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The opinion of the court was delivered by
Valentine, J.:
On June 14th, 1877, J. M. Hadley commenced an action against the railroad company, in the district court of Marshall county, to recover damages for killing and injuring three cows and two calves, of the alleged total value-of $135; the sum demanded in the prayer of the petition being $120, and a further sum of $25 as an attorney-fee.
The action was brought and prosecuted under the statute-of 1874, relating to the killing and injuring of stock in the operation of railways. (Laws of 1874, page 143.) It was-alleged in plaintiff’s petition, in substance, that the defendant was a railroad corporation, operating a railroad from Atchison, to Washington, in the state of Kansas; that the plaintiff was-the owner of three cows and two calves; that they casually,, and without the fault of the plaintiff, strayed in and upon the-track and grounds occupied by the railroad; that the agents and servants of the defendant ran its locomotive and cars-against and over the said cows and calves; that the railroad “is not inclosed with a good and lawful fence;” that the-plaintiff made demand upon the defendant for the damages-sustained, thirty days prior to commencing his action, and, that a reasonable attorney’s fee is $25.
-It will be observed that the plaintiff does not charge that the collision with his stock was the result of any negligence-on the part of the railroad company, or any of its employés;. so that, if the action could be sustained at all, it would be-simply by the force of the statute of 1874. But the petition is insufficient under that statute, for at least two reasons:. First, it does not show in what county the cows and calves were injured and killed; second, it does not- show; that the railroad was not, at the time of the accident, “ inclosed with a good and lawful fence, to prevent such animals from being-on such road.” There is an allegation that “the railroad of said defendant is not inclosed with a good and lawful fence.” This would of course have reference to the time of filing said petition, June 14, 1877, and not to the time of the accident, which is alleged to have occurred December 25, 1876.
The answer admitted the incorporation of the defendant; that the defendant was operating a railroad from Atchison to Washington, in the state of Kansas; that the cattle referred to in the petition strayed in and upon the track occupied by the railroad of the defendant, and it denied each and every other allegation, statement and averment contained in the petition.
The action came on for trial at the August term, 1877, and a jury being waived, the case was submitted to the court on the pleadings and an agreed statement of facts, which agreed statement is as follows:
“It is agreed between the parties hereto, that all the allegations set out in plaintiff’s petition are true, with the following modifications: The animals killed, and the damages done to the one injured, amount to one hundred and ten dollars; a reasonable attorney’s fee for the prosecution of this ease is twenty dollars; the defendant does not admit any liability to the plaintiff under the pleadings and the foregoing admissions, but the question of liability is submitted as a question of law for the decision of the court; and the foregoing are all the facts in the ease.”
The court made a general finding in favor of the defendant,! and rendered judgment accordingly against the plaintiff for the costs of suit. The plaintiff excepted to the judgment. No other exception was taken by either party at any stage of the case. The plaintiff thereupon filed a motion for a new trial on the single ground of “error of law occurring at the-trial, and excepted to by the plaintiff at the time.” At the December term, 1877, this motion was overruled, the plaintiff excepting.
The errors assigned by the plaintiff in his petition in error are: Eirst, that the judgment was given for the railroad company, when it ought to have been given for the said J. M. Hadley; second, that the court erred in overruling the mo tion of Hadley for a new trial. It will be seen, using substantially the language of Hover v. Cockins, 17 Kas. 516, that the only question in this case is with regard to the sufficiency of the facts set forth in said petition. And preliminary to a decision of this question, we would say, that the petition in this case is not aided by any evidence, or by any finding or verdict, nor by the judgment of the court below. On the contrary, the finding and judgment of the court below are against the sufficiency of the petition, and all presumptions are in favor of the correctness of the decision of the court below. There has nothing transpired in this case to cure any of the defective allegations of the petition, and hence we must give to -said allegations no more force or weight or value than they are justly entitled to. This, indeed, is also true with respect to the petition itself, taken as a whole.
It is not claimed that the petition is sufficient as stating a cause of action independent of the statute; and as we have before stated, we do not think that it is sufficient under the statute. The statute requires that the action should be brought in the county in which the animal was killed or wounded; but there is nothing in the petition, nor indeed in the whole case, that shows or states that this action was commenced in the county in which the plaintiff’s animals were injured. This action was commenced in Marshall county; but the animals may, from anything appearing in the case, have been injured in any one of five different counties. Neither has the plaintiff under the statute any cause of action, unless at the time his animals were injured the defendant’s road was not “inclosed with a good and lawful fence, to prevent such animals from being on such road.” (Laws of 1874, page 144, §5.) And a failure on the part of the plaintiff to allege in such an action that the defendant’s road was not inclosed with a good and lawful fence at the time that the injury was done, is a failure to state a cause of action. (K. P. Rly. Co. v. Taylor, 17 Kas. 566.) The plaintiff’s petition in this case is defective in this particular. The plaintiff in error is required to show affirmatively that the court below erred. Now has he shown affirmatively that the court below committed error by failing to sustain this defective petition? We cannot say that the plaintiff in error has so shown, and therefore the judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action to recover damages to crops from the overflow of plaintiff’s lands. The case was tried upon an agreed statement of facts, and judgment rendered in favor of the plaintiff. The following is all there is in this statement as to the cause of the overflow:
“That the said lands of plaintiff were so overflowed in consequence of a culvert, built by defendant on its right of way, being insufficient to let the amount of water running and falling on said lands pass through it, and also in consequence of the embankment of its said line of railroad, on its said right of way along and adjoining the said lands of plaintiff, being so high as to not permit the passage of the water running and falling on said lands, or passing over the top thereof.” '
There is nothing in this, or elsewhere in the record, tending to show the existence of a water-course. On the contrary, the plain implication is that the embankment simply prevented the flow of surface water, and thus caused it to accumulate upon the lands of plaintiff. Does this give a cause of action? We think not. The general rule undoubtedly is, that no action lies for obstructing the flow of surface water. It was well said by Beasley, C. J., in Bowlsby v. Speer (2 Vroom, 351), that “there is no such thing known to the law as a right to any particular flow of surface water, jure naturae. The owner of land may, at his pleasure, withhold the water falling on h"is property from passing in its natural course on to that of his neighbor, and in the same manner, may prevent the water falling on the land of the latter from coming upon his own.” See also, Swett v. Cutts, 11 Am. Law Reg. (N. S.), 11, and notes of Redfield, J.; Angell on Water-courses (6th ed.), § 108 a; Dickinson v. Worcester, 7 Allen, 19; Wheeler v. Worcester, 10 Allen, 591; Parks v. Newburyport, 10 Gray, 29; Flagg v. Worcester, 13 Gray, 601; Goodale v. Tuttle, 29 N. Y. 459; Frazier v. Brown, 12 Ohio St. 294; Wagner v. L. I. Rld. Co., 2 Hun, 633.
There are doubtless exceptions to this general rule. One such was noticed by this court in the case of Palmer v. Waddell, ante, p. 352. See also the case of Livingston v. McDonald, 31 Iowa, 161, in which may be found some valuable dis cussion by Dillon, J., of the relative rights and obligations of the upper and the lower land-owner.
But no exception is shown to the general rule by the fact that the party raising the embankment is a railroad corporation, and the embankment raised upon its right of way for use as a railroad track, nor by the fact that a culvert could have been placed in such enbankment sufficient to have afforded an outlet for all such surface water, nor by the fact that a culvert was placed therein insufficient to afford such outlet.
Neither is the plaintiff’s case helped by §1, ch. 93, Laws 1870, p. 197, which provides that railroads shall be liable for all damages “when done in consequence of any neglect on the part of the railroad companies,” for when there is no obligation to do an act, there is no negligence in omitting to do such act. The cases cited by counsel for plaintiff are all of them cases of water-courses, concerning which the rule is different, except the cases from Indiana and Illinois, (R. R. Co. v. Deitz, 50 Ill. 210; T. W. & W. R. R. Co. v. Morrison, 71 Ill. 616; I. B. & W. R. R. Co. v. Smith, 52 Ind. 428); and those cases, unless founded on some local statute, do not commend themselves to our judgment.
The judgment of the district court will be reversed, and the case remanded with instructions to render judgment on the agreed statement in favor of the defendant (plaintiff in error) for costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The main question in this case, and the •only one of sufficient importance to require any consideration from this court, is, whether the plaintiff’s cause of action was barred by the statute of limitations, or not, before this action was commenced. Preliminarily, however, we might say, that the defendant in error, who was plaintiff below, now claims that this question was not sufficiently raised in the court below, and therefore that it cannot now be considered in this court; but as the defendant below attempted, at least by plea, to raise the question in the court below, and as both the parties and the court treated the plea as sufficient, and considered the question as having been properly raised, it is now the duty of this court to consider the case in the same man ner, and to consider the question as having been properly raised in the court below, although the plea may not have been as formal and elaboately circumstantial as it might have been. We might also-say preliminarily that the plaintiff in error, who was defendant below, claims on his part that the plaintiff below did not prove his cause of action in the court; and therefore that it was then and is now wholly immaterial whether the plaintiff’s supposed cause of action was in fact barred by any statute of limitations or not, or whether the question of its-being so barred was properly raised or not; for in any event, as he claims, the decision of the court below should have been in his favor and against the plaintiff below, and in any event, as the decision was otherwise, it must now be reversed.. The question of the sufficiency of the plaintiff’s evidence was-raised in the court below by a demurrer to the evidence, and by a motion for a new trial on the ground that the verdict was not sustained by sufficient evidence. There was sufficient evidence however introduced on the trial by the plaintiff to prove his case, if such evidence was true; and whether it was true or not, it was properly submitted to the jury, and their decision of the question, with the approval of the court below, is now final.
