company and for its separate answer to the first count of plaintiff’s petition denies each and every statement, averment and allegation therein contained, except such as are hereinafter specifically admitted.”
While it did not specifically admit the Linley Motor Company was a corporation, the answer was verified in the following words:
“Roy Linley, being duly sworn on oath says that he is the president of the defendant, the Linley Motor Company, and that as such he makes this affidavit for and on behalf of said defendant,” etc.
Previously, when all parties were in court, the defendant appeared generally, filed motions and obtained extension of time in which to further plead; defendant, the Ford Motor Company, had entered its special appearance and filed motion to set aside service of summons on it. The Ford Motor Company and appellant were represented by the same counsel. The matter then under consideration was the motion of the Ford company to set aside service of summons upon it. Roy Linley, the president of appellant, was called as a witness on behalf of the Ford company and'testified:
“Q. You are the president of the Linley Motor Company? A. Yes.
“Q. A corporation organized under the laws of Kansas? A. Yes. •
“Q. Having its principal place of business at Atchison, Kansas, and having all of its places of business, if there be more than one, in Atchison county, Kansas? A. Yes.”
The plaintiff contends that if there was a technical deficiency in the proof of incorporation, the attention of the trial court should have been directed to it. We are of opinion that the answer and verification thereof showed as a matter, of fact that the defendant was a corporation, and under the present liberal rules of practice the court, from the evidence previously taken on the motions, was warranted later on in the trial in resolving the inferences in favor of the plaintiff on consideration of the demurrer to the evidence. (See cases cited supra.) Moreover, it has been held that a corporation, by appearing to a suit, thereby admits its corporate existence and that proof of such fact is not necessary. (Gulf Rld. Co. v. Shirley, 20 Kan. 660.) Other contentions have been considered, but we find no error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a suit on an injunction bond. The trial court sustained a demurrer to plaintiff’s evidence and he has appealed.
The bond sued on had been given in an action in which the Service Pipe Line and Mining Company and the K-S-N Oil and Gas Company were plaintiffs and R. B. Newbern was defendant. Plaintiffs claimed to own a certain interest in an oil and gas lease which stood in the name of Newbern. The action was to establish such ownership in plaintiffs, and, pending the trial of the action on its merits, to restrain and enjoin Newbern from selling or disposing of such interest in the lease. The action was filed and a temporary restraining order was issued out of the district court, November 18, 1924, which provided that it remain in effect until the further order of the court. On December 13, on the hearing of defendant’s motion to dissolve the restraining order, or to require.plaintiffs to give a bond, the court ordered that, by a day named, plaintiffs give a bond “to secure the payment of such damage as the defendant Newbern may sustain by reason of the issuance of the restraining order herein,” and that the restraining order be dissolved if the bond were not given. Plaintiffs gave the bond, which they signed as principals, and T. G. Klepper signed as surety. The bond recites that a temporary restaining order had been previously issued; that on the hearing of a motion to dissolve, the temporary order was continued in force on condition that plaintiffs execute a bond in the sum of $2,500 as provided by law. It contained the usual recitals of such a bond, and the obligation stated was that “plaintiffs shall secure and hold harmless the said R. B. Newbern such damages as he may sustain if it shall be finally decided that the restraining order herein ought not to have been granted.” The case was tried on the merits in February, 1926, resulting in judgment for defendant and dissolving the restraining order and temporary injunction previously issued.
On the trial of the case at bar evidence with respect to the prior action was introduced. It was also shown that about the middle of November, 1924, the first well on the lease in question was brought in and shownd promise of being a good producer, but was not fully tested until about a month later. There was evidence tending to show that Newbern’s interest in the lease was of the reasonable value of $10,000, or more, about the time the restraining order was issued; %nd there was specific evidence that on November 24 Newbern was offered $10,000 for his interest in the lease by a man familiar with the oil business in general, and with this lease arid the well thereon in particular, who was ready, able and willing to buy Newbern’s interest, and who wanted to buy it because he thought there was a profit in it at that price. Newbern wanted to sell, but could not do so because of the restraining order, and sought to have it set aside so that he might sell, but it was continued on the giving of the bond. The offer to purchase was withdrawn some two. or three weeks after it was made. After the original case was tried, Newbern sold his interest in the lease for the best price obtainable, $934.
In sustaining the demurrer to the evidence the trial court expressed the view that the restraining order, prior to the giving of the bond, was a nullity, resulting in no damage to plaintiffs, and that the bond given bound the bondsmen for prospective damages only and could not be carried back further than December 13,1924, the date of the order requiring bond to be given. Appellant contends that the trial court was in error on both of the propositions upon which it based its judgment. This contention must be sustained.
In support of the view of the trial court that the restraining order was a nullity prior to the giving of the bond, appellees cite R. S. 60-1105, which provides, in effect, that no restraining order shall issue except on the giving of a bond. This section of the statute is one of the sections of chapter 223 of the Laws of 1913 (R. S. 60-1104 to 60-1107), relating to injunctions in labor cases. It applies only to labor disputes. (Wamberg v. Hart, 114 Kan. 906, 221 Pac. 547.) It has no application to the ordinary suit in equity in which injunctive relief is sought. The statute applying to such actions reads as follows:
“If the court or judge deem it proper that the defendant or any party to the suit should be heard before granting the injunction, it may direct a reasonable notice to be given to such party to attend for such purpose at a specified time and place, and may in the meantime restrain such party; and if it appear to the court or judge that a restraining order may result in damage to the party restrained, a bond to secure the payment of such damage may be required before such restraining order shall take effect.” (R. S. 60-1108.)
Perhaps the instances are rare in which a court is justified in issuing a restraining order without requiring a bond (A. T. & S. F. Rld. Co. v. Fletcher, 35 Kan. 236, 10 Pac. 596), but that the court has authority and jurisdiction to do so under this statute cannot be questioned. In the early stages of equity jurisprudence it was the common practice to issue temporary injunctions without bond, but the injustice of a general practice of that kind was soon recognized; the chancellors began requiring bonds in many cases, so that the inherent power of courts of equity to exact conditions, deposits or bonds from plaintiffs before awarding even a temporary injunction was established and recognized. (32 C. J. 310.) Such is still the rule, except as modified by statute. We have a statute (R. S. 60-1110) which provides that no injunction shall operate unless the party obtaining the same shall give bond. But in this state, and by the statutes above referred to, there is a distinction between a restraining order and a temporary injunction. Generally speaking, it is said that a restraining order is effective only until an application for an injunction can be heard, and usually only for a short time, while a temporary injunction is effective until the trial of the action in which it is issued. (State v. Johnston, 78 Kan. 615, 98 Pac. 216; State v. Werner, 80 Kan. 222, 101 Pac. 1004.) Sometimes the effect of the order determines the classification to which it should belong. (In re Sharp, 87 Kan. 504, 124 Pac. 532; City of Emporia v. Telephone Co., 90 Kan. 118, 133 Pac. 858.) In this case the restraining order was issued only until there could be a hearing for a temporary injunction, and a date was named for such hearing, the order providing that it should continue in force until the date named, or as soon thereafter as the court could hear it. There can therefore be no reason for holding that the restraining order was a nullity because of the fact that a bond had not been given. A violation of the order could have been punished as contempt. (State v. Werner, supra.)
Turning now to the next point — -what period of time did the bond cover? That, of necessity, depends' largely upon the terms of the bond. It will be noted that the restraining order was issued November 18,1924, and the effect of the order of December 13 was to continue the restraining order in force until the trial of the case on its merits, in effect transforming it into a temporary injunction. The order required plaintiffs to give a bond to secure the payment of such damage as Newbern “may sustain by reason of the issuance of the restraining order herein,” and the bond recited as its obligation that “plaintiffs shall secure and hold harmless the said R. B. Newbern such damages as he may sustain if it shall be finally decided that the restraining order herein ought not to have been granted.” The trial resulted in a judgment to the effect that the restraining order ought not to have been granted. It seems clear from the wording of the order requiring a bond, and from the bond itself, that Newbern was indemnified against damages resulting to him from the granting of the restraining order. Naturally these damages could not be ascertained until after it had been determined that the restraining order had been wrongfully issued and the same set aside, for in this case the interest in the lease in controversy might have been worth more after' the restraining order was dissolved than when it was issued, in which event Newbern would not have been damaged at all. So, in computing what dam ages were indemnified against by this bond, any damages sustained by Newbern from the date the restraining order was issued, November 18, 1924, to the date the restraining order and temporary injunction was finally dissolved in February, 1926, should be considered. Perhaps in this case the fair measure of that would be the difference between the reasonable, fair value of the share or interest in the lease at the time, or soon after the restraining order was issued, and the reasonable, fair value of such interest at the time it was dissolved. There was evidence before the court fairly tending to show these values at the different dates. It" is true plaintiff, to establish the value at or about the time the restraining order was issued, relied in part upon an offer he had received for the interest in the property. Ordinarily a mere offer to purchase is not good evidence as to the fair value. (State v. Nelson, ante, p. 1.) But the evidence was not objected to for that reason, and here it was inquired into far enough that it tended to show reasonable value.
From what has been said it necessarily follows that the judgment of the court below must be reversed with directions that a new trial be granted.-
It is so ordered. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, a stockholder in the Farmers State Bank of Esbon, sued to recover damages sustained by her caused by the defendant’s circulating false and malicious statements impugning the financial standing of the Farmers State Bank of Esbon and of the plaintiff. All the defendants, except the Farmers State Bank of Esbon, appeal from an order denying parts of their motion to make the original petition more definite and certain, from an order denying their motion to strike out a part of that petition, and from an order overruling their demurrer to the amended petition of the plaintiff.
The petition alleged that all of the defendants, except the Farmers State Bank of Esbon, conspired with each other—
“For the purpose of weakening and destroying the business, influence, financial credit and standing of plaintiff and of said the Fanners State Bank of Esbon, and to break them up and run them out of business, and, for the purpose of accomplishing said design made certain false and malicious statements and representations and circulated rumors impugning the financial standing of said the Farmers State Bank of Esbon and the solvency and reputation thereof and derogatory to the integrity, ability and solvency of the plaintiff and of one Guy O. Seaton, who at said time was or shortly thereafter became the cashier of said the Farmers State Bank of Esbon. . . .
“That the statements and representations as aforesaid were made to many people in and about Esbon and in the trade and banking territory of said the Farmers State Bank and to numerous of its customers and depositors, and that each defendant with the purpose to accomplish injury to plaintiff and to said the Farmers State Bank of Esbon participated by performing jointly and individually the acts and statements above referred to . .
The appellants filed a motion asking that the petition be made more definite and certain—
“By stating the time of the making or circulating of said alleged statements, representations and rumors, and if unable to state the exact time, by stating the same as nearly as possible, by setting out dates within the limits of which said alleged rumors, statements and representations were made or circulated.”
That part of the motion was denied.
In Haag v. Cooley, 33 Kan. 387, 6 Pac. 585, this court declared that—
“In an action for slander, the petition did not state when, or where, or to whom the alleged slanderous words were spoken, and the defendant moved the court to require the plaintiff to make his petition more specific and definite in these particulars, but the court overruled the motion. Held, error.”
The time when the statements and representations were made should have been alleged so as to show whether or not the action, when commenced, was barred by the statute of limitations. It was error to deny that part of the motion. An amended petition was afterward filed to comply with the order of the cóurt in other par ticulars, but it did not show when the statements complained of were made. It alleged that the plaintiff was unable to state the exact time when the statements were made. That did not remedy the defect in the petition.
Section 21-2452 of the Revised Statutes reads:
“Whenever any person maliciously and without probable cause circulates or causes to be circulated any rumor with intent to injuriously affect the financial standing or reputation of any bank, financial or business institution or the financial standing of any individual in this state, either verbally or in writing, or makes any statement or circulates or assists in circulating any false rumor or report for the purpose of injuring the financial standing of any bank or financial institution or of any individual in this state, or seeks either by word or action to start a run upon said bank or financial institution, or connives or conspires with any person for the purpose of injuring the standing or starting a run on any bank or financial institution, such person shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than five hundred dollars or by imprisonment in the county jail for not more than three months, or by both such fine.and imprisonment.”
The amended petition alleged:
“That on or about the period stated, the exact time plaintiff being unable to show, the defendant the State Bank of Esbon, Jay K. Beachy, E. E. Duncan and Esther Belle Beachy, wrongfully and maliciously combined, confederated and conspired together for the benefit of said the State Bank of Esbon and to advance their own interests therein, for the purpose of weakening and destroying the business, influence, financial credit and standing of plaintiff and of said the Farmers State Bank of Esbon, and to break them up and run them out of business, and for the purpose of accomplishing said design made certain false and malicious statements and representations and circulated rumors impugning the financial standing of said the Farmers State Bank of Esbon and the solvency and reputation thereof, and derogatory to the integrity, ability and solvency of the plaintiff and of one Guy O. Seaton, who at said time was or shortly thereafter became the cashier of said the Farmers State Bank of Esbon.”
The appellants argue that no cause of action was alleged in favor of the plaintiff, and that if any cause of action was alleged it was in favor of the Farmers State Bank of Esbon, in which the plaintiff was a stockholder. The amended petition alleged that the statements made by the appellants were made for the purpose of “weakening and destroying the business, influence, financial credit and standing of plaintiff.” Section 21-2452 of the Revised Statutes was enacted to protect the financial standing of individuals as well as that of financial institutions. The plaintiff comes within the protection of the statute.
In 37 A. L. R. 1348 is found a note on “Libel or Slander Affecting Bank.” A number of cases are there cited holding that defamatory statements concerning the integrity, solvency or management of a bank are actionable. The same reasoning would compel the conclusion that, defamatory statements concerning the integrity or solvency of an'individual would be actionable. This coupled with section 21-2452 of the Revised Statutes constrains the court to hold that the plaintiff has the right to maintain an action for defamatory, statements made by the defendants concerning her solvency, unless barred by the statute of limitations or unless some defense is made to appear. However, her petition must allege facts sufficient to constitute a cause of action.
The motion to make the original petition more definite and certain asked that the plaintiff be required to name the person or persons to whom the statements, representations and rumors were made. That part of the motion was sustained. The plaintiff, in her amended petition, in response to the ruling on the motion, alleged:
“That plaintiff is unable to herein show precisely the names of those to whom such representations were made, or to describe them, save as follows, the dates of such representations, their exact content or whether oral or whether in writing save that they imputed insolvency and lack of business standing and integrity to said the Farmers State Bank of Esbon and its officers, including the plaintiff.”