But was the plaintiff’s cause of action barred by any statute of limitations'? The cause of action was for the wrongful 'conversion of an Atchison city bond. It seems that on April 10,1868, Ephraim Butcher, defendant in error, plaintiff below, owned a certain bond issued by the city of Atchison, for $1,100; that he, being indebted to James C. Auld, plaintiff in error, defendant below, in the sum of $500, executed his note to Auld for that amount, and to secure the payment thereof, pledged and delivered to Auld said bond, and Auld ■gave him a receipt for the same. This note was paid prior to August, 1869, but according to Butcher’s testimony (and we must now take that to be true), said bond was never returned to Butcher. Nothing was said about the bond at that time or subsequently, until about the first of August, 1876, when Butcher formally made a demand for the bond and Auld refused to return it. 'Auld claimed that he had previously returned the bond. Soon afterward Butcher commenced this action against Auld, for the value of the bond and interest. The first and controlling question in the case is, When did Butcher’s cause of action accrue ? If it accrued when said note was paid, then it is barred by the statute of limitations, as claimed by the defendant, but if it did not accrue until said demand was made, then it is not barred. We know of only one case directly in point upon this question, and that is the case of Roberts v. Berdell, decided by the supreme court of New York, Judge George G. Barnard delivering the opinion of the court (61 Barb. 37), and affirmed by the court of appeals (52 N. Y. 644). Indeed, that case was a stronger one for the pledgee of the bond than this case is, for in that case the pledge expressly promised at the time the debt was paid to return the bond, while in this case no such promise was ever made. And yet the court in that case held that the action did not accrue, nor the statute of limitations commence to run, until the time of the demand and refusal. There are many other cases that by analogy would hold the same way. But before proceeding further with the argument, we would state that at the time that said transactions occurred the parties to this action were middle-aged men; they had been brought up from childhood together, had always been good friends, had been partners in business, and were then brothers-in-law and near neighbors; that about the time that said note was given and pledge made, Butcher became a drunkard, mentally weak, and unfit to do business, and remained in that condition up to about the time that he commenced this action, a period of about seven or eight years, while Auld remained a good business man, and in the possession of all his faculties. Also, in the meantime, Butcher, though greatly embarrassed for want of money, seems to have utterly forgotten this bond.
We think this case must be decided upon the theory that, although Butcher was entitled to receive his bond as soon as he paid said note, yet, that Auld committed no wrong by retaining: the bond until Butcher informed him 0 that he wanted it, or in other words made a demand upon him for it; and therefore no cause of action accrued against Auld until said demand was made. A mere right to a thing, or concerning a thing; never did constitute a cause of action. It was always necessary that there should not only be a right, but that there should also be a wrong; or in other words, that there should be a right and an infringement of that right, in order to constitute a cause of action. This is universally so. When an agent receives money for his principal, his principal is at the same time entitled to receive it from him; and yet generally no cause of action accrues against the agent until the principal has made a demand for the money. (Green v. Williams, 21 Kas. 64, 71, 72.) And no cause of action ever accrues against an agent until he has committed some wrong. This same principle applies to attorneys at law (Voss v. Bachop, 5 Kas. 59), and to persons with whom money is deposited, or bailed, or pledged. (Phelps v. Bostwick, 22 Barb. 314; Payne v. Gardiner, 29 N. Y. 146.) Indeed, it applies to all persons, depositaries, bailees, pledgees, mortgagees and trustees, who without fault receive money or property belonging to others and simply hold the same, without saying or doing anything inconsistent with the rights of the owner or the rights of others. In the case of Shoemaker v. Simpson, 16 Kas. 53, it was said that “replevin could not be maintained against a person who came innocently into the possession of the property, who never claimed any interest in the same, and who never disputed the owner’s right thereto.” See also, Newman v. Jenne, 47 Me. 520; Baker v. Chase, 55 N. H. 61; Barrett v. Warren, 3 Hill, 348; White v. Brown, 5 Lans. 78.
Of course, if Butcher, as soon as he paid said note and without making any demand for the bond, could have maintained an action against Auld for the value thereof, he could also, if he had preferred it, have maintained an action of replevin for the bond itself. We do not think, however, that he could have maintained either action without first making a demand for the bond; and hence we think that the plaintiff’s cause of action was not barred when this action was commenced.
The second instruction given by the court to the jury, is sustained by M. R. Rld. Co. v. Richards, 8 Kas. 101, 111. And the fourth instruction, as given by the court, was correct.
The judgment of the court below is affirmed.
Brewer, 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
Brewer, J.:
These are proceedings to reverse a judgment of the Ellsworth county district court upon an award of arbitrators. Joseph Anderson was the father and administrator of the estates of William N. and Thomas Anderson. Jerome Beebe was the surviving partner of the firm composed of said Bebee and William N. Anderson, and as such surviving partner, gave bond as required by the statute, and on December 12, 1874, took possession of the goods, etc., for the purpose of settling the partnership estate. In January, 1877, an agreement to submit to arbitration was entered into between Jerome Beebe and Joseph Anderson, and Ellen Anderson, his wife, which embraced matters in difference between Jerome Bebee as an individual, and as surviving partner of the firm of Bebee & Anderson, of the one part, and Joseph Anderson and Ellen Anderson as individuals, and Joseph Anderson as administrator of the estates of Wm. N. and Thomas Anderson, deceased, of the other part. Such submission was to be made a rule of the Ellsworth county district court.
On June 16, 1877, the arbitrators made their award, and at the ensuing September term of the district court, judgment was entered thereon. The award, together with the agreement of submission and bond, were filed in the clerk’s office of that court on June 16, 1877, and a copy of the award furnished to plaintiffs in error more than ten days before the commencement of the term. Upon the last day of the term, the matter was called up by counsel for Beebe, the objections of plaintiffs in error presented, examined and overruled, and the award confirmed, and judgment entered thereon. This was done without any written motion, and without any special notice to the plaintiffs in error of the time of the application. To reverse this judgment case No. 1,555 has been instituted. Subsequently, and after the adjournment of the September term, a petition was filed in that court to have this judgment vacated and set aside, which petition was supported by testimony. Upon the hearing of this, judgment was rendered in favor of the defendant, and to review this judgment the second case (that of No.1,556) was commenced in this court. The two cases will be considered together, as the principal questions are common to both.
The first proposition of counsel is, that the matter of controversy was not a subject of arbitration under the statute, it being matter arising in the settlement of the estates of deceased parties. Such matters, it is said, can only be adjudicated in the probate court, and the administrator and surviving, partner cannot by arbitration oust that court of jurisdiction, and submit the dispute to another tribunal. Some authorities are cited from the states óf Illinois, Massachusetts and Vermont, which under their statutes seem to-support this claim. But , we cannot think it sustainable under our laws. This arbitration was had under ch. 102, Laws 1876. (Dassler’s Comp. Laws, p. 97.) And the first section is broad, and provides, “that all persons who shall have any controversy or controversies” may arbitrate them, and may make the “submission a rule of any court of record in this state.” . It may be that this does not enlarge the jurisdiction of any court, and that parties cannot, by making the submission of their controversies a rule of a court, invest that court with power to pronounce and enforce judgments in matters outside the scope of its jurisdiction. The damages to be given to a land-owner by a railroad corporation on condemnation of its right of way, may not be placed in judgment in the probate court by making the submission to arbitrators a rule of that court, for that court has no jurisdiction of such controversies. But where the subject-matter of any controversy is within the jurisdiction of a court, a submission thereof to arbitrators may be made a rule of that court, and judgment be afterward entered therein upon the award. Now the district court is the court of general original jurisdiction, and has general original jurisdiction of all matters, both civil and criminal, where not otherwise provided by law. If a controversy exists, prima fade, the district court has jui’isdiction of it. Controversies between a surviving partner and the administrator and heirs of the deceased partner, perhaps not all, but certainly some and probably most, are cognizable in that court. Shoemaker v. Brown, 10 Kas. 383.)
Now the submission here does not state the nature and extent of the controversies, but it is general, and purports to submit all matters in dispute. Prima fade then it was properly made a rule of the district court. And unless it should appear from the award or the testimony that the arbitrators considered and determined matters outside the jurisdiction of the court,' no objection can be sustained on account of the generality of the terms in which the matters to be arbitrated were described.
A second objection is that the arbitrators exceeded their powers, and attempted to settle and determine matters not referred to them. The point is this, that they determined the state of accounts between Beebe and the late firm of Beebe & Anderson, or as counsel state it, “they arbitrated between Beebe and Beebe as surviving partner.” But how was it possible to state fully the account between the surviving partner and the representatives and heirs of the deceased' partner, without stating the account between the survivor and the firm ? It seems to us that such statement was preliminary, and essential to a determination of the account between the antagonistic interests of the survivor on the one side, and the representatives and heirs of the deceased on the other. The amount due from one party to the other on a winding up of the partnership affairs, depends partially on the account between each partner and the firm. And all controversies between the interests of the partners were submitted to the arbitrators. Hence, there was no error in stating the account between each partner and the firm.
A third objection is,.that no written motion for judgment •on the award was filed, and no notice given of the time of presenting the application for judgment. Counsel criticise the act under which these proceedings were had as crude, and as not fully prescribing the methods of procedure. We cannot think, whatever it may lack, that it is so deficient as to be invalid. It provides for filing the award with the clerk of the court, service of a copy ten days before the term on the opposite party, and that, if no legal exceptions are made thereto, judgment shall be entered at such term thereon. In this case the requisite filing and service were made and shown. In such case the award stands as the verdict of a jury, and no formal written motion and notice are prerequisite to the entry of a judgment. If the defeated party has objections, he must file them as he would file a motion for a new trial after verdict. If none are filed, the judgment goes as of course. Here, the party in whose favor the award was, waited until the evening of the last day, and then, no objection having been filed,-asked for judgment. Notice was then given informally to a gentleman employed to represent the counsel of defendants, and he filed the prepared objections. But we see nothing in those objections requiring notice further than we have already considered them in this opinion, and therefore judgment,' as we think, was properly entered on the award.
So far as new matter appears in the second case, it is in excuse of the non-appearance of counsel of plaintiffs in error at the time of the judgment, as to the lack of notice of any motion, or the filing of any written motion. No new objection is shown to the validity of the award as it was made. But a judgment will not be vacated upon petition, unless it is shown that there is a defense to the cause of action. (Dass. Comp. Laws, § 572, p. 680.) Hence there was no error in refusing to vacate the judgment.
- The judgment in both cases will be affirmed.
All the Justices concurring. | [
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Per Curiam:
The judgment in this case will be affirmed,, on the authority of the case of Williams v. Elliott, 17 Kas. 523. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action was commenced, prosecuted and disposed of in the trial court upon the right of the purchaser of the tax certificate, the ■ defendant in error, to recover from the county of Saline the money paid by virtue of the provisions of § 120, ch. 107, p. 1058, Gen. Stat. This is clearly shown by the allowance of interest at the rate of ten per cent, per annum, and the statement of counsel for defendant in error, that his client had fully brought himself within the provisions of said section. In this view of the case, the court committed error in overruling the demurrer to the petition. The law provides that when the land named in a certificate of sale ought not to be conveyed for any error or irregularity, the county treasurer shall, on the return of the tax certificate, refund out of the county treasury the amount paid therefor on such sale, and all subsequent taxes and charges paid by the purchaser or his assigns. In this action, the county treasurer is not a party, and there is no allegation in the petition showing any wrongful action or conduct of the commissioners in the matter. It is not alleged that the county treasurer was unable to refund the money paid because of a want of funds in his hands, or that he had paid this money out on the orders of the county commissioners, or that the commissioners had in any way, by order or otherwise, interfered to prevent him from refunding the several amounts paid. Primarily, it is the duty of the treasurer to return the moneys to the holders of the tax certificates, where the errors or irregularities are discovered before the conveyance of the land; and if such treasurer has funds in his hands for this purpose, this duty may be enforced, and an action for damages can be maintained against him for his refusal to comply with the law. In order, therefore, that a petition shall state facts sufficient to constitute a cause of action against a board of commissioners of a county for the recovery of such moneys and interest, in behalf of the owners of tax certificates, under this section, it must allege, either a want of funds in the hands of the treasurer or some valid reason for his inability to respond to the demand on him, or some action on the part of the commissioners by way of order or other interference, whereby the holder of the tax certificate is delayed of or denied his right to have his money returned. For these reasons, the petition in this case is fatally defective.
Other errors are manifest in the record — particularly the refusal of the court to compel the plaintiff to state the time when he offered to return his tax certificates to the county treasurer, and in striking from the answer the allegation that the county treasurer had sufficient funds to pay the claims. But it is unnecessary to comment on these matters now, as the disposition which the district court will be directed to make of the demurrer to the petition, will either finally dispose of the case in that court, or necessitate the filing of an amended petition, containing other and different allegations. “Sufficient unto the day is the evil thereof.”
■ The pleadings filed subsequently to the demurrer, after the eliminations made by the court, supply none of the omissions in the petition. These pleadings however may be withdrawn, and the demurrer filed to the petition sustained. Leave can then be granted for such amendments to the petition as the defendant in' error shall deem necessary and proper, within the doctrine herein announced.
' The judgment of the district court will be reversed, with the direction to sustain the demurrer of the defendant below to the petition of the plaintiff in that court.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Plaintiffs commenced an action of forcible-entry and detainer. After judgment before a justice of the-peace, defendants appealed to the district court, and upon-trial a demurrer to plaintiff’s evidence was sustained, and the case is now here for review. The question is as to the-sufficiency of the plaintiff’s notice to quit, and the time when any defects therein can be taken advantage of. The notice-to quit is in these words:
“To John M. L. Gore and James W. Reed: You are hereby notified and required to forthwith leave the premises hereinafter described, to wit, [description,] for the possession of which premises action is about to be brought.
“April 17, 1878. Lloyd G. Conaway.”
The defendants did not challenge in any manner the process by which they were brought into court, appeared to the action, and the first time they raised any question as to the sufficiency of the notice was by an objection to its admission in evidence. Now the plaintiffs’ contention is, that the notice was sufficient, and if not, that the de'fect was waived, and that, whether the notice was good or bad, the demurrer was-improperly sustained.
The statute requires (Gen. Stat., p. 810, §161) that the-party desiring to commence an action of forcible entry, notify the adverse party to leave the premises, etc. This notice is-directed to the defendants, notifies them to leave the prem ises, and is signed by the plaintiff. It should be stated that the action was originally commenced in the name of Lloyd G. Conaway alone, and that afterward by amendment his wife was joined as plaintiff, and also that this amendment was unnecessary, for upon the testimony the title to the premises was in Lloyd G. Conaway alone, and he was entitled to recover such possession. The fact that it was his homestead of which he had been forcibly dispossessed did not render his wife a necessary party to the action to recover such homestead. Now the notice follows the statute. We are not advised by brief of defendants in error as to the ground upon which the notice was held bad. Counsel for plaintiffs in •error state that the district court considered the case of Nason v. Best, 17 Kas. 408, as in point, and held the notice bad upon the authority of that case.
That case decides that there must be certainty in the notice, and that only the party who makes the demand as stated in the notice can maintain the action. Here there is but one party serving the notice and making the demand, and he brings the action. True, he does not say in the body of the instrument that he is the one who claims the possession, and that he intends to bring the action; but he leaves no doubt, for he alone is named in or signs the notice, and he alone brings the action. A certainty may be implied as well as expressed. Such a notice would not be sufficient to sustain .an action in the name of a third party ; nor would a notice in any case be sufficient when upon the face of it there appeared a doubt as to which of two or more parties was claiming the possession. The statute requires simply a “ notice to leave,” and not a notice to surrender the possession to any particular party. A. notified B. to leave. In the absence of anything showing, or suggesting the contrary, the law holds that A. is acting for himself, and to assert his own rights. No one but A. can have the benefit of that notice, and it is & good notice by A. if he simply sign his name to it, and there is nothing in the notice to suggest a doubt that he is noting for himself.
We think the learned court mistook the scope of said case of Nason v. Best, and that the judgment, in this case is erroneous and must be reversed, and the case remanded for a new trial; and it is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was a complaint before a justice of the peace in Miami county, by H. S. Campbell against David Coonradt, for an unlawful and forcible entry upon certain premises therein described, of which plaintiff alleged he was in possession, being lot seven (7) of block eighty-four (84), in the city of Paola. The answer of the defendant, admitting possession, together with the notice to him to leave the premises, set forth in the complaint, supply any omissions in the complaint of detainer, and we may treat the action in the justice’s court and in the district court as one brought by the plaintiff under §158, ch. 81, p. 727, Dass. Comp. Laws, for an unlawful and forcible entry and detainer of his premises. (Barrett v. Butler, 5 Kas. 355.)
On the trial before the justice, judgment of restitution was entered in favor of the plaintiff. An appeal was taken by the defendant to the district court of Miami county. On the hearing in that court, after the plaintiff had introduced his evidence, the defendant demurred to it. The court sustained the demurrer, discharged the jury, and rendered judgment against the plaintiff for costs. To reverse this judgment, the plaintiff brings the case here.