If the case were on trial, it would be necessary for the plaintiff to prove not only that the statements were made, but that they were made to or in the presence of third persons; it would be necessary to produce a witness who had heard those statements made. If such a witness can be produced, the plaintiff can set out the name of that witness. Following Haag v. Cooley, supra, it was necessary for the plaintiff to state to whom or in whose presence the statements were made. Failure to do so rendered the action subject to dismissal. When the demurrer was presented it should have been sustained; or, the action should have been dismissed under Anderson v. Denison Clay Co., 104 Kan. 766, 180 Pac. 797, where this court said:
“If a proper order to make a petition more definite and certain is not complied with, the action may be dismissed.”
The judgment is reversed.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal from the order of the trial court overruling and denying the motion of the plaintiff to correct and amend the journal entry and to retain and assign for trial the first and second grounds of the petition, upon which no evidence had been introduced or hearing had.
The facts necessary to a complete understanding of the issues are briefly as follows: Gorrell sold two tracts of land in Kiowa county to Toner, conveying them by warranty deeds, and took back a mortgage from Toner for part of the purchase price of the second tract. It later developed that Gorrell only owned about a three-fourths interest in the land, and Toner discontinued paying interest on the mortgage for the purpose of effecting a settlement. Gorrell died as a resident of Missouri. The Conqueror Trust Company, a Missouri corporation, became administrator of his estate, and on December 21,1923, commenced a foreclosure action in Kiowa county. Defendant Toner filed a demurrer, which was overruled. The parties holding the outstanding title came in and pleaded. Judgment of foreclosure was rendered May 14, 1925, against Toner and for the sale of the land, excluding the interests held by the interpleaders. ' Order of sale was issued and the land advertised for sale December 7, 1925. On December 5,1925, this action was commenced by Toner against the trust company as administrator, seeking in the first and second counts of the petition to recover from the administrator damages for breach of warranties in the two deeds given by Gorrell to Toner, claiming $2,000 .in the first count and $1,375 in the second, and setting up copies of the two deeds as exhibits.
The petition further recited excuses of illness and the like for failing to answer in the foreclosure case, alleged agreement whereby he was to have time to do so later, violation of agreement and failure to give notice; alleged that judgment by default was taken against him contrary to promises and understanding in open court; further alleged the defendant was a nonresident and had no property in the state of Kansas; and prayed that the judgment in the foreclosure case be vacated and set aside, that the sale of the land be enjoined and restrained, that plaintiff have judgment against the trust company for $3,375, and that it be set off against whatever indebtedness the plaintiff might owe the estate; also prayed for other relief and for costs.
The petition was verified, an injunction bond was furnished, and an order restraining the sale was procured. Defendant trust company filed demurrer, which was overruled, then an answer, which was a general denial and special denial in detail as to the last portion of the petition as to the rendition of judgment in the foreclosure case.
A hearing was had as to the allegations in the closing paragraph of the petition, the whole proceeding being conducted and considered by all parties apparently as if it were a special proceeding by petition to vacate and set aside a judgment obtained by the fraud of the successful party. The court, at the close of the testimony and argument of counsel on December 18, 1926, found that the plaintiff was not entitled to relief as prayed for in his petition and ordered that he take nothing under his petition. After the overruling of the motion for new trial the plaintiff filed and presented the motion outlined in the first sentence of this opinion, requesting the court in particular to correct the journal entry and to retain and assign for trial the first and second counts of the petition, on which no hearing was had.
Appellant claims he has not had his day in court as to the first and second counts of the petition, each of which sets forth a breach of warranty. Not a word of evidence is in the record as to these allegations which were put in issue by the answer. The court proceeded upon the theory that this was a special proceeding under R. S. 60-3011 to set aside a judgment obtained by fraud. This was no fault of the court, for it is admitted by counsel for appellant that it was so heard and presented. Under such proceeding the court always hears the grounds for setting aside the judgment, and if satisfied vacates the judgment and lets the defense be made. Appellant takes no exception to the holding of the court that the evidence was not sufficient to justify a vacation of the judgment. The appeal does not raise any question for review except the alleged error in overruling the subsequent motion to permit the plaintiff to have a hearing upon the breach of warranty counts.
Appellant maintains that, however much the petition might appear like a special proceeding to vacate a judgment, it is not, because the petition does not set forth a defense to the foreclosure action; that a defect in the title is not a defense to an action on a purchase-money note and mortgage; that it may be a set-off or counterclaim such as could be made a part of the answer, but the section permitting such proceeding limits the petition to a defense in the restricted meaning of the term, and cites the case of Emmons v. Gille, 51 Kan. 178, 32 Pac. 916, to show that a claim because of defective title is not a defense to a foreclosure action. Many decisions from other states are cited which reached similar conclusions, but our liberal provision for pleading by way of answer permits the defendant to set forth as many grounds of defense, counterclaim, set-off, and for relief as he may have. Our. court has held that a counterclaim or set-off is a proper defense to a foreclosure action, and it should be said that the case in 51 Kansas, above cited, involved another element, making it not strictly applicable, in that the defense there attempted was a suit pending brought by a third or outside party. But it is well settled in this state that the failure of title or breach of warranty may be set up as a defense to a foreclosure action.
“In an action brought by the vendor of real estate, conveyed by deed of general warranty to foreclose a mortgage given for the purchase money, the vendee and mortgagor may set up as a defense a failure of the title to the property.” (Chambers v. Cox, 23 Kan. 393, syl. ¶ 1.)
“Unliquidated damages arising from breach of covenants of warranty may constitute a set-off against a note secured by mortgage on land.” (Dalsing v. Leib, 116 Kan. 44, syl. ¶ 1, 225 Pac. 1074. See, also, Scantlin v. Allison, 12 Kan. 85.)
There is one element of difference between a request of this kind and the filing of an answer within time. The former is permissive only and the latter is a right. But if fraud has actually been practiced by the successful party which prevented an opportunity to have a fair trial, it would seem the same general rights should be afforded of making a defense. It would therefore seem that the counterclaims contained in the first and second counts of the petition were proper for a defense in the broader meaning of the term.
It is undoubtedly correct that this was a special proceeding, the way it was presented to the court, with all the excuses and undue advantages taken as alleged as grounds for vacating the' judgment; but this special proceeding is only for a special purpose, viz., to be let in to defend. If that privilege is granted no substantial rights are gained, only to be placed where he was, a defendant, at the beginning of the foreclosure suit. He is no farther along than he was after the action was commenced. This is merely a preliminary proceeding to acquire a right to plead and defend the action, which right he had until it was lost by some improper conduct of the successful party. In this case the court found there had been no such improper conduct as to deprive the defendant of his right to defend. That is all, except for the sweeping words of the journal entry to the effect that the plaintiff in the new suit take nothing. The court had heard nothing as to the merits of the claim of breach of warranty. Was it iií a position to say that the plaintiff take nothing? The plaintiff had failed in all he had presented. The court rightly determined there was no merit in his contention, as far as presented; but had the plaintiff a right to proceed or be heard on the first and second counts of his petition? The court had overruled a demurrer to the petition, which would indicate that it stated a cause of action. Appellant suggests that all the additional allegations as to fraud and excuses be considered as surplusage and that his petition be considered as an action merely upon the breach of warranty. We see no reason why these additional allegations might not be wholly disregarded as surplusage.
Appellee says he is estopped because of having elected the wrong remedy. Was this preliminary step to vacate a judgment a remedy? As stated above, to succeed with it would not have accomplished him anything more than he had in his own legal right a few weeks or months earlier. In the election of remedies three things are essential :
“(1) There must be in fact two or more coexisting remedies between which the party has the right to elect; (2) the remedies thus open to him must be inconsistent; and (3) he must, by actually bringing his action or by some other decisive act, with knowledge of the facts, indicate his choice between these inconsistent remedies.” (20 C. J. 20.)
“An election can exist only where there is a choice between two or more inconsistent remedies actually existing at the time the election is made. Hence the fact that a party misconceives his right, or through mistake attempts to exercise a right to which he is not entitled, or prosecutes an action based upon a remedial right which he erroneously supposes he has, and is defeated because of such error, does not' constitute a conclusive election.” (20 C. J. 21.)
“The principles governing election of remedies are necessarily based upon the supposition that two or more remedies exist. If in fact or in law only one remedy exists, there can be no election by the pursuit of another and mistaken remedy. It is a well-established rule that the choice of a fancied remedy that never existed and the futile pursuit of it, either because the facts turn out to be different from what the plaintiff supposed them to be, or the law applicable to the facts is found to be other than supposed, though the first action proceeds to judgment, does not preclude the plaintiff from thereafter invoking the proper remedy.” (9 R. C. L. 962.)
There was no inconsistency between these efforts to obtain the rights claimed by the plaintiff Toner. He first attempted to have a judgment set aside so he could set off his counterclaim based on breach of warranty against anything he might owe on the mortgage. He now claims the right to recover a judgment based upon a breach of warranty. There is nothing inconsistent in these two efforts. The former, if it is called a remedy at all, is a preliminary step to make his claim, identically the same one, more immediately effective."
“The nature of an action is determined by the allegations of the petition rather than by the prayer for relief.” (Wellington v. Insurance Co., 112 Kan. 687, syl. ¶ 1, 212 Pac. 892.)
In the case of Ramsey v. Bank Commissioner, 115 Kan. 212, 222 Pac. 117, a depositor in a bank that later failed sued a director to recover his deposit received by the bank when he was an officer and knew it was insolvent. Later, while such suit was pending, a dividend was declared for the depositors, and he brought mandamus to compel a payment to him of his proportionate share thereof, and the court held these were not inconsistent’ remedies; that the mandamus action was wholly consistent with the election of remedy made by the depositor, viz., to recover from the officer the amount deposited.
In the very recent case of Bolinger v. Giles, 125 Kan. 53, 262 Pac. 1022, the court said:
“But plaintiff did not prosecute alternative courses of procedure, nor seek to exact alternative or inconsistent remedies. True, her petition contains ample recitals to state a cause of action in tort, but' it also did state a cause of action for money had and received, and no objection was raised to her pleading. Plaintiff’s cause of action was founded on two quite consistent theories of defendants’ liability — one, that' the defendants were liable to her for money and money’s worth as joint wrongdoers, and the other, that defendants were liable to her for money and money’s worth had and received without consideration.” (p. 54.)
This is very different from other cases where two inconsistent remedies have been pursued. For instance, in Rucker v. Rafter, 122 Kan. 91, 251 Pac. 420, the transferee brought an action against the transferor of a promissory note to recover on the warranties implied by law in the transfer of the note. It was held to be inconsistent with another action between the same parties to recover for fraud practiced in the transfer of the note. In another case, Pitt v. Keenan, 124 Kan. 810, 262 Pac. 567, the plaintiff brought an action to recover damages for fraudulently obtaining possession of shares of stock from him, after having brought an action against the same defendant to recover back the valuable stock which he had exchanged, and tendered into court the worthless stock that he had received. These remedies are absolutely inconsistent in every particular.
“Where property is wrongfully obtained from the owner by another and converted to his own use, the former owner has two remedies open to him, one to treat the title as having passed, and sue for its value, and the other to sue for the recovery of the specific property, and when, with knowledge of the facts, he sues for the value of the property converted, the election is complete, and the other remedy is no longer available to him.” (Ireland v. Waymire, 107 Kan. 384, syl. ¶ 1, 191 Pac. 304.)
As stated above, the preliminary step attempted by the plaintiff in this case to vacate the judgment is not a remedy at all. It is simply a preliminary step and, in the.mind of the plaintiff at the time; apparently a means of assisting him in the prosecution of his claim, namely, a recovery upon the breach of warranty. On this subject, in the case of McKim v. Carre, 72 Kan. 461, 83 Pac. 1105, it was said:
“In order for a party to be concluded by an election between two inconsistent remedies both must in fact be open to him. The pursuit of a remedy which he supposes he possesses, but which in fact has no existence, is not an election between remedies but a mistake as to what remedy he has, and will not prevent his subsequent recourse to whatever remedial right was originally available.” (p. 464.)
The 'judgment of the trial court will be reversed and the cause remanded, with instructions to amend the journal entry so as to permit the plaintiff to have a hearing on the first and second counts of the petition and assign the case for trial and further proceedings. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to require conveyance of real estate on exercise by the lessee for a term of years of option to purchase. Judgment was rendered for defendants, and plaintiff appeals.
On January 27, 1922, the owners leased to plaintiff the real estate involved, which is located at the northeast corner of Tenth and Quincy streets in the city of Topeka, and on which plaintiff desired to erect and maintain a gasoline service station. The term was for five years, beginning November 1, 1921, and the rent was $600 per year, payable in advance in quarterly installments of $150 each. The lessors were Elizabeth Reed, owner of a life estate, Briggs Franklin Reed, owner of the remainder, and Reed’s wife. The lease contained the following provision:
“First: That the said party of the second part shall have the privilege of purchasing the above-described property for the sum of ten thousand dollars ($10,000) at the expiration of this lease or at the demise of Elizabeth Reed, one of the parties of the first part, in event her demise occurs before the expiration of this lease; and in the event of the exercise of such option by said party of the second part, all parties of the first part agree to join in the execution of a proper deed of conveyance.”
Elizabeth Reed died November 28,1925. While she lived plaintiff paid the rent to her. The first installment of rent becoming due after her death was payable February 1, 1926. Plaintiff’s service station agent, Cary Johnson, was a friend of the Reeds, and a pallbearer at Elizabeth Reed’s funeral. Plaintiff maintains an agency in charge of sales and of service stations in Topeka, and Johnson informed the agent in charge of Elizabeth Reed’s death. Reed resided at Ellensburg, Wash. On January 23, 1926, Reed wrote a letter to Johnson, stating that a check for rent for the quarter beginning February 1 would be made out by plaintiff, and requesting Johnson to communicate with the proper person and have the check sent direct to Reed at. Ellensburg. Plaintiff maintains a general agency at Kansas City, Mo., one department of which has charge of real estate and leases in the territory in which Topeka is situated. Reed’s letter reached that department January 30, and was answered by an authorized agent of plaintiff on February 1. The answer contained the following paragraph:
“In investigating our file, we find that our present lease will expire November 1, 1926, and we feel that some action should be taken in the near future regarding this renewal, or it might be possible to enter into negotiations for the purchase of it. If you are in position, will you kindly give us the lowest cash price that the property might be bought for at the present time, providing it is for sale.”
The writer of the letter testified he learned of Elizabeth Reed’s death sometime in the latter part of January. On February 2 or 3 he verified his information that Elizabeth Reed was dead by long distance telephone communication with Johnson, and was informed she died November 28, 1925.