The lot in controversy was not occupied by anyone, nor was it inclosed, improved, or in actual use when the plaintiff, claiming to hold the original title, and to be the owner, took possession of it in August, 1878, by building a fence of posts and barbed wire entirely around the lot, along the exterior lines, without bars, gates, or other openings for ingress or egress. The posts, thirteen in number, were about five feet long and two and one-half inches in diameter, sharpened at one end and driven into the ground. They were originally prepared for grape vines and blackberry bushes to be trellised upon. Two wires, fastened to the posts, were stretched around! the lot. In October, 1878, the defendant, holding a tax deed upon the premises and claiming title thereunder, entered upon the lot and took down enough of the fence to make room for a building. To make an entry and remove the fence, he used a chisel and a hatchet or hammer. At this time, the plaintiff was in ill health, and confined to his room. After removing a portion of the fence, the defendant continued in the possession of the lot, and completed thereon a house of one story, with three rooms. The workmen under the defendant were notified to quit work, but refused. The defendant was duly served by the plaintiff with a written notice to leave the premises, and he also refused.
Upon these facts proved in the case, there are but two-questions for our determination.
First, Did the plaintiff have actual possession of the premises at the time of the entry of the defendant?
Second, Did the .defendant unlawfully and forcibly enter upon the premises and detain the same?
Both of these interrogatories must be answered in the affirmative.
As the proof showed that the plaintiff entered peaceably upon the lot in August, 1878, under a bona fide claim of title, with a view of holding possession and asserting ownership, and that he inclosed the entire premises so as to give the public and the defendant notice of his possession and claim, the testimony upon this point ought not to have been withdrawn from the jury, as it was sufficient to sustain a finding that the plaintiff was in the actual possession of the lot. (Giles v. Ortman, 11 Kas. 59.)
While the premises were thus in the actual possession of the plaintiff, his inclosure was broken down and destroyed by the defendant in a forcible manner, with a chisel and a hatchet or hammer, on the plea that he was the owner of the lot under a tax deed. Not only was an entry made, but the defendant continued to hold possession, and refused to leave after due demand. He was guilty of something more than an ordinary trespass, and within the meaning of the statute unlawfully and forcibly entered and detained the premises.
It is intimated'that the court below sustained the demurrer on the ground that no force was shown to have been committed by the defendant. If the ruling was as stated, it was erroneous. The object of the statute is to prevent fights, violence or other breaches of the peace, and a party who is wrongfully ousted in his absence of his premises by another, and on demand is refused possession, need not put himself in danger of personal violence before availing himself of the statute. If the defendant owns the property in question, the law has provided abundant means through and by which he can assert his rights, without the unlawful action taken by him. He had no right to use force to possess himself of the lot. (Ainsworth v. Barry, 35 Wis. 136; Jarvis v. Hamilton, 19 Wis. 187; Allen v. Tobias, 37 Ill. 169; Childress v. Black, 9 Yerg. 317; Minir v. Duncan, 54 Ga. 516; Emsley v. Bennett, 37 Iowa, 15.)
Many of the decisions referred to by counsel for defendant are not applicable under the provisions of our statute of forcible entry and detainer. Those which require a great degree of force or personal violence to be used, or threatened, in order to constitute forcible entry or forcible detainer, are not- satisfactory, in view of the fact that one of the main purposes of the enactment of the law is to preserve the peace and quiet of society.
The judgment of the district court will be reversed, and the case remanded for trial in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
"Valentine, J.:
This case has been brought to this court on a transcript of the record, and not upon a “case-made” for the supreme court, and hence, a motion to dismiss the case for any want or insufficiency of the “case-made,” must be overruled.
The case was tried in the court below, by the' court without a jury, upon the following agreed statement of facts, to-wit:
“It is agreed that the above action may be tried by the court on the 26th day of August, 1878, without a jury, upon the following facts, which are agreed to be all the facts in the • case, with the right of appeal and review to each party, to-wit:
“ 1. The plaintiff went upon the S. E. J section 36, township 22, range 18, Pawnee county, Kansas, the same being school land, the title being in the state of Kansas, about June 1, 1877, and commenced to plow; that he plowed during the summer of 1877, sixty acres, and sowed a part to- wheat that fall; that he plowed ten acres more in 1878, and partly built a sod house in 1877; that he never completed the same, and to the commencement of this suit has never lived on the land. He took the same for the purpose of purchasing it under the laws of Kansas pertaining to the sale of school lands. He harvested the crops sown in the fall of 1877, in the summer of 1878.
“ 2. The defendant went upon the same land for the purpose of ■ purchasing it under the laws of Kansas relating to the sale of school lands, on May- 9, 1878, built a house on. this land, and has resided thereon continuously since. He has plowed some of the land (about thirty acres), and prepared to put in a crop of wheat this fall.
“3. The only question submitted for decision is this: Is actual residence-required for one to become the purchaser of school lands' under the laws of Kansas?
“If it is not so required, the judgment may be for plaintiff for costs, and the injunction may be granted as asked. If it is so required, the judgment may be for the defendant for costs, and the injunction wholly denied.”
The court below upon the agreed statement of facts found as a conclusion of law that an actual residence upon the land was not required to enable the plaintiff to become a purchaser of the same, and therefore the court rendered judgment in favqr of the plaintiff, forever enjoining the defendant from interfering with the plaintiff’s possession, and for costs; to all of which findings, conclusions and the judgment, the defendant duly excepted.
The only question which we think we are called upon to decide is, whether under the laws of Kansas actual residence is required to enable a person to purchase, to the exclusion of others, a particular piece of the school lands of the state. The decision of this question depends entirely upon the construction that may be given to §§ 4, 5, 6 and 20, of art. 14, ch. 122, Laws 1876. (Comp. Laws of 1879, pp.854, 857, §§195,196, 197, 211.) Under said sections, only persons who have “settled upon and improved,” or who are “actual settlers” upon such lands, can so purchase them to the exclusion of others. Sections 4, 5, and 6, use.the words “settled upon and improved,” while § 20 uses the words “'actual set- tiers.” To “settle” upon land we think means to fix one’s place of residence thereon; and a “settler” upon land is'one who resides thereon. This is in accordance with all the definitions of the words “settle,” “settler,” and “settlement,” when applied to settlements upon land. (See any of the dictionaries, and also Smith v. Beck, 25 Pa. St. 106; Burleson v. Durham, 46 Tex. 152; Wilson v. McLernan, 20 Iowa, 30, 33; Munday v. Muse, 15 La. An. 237; Gilday v. Watson, 5 Serg. & R. 267; Clemmins v. Gottshall, 4 Yeates, 330; McLaughlin v. Maybury, id. 534.)
A person who has done nothing more than to make improvements on the land cannot, under §§4, 5 and 6, purchase the same. He must also have settled upon the land. In the language of these sections, he must have “settled upon and improved ” the land. Both are necessary. Probably a person might, by going upon school land, and making improvements thereon, with the bona fide intention of becoming a settler thereon, obtain rights thereto, which would date from the very first moment of his occupancy; but he evidently could not purchase the land as an exclusive purchaser until he had completed his settlement. If he did not go upon the land with the intention of becoming a settler (and that seems to be this case), evidently he would not obtain any rights thereto or thereon. A person residing in New York, or anywhere else in the world, might take possession, and actual possession, of school lands of Kansas, and possession not only of one piece, but of many pieces, and might make improvements on all of such pieces; but we would not think that he would thereby become a settler upon all of such pieces, or indeed upon any one of them, or that he would thereby get the exclusive right to purchase, the same; nor would we think that he would obtain any exclusive rights in or to any of them. But according.to the theory of the plaintiff in the court below, he would obtain the exclusive right to purchase every one of them. Where the plaintiff in the present case resides, the recoi’d does not show, and we are not informed.
Section 20, above referred to, after providing for the pur chase of school lands by “actual settlers,” then contains a proviso, “ that the person so residing upon said school lands ” [evidently referring to “actual settlers”] “shall have the privilege of purchasing said land, exclusive of the appraised value of the improvements.” Evidently the words, “actual settlers,” as here used, mean actual residents.
The judgment of the court below will be reversed, and the cause remanded with the order that judgment be rendered upon the agreed statement of facts, in favor of the defendant and against the plaintiff for costs, and that the injunction prayed for by the plaintiff be denied.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Wiley Wright against Charles (Carl) Kuhuke, before a justice of the peace, to recover from Kuhuke $50, deposited with him as a stakeholder by Wright, on a bet on a horse race. Wright filed a bill of particulars in the justice’s court, but Kuhuke did not file any. The case was tried in the justice’s court, and judgment rendered therein, and then appealed to the district court. In the district court, the defendant Kuhuke ■demurred to the plaintiff’s bill of particulars, on the ground that it did not state a cause of action, and the district court ■sustained the demurrer. The plaintiff then, on leave of the court, amended his bill of particulars by interlineation, by ■simply adding thereto the following words: “which said sum of money the defendant refused to pay, and still does refuse to pay.” This amendment was allowed by the court, as the record shows, “on application of the plaintiff.” Then follow the following words: “The defendant is allowed to •answer said amended bill of particulars within twenty days from this date.” It does not appear that the defendant asked to answer or to file any pleading of any kind, and it does not appear that the court ordered him to do so.
Afterward, the case came regularly on for trial. “The plaintiff asked for judgment by' default, to which the'defendant, bjr his counsel, objected. Whereupon the court asked defendant if he had answered, or desired to answer; to which the defendant replied, no answer was necessary. Whereupon the plaintiff took the following judgment as-upon default, and without introducing any evidence or proof in support of his bill of particulars;” to all of which the defendant duly excepted.
Said judgment was an ordinary judgment on default, except that it contained the following words:
“And it appearing to the court that said defendant has-failed and neglected to plead, answer or demur to the amended bill of particulars of the plaintiff, being filed as required by a previous order of this court made at its last term, and the-said defendant by his attorneys stating in open court that he did not desire to answer, but objected to any judgment being rendered in the case, therefore, in consideration of such default, a jury being waived by the plaintiff, it is considered that the plaintiff recover,” etc.
The defendant below, as plaintiff in error, now brings the case to this court, and claims that the court below erred — first, in permitting the plaintiff below to amend his bill, of particulars; and, second, in rendering a judgment against the defendant, as on a default.
I. We do not think.that the court below erred in permitting the plaintiff below to amend his bill of particulars. The amendment was scarcely, if at all, material; and it was properly allowed for the purpose of making the bill of particulars more specific and definite. Both the justices’ code and the civil code permit amendments.
II. We think the court below erred in rendering judgment as upon default. The defendant in this case was not in default. A defendant could probably never be in default for want of a pleading in a justice’s court. He is never required to file a pleading in a justice’s court except when he wishes to claim a set-off, and then only when he is required to do so by the plaintiff. (Gen. Stat., 791; German v. Ritchie, 9 Kas. 106, 111.) And if the case is appealed to the district court, it is there tried “upon the original papers on which the cause was tried before the justice, unless the appellate court, in furtherance of justice, allow amended pleadings to be made, or, new pleadings to be filed.” (Laws of 1870, p. 184, § 7.) Undoubtedly the district court may “allow” a party to file a new or amended pleading; and in some cases the court may even require such a thing to be done' — -and this it may do with or without the statute just quoted. But to allow a party to file a pleading and to require him to do so are very different things. In the present case there was no order made requiring the defendant to file any pleading. The only order made with reference to the defendant’s filing a pleading was an order merely permitting him to do so; and this order seems to have been made on the court’s own motion, merely as a gratuity to the defendant, and not at the request of either party. When the judgment was rendered there was no order in existence requiring the defendant to plead, and the judgment itself could not make the order. The judgment was rendered simply as settling and establishing the legal rights of the parties as they existed at and before the time of the rendition of the judgment. This case differs from the case of Sewing Machine Co. v. Redfield, 18 Kas. 555. In that case the parties agreed, and the court ordered accordingly, that the answer should be filed in twenty days, and the defendant violated both his agreement and the order of the court.
In an action commenced in the district court, if the plaintiff amend his petition, setting forth additional facts, the defendant will generally be in default with reference to these additional facts, unless he answer thereto; but if he was not previously in default with reference to the facts as set forth in the original petition, then the amendment of the petition cannot of itself have the effect of so placing him in default that a judgment may rightfully or properly be rendered against him as on a default. (Stevens v. Thompson, 5 Kas. 305; Cohen v. Hamill, 8 Kas. 621; Cavenaugh v. Fuller, 9 Kas. 233; Brookover v. Esterly, 12 Kas. 149, 152, 153.)
The judgment of the court below will be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
On the first day of September, 1875, defendant in error was the owner of lot 27, in block 25, in the city of Parsons, and one Michael Galvin was the owner of the adjoining lot, 26, in the same block, and each of said parties, contemplating erecting a brick store-building on his said lot, entered into an agreement by which the west wall of Conroy’s building should be placed on the line between said lots 27 and 26, to be built by Conroy in the first instance, and one-half of the cost thereof to be paid by Galvin when he completed his building on his lot. Conroy completed the said wall on the 26th of September, 1875, and had his entire building completed on the 1st day of November, 1875. On the 10th of November, 1875, Galvin commenced the erection of the. building on his lot, .26, and continued in and about the erection of the building at irregular intervals, until July 23, 1876, when he ceased to do any work. At that time the outer walls were erected, the dooi’s and window sash were in, the lower floor was laid, but no finishing was done on the sides or top of the r.oom, and no roofing save with sheathing-boards.
At the May term, 1876, of the district court, held in Labette county, Robert Whittaker, Henry Staub, and Patrick Stafford recovered judgments against said Galvin for labor performed and material furnished in the erection of the building on his lot, 26, which judgments were declared a lien on said lot; and at the same time and in the same court, A. A. Smith recovered a judgment against Galvin for $720, and a decree foreclosing a mortgage on said lot 26, subject however to the liens of Whittaker, Sfcaub, and Patrick & Stafford.
On the 12th of August, 1876, plaintiff in error, without any actual notice of the claim of the defendant in error, purchased the said judgment of A. A. Smith, and on that day had the same assigned to him on the judgment record.
On the 16th of August, 1876, the defendant in error filed his statement for a mechanic’s lien in the office of the clerk of the district court of Labette county.
On the 19th of August, 1876, said lot 26 was sold by the sheriff under the judgments of Staub and others (rendered .at the May term of the district court), and bid off by plaintiff in error, who did not then have actual knowledge of the claim of defendant in error.
On the 1st of January, 1877, plaintiff in error completed the building on said lot 26, which was after the commencement of this suit in the district court -by defendant in error.
The case was tried in the district court at the May term, 1878; judgment was given for plaintiff (defendant in error), foreclosing his mechanic’s lien on lot 26. The defend ant Perry (plaintiff in error) excepts, and brings the case to this court for review.
The questions of the existence of a mechanic’s lien, and the methods of enforcing one, depend entirely upon the státute. It may be conceded that judgment was properly rendered against Galvin upon the breach of his personal contract to pay for one-half of the wall, and yet such concession in no manner determines the question of the existence of a lien upon the lot on which the half-wall was built. Unless the statute concerning liens was complied with, no lien exists; and if a lien exists, no action will lie, unless brought in the time and manner prescribed by statute.
Now upon the facts as they appear in the findings and by the record, one of two things is clear: either the half-wall was an independent improvement upon lot 26, or it was part and parcel of the building erected on said lot. It is not necessary to determine this question, and perhaps other facts should be found before it could be satisfactorily determined. Prima facie, it was part of the building, yet the intention of Galvin at the time of making this arrangement with Conroy in reference to erecting a building may have been such as to have compelled us to consider this a separate improvement. (Jean v. Wilson, 38 Md. 288.) If the former, then as the improvement was completed by September 26, 1875, and no claim of lien filed until August 16, 1876, no lien was created, for the statute requires that a statement of lien must be filed within four months after the completion of the improvement. (Dass. Comp. Laws, p.689, §3.) On the other hand, if the half-wall was simply part and parcel of the building on lot 26, then, as that building was not completed until after the commencement of this action, the action was prematurely brought, for the statute provides that no owner shall be liable to an action by .the contractor until the expiration of sixty days from the completion of the building. (Dass. Comp. Laws, p. 689, §2.) Counsel would avoid the effect of this in two ways. He claims that by agreement between the parties, payment was to be due when Galvin “put up his building,” and that this should be construed as meaning, not when he finished, but when he commenced his building. Even if this were the case, we do not see what difference it would make. The lien law, while intended primarily for the benefit of contractor and sub-contractor, also aims to protect the lot-owner. To secure to the two former their rights, it grants them a certain time in which to file their liens, and as protection to the latter, says that no action can be maintained against him during such time. Suppose that parties contract for earlier payment, and concede that the statute in no manner interferes with that as a personal contract, and that it may be enforced by personal action at the time the money by its terms becomes due thereon, though we do not decide that such is the law, yet when the plaintiff asks not merely a judgment for his money, but the enforcement of a lien not created by contract, but given only by statute, he must bring himself within the terms of the statute, or he will fail of his lien. He may sue too early, or too late. An action on his contract, if a written one, will lie at any time within five years; but to enforce a lien, it must be within one year from the completion of the building. So if he sues before the expiration of sixty days from the completion of the building, his action is premature.
The other proposition of counsel is, that inasmuch as Gal vin ceased work on the 23d day of July, 1876, and lost the title on the 19th of August, 1876, at one or other of those dates the building must be considered as completed within the purview of the lien law, so far at least as to all prior and completed contracts. There is plausibility in this claim, and the argument of counsel is put with force. We quote what he says:
“Galvin commenced to build, and appropriated our wall November 10th, 1875, and continued in the erection and inclosure of the store eight months, to July 23d, and then finally abandoned it. It was then being advertised fpr sale on the 19th of August. It was on that day sold, and Galvin could no further finish it; and-suppose that Perry, the purchaser, wodld not, so that Conroy may have no day ‘ within four months from the absolute completion of the building ’ to file his lien statement: can the purposes of the act be thus thwarted, and Conroy lose the price of the half-wall? Can the owner always by refusing, or, being unable to finish according to the original design, elude or defeat the lien? Is the statute really a mere snare? It seems clear enough that when the owner finally concluded his labor in and about the building, it must be deemed finished and completed by his election within the lien act; that when he gave up the lot and building to public sale, and it was sold, that was an election to consider the building completed, and a completion within the act as to the materialman whose property has been furnished; at least, if the materialman or workman, whose labor is rendered, so elects, it is a completion of the work and building, and the purchaser may use it for what he chooses. The building is sold and bought as completed, and the materialman has no. resort to the purchaser for the price of material in the building, nor can either compel the other to receive or pay for undelivered material. There is no privity between them. The building as to them is completed.”