Reed made no response to plaintiff’s letter of February 1, and on April 12 plaintiff served notice of exercise of its option to purchase, as follows:
“This company hereby notifies you of its acceptance of and intention to exercise the option given it by you in a certain lease dated January 27, 1922, to purchase the following-described property located at the northeast corner of Tenth and Quincy street, Topeka, Kan., in the sum of $10,000. [Description.]
“Will you kindly have abstract of title brought down to date and submitted to this office for examination?”
Reed made no response, and on April 28 plaintiff sent Reed a registered letter reading as follows:
“Under date of April 12 we mailed you a registered letter notifying you of the acceptance of and intention of this company to exercise the option given it by you in a certain lease to purchase the property we are now occupying at the northeast corner of Tenth and Quincy street, Topeka, in accordance with the terms of the lease.
“We also requested in this letter that you kindly have the abstract of title brought down to date and submitted to this office. Having no reply to this letter, we are taking the liberty of sending you a duplicate, and in case the abstract has not already been sent, anything that you can do to hasten the matter will be greatly appreciated.”
Plaintiff later sent telegrams to Reed asking when it might expect an abstract of title for examination, and on June 8 forwarded by registered mail notice of exercise of option to purchase identical with the first notice. Another notice of the same tenor was given August 16, and on that day plaintiff tendered to Reed $10,000, and tendered a deed for execution. At expiration of the lease, notice of exercise of option to purchase was served, and tenders of money and deed were duly made. • . ,
Plaintiff contends it was privileged to purchase on death of Elizabeth Reed if it so desired, or if it did not desire to purchase then, it could do so at expiration of the lease. The contention is unsound. In collocations of words such as the lease contains, the word “or” means one, but not both (Webster’s New International Dictionary).
“Or: A disjunctive conjunction coordinating two or more words or clauses each one of which in turn is regarded as excluding consideration of the other or others.” (The Century Dictionary.)
In this instance, “or” was used disjunctively with respect to two points in time, death of Elizabeth Reed, and expiration of lease, one of which excluded consideration of the other.
Plaintiff kept the lease in its vault in the Kansas City office. On learning of Elizabeth Reed’s death, plaintiff investigated its files, noted the fact the lease expired November 1, 1926, and may not deny knowledge of the terms of the option to purchase. It first put out a feeler with respect to renewal of the lease, or negotiations to purchase. Receiving no response, plaintiff then definitely exercised its option to purchase as of the time of the demise of Elizabeth Reed. The expression, “at expiration of this lease,” meant at expiration of the term, and not at any time within the term. The landlord was entitled to rent to the end of the term, and could not be deprived of rent except by exercise of option to purchase on the occurrence of Elizabeth Reed’s death. Plaintiff’s persistent efforts to make effective exercise of option to purchase, not with respect to time of termination of lease, but with respect to time of Elizabeth Reed’s death, have been recited. The petition contained the following allegations:
“That prior to the expiration of said lease, and on, to wit, the 28th day of November, 1925, the death of the said Elizabeth Reed occurred; that plaintiff had no knowledge of said death until on or about the first day of April, 1926; that upon hearing of the death of the said Elizabeth Reed as aforesaid, this plaintiff desiring to accept and exercise its said option to purchase said premises, . . . sent a notice of acceptance of its said option to the defendant, Briggs Franklin Reed, . . .
“That this plaintiff has been willing, ready and able to comply with said option agreement ever since it learned of the death of the said Elizabeth Reed as aforesaid, . . .”
The result is that, conceding plaintiff could purchase at death of Elizabeth Reed, or, in the event of her death, could wait to the end of the term, it was obliged to choose when it would purchase. It chose to purchase on the occurrence of death. Its privilege to choose was then exhausted, not by virtue of estoppel by election, but by virtue of the contract; and subsequent election of expiration of term as a time to buy was nugatory.
No interpretation of the lease more favorable to plaintiff than the one indicated is permissible. The court does not concede, however, that plaintiff had a choice of junctures at which it might purchase. It might choose to buy or not to buy; but time when it was required to buy, if at all, was fixed by the contract. There is nothing in the context to indicate that “or” was used in any other than its generally accepted sense of “otherwise” (Century Dictionary), and the meaning of the option is made manifest by transposing the alternatives to correspond with their time sequence, and substituting the equivalent word for the word “or”:
That the party of the second part shall have the privilege of purchasing the above-described property for the sum of $10,000, at the demise of Elizabeth Reed, in the event her demise occurs before the expiration of this lease; otherwise, at the expiration of this lease.
Plaintiff combats this interpretation by appealing to the circumstances under which the lease was executed. The circumstances enumerated are not, however, facts in evidence, but are assumptions and inferences from assumptions: “Judicial knowledge” that when the Standard Oil Company establishes a new service station, it “quite naturally expects that station to be permanent”; “reasonable to assume” that, before establishing a filling station, plaintiff used sufficient foresight to enable it to maintain that filling station permanently ; “not unreasonable to assume” that right of purchase was the inducing cause of plaintiff’s acceptance of the lease; “safe to assume” that when the lease was executed the property was not worth $10,000.
The lease was negotiated by a local agent of the company. Elizabeth Reed was a life tenant, whose death during the term was anticipated. While she lived the rent would be payable to her. At her death a change in title would occur, and the new owner would come into relation with plaintiff. He was resident of a distant state, and would be privileged to deal with the property to his own advantage, •subject only to restrictions imposed by the lease. From his standpoint, certainty that when he became owner he would know whether plaintiff intended to buy, was a proper condition to attach to the ■option. Plaintiff could insure permanency of the service station by exercise of the option to buy, which was inserted in the lease through its foresight.
The answer pleaded that plaintiff’s attempt to exercise its option was not made within a reasonable time, and the court so found. It is not necessary to review the authorities dealing with the subject •of reasonable time as applied to option contracts. What this court regards as the clear weight of reason and authority is that when, as in this instance, time to exercise an option is fixed by contract, time is of the essence, in equity.
“In a contract of option the party giving the option protects himself only by a condition. There is no obligation on the other side to perform. The question here, therefore, is not one of condition implied in law, but of an express condition which must be strictly performed in order to hold the promisor liable. Accordingly the party entitled to the option must offer performance in accordance with its terms within the time fixed in order to obtain a right to equitable relief.” (2 Williston on Contracts, § 853, p. 1634.)
Plaintiff’s privilege was to purchase at death of Elizabeth Reed, or not at all. Nobody knew any better than plaintiff the contingency on which exercise of the privilege depended. Of course, privilege to purchase “at the demise of Elizabeth Reed” did not mean at the moment of her death, or before her funeral, but her death was the occasion for action if plaintiff desired to buy. Reed was under no duty to notify plaintiff of the happening of the contingency, and if plaintiff prefers to organize its business so that nobody in the locality can be charged with information affecting its highly important real estate interests, the preference is its own. Plaintiff 'says Elizabeth Reed was old and infirm when the lease was executed, and was not expected to live any great length of time. Leaving at one side the question whether some diligence should have been exercised to secure at least occasional information respecting the possible occurrence of an event of sufficient moment to mature a ten-thousand-dollar option, plaintiff knew in January that Elizabeth Reed was dead. On February 2 or 3, it had definite information that Elizabeth Reed died in November of the preceding year. Aside from the fact that plaintiff may not plead ignorance of the provision for purchase, it is a fair inference from the evidence that when the letter of February 1 was written the writer had the lease before him, or was familiar with its terms. Under these circumstances, that April 12, 1926, was not “at the demise of Elizabeth Reed,” and that plaintiff did not exercise its option to purchase within a reasonable time after the demise of Elizabeth Reed, are matters too plain to require discussion.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The city of Wichita brought this action in the district court of Sedgwick county against the Wichita Gas Company, praying for a declaratory judgment to determine the validity of one of its city ordinances under which a franchise for the use of the streets of Wichita for a gas-distributing plant had been granted to defendant’s predecessor, the Kansas Gas and Electric Company.
The franchise was granted in February, 1922, and the corporate duties imposed by its terms were promptly undertaken by the grantee, and the financial investment in defendant’s gas-distributing plant affected by and dependent on the validity of the franchise is alleged to be in excess of two million dollars.
The ordinance granting the franchise was enacted under authority of chapter 94 of the Session Laws of 1921, the title of which reads:
“An act relating to the franchises of interurban railroad companies and corporations operating lines for the transmission of electricity, amending section 836 of the General Statutes of Kansas for 1915, and repealing section 836.”
The statute enacted under this title reads:
“Section 1. That section 836 of the General Statutes of Kansas for 1915 is amended to read as follows: Sec. 836. All incorporated cities in the state of Kansas into or through which any interurban railroad may have heretofore been built, or into or through which any interurban railroad may propose to build a line of interurban railroad, or into or through which any corporation operating a system for the transmission of electric current between two or more incorpoi’ated cities'in the state shall have heretofore built, or into or through which any such corporation may propose to build its transmission lines, are hereby authorized and empowered upon such terms and conditions, as any such city may by ordinance prescribe, to grant franchises to such interurban railroad companies and transmission corporations for any public utility purposes for which they are or hereafter may be incorporated, for a period not greater than the time for which the charter under which said company or corporation is then operating shall continue to run, but in no case to exceed 35 years: Provided, That such franchise shall not be granted until notice of the proposition to grant the same has been given for twenty days by publication in some newspaper in general circulation in such city, and if within said twenty days 10 per cent- of the legal electors petition such city authorities to submit the same to a vote of the electors of the city, such city authorities shall submit said franchise proposition to a vote of the people before such franchise be granted and be governed by result of such vote: Provided, That no such election shall be held until a certificate shall be procured from the public utilities commission of the state of Kansas, or from the state regulatory body at the time exercising control over common carriers and public utilities, that public necessity and convenience requires the construction of such improvements or the furnishing of such public services: Provided, That nothing in this act shall be construed as applying to telephone and telegraph companies.”
This statute without change was incorporated in the general revision of the statutes authorized by the legislature of 1921 and reenacted by the legislature of 1923 (Laws 1921, ch. 207; Laws 1923, ch. 144), and now appears in R. S. 12-824.
It will be noted that the statute of 1921 (ch. 94) purported to amend section 836 of the General Statutes of 1915, which read:
“All incorporated cities in the state of Kansas, into or through which any interurban railroad may have heretofore been built, or into or through which any interurban railroad may propose to build a line of interurban railroad, are hereby authorized and empowered, upon such terms and conditions as such city may by ordinance prescribe, to grant franchises to such interurban railroad companies for a period not greater than the time for which the charter under which said company is then operating, shall continue to run: Provided, That such franchise shall not be granted until notice of the proposition to grant the same has been given for 20 days, by publication in some newspaper of general circulation in such city, and if within said 20 days, 10 per cent of the legal electors petition such city authorities to submit the same to a vote of the electors of the city, such city authorities shall submit said franchise proposition to a vote of the people before such franchise be granted, and be governed by the result of such vote: Provided, That no such election shall be held until a certificate shall be procured from the public utilities commission of the state of Kansas that public necessity and convenience requires the construction of such improvements, or the furnishing of such public service.”
When the city ordinance granting the franchise to defendant’s predecessor was pending before the city commission that body caused a notice of the proposition to be published in the official city paper on January 26, February 2, February 9 and February 16, 1922. The published notice contained an exact copy of the proposed franchise ordinance itself. On February 21, 1922, the proposed ordinance was formally passed by the city commission and published February 23, 1923.
Pursuant to its terms the Kansas Gas and Electric Company proceeded to occupy the streets of the city of Wichita with the distributing system, and it and its present successor have expended many thousands of dollars on the faith of the franchise thus granted.
Plaintiff based its action in the trial court upon two main grounds, which it reasserts in this appeal, viz.:
(a) That the statute purporting to authorize the granting of the franchise is unconstitutional.
(b) That the ordinance itself is invalid because not published as prescribed by law.
Noting these points in order, it is contended that the title to the act of 1921, chapter 94, quoted above, did not comply with section 16 of article 2 of the constitution, which provides that the subject matter of a statute shall be clearly expressed in its title.
In State, ex rel., v. Dawson, 90 Kan. 839, 841, 136 Pac. 320, it was said:
“While section 16 of article 2 of the constitution requiring the single subject of an act to be clearly expressed in its title is not so frequently invoked as formerly, it is still as binding as ever.”
But in the many lawsuits where this clause of the constitution has been considered it has been settled for good and all that it is never to be applied in a captious spirit to overthrow a legislative enactment. In Lynch v. Chase, 55 Kan. 367, 40 Pac. 666, the validity of chapter 239 of the Laws of 1889 was challenged on the ground that its title did not conform to this constitutional requirement. The title read: “An act providing for the appointment of committees to investigate the affairs of state institutions and conduct of officers.” In the body of the act provision was not only made for the appointment of such committees, but matters of procedure for the conduct of their functions were prescribed; power was granted to compel the attendance of witnesses and to require the production of papers; authority was granted to hire employees; per diem and mileage were fixed; and duties imposed on the governor and attorney-general in accordance with the recommendations of the committees. In upholding the sufficiency of the title of this act this court said:
“It is urged that the act of 1889, under which the investigation was made, is unconstitutional, for the reason that the title does not fairly indicate and cover the provisions of the act. The title is, ‘An act providing for the appointment of committees to investigate the affairs of state institutions and conduct of officers.’ It has been repeatedly held that section 16 of article 2 of the constitution is not to be enforced in any narrow or technical spirit, but that a liberal interpretation should be placed upon the language employed in the title to express the subject of the act. The provision, as has been held, must be applied in a fair and reasonable way, so that it will not embarrass or defeat the proper and legitimate exercise of the legislative functions. It is not necessary that the title should be an abstract of the entire act, but it is deemed to be sufficient if the title fairly indicates, though in general terms, its scope and purposes. Everything connected with the main purpose and reasonably adapted to secure the objects indicated by the title may be embraced in the act, without violating the constitutional inhibition.” (p. 375.)
In City of Wichita v. Sedgwick County, 110 Kan. 471, 473, 204 Pac. 693, where the infirmity of a statute because of the insufficiency of its title was urged, it was said:
“Look at the general act of 1876 relating to public education (ch. 122). Its title is: ‘An act for the regulation and support of common schools.’ Under this simple title there lies the entire statutory foundation of our public-school system, covering not only such matters as schools and school districts, and school officers and their duties, but matters so distantly related thereto as the disposition of the federal land grants for school purposes, and including such details as the mode of settlement and acquisition of school lands, duties of the state auditor and governor in relation to the issue of land patents, criminal proceedings and penalties for waste or trespass on school-land properties, etc. But though the title to this act gives no hint of these far-reaching details, yet because they are mere details of the general scheme of the act for the effective regulation and support of common schools, and are germane and pertinent to the principal purpose of the act, they are not subject to constitutional infirmity under section 16 of article 2.”