Notwithstanding, we cannot yield our assent to the proposition, as broadly at least as it is stated, or even so far as will be necessary to support the judgment in this case. It is not within the letter of the statute. That names the completion of the building, and here the building was manifestly incomplete. Grant that the parties solely interested may agree to treat the building as complete: here there was no such ■agreement. The present owner is contesting, and the former owner did not while he owned, a.nd could not now, make ■such agreement. To imply an agreement might be a wrong upon the present owner, for he may have purchased with knowledge of this claim, but, believing that its collection could not be enforced against the property until sixty days after the completion of the building, might have made his arrangements for payment accordingly. Almost invariably when title passes, the building being unfinished, the former owner ceases and the new owner commences work. Sometimes the same contractors and employés are continued; sometimes new ones are engaged. Here; for aught that appears, the present owner continued the same employés, and proceeded as promptly and regularly in the work as the former owner, so that there was no more apparent break in "the work than there had previously been; for the findings ■show that the work had been carried on at irregular intervals. If in this case the contractor may elect to consider the building finished, he may in almost any other case of transfer of title. It is a matter of election with him. If so, and there are several contractors and sub-contractors, may one ■elect to consider the building complete, and proceed to enforce his lien, and another elect not to so consider it, and wait till the building is actually finished before filing and ■enforcing his lien? May the contractor elect one way, and his sub-contractor the other? A little reflection will show how' great confusion this doctrine of election would create. On the other hand, if when the title passes, and the former owner ceases work, the building is to be considered as completed without any election on the part of the contractor, such ruling would endanger the latter’s lien. Such transfer is often attended with little publicity. A deed may be recorded, but must a contractor keep watch of the public records? No change may be made in the mode or the party actually making the payments; so that in fact the contractor may have no knowledge of the change, or if the contractor ■has, the sub-contractor may not. As to all, is the building to be considered as complete when in fact it is not? As at rule, contractors do not care to file liens, and do not file-them until there is some fear; lot-owners do not wish liens filed. But if a change of title may work such results, the-only safety would be in filing'liens instantly on the delivery of material, or the doing of work. The law should not unnecessarily cast such a burden on parties. On the other-hand, the completion of the building is something apparent to anybody's view. Anyone having a claim can easily,, without inquiry and without trouble, watch for himself. And it is the date named in the statute. If parties wish, to go. outside of the statute, they can create a lien by contract. If, having contracted for no lien, they seek to create- and enforce a statutory lien, no wrong is done if they are held to the terms of the statute.
We conclude, therefore, that the action was prematurely brought, and the judgment will be reversed, and the case-remanded with instructions to render judgment for costs on. the findings in favor of the defendant, plaintiff in error.
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The opinion of the court was delivered by
Horton, C. J.:
This action was brought in the court below to recover possession of certain personal property, consisting of United States and national bank notes of the value of $1,556.22, alleged to have been received by W. A. Simpson and J. J. Crippen, as the agents of the said savings bank, and as the property of said bank. The petition further alleged, that Simpson and Crippen received the bank notes in 1877, while copartners in business under the name of “The Simpson Bank,” of the city of Lawrence, in this state; that on December 10th, 1877, the said James S. Crew was duly appointed the receiver by the district court of Douglas county in an action brought by the said W. A. Simpson against J. J. Crippen for an accounting between the partners and a dissolution of the partnership; that said savings bank was entitled to the immediate possession of the property, and that the defendants unlawfully detained the same. The action was not in form prosecuted against the receiver as an individual, but named him as receiver appointed by the said district court, and in custody of the partnership property. At the commencement of this proceeding, the plaintiff in error presented to the court by which the receiver was appointed an application for leave to make him a party defendant to this action. The court granted the motion, the attorney of the receiver consenting, but further ordered that such permission to join the receiver as defendant should extend only to an action to be brought and tried in said district court. Afterward, the pleadings in the case were made up, and then the plaintiff in error presented its petition and bond for a removal of the cause to the circuit court of the United States for the district of Kansas. Thereupon the court revoked the permission before granted for the plaintiff to sue the receiver, and dismissed the action as to Crew, at the costs of such plaintiff.
The various assignments of error alleged in the petition in error are embraced in two inquiries: First-, Did the court below err in restricting the plaintiff in error in the prosecution of his cause of action to the court- appointing the receiver ? Second, Did the court err in revoking this order and dismiss - ing the action against Crew ?
The determination of the first question is mainly decisive of the second, because if the court had the power to designate the forum in which its receiver was to be sued, it clearly had the authority to revoke its permission when it was sought to be evaded or abused.. The proceeding instituted by the plaintiff not only questioned the title or right of the receiver to the property claimed, but sought to disturb the possession, which he held under the authority of the court. A receiver of a court of justice has been well said to be the arm of the court by which he is appointed — a part of the court itself. He is the agent of no one except the court by which he is authorized to act. One court having custody of property through its receiver, cannot admit that another court, in defiance of its orders, has power to define what are his duties with reference to such property. To admit this, is substantially to say that one coordinate court can sue another. This cannot be done. The rule stated is established by so many authorities that citation is scarcely necessary. Every consideration of economy, of the prevention of vexatious litigation and conflicts of jurisdiction would indicate the importance of protecting the exclusive possession of the receiver by an inflexible rule of law. Even the cases of Kinney v. Crocker, 18 Wis. 74, and Allen v. The Cent. R. R. Co. of Iowa, 42 Iowa, 683, which assert the right in some actions to sue receivers without leave to prosecute being first obtained of the court appointing them, concede “that a court of equity will, on proper application, protect its own receiver, when the possession which he holds under the authority of the court is sought to be disturbed.”
The appointment of Crew as receiver of the effects and property of the partnership in the action of Simpson against Crippen, by the court below, secured to that court the power to control at its discretion all controversies which affected the property placed in his custody. It thereafter had the right to take to itself all such controversies, and compel parties to proceed nowhere else than in its own forum. (Railroad Co. v. Smith, 19 Kas. 229.)
In this case the plaintiff in error very properly asked permission of the court, before bringing the action, to join the receiver as a defendant in the case. The permission was granted; and within the principles above stated, the court, to maintain its control over its officer and the property in his charge, restricted the action to its own jurisdiction, and denied the plaintiff authority to prosecute its agent in any other court. No error was thereby committed. If it had the right to take to itself the controversy over this property, it surely had power to make' the order complained of. In fact, it adopted the practice generally pursued. In most cases the court appointing the receiver, upon motion or in any other mode it may think best, hears the complaint and defenses, and upon the issue made and the proof adduced on both sides, grants or denies the relief, as the court may upon the issues made and the proof under the rules of law deem right and proper. Of course, this court would have had the right to review on error any of the proceedings of the inferior court, if the action had been prosecuted therein under the permission granted, as this court had appellate jurisdiction, and the order of that court cannot be construed or assumed to interfere with the power granted to the supreme court.
The power of the district court to take to itself all controversies affecting the property placed in the hands of the re ■ceiver, aud compel parties to proceed nowhere else than in its own forum, must necessarily include the power exercised by it in dismissing the case against Crew. It granted the permission in the first instance, and it had the right to revoke the permission when it was sought to be abused. A ■court ought never to permit its process to be improperly used, nor allow its orders obtained for one purpose to be wrongfully applied to a different and contrary purpose. The ■court granted permission to join the defendant in an action in its own forum, and the plaintiff seeks to make this order the ■basis to oust the court of its jurisdiction, or a bridge to pass over into another forum. The order was granted that the district court might- assume jurisdiction of the controversy between plaintiff and the receiver, and the plaintiff seeks to abuse the order to transfer the controversy to another jurisdiction. This is unfair to the court. If sustained, it defeats the very purpose for which the permission was given. The theory of counsel to that end is unsound. It rests upon no ■stable foundation. Even assuming that the plaintiff had the right to bring the action without any previous assent having been given, within Railroad v. Smith, supra, the district court, with all the parties before it, had the power to compel the plaintiff to proceed nowhere else. Counsel contend, however, that the court had no power to refuse the removal to the United States circuit court, and could do nothing to affect the right of the petitioner. Certainly the court had the right to look into the case when the petition and bond were presented for acceptance and see whether it came within the statute. (Goddard v. Bosson, 21 Kas. 139.)