Tested, by the foregoing analogous precedents it cannot be held that the statute of 1921 which authorized the granting of the franchise now held by defendant is invalid by reason of constitutional infirmity in its title. Before leaving this point, however, two other observations should be made. The title to the act of 1921 is drawn according to a form in very common use by .the legislature, and if such form of title did not satisfy the requirement of section 16 of article 2 a very considerable part of all the legislation of this state would have to be held invalid. Another angle to this discussion is that the statute of 1921 was incorporated in the general revision of 1923, and now appears therein.as R. S. 12-824. Therefore, in common with all other statutes included in that revision, it became immune to any attack based upon mere insufficiency of title, irregularity in previous legislative history, and such like formal defects. (State, ex rel., v. Davis, Governor, 116 Kan. 663, 667, 668, 229 Pac. 757; Kaw Valley Drainage District v. Kansas City, 119 Kan. 368, 239 Pac. 760; Lemen v. Kansas Flour Mills Co., 122 Kan. 574, 253 Pac. 547.)
Turning next to the matters urged against the ordinance and the franchise granted by its terms, the statute provides that a franchise granted under this act (Laws 1921, ch. 94; R. S. 12-824) may run for any period not greater than the corporate life of the charter, “but in no case to exceed 35 years.” Neither the ordinance nor the franchise fails to conform to that provision.
It is urged, however, that the ordinance is invalid because it was not published for three consecutive weeks as provided by R. S. 13-2801. But that section is not applicable. R. S. 12-824 prescribes its own procedure for publication. The act provides:
“Provided, That such franchise shall not be granted until notice of the proposition to grant the same has been given for twenty days by publication in some newspaper in general circulation in such city, and if within said twenty days 10 per cent of the legal electors petition such city authorities to submit the same to a vote of the electors of the city, such city authorities shall submit said franchise proposition to a vote of the people before such franchise be granted and be governed by result of such vote.”
The notice was given and the right of the electors to have the franchise submitted to their determination was strictly observed; and it should be critically noted that by the terms of the statute this notice and the right conferred upon the electors are to precede the granting of the franchise, not to follow the enactment of the franchise ordinance as is contemplated in the granting of franchises under R. S. 13-2801 and the referendum prescribed by its terms. R. S. 13-2801 is a much older statute than R. S. 12-824, and if there was not a fair field for the operation of both statutes, the later enactment, historically considered, would, of course, prevail. (Arkansas City v. Turner, State Auditor, 116 Kan. 407, 226 Pac. 1009; Great Western Portland Cement Co. v. Public Service Comm., 121 Kan. 531, 247 Pac. 881.)
The foregoing disposes of the: main questions presented by this appeal; but before concluding, this court feels bound to observe that this action scarcely falls within the spirit and intent of the declaratory judgment act. (R. S. 60-3127 et seq.) When the city granted the franchise to defendant’s predecessor and before any material obligation or expense was incurred under its terms, an action for a declaratory judgment might appropriately have been instituted to determine the validity of the ordinance and franchise for the benefit of all concerned. That is what the legislature intended when it declared the purpose of the declaratory judgment statute, viz.:
“This act is declared to be remedial; its purpose is to afford relief from the uncertainty and insecurity attendant upon controversies over legal rights, without requiring one of the parties interested so to invade the rights asserted by the other as to entitle him to maintain an ordinary action therefor; and it is to be liberally interpreted and administered, with a view to making the courts more serviceable to the people.” (R. S. 60-3132.)
The declaratory judgment act was not designed to question rights which have been exercised for years without controversy and on the faith of which vast sums of money have been expended by a grantee to discharge its corporate duties under the terms of the franchise. In the trial court defendant questioned the propriety of such action under these circumstances, but the ruling thereon is not properly before us for review. However, its importance is so obvious that it is proper to note it herein with a queere.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to rescind a contract for the purchase (in part an exchange) of real property, for fraudulent representations which induced its execution. The trial court sustained defendant’s motion for judgment on the pleadings and the opening statement of counsel. Plaintiff has appealed.
The contract sought to be rescinded was entered into and dated November 16, 1923. The amended petitibn, which was plaintiff’s first pleading alleging fraud which induced the execution of the contract, was filed November 21, 1925. It contained no allegation that the fraud was discovered within two years prior to the filing of this petition. The action was therefore barred by the statute of limitations in so far as plaintiff seeks relief on the ground of the fraud alleged. (R. S. 60-306, third clause; Main v. Payne, 17 Kan. 608; Doyle v. Doyle, 33 Kan. 721, 7 Pac. 615; Elrod v. Railroad Co., 84 Kan. 444, 113 Pac. 1046; Cornelssen v. Harman, 103 Kan. 624, 176 Pac. 141.)
When the cause of action on which plaintiff relies is first set forth in an amended petition, the date of its filing is regarded as the date of beginning the action. (Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189; Taylor v. Swift & Co., 114 Kan. 431, 219 Pac. 516; Commercial Nat’l Bank v. Tucker, 123 Kan. 214-216, 254 Pac. 1034.)
Some months after the original contract was made, and after plaintiff had gone into possession, in part at least, of the premises purchased, he claimed damages by reason of the representations which had been made to him concerning the property and his right' to possession thereof, and a supplemental contract was entered into between the parties in which plaintiff was given damages claimed by him in a substantial sum. The assertion and recovery of a claim of damages bars the plaintiff’s right to rescission. If plaintiff deemed himself aggrieved or injured by representations made to him-concerning the property purchased he had two remedies open to him. One was to retain the property and recover damages sustained. The other was to rescind his contract and restore the other parties to the position they were in, as nearly as that could be done. It is not consistent for a party to pursue both of these remedies, and when he pursues one of them he has in effect made an election and is not in position to pursue the other. (Bankers Mortgage Co. v. Robson, 123 Kan. 746, 751, 256 Pac. 997, and cases there cited.) And especially is it true that where he has sought and obtained the damages claimed he cannot, at a later date, maintain an action for- rescission.
Some other questions are argued in the case, but the ones here discussed dispose of it.
The judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one under the workmen’s compensation act. An award by an arbitrator in favor of plaintiff was set aside by the trial court, and plaintiff appeals.
The facts are substantially these: Plaintiff sustained injuries to his back April 23, 1920, and was incapacitated for some seven or eight weeks. On September 20, 1920, he returned to the mine and from that time continued to work until December 20, 1923, when he received a second injury. Between the dates of his first and second injuries he worked almost continuously. On April 19, 1922, he applied to the judge of the district court for the appointment of an arbitrator to determine compensation due him for the first injury. On May 27 following Hon. Arthur Fuller was appointed arbitrator, and certain questions referred to him. Nothing further was done in that matter until February 15, 1926, when plaintiff’s attorney served notice upon defendant’s attorneys that this claim for compensation would be called up for hearing. A hearing was had before the arbitrator February 18, 1926. No appearance was made by the defendant, although plaintiff claimed that notice was given defendants through their attorneys.
On February 25,1926, the arbitrator filed his award, by the terms of which plaintiff was found to be entitled to $15 per week for a period of twenty weeks from date of the injury, a total of $300, which had been paid; that plaintiff was further entitled to compen-sation for permanent partial disability at the rate of $7.50 per week for the full period of eight years after the expiration of the 20 weeks, which was from September 20,1920, to April 23,1928. In the meantime, between the appointment of the arbitrator in 1922 and the hearing in 1926, there was another arbitral proceeding between the same parties for the injury alleged to have occurred on December 20, 1923. The second application for the appointment of an arbitrator was filed February 27, 1924, and two days later Judge Fuller was appointed and directed to make findings. He did. not act, and P. L. Zickgraf was appointed arbitrator and awarded compensation to plaintiff in the sum of $3,120, which was later reduced by consent of the parties to $1,200. Evidence was introduced in the case first filed at the hearing held February 19, 1926, but no reference was made to the second injury sustained by the plaintiff which had been arbitrated. Judge Fuller, as arbitrator, made an awax’d but gave no credit for the compensation paid for the second injury. Defendant filed its petition for review of the award February 27, 1926, on the grounds that the arbitrator acted without authority, that the award was procured by fraud and undue influence, and that it was grossly excessive. On a hearing the court found that the arbitrator acted without authority and set aside and canceled the award. From this judgment the plaintiff appeals. The question px-esented involves a construction of R. S. 44-523, which provides that:
“The arbitrator . . . shall make and file an award ... in the office of the the clerk of the proper district court within sixty days after the committee meets to consider the claim or after the selection of the arbitrator, and shall give notice of such filing to the parties by mail. The parties may agree in writing to extend the time for filing the award, and if so, the award shall be filed within such extended time as is so agreed upon. If any committee or arbitrator to whom a claim for compensation shall have been submitted shall fail or neglect to file its or his award within the time fixed . . . the court shall . . . order such committee or arbitrator to file such award within such time as the court shall by such order fix which time shall in no case be greater than ten days.”
The defendant contends that the award was void; that because of the nearly four years’ lapse of time the arbitrator had no authority to make and file it; that the defendant did not waive the provision of law requiring the award to be filed within the specified time and did not consent thereto.
Considering the provisions of the statute above quoted (R. S. 44-523), and the various other provisions of the workmen’s compensation act in reference to arbitration and award, we are of opinion that an arbitrator appointed by the court or judge does not have an unlimited time in which to file an award. We think it clear that the legislature intended to limit the time within which an award may be filed; that the arbitrator has sixty days only in which to act. The time may be extended by written agreement of the parties or by order of the court. In addition to the express provision specifying the time for filing are a number of provisions of the act which can become effective only after the filing of the award. For instance, the parties have the right to modify the award by a subsequent written agreement. (R. S. 44-526.) This agreement is void as to the workman unless filed in the office of the clerk of the district court in the county where the accident occurred within sixty days after the execution of such agreement. (R. S. 44-526; Rodarmel v. Salt Co., 101 Kan. 141, 143, 165 Pac. 668; Allen v. Kansas City Fiber Box Co., 122 Kan. 178, 251 Pac. 191.) A final receipt for compensation is void as to the workman unless filed in the same office and within the same time after execution as the agreement to modify the award. (R. S. 44-526.) The workman has the right after the award is filed to apply to the court for a lump sum equal to 80 per cent of the unpaid award. (R. S. 44-529.) The employer has the right, after paying on the award for six months, to redeem it by paying 80 per cent of the payments due and unpaid. (R. S.' 44-531.) Redemption cannot be made until six months after the filing of, and payment of, award. (De Millsap v. Century Zinc Co., 123 Kan. 570, 256 Pac. 136.) Either party may have a review of the award and have it modified, increased or diminished. (R. S. 44-528.) None of these things can be done until the award is filed. The purpose of the workmen’s compensation act is to speed up the procedure, and if the workman is entitled to compensation to have it paid him without unnecessary delay.
We conclude that if the arbitrator does not file an award within sixty days after his appointment, and the time is not extended by agreement of the parties or order of the court, or the parties do not by their acts waive the time for filing the award, any award filed thereafter is of no effect.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action to set aside the joint will of the father and mother of the plaintiff after the death of both of them. There are really only two questions involved: First, Is the will a joint, mutual and reciprocal one, and, if so, can it be set aside after the death of the testators? Second, Did the mother execute the will by reason of undue influence?
The only property involved herein is real estate which stood in the name of and belonged to the mother, who survived the father, and by the terms of the will was devised to benevolent and charitable institutions. The case was tried to the court with an advisory jury. The court adopted the findings of the jury and made additional findings, and concluded in favor of the plaintiff.
The necessary facts for this opinion cannot be better stated than by giving a copy of the findings and conclusions of the court, which are as follows:
“1. This is an action to set aside the joint will of A. L. Shew and Lizzie Shew, brought by Nora Warwick, the only child and heir at law of the testators.
“2. At the time of the making of the will in question, A. L. Shew, the husband, was about eighty-two years of age, and Lizzie Shew, his wife, was about seventy-two years of age. They had lived for many years on a farm near the town of Cheney, Sedgwick county, Kansas.
“3. A. L. Shew had had a severe sickness and an operation several years before the making of the will, and while he was sick and incapacitated from doing any labor on the farm, his wife and the plaintiff in this case, Nora Warwick, did the necessary work on the farm.
“4. A. L. Shew was subject to sinking spells, and, shortly before his death, suffered from cerebral softening. He was nervous, but able to get around and do light work. At the time of the making of his will he was living with his wife in the town of Cheney.
“5. About the 11th of August, 1919, a banker in the town of Cheney, named Zerlde, called Otto Souders, an attorney of Wiohita, and told him that the Shews wished to make a will. Mr. Souders, who had formerly lived in the vicinity of Cheney and was well acquainted with the Shews, went to Cheney and called at the bank of Mr. Zerklé, and then went to the home of the Shews and consulted them about making the will. They informed him that they wished to make a joint will. He advised against the making of such a will, and gave as a reason that that was apt to lead to litigation and that it might tie up their property, but they both insisted that they wanted such a will drawn.
“6. Mr. Souders then went to the bank of Mr. Zerkle, where the will was drawn.
“7. After the will was drawn up by the attorney, Mr. Otto Souders, he, accompanied by Mr. Zerkle, took it to the home of the Shews, where Mr. Shew was confined to his bed, and read it over to them. It was then signed by A. L. Shew and Lizzie Shew in the presence of each other and in the presence of Otto Souders and Wallace E. Zerkle. Both at the first conversation and at' the time the will was signed the attorney fully explained to both Mr. and Mrs. Shew the will and its legal effects.
"8. Nora Warwick, the plaintiff, was not consulted in the making of the will.
“9. After the will was drawn up by the attorney, Mr. Otto Souders, he, accompanied by Mr. Zerkle, took it to the home of the Shews, where Mr. Shew was confined to his bed, and read it over to them. It was signed by A. L. Shew and Lizzie Shew, in the presence of each other and in the presence of Otto Souders and Wallace E. Zerkle.
“10. On September 27, 1919, A. L. Shew died, and his will was probated on October 31, 1919.
“11. That Lizzie Shew filed her election with the probate court to take under the will.
“12. After that and on the 2d day of March, 1922, an action was brought by Lizzie Shew to set aside the will. This action was never tried; and on January 6, 1926, Lizzie Shew, the other testator, died. The action brought by her was never revived.
“13. That Lizzie Shew owned certain real estate in her own name. This consisted of an eighty-acre farm located in Sedgwick county, Kansas.
“14. The will of Lizzie Shew was probated on the 10th day of January, 1927, and Mr. E. Zimmerman, a banker of Cheney, was appointed administrator.
“15. On the 12th day of March, 1927, this action was brought by Nora Warwick to set aside both the will of A. L. Shew and Lizzie Shew, alleging undue influence and mental incapacity of the testator, A. L. Shew, and undue influence and constraint on the testator, Lizzie Shew.