When it made this examination, it at once ascertained that the case within the practice and decisions of the federal courts, as to Crew, was not removable. It has been the frequent and uniform ruling of the federal courts, that a suit cannot be commenced against a receiver without leave being first obtained from the court appointing such receiver. At the time of the filing of the petition and bond for removal, -consent had been obtained to sue in the district court of Douglas county, but this consent was burdened with' the-limitation that the controversy with the receiver was to be-settled in that court, subject, of course, to appeal on error of the proceedings to the appellate court. The permission to sue was coupled with an imperative injunction not to go to. any other court. As the court had the power to affix to the permission the injunction, the case could not be removed, as. to the receiver, without the consent of the court granting it.. The case, under the circumstances, was not an ordinary action, and the consent of the court was absolutely essential for the prosecution of the action in the circuit court, by the-well established rules again and again announced by the federal courts.
In the absence of this consent, any action or order of this-court, even if favorable to the plaintiff in error, would avail him nothing, as the rules we have stated pertaining to suits against receivers in the federal courts are strictly observed, by them.
The judgment of the district court must therefore be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
This was an action to foreclose a mortgage given by the plaintiffs in error to the building association, defendant in error. The case was tried by the court, without a jury. Special findings of fact were made, and a decree entered foreclosing the mortgage. Of this decree plaintiffs in error complain, and allege two principal grounds of error. They insist, in the first place, that under the constitution and by-laws of the association, as they existed at the time of the execution of the mortgage, the plaintiff could not recover, or at least that the method adopted by the court in computing the amount due was wrong, and the recovery excessive; and, ■secondly, that the association, by certain amendments to its •constitution and by-laws, had precluded itself from complying with its obligations in the premises, and was therefore in no position to complain of defendants’ default.
The facts in the case are these: On October 8, 1874, the •defendants executed a note and mortgage for $3,000 to the plaintiff. (In fact, three mortgages were in suit, but for ■convenience we shall speak of them as one.) The note read as an ordinary promissory note, and was a promise to pay •'$3,000 on the 1st of June, 1877, with interest at three-fourths of one per cent, per month, payable monthly. The mortgage, which in its general features was an ordinary mortgage, recited the note, and conveyed as security therefor •certain real estate and shares of stock in the association. It further recited that Win. Hekelnksemper was a member of the association, that the mortgagors had agreed to pay certain dues and fines according to the constitution and by-laws ■of the association, and contained this stipulation, that “If said sum of money, or any interest thereon, is not paid when the same is due and payable, or if said monthly dues and fines shall not be paid for the period of four months, . . . then in either of these cases the whole of said sum embodied in ■said note, together with the interest thereon, and the dues and fines owing to said association, shall, and by this indenture do, immediately become due and payable.” It would .appear, therefore, upon the face of the papers, that on default the association was entitled to a judgment for the face of the note and interest, and a foreclosure of the mortgage and sale •of all the property conveyed by the mortgage. But the judgment in fact entered .was for only $1,819.14. As the .association, however, is not complaining, our only inquiry is, ■whether this amount is too large. We are not advised by any ■computation in the findings how this exact sum was reached. It appears that the cash received by Hekelnksemper at the time of the loan was $1,815.85 — the difference between that •sum and the face of the note being the premium bid for the loan. The court seems substantially to have ignored this premium, and given the association judgment upon the basis •of the amount of cash it had parted with. If treated as a ■cash loan only, the sums paid as dues on shares are no more to be credited as payments of interest than sums paid for insurance on buildings on the mortgaged premises, or improvements thereof. They preserve or enhance the value of the security, but are not payments on account of the loan. Was this a wrong upon the plaintiffs in error? Upon the face of the papers it was clearly a great wrong upon the association. And if the court went back of the papers and' 'treated the matter as a simple loan of so much cash, it would seem as though no injustice were done the borrowers. But the contention is, that this was no loan, but a mere redemption in advance of stock in the association; that no repayment of the money received was ever contemplated, but only a payment of interest and dues until the value of the shares-should equal the face of the note, when the one was to offset and cancel the other. Hence, in determining the amount due-in case of a default, the money received is to be ignored and a computation made of the amount which, considering the--probable duration of the' association, will be necessary to-place the stock at par. Or, as is said in the case of McCahan v. Building Association, 40 Md. 227: “The rule for ascertaining the amount proper to be recovered was to ascertain’ by proof the probable duration of the association; then to-estimate the aggregate amount of the bi-weekly installments-payable during that time, and from that sum rebate a first amount for interest, and add thereto the arrearages due after-allowing for payments made to the association, and the sum thus ascertained would be the amount which the plaintiff' would be entitled to recover, with interest until paid.”
The following are the sections of the constitution of the-association which bear upon this question. We group them here:
“Art. V, § 1. Every stockholder shall pay on each share-held by him or her $2 per month, monthly dues on each share subscribed, to the secretary, or such other person or-persons as may from time to time be appointed to receive the same.”
“Art. XV, § 1. As soon as the directors ascertain that the-value of shares in the oldest series amounts, to $500, the holder of each such share shall receive the sum of $500, or-have the same allowed on his indebtedness to the association.”'
“Art. X, § 1. Stockholders taking loans from the company shall pay interest on the same every month, at the rate-of three-fourths, of one per cent, per month. If the interest is allowed to remain unpaid for more than four months, the- directors shall compel payment of principal and interest.”' Section-2 of the same article provides, that “the member, before receiving thé loan, must give to the corporation a good and sufficient security for the payment of his dues, fines and interest that may accrue on his loan during the time he may hold the same, by a mortgage upon real property, to be approved by the board of officers.” Section 5 of the same article: “If any member having received a loan shall fail to-pay his dues for four months, the corporation may compel payment by the sale of the mortgaged property, the proceeds to be applied, first, to the payment of all expenses of said sale, arrears of taxes, etc.; second, to pay all arrears due the corporation by such member; and the balance, if any, to be paid to the member himself or his legal representative. Such delinquent member shall then cease to be a member of the corporation.” Section 6, same article: “No real estate shall be taken as security which has not the full value of the mortgage.” Section 7, same article, provides that “any member of this corporation proposing real property as security for redemption-money,” etc.
“Ant. XIII, § 1. Any member having received a loan and desiring to repay the same shall repay to the association the money received by him, together -with the loss and expenses the association may sustain in the reloan of said, money in the same series.”
We fail to see in those sections that which would change the character of the contract from such as it appears on the face of the papers, or would limit the right of the association to enforce a collection of this note. There may be in some a lack of precision, fullness and perspicuity, but nothing to-gainsay the contract. Those sections which refer most pointedly to the contract are the clearest. Sec. 1, art. 10, which alone provides for the case of a default in the payment of interest, says that the directors shall compel payment of principal and interest. What language can be plainer? Sec» 5, art. 10, upon which counsel have much to say, evidently was intended to apply, not to a case of default in the payment of interest, but to a case where interest is paid and dues not paid. And while the expression, “arrears due the-corporation,” is not apt, yet when construed in connection, with §1 of the same article, the meaning is clear.
It is doubtless true that it was contemplated that a borrower who continued as such, and without default, to the end of the life of the association, should not be compelled to pay the principal of the note, or perhaps more correctly, that the shares which he held would then be of sufficient value to pay the note, leaving the other property in the mortgage free; but it is equally true that, pending the life of the association, it was contemplated that the note and mortgage should express the very terms of the contract between the parties, that the relations between them should be that of borrower and lender, and that the loan was an asset of the corporation which, like any other debt, could be collected when it became due. "Voluntary and involuntary payments of the loan were expressly provided for. Sec. 1, art. 13, provides for the former, and requires payment of the money received by the borrower, with enough more to enable the corporation to replace the loan in the same series. Sec. 1, art. 10, provides for the latter. It would seem to contemplate payment of the face of the note, though for this case it is enough to hold that it requires payment of the money received by the borrower. All through this art. 10, as well as elsewhere in the constitution, it speaks of “loans,” and the very idea of a loan carries with it that of obligation to repay. These associations may deserve all the censure counsel heap upon them. Doubtless in cases of mismanagement, whether from design or incapacity •of the officers, they may do great injury to members, whether borrowers or not. Their experience in Kansas has not been happy one. They have disappointed the expectations of their promoters and supporters. But this fact will not justify courts in ignoring the stipulations of contracts, or, by construction, relieving parties from the obligations of even a hard bargain. Here the borrower is only asked to repay the money he received. The cases relied upon by counsel, from •Ohio, Maryland and Georgia, (Hagerman, et al., v. O. B. & S. Asso’n, 25 Ohio St. 186; McCahan v. B. Asso’n, 40 Md. 226; Williar v. B. B. L. & A. Asso’n, 45 Md. 546; O. B. & L. Asso’n v. Thompson, 52 Ga. 427,) are not in point, for it does not appear that the contracts or constitutions of the corporations in those cases were like those in the case at bar.
That such a corporation and such a contract as appear in this case are authorized by the statutes of this state, is apparent from the mere citation of the following sections:
“ 27. The accumulation and loan of funds to members, the erection of buildings, and the accumulation and loan of funds for the purchase of real property.” (Gen. Stat., ch. 23, §5; as amended, Laws 1871, ch. 65.)