“16. The case, over the objection of the defendants, was tried to a jury, and special questions were submitted to the jury and were answered as follows:
“ ‘1. Was the deceased, A. L. Shew, on the 11th day of August, 1919, at the time the instrument claimed to be his last will and testament purports to have been made, of such sound mind and memory to enable him to know‘and understand the business in which he was engaged and the disposition and manner in which he was willing and disposing of his property? A. No.
“ ‘2. Was the said instrument made and signed by the said A. L. Shew by reason of undue influence brought to bear upon him at the time of the signing of the same? A. No.
“ ‘3. If you answer the foregoing question in the affirmative, state of what that influence consisted. A.-* — .
“ ‘4. Was there any undue influence or constraint brought to bear upon the deceased, Lizzie Shew, at the time she signed the same, on August 11, 1919? A. Yes.
“ ‘5. If you answer the foregoing question in the affirmative, state of what that influence consisted. A. Undue influence caused through fear for A. L. Shew’s peace of mind and body.
“ ‘Nov. 18, 1927. (Signed) H. O. Southwell, Foreman.’
“17. The court adopts the findings made by the jury.
“18. The court further finds that none of the officers, agents or representatives of either of the defendants, the Wesley Hospital and Nurses’ Training School Association and the Kansas Children’s Home Finding Society, now the Kansas Children’s Home and Service League, nor anyone representing them, ever made any representations of any kind or ever exercised undue influence of any kind over A. L. Shew.
“19. The court further finds that none of the officers, agents or representatives of either of the defendants, the Wesley Hospital and Nurses’ Training School Association and the Kansas Children’s Home Finding Society, now the Kansas Children’s Home and Service League, nor anyone representing them ever made any representations of any Mnd or ever exercised undue, influence of any kind over Lizzie Shew.
“20. The court further finds that the eighty acres of land, being the farm near Cheney, is the only property of either Lizzie Shew or A. L. Shew, that was not willed to members of the family in said joint will.
“21. The court further finds that said will is a joint, mutual and reciprocal will, was executed by the parties at the same time, and disposed of all the property belonging to either and both of the said testators, and that its provisions are mutual and reciprocal.
“Conclusions op Law.
“From the foregoing, the court concludes that this action, having been brought more than'one year after the probate of the will of A. L. Shew, that it was brought too late, and that his will should stand so far as it affects his own property, and that the will of Mrs. Lizzie Shew, having been executed because of undue influence through fear for A. L. Shew’s peace of mind and body, should be set aside as to her own property, and that the property of Lizzie Shew should descend according to law.”
The first question is at least partially disposed of by the last finding of the trial court, to the effect that the will was a joint, mutual and reciprocal one. This may be more of a question of law than of fact. Appellants concur with the court in this finding, while appellee insists that it is neithér mutual nor reciprocal, without controverting the claim of appellants that it cannot be set aside after the death of the testators if it is mutual and reciprocal. Appellee relies wholly upon the decision in the case of Menke v. Duwe et al., 117 Kan. 207, 230 Pac. 1065, to show that the will here in question was not mutual and reciprocal. Justice Burch,; in reviewing in that case the cases and authorities determining whether or not a will is mutual and reciprocal, bases the distinction upon the fact of its being contractual or not, holding that the document itself in that case, as well as the extrinsic evidence, showed the nonexistence of a contract between the devisors. That document contained the following sentence: “This will was executed after all matters were thoroughly considered, and disposal of all property is herein made exactly as desired.” Immediately following the quotation the court said: ,
“Since care was taken to insert this paragraph in the will, it is fair to assume it tells the whole story. There was thorough consideration and exact expression of intention, but nothing more. If the instrument was the result of contract, under which the making of each will was consideration for making the other, that paragraph was the place in which to state the fact, and there is no such statement. The result is, the instrument itself, although declared to be ‘our last will and testament,’ although containing reciprocal testamentary dispositions, and although jointly executed, does not compel the inference that it was contractual in character.” (p. 220.)
Because of the lack of any contractual relationship, the widow, one of the testators, prevailed and the will was set aside.
In the case at bar we have in the will itself a plain and positive contract, the violation of which would be a breach of contract justifying relief in a court of equity. The first paragraph of the joint will is as follows:
“We, A. L. Shew and Lizzie Shew, husband and wife, of Cheney, Kansas, both being of sound mind and disposing memory and desiring to make disposition of our earthly affairs so that no contention may arise concerning the same when we or either of us be dead, do each mutually in consideration of the other making his will, and of the provisions made herein in each other’s behalf, make this our last will and testament and agree that the same cannot be changed or varied by either without the consent in writing of the other.”
We have no hesitancy in concluding, as did the trial court, that this will is contractual in nature and is mutual and reciprocal both in fact and .in law.
“Mutual or reciprocal wills are those in which two or more persons make mutual or reciprocal provisions in favor of each other, as by providing that the property of one dying first shall go to the survivor or survivors; and this may be either where all of them unite in the execution of one instrument, or where several instruments are executed by each of them separately.” (40 Cyc. 2110.)
“If the wills recite that they were made pursuant to an agreement, such statements are accepted as evidence of the fact.” (1 Alexander’s Commentaries on Wills, § 91.)
The decisions are uniform to the effect that a mutual and recip rocal will cannot be set aside after the death of one of the testators, especially if the survivor recognizes it as such or accepts any benefits under it.
“A mutual and reciprocal joint will, made by a husband and his wife, cannot, after the death of the wife and the acceptance of benefits under the will by the husband, be revoked by his subsequent marriage.” (Lewis v. Lewis, 104 Kan. 269, syl. ¶ 2, 178 Pac. 421. See, also, Campbell v. Dunkelberger, 172 Ia. 385; Frazier v. Patterson, 243 Ill. 80; Baker v. Syfritt, 147 Ia. 49.)
“Even in equity a joint and mutual will may of course be revoked by the consent of both parties in their lifetime, and it may be revoked separately providing the party intending to revoke gives notice to the other of such revocation.” (40 Cyc. 2119. See, also, 30 A. & E. Encyc. of L., 2d ed., 621.)
The record in this case shows the wife filed her election to accept under the terms of the will of her husband, which election was never revoked, and she accepted the benefits accruing to her under the will. It is strongly contended by appellee that the election to take under the will should not have any weight in this case because there is evidence to show that her rights under the law were not fully explained to her and she did not fairly understand her rights and privileges; but she made no effort to revoke such election in the six years she survived her husband, except to file suit to set aside the will nearly four years prior to her death, which never came to trial during her life, and the case was never revived after her death. The two strong cases cited indicate that the widow might have revoked her election if she did not understand her rights at the time she made it, but they have no application to a case where she made no attempt to revoke the election except indirectly by simply filing a suit to set aside the will. In line with the authorities above cited we maintain that a mutual and reciprocal will cannot be set aside by either testator after the death of the other, especially if the survivor recognizes it as such and accepts any benefits thereunder. And of course no greater rights accrue to a descendant or heir than to the surviving testator.
The second question in the case is whether the mother executed the will by reason of undue influence. The jury and the court found that she did and that the undue influence consisted of fear for her husband’s peace of mind and body. The evidence and findings show that he was very old, was nervous, and had sinking spells, and it is said the wife feared if she did not sign the will and he became excited or nervous over it he might have another sinking spell and not survive it, and on that account she' was willing to sign anything to avoid such a serious result. The appellants strenuously objected to all such testimony as being hearsay and incompetent, and now insist that it should not be considered. Without at this time expressing an opinion on the question of its competency, let us consider whether such fear constitutes undue influence.
Appellee, in support of her theory, cites three Kansas cases: Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634; Weisner v. Weisner, 89 Kan. 352, 131 Pac. 608; and Menke v. Duwe, 117 Kan. 207, 230 Pac. 1065. The last two concern consent of the wife to her husband devising more than half of his property to others, and they throw very little light upon the question of undue influence. Both involve the will of the husband as to his own property — quite different from the facts in the case at bar. The first case above referred to by appellee, the Ginter case, is very much in point. Paragraph one of the syllabus gives us a good definition of the undue influence required to set a will aside. It is as follows:
“To destroy the validity of a will undue influence must amount to coercion, compulsion or constraint which destroys the testator’s free agency and by overcoming his power of resistance obliges him to adopt the will of another instead of exercising his own.”
Further, in the second paragraph, it was said:
“Although in strictness fraud and undue influence are distinguishable, more often than otherwise it is a mere matter of a choice of terms. Always something sinister is involved which perverts the testator’s will by overcoming his power truly to express his real desires.”
This was a case of discrimination by the father in his will between two sons, one of whom had been indulgent and kind, while the other quarrelsome and inconsiderate of his father’s feelings. The court in the opinion said:
“It is not improper to advise, to persuade, to solicit, to importune, to entreat and to implore. Hopes and fears and even prejudices may be moved. Appeals may be made to vanity and to pride; to the sense of justice and to the obligations of duty; to ties of friendship, of affection and of kindred; to the sentiment of gratitude; to pity for distress and destitution. It is not enough that the testator’s convictions be brought into harmony with that of another by such means. His views may be radically changed, but so long as he is not overborne and rendered incapable of acting finally upon his own motives, so long as he remains a free agent, his choice of a course is his own choice, and the will is his will and not that of another.” (p. 726.)
We are unable to find in the record of facts and findings in our case that sinister element which is said to be always involved. The influence of affection and anxiety for the health and peace of mind and body is natural, commendable and legitimate. Any influence, however exerted, is not undue or wrongful so long as it does not extend to positive dictation or control. (Smith v. Boswell, 93 Ark. 66.)
“Lawful influence, such as that arising from legitimate family and social relations, must be allowed to produce its natural results, even in influencing last wills. However great the influence thus generated may be, it has no taint of unlawfulness.” (2 Alexander’s Commentaries on Wills, § 588.)
The facts in the case of Henderson v. Jackson, 128 Ia. 326, are more nearly like those in the instant case than any to which our attention has been directed or that we have found. There the wife had promised her husband on his deathbed, much against her own wishes and desires, to devise all of their property by will to his relatives to the exclusion of her own relatives. Four years after his death, through fear to do otherwise and because of her promise to him and his urgent insistence on his deathbed, she devised everything to his relatives. It was said in that case that an act prompted or controlled by a moral conviction of the binding obligation of a promise is not an act induced by undue influence. A person who feels compelled to do a thing because it is right may be altogether mistaken as to the moral quality of the act, but the freedom of will is not impaired in the slightest degree. The husband in that case as in this was the one exerting the influence, and the wife in both cases, not by being coerced or controlled but by yielding to his wishes — in that case because of a promise made and in this bepause of fear of his peace of mind and body — exercised her own free agency and voluntary judgment, assigning and giving a reason. Where the will is executed by the freedom of will, the voluntary act, and the exercise of reason and free agency, there is no undue influence, for the influence, to be undue, unless it goes further than to solicit, induce and persuade, must operate to destroy the freedom of power to exercise one’s own judgment under the existing circumstances.
“To come within the ban of the law, the request and importunity of the husband must have gone to the point where argument and. persuasion end and coercion, either physical or moral, begins, and the act of the testatrix must not have been a voluntary yielding to the request or demand of her husband, but a submission of her mind and will to his.” (Henderson v. Jackson, supra, p. 332.)
There is no exercise of reason under unlawful coercion or control. Again, they were in this case alike interested in these worthy objects of charity supervised by the church to which they both belonged and to which they were equally devoted. The idea of a sinister motive and craftiness on the part of the dying husband to effect these benevolent devises js inconceivable. The almost universal inclination to do something of this kind is natural. It was not unnatural in this case, because all the balance of the possessions of this husband and wife went to their relatives. The argument would have had more force had they devised to charity and benevolences everything they had to the exclusion of their own daughter'.
We conclude that the document in question was a joint,.mutual and reciprocal will and cannot be set aside after the death of either of the makers, and that influence caused through fear for peace of mind and body is not undue influence and such as is necessary to invalidate the making of a will.
The judgment is reversed and the cause remanded with instructions to render judgment for appellants in accordance with the opinion herein expressed.” | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action brought by a resident taxpayer to restrain and enjoin the board of county commissioners, the county clerk and county treasurer of Edwards county from diverting or using any of the funds now in their hands, arising from a special levy for the purpose of erecting a courthouse and jail, to the purpose of paying for a courthouse site, and also to restrain and enjoin the defendants from changing the site of the courthouse and from purchasing a new location for the courthouse and jail without a vote of the people of the county.
The amended petition, with appropriate allegations in two separate counts, sets forth the facts and the threatened danger of the doing of both matters charged unless defendants are enjoined and restrained. The defendants demurred to each separate count, and the court overruled the demurrer as to the diversion of funds, which was the second count, and sustained it as to the change of the site, the first count. By appropriate appeal and cross appeal both questions are brought here for review.
The levy for the building of a courthouse and jail was made under the provisions of sections 19-1507 and 19-1508 of the Revised Statutes and chapter 157 of the Laws of 1927, which is an amendment of R. S. 19-1506. The contention of the appellants, the county and county officers, is that the purchase of a site and the paying therefor are mere incidents to the building of a courthouse and jail just the same as the procuring of furniture and fixtures, arid are necessarily within the contemplation of the general purposes of building a courthouse and jail. The appellee urges that to so divert this special fund-is a violation of the provisions of article 11, section 4, of the constitution of Kansas, which is as follows:
“No tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same; to which object only such tax shall be applied.”
Appellee cites several Kansas decisions in support of his contention, but a careful examination of them shows that in nearly all of them the diversion of the funds was to another specific fund, or purpose under a specific fund, and embraced no serious contention that the purpose was included within the fund itself. In this case there is no specific building-site fund and no contention that there can be one or that the purchase can properly be made from the general funds. We do not think the question here presented involves a confusion of different funds and the determination of the proper one, but we are positively limited to one fund and must determine whether or not the payment of the courthouse site is within its purposes. Part of this confusion is occasioned by the fact that a reference to the purchase of such site was omitted from the petition of the voters to the board of county commissioners and from the order of the board, as shown by the following portion of the order of the board:
“Whereas, a petition signed by the maj ority of the legal votersi of Edwards county, Kansas, has been presented to the board of county commissioners to erect a courthouse and jail for Edwards county,
“Now, therefore, be it resolved by the board of county commissioners of Edwards county, Kansas, that said request be, and hereby is, granted, and that said board of county commissioners proceed to make the necessary levy for said courthouse and jail and proceed with the erection thereof.”
This omission of reference to the courthouse site is in harmony with the first clause of the first sentence of the act of 1927, under which the action of the board was had, which is as follows:
“That whenever a petition signed by a majority of the legal voters of any county in this state, having a population of sixteen thousand (16,000) or less as shown by the votes cast for secretary of state at the last preceding election, shall be presented to the board of county commissioners of such county, requesting it to erect a courthouse, or jail, or courthouse and jail, in accordance with the provisions of this act, said board of county commissioners shall be and hereby are authorized and directed to purchase a site and erect a county building for a courthouse, or for a county jail, or for both such courthouse and jail, at the county seat of the county, and to equip and furnish said building for permanent use as a courthouse, or a jail, or both such courthouse and jail.” (Laws 1927, ch. 157, § 1.)
This unbroken sentence itself, separated only by commas, indicates strongly that it was in the mind of the legislature that when a petition and order referring only to the building of a courthouse and jail laid the foundation for a levy the board would be authorized and directed not only to use the fund raised by such levy for the building of a courthouse and jail, but also to purchase a site and to equip and furnish such courthouse and jail. The whole sentence must be read together. The title of the act is sufficiently broad to further show that the use of such funds for such purposes was within the contemplation of the legislature:
“An act relating to county buildings, providing for the purchase of a site and the erection and equipment of a courthouse, or a county jail, or both, in counties having a population of sixteen thousand (16,000) or less, amending section 19-1506 of the Revised Statutes of 1923, and repealing said original section.”
The title'to chapter 119 of the Laws of 1923 is as follows:
“An act authorizing the board of county commissioners of any county in the state having a population of ten thousand or less to purchase a site for and erect a county courthouse, or a county jail, or both such courthouse and jail, at the county seat, and to levy a tax to pay therefor, and to repeal all acts and parts of acts in conflict herewith.”
The title to chapter 139 of the Laws of 1917 is as follows:
“An act authorizing the board of county commissioners of any county in the state having a population of ten thousand or less to purchase a site for and erect a county courthouse, or a county jail, or both such courthouse and jail, at the county seat, and to levy a tax to pay therefor, and to repeal all acts and parts of acts in conflict herewith.”
Now, the original act of 1917 consisted of three sections. The second and third have not been changed or amended and are R. S. 19-1507 and R. S. 19-1508. In addition to the reference to purchase of site in the several titles to these acts and amendments and to that in the last part of the first sentence of section 1, is the further reference in the closing sentence of section 1, or R. S. 19-1506:
“The aggregate cost of the purchase of the site and the erection, equipment, and furnishing of said courthouse shall not exceed one hundred and fifty thousand dollars, and of such jail shall not exceed fifteen thousand dollars.”
We also find in the second and third sections, R. S. 19-1507 and R. S. 19-1508, the following:
“The said board of county commissioners are hereby authorized to levy an annual tax upon all the taxable property subject to taxation in said county to pay for a site and the erection, equipment, and furnishing of either or both building or buildings. . . . The taxes levied under this act shall be kept in a separate fund, to be known and designated as the ‘county building fund.’
“That the said board of county commissioners may proceed to purchase a site and to let contracts and commence the erection of said county building or buildings at any time after the first levy has been made.”
Reading the whole of the original statute together, the two amendments thereto, and the title to each of the acts dispels all doubt as to the intention of the legislature to include the cost of the site as a legitimate item of expense to be paid out of the fund arising from such special levy.
“However, the rule as to definite and specific statement should be enforced reasonably; it does not preclude the levying of a gross sum for several different purposes properly embraced within some general designation.” (15 C. J. 638.)
The demurrer to the second count of the amended petition should have been sustained.
The other count of the amended petition is the one concerning the changing of the location of the courthouse to another site within the limits of the same city without a vote of the people. The trial court sustained the demurrer to this count, holding in effect that such power was with the board of county commissioners by virtue of chapter 157 of the Laws of 1927, above cited, and the general authority as contained in R. S. 19-212. It is not claimed that there is any specific reference in either of these statutes to such changing of location from one site to another, but that the power and authority given to the board to purchase a site should apply to a change of location as well as the location "of the original site. Under the county seat election law the only choice exercised by the voters of the county is the selection of the town. Then it necessarily remains for the board to make the selection of the building site within the town so chosen. No doubt the use of the strong and rather definite language in R. S. 19-212 was written in 1868 with that duty in view. But as time passed, when temporary buildings had to be replaced and early-constructed ones became inadequate, a change of location in the same town sometimes became desirable. Then it was that the legislature in 1891 passed an act directing just how such change could be made effective.
“That in any case where the county commissioners of any county containing a city of the first or second class, which city is a county seat, have authority to build a new courthouse, and a majority of the electors of the county who vote at any election hereafter held, at which the question shall be submitted, vote in favor of changing the courthouse site from one place within the corporate limits of such city to any other place within such limits of such city, said county commissioners may in their discretion locate the courthouse in accordance with such vote; and said county commissioners may submit the question without petition at any time.” (R. S. 19-1502.)
This statute has never been repealed or amended, and makes no exceptions as to population of county or of anything else. Counsel for appellee say the act of 1927 applies especially to counties of 16,000 population or less, and, being a later act, repeals by implication or supersedes the general law of earlier enactment.
“Repeals by implication are not favored, and are sustained only when the later law cannot by any fair and reasonable construction be harmonized with the former. Both laws are to be sustained, if possible.” (Keirsey v. Comm’rs of Labette Co., 30 Kan. 576, 579, 2 Pac. 864.)
“The courts cannot say that one statute repeals another statute by implication, or that one part of a section of a statute repeals another part of the same section, unless they are so repugnant to each other that under no circumstances can both be given force and effect.” (Newman v. Lake, 70 Kan. 848, syl. ¶ 3, 79 Pac. 675.)
There is nothing in this situation to compel a court under such rules to say that the provisions of the later restricted law authorizing the commissioners to purchase a site and the provisions of the law of 1891 are so repugnant as to necessitate a conclusion of repeal of the earlier law by implication. Indeed, we can see how they can conveniently stand together. The later one gives the power and authority to purchase; but as a preliminary to the exercise of such power the voice of the people must be heard as to their choice. Per haps the people might prefer that the courthouse be built upon the old site, or, if not, they should say which particular new site would be preferable. “It is a cardinal rule, that statutes in pari materia must be so construed as to give all of them meaning and effect.” (Bank v. Lyman, 59 Kan. 410, 413, 53 Pac. 125.) We fail to see any mandatory feature in the term, “Shall be and hereby are authorized and directed.” If so, all discretion as to price and terms would be shut off and the purchase would be a compulsatory one, regardless of circumstances. Another well-recognized rule of construction is to leave in the hands of the people, rather than their chosen officers, as much power as a fair and reasonable interpretation of the existing laws.will permit, and of this no officer should complain.
Our attention is directed to two early decisions of this court before the enactment of the law of 1891, wherein the court held that the board of county commissioners could not change the location of the courthouse site to an addition which was not a part of the town site at the time the county seat was located, with the suggestion that the implication is that the board could have changed the location to some other site within the original town limits. (State, ex rel., v. Harwi, County Clerk, 36 Kan. 588, 14 Pac. 158; State, ex rel., v. Comm’rs of Atchison Co., 44 Kan. 186, 24 Pac. 87.) We do not think that conclusion necessarily follows, but if it does, the later enactment of 1891 prescribed a definite method of making such changes thereafter.
We think the first count states a good cause of action and the demurrer thereto should be overruled.
We observe no good purpose in considering at this time the action of the court in striking out a certain paragraph from the original petition.
The rulings of the trial court are reversed and the cause remanded with instructions to overrule the demurrer to the first count and sustain it to the second. | [
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The opinion of the court was delivered by
Dawson, J.:
This is another action growing out of the failure of the Butler County State Bank.
Plaintiff’s cause of action was founded on the receiving by the bank of a deposit of $5,000 by plaintiff on October 15, 1921, one year, five months and fifteen days before the bank closed its doors for insolvency.
Plaintiff alleged that the bank was insolvent and in failing circumstances at and prior to the time plaintiff’s deposit was received, and that the defendants, who were officers or directors of the bank, knew the condition of the bank, or by an examination which it was their duty to make they could have ascertained the fact of the bank’s insolvency. At the time of the transaction complained of defendant C. L. King was president and director of the bank; defendant H. E. Perry was vice president, cashier and director; and the late T. A. Kramer was also a director, and so continued until his death in July, 1922, some eight months prior to the closing of the bank; and C. L. Harris, as executor of Kramer’s estate, was made a defendant herein from the inception of this litigation. Other officers and directors of the bank were also made defendants, but they are not concerned in this appeal.
Plaintiff’s deposit was evidenced by a certificate which read:
“El Dorado, Kansas, Oct. 15, 1921. No. 3828.
“W. S. Exley has deposited with the Butler County State Bank, of El Dorado, Kansas.
“B. C. St. Bk. $5,000 and 00 cts. Dollars, $5,000,
“Payable to the order of himself on the return of this certificate properly indorsed six'months after flate, with interest at four per cent per annum; no interest after maturity.
“Not payable until maturity.
“Not subject to check. . L. D. Hadley, Cashier.’’
Defendants’ demurrers to plaintiff’s petition were overruled, and they severally answered urging various defenses, including a specific traverse of plaintiff’s allegation that the bank was insolvent and in failing circumstances on October 15,1921.
Defendant’s demurrers to plaintiff’s evidence were overruled; the executor’s request for special findings in his favor was denied. The cause was tried at length, and findings of fact and conclusions of law favorable to plaintiff were made by the court, the crucial one being No. 4, which reads:
“The court finds as a fact that on said 15th day of October, 1921, at the time of the making of such deposits in said bank by the plaintiff that said bank was insolvent, and that the said directors, C. L. King, H. F. Ferry, A. B. Ewing, L. D. Hadley and T. A. Kramer, had knowledge of the fact that said bank at said time was insolvent, or could and would have had knowledge of such insolvent condition of said bank at said time by examining into the affairs of said bank, and that said directors above named assented to the reception of said deposit at the time of the making of the same.”
Judgment was accordingly entered for plaintiff for $5,000 and interest, less dividends of $1,000 and $500 received by plaintiff from the assets of the bank.
Defendants King, Ferry, and Harris as executor, appeal, urging various errors, chief of which is based on their contention that the evidence did not warrant the finding No. 4 quoted above and the judgment based thereon. Defendants go further, and contend that the evidence demonstrated the fact to be quite the contrary — that under the test of the statute defining insolvency the bank was not insolvent on October 15, 1921, when plaintiff’s deposit was received.
The evidence upon which plaintiff relies to uphold the challenged finding of fact was to this effect: As early as 1919 the bank had made excess loans to certain borrowers aggregating $286,997.92. By January, 1920, the total of these excess loans had grown to $453,-996.08. These excess loans progressively increased until the time of the transaction giving rise to this lawsuit, as follows:
April, 1920...................................... $432,799.81
October, 1920 ................................... $541,464.00
January, 1921................................... $485,000.00
March, 1921..................................... $714,000.00
July, 1921....................................... $762,000.00
October, 1921................................... $846,000.00
Under objections to its competency, this line of evidence portrayed a continuation of this reckless system of banking after the reception of plaintiff’s deposit in October, 1921, until the collapse of the bank on March 30, 1923. Plaintiff’s evidence also showed that as early as 1919 an examiner of the bank commissioner’s office began to denounce the condition of affairs in this bank; and the record is replete with criticisms, orders, admonitions and demands by the bank commissioner and his examiners that this vicious system of operating the' bank be corrected; that the making of excess loans be stopped; and those loans reduced or charged off. The record shows, too, that the bank commissioner’s demands, orders or entreaties had no substantial effect on the willful, reckless banking methods of the managing officers of the Butler County State Bank, with the consequence which was eventually bound to happen — the complete ruination of the bank and the closing of its doors for insolvency in March, 1923. The status of the bank shortly before the reception of plaintiff’s deposit was shown in a summarized report of its condition made by a bank examiner on September 14, 1921. Its most material portions read:
“Loans and other assets of doubtful value, and assets carried on books at more than market value.
“There will be at least a 25% loss on the paper listed as questionable, or about $100,000 loss.
“Loans classed as worthless amount to over $7,000.
“Loss on Liberty bonds, over $5,000.
“Unearned interest, over $15,000.
“Accrued interest on O/D’s, est. $6,000.
“Loss on life insurance premiums paid for borrowers and carried as assets, together with loss in other real estate, about $7,000.
“This is a total loss in sight of about $140,000.
“They have at least $25,000 hidden value in their building which, added to their surplus of $85,000, would make $110,000.
“To this add the assessment ordered of $50,000 would make $160,000 out of which to take the estimated loss of $140,000, leaving the capital and surplus safely unimpaired.”
The bank’s capital of $100,000, its surplus of $85,000, and the hidden value of its bank building, $25,000, made a total of $210,000. Deducting the estimated losses of $140,000 from $210,000 a balance of $70,000 is disclosed.
Appellants claim another asset of $16,928.98 which would swell this balance to $86,928.98, but we have been unable to trace and verify this alleged asset in the record.
By this official estimate and summary of the bank’s condition shortly prior to the reception of plaintiff’s deposit there was a margin of $70,0t)0 in capital and surplus assets over all estimated losses. Therefore this court is constrained to admit the force of defendants’ contention that proof of the reckless course of bank management pursued by its responsible officers, and tolerated — mayhap approvingly sanctioned — by the defendant directors, from 1919 to October 15, 1921, did not prove that the bank was insolvent on that date. The fact that a bank has many excess loans, and permits their aggregate to increase, and that its officers disregard the orders of the bank commissioner to quit making such loans and to reduce those already made, proves willful mismanagement of the bank for which those officers should have been summarily removed (R. S. 9-158), and subjected to criminal prosecution (R. S. 9-137), and the bank’s franchise forfeited (R. S. 9-124); but such delinquencies do not prove the bank to be insolvent. If the period were one of inflation, business expansion and general prosperity, it might mean that the bank was conducting a highly profitable though imprudent business and that its financial strength was increasing rapidly. Moreover, excess loans do not necessarily constitute losses to a bank. That would depend on the financial solvency and responsibility of the borrowers. And the fact that a bank is closed for insolvency in March, 1923, and that its excess loans are thereafter shown to be worth only a fraction of their face value is no evidence that the borrowers of those excess loans were not financially solvent in October, 1921. Many a wealthy man whose obligations are gilt-edged to-day may meet with financial and business reverses which will sweep away his fortune and render his obligations of no value a year hence.
The statute under which liability is sought to be fastened on defendants, in part., reads:
“A bank shall be deemed to be insolvent — first, when the actual cash market value of its assets is insufficient to pay its liabilities — second, when it is unable to meet the demands of its creditors in the usual and customary manner; third,'when it shall fail to make good its reserve as required by law.” (R. S. 9-133.)
It is not suggested that the Butler County State Bank was insolvent under either the second or third of these statutory tests. The bank continued to function for nearly a year and a half after plaintiff’s deposit was received; and we have seen that by the best evidence available — the report of the bank examiner — the actual cash market value of its assets was more than sufficient to meet its liabilities after charging off the. maximum estimate of its losses on September 14, 1921; and no substantial change was shown between that date and October 15, 1921, when the transaction occurred which .gave rise to this lawsuit.
It is settled law that for the purpose of determining whether a bank is insolvent its capital and surplus are to be counted as assets. In State v. Myers, 54 Kan. 206, 38 Pac. 296, it was said:
“The capital and surplus of a bank are its resources which may be used to pay its depositors and other creditors, when there have been losses by loans or otherwise. If a bank by using its capital or surplus, or both, can pay promptly its deposits and other debts, as they become due in the ordinary course of business, it is not insolvent. Upon the books and in the official statements of a bank, capital stock and the surplus fund are denominated as liabilities, but they are resources of the bank with which to transact its business. ... If a bank is able- to pay promptly every depositor and every other creditor in the ordinary course of business, the bank, under section 16 of said chapter 43, [Laws 1891, ch. 43, § 16; R. S. 9-119] is solvent, whether there is any surplus or capital to be distributed afterwards to the stockholders or not.” (p. 217.)
“Solvency is a matter of statutory definition, and includes actual cash market value of assets with which to discharge liabilities.” (State v. Powell, 120 Kan. 772, 788, 245 Pac. 128.)
In 7 C. J. 727 the rule is thus stated:
“A bank is solvent when it has enough assets to pay, within a reasonable -time, all of its liabilities through its own agencies, and is insolvent when un.able to meet its liabilities as they become due in the ordinary course of business, or, in shorter terms, when it cannot pay its deposits on demand in accordance with its promise. In determining this question a bank’s capital and .surplus are considered its resources.”
The report of the bank examiner also refers to an assessment of .50 per cent which was levied on the stockholders to restore the impaired capital of the bank caused by the estimated losses of $140,000 It was considered that this 50 per cent assessment, which would produce $50,000, would completely rehabilitate the bank’s capital and surplus. We have not been able to trace and verify these figures in the record, but by adding the $50,000 to be raised by an assessment to the $70,000 net balance shown above, the capital would be restored to its original $100,000 with $20,000 surplus, at least. The ■statute, R. S. 9-145, authorizes such a course — not when a bank is insolvent, but whenever its capital has been somewhat impaired, where the bank’s crippled condition is not so bad as to justify its ■closing for insolvency. It is perfectly clear that in September, 1921, when the bank examiner made that report, and the 50 per cent as sessment was ordered, the condition of the bank was not one of insolvency, nor was it so considered by the banking department. While the attitude of that department would not be controlling, its persuasive and evidential significance cannot be overlooked — unless its good faith was challenged, which was not done in this case.
It therefore follows that defendants’ main contention is correct. The evidence not only fails to support the trial court’s finding No. 4, but an analysis of the bank examiner’s report affirmatively shows the contrary to have been the condition of the bank at the nearest date on which any specific evidence was available, and at a time sufficiently close to the date of plaintiff’s deposit to be of probative value.
This conclusion renders it unnecessary to consider other matters urged on our attention. Since the judgment of the trial court was necessarily predicated on finding of fact No. 4, that judgment must be reversed and the cause remanded, with instructions to enter judgment for defendants.
It is so ordered. | [
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The opinion of the court was delivered by
Brewer, J.:
The question in this case is as to the present existence of the one-mill tax for the state annual school fund; and it .turns upon the validity and effect of § 4 and § 5, ch. 149, Laws of 1879. Prior to this year, unquestionably such a tax existed.
Section 3 of article 6 of the constitution of the state provides for the perpetual school fund, and contemplates that the legislature may make provision, by taxation or otherwise, for the school fund. The first subdivision of § 3 of the act for the admission of Kansas into the union grants to the state, for the use of schools, sections 16 and 36, in every township of public lands in said state, or their equivalent, when any part, has been sold.
Pursuant to the policy thus outlined in the constitution and the act of admission, the legislature of 1861, in order to give effect to this policy, and help put it into practical operation— and aware, also, that as yet there was not anything-realized from this grant of school lands, and that, in all probability, nothing could be realized out of it for many years, without a great sacrifice of that munificent endowment —deemed it better policy to aid the common schools of the state by a direct tax, until such time as the fund arising from said endowment might become sufficient.
Upon that theory, then, in the fifth section of art. 8, ch. 76, p. 271, Laws of 1861, it was enacted:
“Sec. 5. For the purpose of affording the advantages of a free education to the children of the state, the state annual school fund shall consist of the annual income derived from the interest and rents of the perpetual school fund, as provided in the constitution of the state, and such sum as will' be produced by the annual levy and assessment of one mill upon the dollar valuation of the taxable property of the state; and there is hereby levied and assessed, annually, the said one mill upon the dollar, for the support of common schools in the state; and the amount so levied and assessed shall be collected in the same manner as other state taxes.”
This section, then, is the law which first authorized the levy of a tax for the state school fund, and this section has remained upon our statute books without any other change than thte numbering of the section from that time until the passage of the act of 1879. The school laws have several times been reenacted with various amendments, but they have always contained the substance of this section without change.
It stands as §76, ch. 92 of the Gen. Stat. of 1868, and is also found as § 1, art. 16, ch. 122, Laws of 1876. InT879 an act was passed which stands as ch. 149, and the title to which is as follows: “An act to provide revenue for the fiscal years ending June 30, 1880, and June 30, 1881, and to repeal section ,76, chapter 92 of the General Statutes of Kansas.” Section 4 of the act reads as follows:
“That the state annual school fund shall consist of the annual income derived from the interest and rents of the perpetual school fund, as provided in the constitution of the state.”
And section 5:
“That section seventy-six of chapter ninety-two of the General Statutes of Kansas be and 'the same is hereby repealed.”
Upon this, three propositions are advanced' by counsel for the state: First, That said § 5 is inoperative for the reason that the section named therein had already been superseded by the legislation of 1876, cited supra, and was therefore no longer in force. It had been already repealed by implication, and an express repeal was therefore a nullity. Second, That the subject-matter of § 4 is not expressed in the title to the act, and the section is therefore void, as in conflict with § 16, art. 2 of the constitution. Third, That if the subject be considered as expressed in the title, still the section will be void as in conflict with said section of the constitution, as the act contains more than one subject. The section of the constitution cited provides that “no bill shall contain more than one subject, which shall be clearly expressed in its title,” etc.
Of these in their order: We deem it unnecessary to consider the effect of the legislation of 1876 upon §76 of ch. 92, Laws of 1868, or the effect of said § 5 upon either or both of the prior enactments, for if § 4 is constitutional and valid, it repeals by implication all the prior enactments in reference to the same subject. Said § 4 provides that the “state annual school fund shall consist of,” etc. In this it follows the language of prior sections. And in defining what it shall consist of, it impliedly excludes all other constituent elements than those named. Expressio unius, exdusio alterius. A manifest ■difference exists between legislation providing that certain taxes be levied and certain income provided and paid into a fund, and that declaring that the fund shall consist of the proceeds of said taxes and said income. In the former case, ■subsequent legislation providing for the continuance of the income, might not, by its silence in respect to the taxes, •disturb them; but in the latter, such legislation providing that the fund shall consist of either the proceeds of the taxes, •or the income, impliedly excludes the other. Suppose the matter of representation in the legislature were exclusively within legislative control, and one legislature should enact that the lower house should consist of two members from •each county, and a subsequent legislature should, without express repeal of the prior law, enact that such house should •consist of one member from each county, would it for a moment be doubted that there was an implied repeal, and that the house should consist of only one member from each ■county?
Legislation which carries with it definition and description, •implies totality, completeness of definition and description. Here, in substance, prior legislation enacted that the annual ■school fund should consist of moneys derived from two sources; that of 1879, that it should consist of moneys derived from but one of those sources. Can it be doubted that authority to collect money from the other source was taken away? Can you enforce the collection of money to put into a fund without .authority to put the money, when collected, into that fund? •Can you collect taxes for a given purpose, when you have no .authority to use the taxes when collected for that purpose?
We pass to the other' questions, and shall consider them together. In them is more of difficulty. Preliminarily we ■remark, as conceded law, first, that courts will not, upon mere doubts of its constutionality, declare a law invalid. The •conflict with the constitution must be manifest. Second, mere awkwardness of expression does not overthrow a statute. The substance, and not the form, governs. Third, the intent •determines the scope and effect of a statute. It may restrict or enlarge the ordinary m.eaning of language. Not that an unexpressed intent is law, but a manifest intent interprets the words used. Not infrequently the “letter killeth, but the spirit giveth life.”
The act of 1879 is entitled “An act to provide revenue,”' etc. Now how broad is the term “revenue,” and what may be included in such a title? Does it mean simply funds raised by taxation, and is the levying of taxes all that may be included? Such would seem to be the views of the counsel for the state, but we cannot think them correct. One of the definitions given by Webster of the term is, “the annual produce of taxes, excise, customs, duties, rents, etc., which a. nation or state collects and receives into the treasury for public use.” The word is broad and general, and includes all public moneys which the state collects and receives, from whatever source and in whatever manner. The general funds-of this state are collected from taxes, but the legislature might, in an act with such a title — at least, so far as any question of the form of the legislation is concerned — enact that they be-collected from licenses, or from the sale of lottery tickets, or it might unite and enact that part might be collected from one source and in one manner, and -the rest from another source and in a different manner.
Now § 4 simply enacts what revenues shall be provided-for the annual school fund, which is a public fund as much as any. . Provision for it is a matter of legislative care and duty. It is true the section does not in form enact that moneys be collected; but would there be any doubt of the' validity of a section which declared that a tax of one mill on the dollar be levied for the annual school fund? Would it not be conceded that this was simply providing revenue?' The form of this section grows out of the constitutional provision concerning the fund and prior legislation. The constitution declares that certain lands, and the proceeds thereof,, shall constitute a perpetual school fund, not to be diminished, and that the rents and interest therefrom, “and such other means as the legislature may provide, by tax or otherwise,. shall be inviolably appropriated to the support of common schools.” Prior legislation had been in the form heretofore quoted. Such section, though appearing several times in the statutes of the state, has not been reenacted each year. The understanding has been that it continued a tax from year to year; and the state must concede this, for otherwise, as there is no express levy of the one-mill tax this year, there would be no pretense of right to enforce its collection. And this section, following the earlier statute, makes provision for the revenue of that fund, simply omitting one source. It may be said that the section is unnecessary, because the constitution already makes the same provision for that fund. Conceding that, yet it would not follow that it might not be reenacted in a statute, or if so reenacted, that it was outside the scope of the title of the act. It may still be a mere provision for revenue, but it is not simply a restatement-of the constitution. The constitution may grant that revenue to the annual fund, but this prescribes the limits of that fund. The constitution leaves the matter of other revenues with the legislature, and this section defines what the fund shall consist of. It is thus making provision for the revenues to be paid into the fund.
It is evident, considering § 4 and § 5 together, that the attention of the legislature was directed to this one-mill school tax, and that the intent was to do away with it. And in sustaining the legislature we are but carrying out the manifest intent of the law-making body.
Judgment will be entered in favor of the defendant for costs. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action commenced in the name of the state, upon four promissory notes executed by the defendant Thompson, and a land contract or title bond given to him by one Isaac T. Goodnow as agent of the state, for the sale of certain land granted to the state by the act of congress of July 2d, 1862, for the benefit of agriculture and the mechanic arts. The title bond was dated February 15, 1869. The defendant paid one-eighth of the purchase price at the time of the sale, and executed seven promissory notes for the balance, to mature in one, two, three, four, five, six and seven years, respectively, with ten per cent, interest on each installment, payable annually. The defendant afterward paid the notes falling due February 15,1870, February 15, 1871, February 15, 1872, and the annual interest on the notes remaining unpaid to February 15,1875, after which he failed to pay the interest or any part of the purchase-money. Judgment was demanded in the petition upon the several promissory notes then due, and,to foreclose the equities of the purchaser. The case was submitted to the court without the intervention of a jury, and a judgment rendered against the state for costs, upon a demurrer of defendant to the evidence. The error relied upon is the sustaining of this demurrer. The counsel for plaintiff in error assume the court decided the ease on the ground that there was no proof of a tender of a deed before the action was commenced. The defendant in error has failed to furnish any brief, and it is impossible to determine from the record the reasons for the ruling of the court. We shall accept the statement of plaintiff’s counsel, and only consider whether there was a necessity for the tender of a deed.
The authority to Sell these lands is contained in ch. 3, Gen. Stat., and the powers of the agent employed to make the sales are set forth and defined in the various sections of the chapter. Section 4 provides that when the last installment upon any one purchase is paid, the purchaser, his heirs or assigns shall be entitled to a patent for the land from the governor. This patent confers upon the grantee a title in fee simple for the lands therein named. The payment of the purchase-money is a precedent act to the issuance of the patent, and therefore such payment is not dependent upon the tender of a deed or the patent. The case of Iles v. Elledge, 18 Kas. 296, is not in point.
The court below may have construed the terms of the bond executed by the agent to require the tender of a deed, owing to the condition therein to convey “by good and sufficient deed of general warranty,” but such agent had no power to execute a deed. His authority was limited to the execution of receipts for purchase-money and the title bonds. On final payment, the governor was the party to execute the conveyance in the form of a patent, under the great seal of the state. The written bond must be interpreted in connection with the powers conferred by the law under which the agent acted and the purchaser bought the land. The defendant was bound to know the law and the extent of the authority of the agent as limited by the law. The law entered into and was a part of the contract of purchase. Sec. 7, ch. 13, Laws of 1871, does tfot apply, as the contract was executed in 1869, and part payment had been made prior to the passage of the law.
The judgment of the district court will be reversed, and the cause remanded with directions to overrule the demurrer to the evidence.
All the Justices concurring. | [
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Per Curiam:
The judgment in the above case must be reversed, upon the authority of Knox v. Dunn, just decided. The findings of the court will be set aside, and a new trial ordered. Upon a new trial, under like evidence produced by the' defendant in error in this case, the district court ought to render judgment for costs in favor of the plaintiff in error, the defendant below. | [
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The opinion of the court was delivered by
Valentine, J.:
This case was decided by this court on June 30, 1879, but there is one question connected therewith which was not decided, or at least was not sufficiently elucidated, and upon which the plaintiff in error now seeks further light. That question is as follows: Where a judgment is rendered in the district court in favor of the plaintiff Ogden, and against the defendant Hubbard for money, and against Mrs. Hubbard, that certain real estate belonging to her be sold to satisfy said money judgment, and a case for review in the supreme court is then made, settled, signed, attested, and filed in the district court, and afterward said real estate is sold on execution in accordance with said judgment — the judgment-creditor being the purchase --and afterward said sale is confirmed by the district court, and afterward the case is taken to the supreme court for review (on said case-made therefor), where the judgment of the' district court against Mrs. Hubbard is reversed, then may the said sale be set aside, and the parties placed in the same condition in which they would be if said sale had not been made, and if said judgment against Mrs. Hubbard had not been rendered ?
This question is not altogether free from difficulty, but we are inclined to think that it should be answered in the affirmative. Except for § 467 of the civil code (Comp. Laws of 1879, p.664), we should have no hesitancy in declaring in the affirmative. See Freeman on Judgments, §482; Hubbell v. Adm’r of Broadwell, 8 Ohio, 120, 127; McBain v. McBain, 15 Ohio St. 337; Gott v. Powell, 41 Mo. 416, 420; McJilton v. Love, 13 Ill. 487, 494, 495; Reynolds v. Hosmer, 45 Cal. 617; Corwith v. State Bank, 15 Wis. 289; Twogood v. Franklin, 27 Iowa, 239; Lovett v. The Church, 12 Barb. 67, 83; Marks v. Cowles, Supreme Court of Ala. 1879, 8 Law Reporter, 331.
Said §467 of the civil code reads as follows:
“If any judgment or judgments, in satisfaction of which any lands or tenements are sold, shall at any time thereafter be reversed, such reversal shall not defeat or affect the title of tbe purchaser or purchasers; but, in such cases, restitution •shall be made by the judgment creditors, of the money for which such lands or tenements were sold, with lawful interest from the day of sale.”
This section has application solely to bona fide purchasers, who are not parties to the erroneous judgment, nor responsible therefor, and who do not have reason to believe that such erroneous judgment will be reversed or vacated by the appellate court; (Hubbell v. Broadwell’s Adm’r, and Twogood v. Franklin, ante.) It applies only to strangers to the judgment, who have purchased under the honest belief that the judgment is sufficient. It would not be in consonance with justice or equity to allow a party who had procured an erroneous judgment, and who had procured property thereunder, to retain the fruits of such judgment after it had been set aside and annulled by the superior court. We think that the order of the district court, confirming the sale of Mrs. Hubbard’s separate property, should be reversed, and that the sale should be set aside, and it is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a promissory note and a mortgage. The note, with the indorsements thereon, reads as follows:
“$1,500. Atchison, Kansas, May 15, 1874.
“One year after date, I promise to pay N. P. Ogden, or order, the sum of fifteen hundred dollars, for value received, with interest at the rate óf 12 per cent, per annum, semiannually in advance, until paid. P. L. Hubbard.”
“Dec. 14, 1874, rec’d on the within, $90.”
“Sept. 3, 1875, rec’d on the within, $93.”
The mortgage was executed at the same time, by P. L. Hubbard and his wife, Ellen R. Hubbard, as a security for said note. The mortgaged property consisted of a piece of land in Atchison county belonging to P. L. Hubbard, and a lot in the city of Atchison belonging to Mrs. Hubbard. The mortgage contained, among others, the following stipulations, -to wit:
“This grant is intended as a mortgage, to secure the payment of the sum of fifteen hundred dollars, according to the ■conditions of a certain promissory note this day executed and delivered by the said P. L. Hubbard, party of the first part, to the said N. P. Ogden, party of the second part; and this •conveyance shall be void if such payment be made as herein ■specified. But if default be made in said payment, or any part thereof, or the interest due thereon, as above provided, •or if the taxes and assessments of every nature which are by law made due, are not paid when the same become due, then it shall be lawful for the said party of the second part, his executors, administrators, or assigns, to sell the premises hereby granted, or cause the same to be sold, with all the appurtenances, in the manner prescribed by law, and out of the moneys arising from such sale to retain the amount due for principal, interest, protest fees and damages for the same, with ■costs and charges of sale, and attorney’s fee of five per cent.; •and the overplus, if any there be, shall be paid on demand by said party making such sale to the said parties of the first part, their heirs or assigns. And we further waive all benefit •of the appraisement law.”
The' case was submitted to the court below (without a jury) upon the pleadings and exhibits, and upon an agreed statement of the facts of the case. The only questions, however, of any importance, either of law or fact, presented to the court below for its decision, were, whether Mrs. Hubbard, with regard to said lot, was a surety for her husband, and whether the time for the payment of said note had been so •extended by Ogden, the holder of the note, as to release Mrs. Hubbard with regard to said lot. Said note was given for money borrowed by P. L. Hubbard of Ogden, and it does •not. appear that Mrs. Hubbard ever received any of the money, •or any benefit therefrom. The interest on said note for the first six months, or from May 15, 1874, to November 15, 1874, was paid at the time the note was given. The interest for the next six months, or from November 15,1874, to May 15,1875, was paid on December 14,1874. No taxes for the year 1874, or for any subsequent year, were paid by either P. L. Hubbard or Mrs. Hubbard. The note may, therefore, have become due prior to May 15, 1875, because of such nonpayment of taxes, but it certainly became due on May 15, 1875, if not before, by reason of its own express terms. It was not paid, however, on that day, nor has it since been paid. Afterward, and on September 3, 1875, Hubbard paid, to Ogden $93 on said note, which was paid by Hubbard, and' accepted and received by Ogden, as the interest due on said note from May 15, 1875, to November 15, 1875. By this, payment, Hubbard paid in advance for the use of the money due on said note for a period of over two months. He paid in advance for its use from September 3,1875, to November-15, 1875. There was no express agreement made between the parties at any time that the payment of the note should be extended from September 3, 1875, to November 15,.1875, or for any other period of time. This payment, was without the knowledge or consent of Mrs. Hubbard.' At the time that the note and mortgage were executed, there was a mutual understanding, however, between the parties, that the plaintiff would let the defendants have the money for which the. note was given so long as they desired, or so long as the interest and taxes were kept paid in accordance with the terms, of the mortgage.
The court below found against Mrs. Hubbard, and announced its conclusions of law as follows:
“First: That the defendant Ellen R. Hubbard having mortgaged her separate property to secure the debt of her husband P. L. Hubbard, she is nothing more nor less than a surety, and entitled to all the rights of a surety in strido■ jure.
“Second: That the defendant P. L. Hubbard having paid interest in advance on the note sued on herein, and the plaintiff having received the same, without the knowledge- or consent of Ellen R. Hubbard, the surety, so far as the evidence shows, the said payment and reception of interest would have extended the time of payment of said note, and prevented the plaintiff from bringing suit upon said note and mortgage until November 15th, 1875, (the time to which said interest was so paid,) and thereby would have discharged the surety, E. R. Hubbard, but for the existence of the following clause in the mortgage: ‘ This grant is intended as a mortgage to secure the sum of $1,-500, according to the conditions of a certain promissory note this day executed and delivered by the said P. L. Hubbard, party of the first part, to N. P. Ogden, party of the second part; and this conveyance shall be null and void if such payment shall be made as herein specified.' But if default be made in such payment, or any part thereof, or the interest due thereon, as above provided, or if. the taxes or assessments of every nature which are by law made due and payable, are not paid when the same become due, then it shall be lawful for the said party, his heirs, executors, administrators and assigns, to sell the premises hereby granted, with all the appurtenances, in the manner prescribed by law, and out of the moneys arising from such sale to retain the amount due for principal, interest, protest fees and damages for the same, with costs and charges of sale, and an attorney-fee of five per cent.; and the overplus, if any there be, shall be paid on demand, by the party making the sale, to the party of the first part, their heirs or assigns. And we further waive all benefits of the appraisement law.’ But that under said clause' of said mortgage, which must be construed with said note as one contract, and from the continued breach of said clause by the said E. R. Hubbard by the non-payment of said taxes, there was no extension of the time of payment of said note, and the plaintiff had his continued right of action to foreclose said mortgage and recover upon said note, notwithstanding said payment of interest. #
“Third: That the mortgage sued on and signed by E. R. Hubbard, having the provision therein that the taxes were to be paid by the mortgagors, and they covenanting therein to do so, the covenant having been broken by the mortgagor, E. R. Hubbard, a right of action accrued to the plaintiff when the covenants were broken, and the fact of the plaintiff receiving interest in advance did not affect his right to bring an action to foreclose the mortgage at any time after the covenants to pay taxes were broken.
“Fov/rth: That the plaintiff is entitled to a judgment against defendant P. L. Hubbard for $2,277, and costs of suit, to bear twelve per cent, interest from date of judgment.
“Fifth: That the plaintiff is entitled to a further order of foreclosure and sale .of all of said mortgaged premises to discharge said judgment and the costs of this action.”
We think that the court below was correct in holding that Mrs. Hubbard was a surety of her husband to the extent of ^er separate property which she mortgaged to Ogden, and that she was entitled (with reference ^ said separate property) to all the rights of a surety. Bank of Albion v. Burns, 46 N. Y. 170, and other cases cited in the brief of plaintiff in error.
We also.think that the court below was correct in holding that generally when a debtor owing money pays his creditor interest on the same, in advance, for the use of the same tor a period or time over, above and t L . . T7 beyond the time originally agreed upon for the money to become due, and at the time of the payment of the interest no express contract is made as to when the money shall become due or be paid, such prepayment of the interest, and its reception by the creditor, constitute an implied contract between the parties extending the time for the payment of the money up to the close of the time for which such interest was paid and received. People’s Bank v. Pearsons, 30 Vt. 711; Woodburn v. Carter, 50 Ind. 376; and other cases cited in the brief of plaintiff in error.
We also think that the court below was correct in holding that an agreement upon sufficient consideration, made between the creditor and principal debtor, extendjng the time for the payment of the debt, without the knowledge or consent of the surety, releases the surety. (Rose v. Williams, 5 Kas. 483; Jenness v. Cutler, 12 Kas. 500; Royal v. Lindsay, 15 Kas. 591.) And it makes no difference whether the contract is express or implied.
But we think the court below erred in holding that the stipulation in the mortgage with reference to the payment of taxes took this case out of the general rule. At the time that said last-mentioned interest was Paicb the note was due upon every consideration. It was due because the taxes had not been paid, and it was due by its own express terms, and nothing could have made it due in any higher degree than it then was. This, of course, all parties knew. Yet the creditor had the power to extend the time of payment if he chose; and taking pay in advance for the use of the money was certainly extending the time for the payment of such money. Taking pay in advance for the use of the money was waiving all previous defaults, and saying to the creditor, “You may continue to use the money for the time for which you have paid.”
We think that the court below was correct in taking no notice of the parol understanding of the parties had at the time that the note and mortgage were executed, that Ogden would let the defendants have the money if they desired it, so long as they were not in default in the payment of interest in advance and taxes; for this understanding did not amount to a contract, and the defendants never paid any attention to it, but continually violated it, and had no right to expect anything under it. In fact, it would have been an impossibility under the circumstances of-this case for Ogden to have let the defendants keep the money in accordance with the terms of said understanding, after they had made default in the payment of interest and taxes. If we consider that Mrs. Hubbard, as well as Hubbard, agreed to pay said taxes and interest in order to get an extension of time for the payment of said money, then evidently, by her not paying the same, she clearly and manifestly showed that she did not want any extension of time. But if we consider that she merely assented or consented that Hubbard might pay the taxes and interest, and thereby get an extension of time, then evidently she gave this assent or consent only upon the express condition that said taxes and interest should be promptly paid at the time they respectively became due, and thereby that the debt, for which her land was incumbered should be kept within reasonable bounds. But this condition upon which she gave her consent was never fulfilled. The taxes were never paid; and neither the interest on the debt, nor the debt itself, was paid when the same became due. Therefore Mrs. Hubbard’s consent, given upon conditions that were never fulfilled, could never have had any operation.
We think the judgment of the court below was correct in all particulars except as to Mrs. Hubbard’s separate property, and with reference to that the judgment must be reversed. This cause will be remanded to the court below, with the order that the judgment be modified in accordance with this opinion.
Horton, C. J., concurring.
Brewer, J., dissenting. | [
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The opinion of the court was delivered by
Horton, C. J.:
The facts of this case are substantially as follows: In August, 1877, the defendant in error was in the possession of certain farm lands belonging to the plaintiff in error, under a lease to expire March 1,1878. Soon after the last-named date, plaintiff brought his action of forcible entry and detainer against the defendant. As his defense, the defendant claimed and offered evidence against objections of plaintiff, that about August 15, 1877, plaintiff made a verbal contract to rent to him the premises another year, beginning March 1, 1878, on the same terms as he then held them. The court instructed the jury that if they found the plaintiff and defendant entered into an agreement for the lease of the premises, in. accordance with the terms and conditions and at the times alleged by the defendant, they must return a verdict in his favor. Upon the testimony of the defendant of the verbal agreement to lease of August, 1877, and this instruction, the defendant obtained a verdict and judgment. It is very clear from these facts that the defendant ought not to have succeeded. The court mistook the law in reference to the case. Under the proof, the agreement was invalid. It was directly in conflict with the act for the prevention of frauds and perjuries. It was a verbal agreement to lease lands for the term of one year, to commence from a future day, and therefore void under the provisions of § 6, ch. 43, Gen. Stat.; Ege v. Strafford, 1 Tyrw. 293; 1 Cromp. & J. 389, 391; Inman v. Stamp, 1 Stark. 10; Taylor’s Land. & Ten., § 30; Rawlins v. Turner, 1 Lord Ray. 736; Anon., 12 Wood, 610; Delano v. Montague, 4 Cush. 42.
There was no evidence introduced to take the case out of the operation of said section of the statute of frauds, and we need not consider any other subject of inquiry.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
It is claimed in this case that the evidence does not sustain the verdict and judgment, and that the court committed error in giving and refusing instructions. As the record does not purport to contain all the evidence produced on the trial, or all of the instructions given or refused, we cannot consider the questions attempted to be raised. The record is imperfect. One,or two of the instructions of the court contained in the record state certain matters of law incorrectly, but whether they were in any way qualified or limited by other instructions, we cannot tell. From the record, we cannot say that these instructions were sufficiently mate rial and prejudicial to cause a reversal of the judgment. All the presumptions are in favor of the judgment, and therefore, in the condition of the record, the judgment will be affirmed.. (Wilson v. Fuller, 9 Kas. 176; Bartlett v. Feeney, 11 Kas. 593; Marshall v. Shibley, 11 Kas. 114.)
All the Justices concurring. | [
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