“3. That premiums bid for priority of loan in building and saving or trust associations, organized under the corporation laws of this state, by the members of such associations, shall not be deemed as usury or subject to the provisions of sections 3 and 4 of an act regulating the interest of money,” (Gen. Stat. 1868, ch. 51;) “and all such premiums incorporated in the notes given by the members of the associations, and all the fines assessed against its members in accordance with the by-laws of such associations, may be collected by civil action before any court having jurisdiction.” (Laws 1869, ch. 5, §1.)
The other proposition of counsel is, that certain amendments of the constitution of defendant in error precluded a recovery. These amendments were as follows: Sec. 1, art. 5, and sec. 1, art. 15, heretofore cited, were amended so as to read:
“Art. 5, §1. Each stockholder shall pay on each share which he or she has taken, $2 monthly, as monthly installments for each share for which he has subscribed, except that the monthly payments on shares which are not pledged to the association shall cease after June, 1876.”
“Art. 15, §1. The directors are instructed to close the business of the association, and to pay off the shares which are not pledged to the association. As often as sufficient money is in the treasury to pay one-tenth of the indebtedness, the directors shall pay ten per cent, on each share.”
It is found by the court, that prior to the adoption of these amendments, which took place in June, 1876, all the non-borrowing members had given notice of withdrawal. And the constitution originally provided (art. 8, §3), that “the dues on such shares shall cease from the time notice to withdraw the same is given.” Now we fail to see how the amend ments in the slightest degree affected the rights of plaintiffs in error. When he (Hekelnksemper) became a member, he knew that dues on all unpledged shares could be stopped at any time upon the election of the holders of those shares. He joined the association upon that condition. The holders of those shares made the election, and then the only parties owing dues were the borrowing members. The amendment simply provided a change in the manner of paying off the unpledged shares, and that is something which did not interest the plaintiffs in error in the least. Their obligations were not increased to the amount of a dime by the amendments. So far as the instruction to the directors to close the business of the association is concerned, it cast no new burden upon any borrower, required of him no other or different payments, and simply recognized a duty which the general withdrawal of shares seemed to impose. Plaintiffs in error may have expected that all shareholders would remain such until the close of the association, but the loan was made upon no such condition, and any member had a legal right to withdraw. The exercise of this right by any or all the non-borrowing members did not change the contract of plaintiffs in error, or release them from any of its obligations.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hutchison, J.:
The error assigned in this case is in permitting the county attorney in his opening statement, over the objection of the defendant, to mention and refer to a confession of the defendant, which would be a part of the evidence of the state, and later introduce a part of such confession over the objection of the defend ant and in disregard of the urgent request of the defendant that the court first determine the admissibility of such alleged confession.
The defendant was charged in an information with the sale of morphine in violation of the narcotic law. He had heard the evidence of the state on the preliminary hearing, and in that way anticipated the evidence which the state contemplated using on the trial. Before the opening statement was made by the county attorney, defendant objected to any reference being made in such statement to a confession, and requested the court to first hear the evidence as to its being voluntary or involuntary and determine its admissibility. The objection and the request were both overruled. The statement was made to the jury by the county attorney, referring to the confession made by defendant to him and the chief of police. The latter officer later testified concerning the conversation between the three of them as to extending leniency if the defendant should catch the chief offender in such traffic, and further said, “Williams [defendant] then talked very freely about the matter. He said, 'Well, you fellows have got me dead to rights,’ or something like that.” Objection was again made,, as it had been on every previous occasion where reference was made to the confession; and, after the noon recess the court addressed the jury as follows:
"Gentlemen of the jury, some statements have been made to you that the defendant had made a confession, and there has been some dispute as to whether or not the purported confession was made under a promise. In any event, whether it was made under a promise or not made under a promise, don’t pay any attention to that confession of guilt he is claimed to have made. Don’t pay any attention to any alleged confession at all. You will have to tiy the case without that testimony, without any regard to it.”
Later in the trial the county attorney suggested to the court that the defense had in cross-examination indirectly opened up the same subject sufficiently to permit the state to introduce evidence of confession, but the court held otherwise, and no further reference was made to the subject. The defendant was convicted, and appeals.
There were two witnesses who gave very substantial evidence of the sale alleged to have been made by the defendant. One of them said he made the purchase of the narcotic from the defendant, giving the conversation and details. The driver of a taxi said he drove defendant to two places at the times indicated, the latter being where the purchaser said he met the defendant.
“Where there is an abundance of competent evidence introduced which conclusively establishes a certain, fact, it is immaterial that incompetent evidence is introduced to prove the same fact.” (State v. Tegder, 6 Kan. App. 762, syl. ¶ 1, 50 Pac. 985. See, also, State v. Evans, 115 Kan. 538, 224 Pac. 492.)
No one could candidly say that the statements made by the county attorney as to the evidence he expected to introduce might not influence the jury to some extent, but they were instructed by the court that they were limited to the evidence as they had heard it from the witness stand, and in this case they were especially cautioned to disregard all testimony of and reference to any confession. This caution of the judge amounts to a complete withdrawal of the testimony concerning a confession erroneously admitted and the statements made by the county attorney referring to a confession. The authorities are numerous that under such circumstances the rights of the defendant are not prejudiced.
“Ordinarily the prompt withdrawal of improper evidence and an instruction by the court to give it no consideration, cures the error of its admission.” (State v. McDonald, 107 Kan. 568, syl. ¶ 3, 193 Pac. 179.)
“Error cannot ordinarily be predicated by a defendant in a criminal case on the admission of evidence to which he makes timely objection, when his objection is promptly sustained and the jury is directed to disregard such evidence.” (State v. Bell, 109 Kan. 767, syl. ¶ 4, 201 Pac. 1110.)
“The withdrawal by the court of testimony improperly admitted accompanied by an admonition that the jury must disregard it will ordinarily cure any error in its admission.” (State v. Bisagno, 121 Kan. 186, syl. ¶ 4, 246 Pac. 1001. See, also, State v. Daugherty, 63 Kan. 473, 65 Pac. 695; State v. Finch, 71 Kan. 793, 81 Pac. 494; State v. Roupetz, 73 Kan. 663, 85 Pac. 778; State v. Sparks, 79 Kan. 548, 99 Pac. 1130; 16 C. J. 916, 1003.)
The only evidence that had been given on this subject was promptly withdrawn. The statements of the county attorney were also withdrawn; and it has been frequently held that even improper remarks in the opening statement or closing argument by the county attorney will not justify a reversal on appeal unless it appears that some substantial right of the defendant was affected by the error. (State v. Peterson, 102 Kan. 900, 171 Pac. 1153; State v, Smith, 114 Kan. 186, 217 Pac. 307; State v. Owen, 124 Kan. 533, 261 Pac. 600.)
Following the decisions above cited and observing the rule prescribed in R. S. 62-1718, that on appeal in criminal cases the court must give judgment without regard to exceptions which do not affect the substantial rights of the parties, the verdict and judgment in this case should be upheld because it has not been made to appear that the rights of the defendant have been prejudiced.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The question involved here is whether a subject of Great Britain is entitled to inherit the personal property of his deceased wife, a citizen of this state and country. The plaintiffs are blood relatives and collateral heirs of Anna M. Power-Tomlin-son. Defendant, her husband, a British subject, was administrator of her estate by appointment of the probate court of Lyon county, Kansas, of which county and state she was a resident. The husband prevailed and plaintiffs appeal.
At the time for the final settlement of the estate the plaintiffs appeared and filed a verified motion alleging that they were Mrs. Tomlinson’s heirs at law, and that the defendant, a British citizen and subject, could not inherit from her, and praying that the personal property of which she died seized be ordered distributed to them. Their motion was overruled by the probate court, whereupon they appealed to the district court. The appeal was there heard upon the verified motion and an agreed statement of facts as follows:
“It is hereby stipulated and agreed by and between the parties hereto that Anna M. Power-Tomlinson, deceased, died in Emporia, Lyon county, Kansas, leaving personal property in said county to the value of more than five hundred dollars; and leaving surviving her no children, or other lineal descendants, but leaving surviving her her husband, the said Ernest Tomlinson, and that said Ernest Tomlinson is a British subject, and not an American citizen.
“It is further stipulated and agreed, that the said Anna M. Power and the said Ernest Tomlinson were married on January 16, 1924; that the said Anna M. Power-Tomlinson died May 28, 1924; and that the said personal property is not the joint earnings or accumulations of the said Anna M. Power-Tomlin-son and Ernest Tomlinson; and that the proponents of the motion are the aunt and cousins of the said Anna M. Power-Tomlinson, deceased, and all of them now surviving.”
Upon a trial in the district court the order of the probate court was affirmed and a judgment rendered to the effect that the administrator make distribution of the personal property pursuant to the order of the probate court.
The plaintiffs contend that the defendant, being a British subject, is treated by the law of descents and distributions as if he did not exist; that all of the estate goes to the next in order of descent. An extensive argument and many authorities are cited in support of the contention, on the theory that the question depends upon the treaty rights existing between this country and Great Britain. The defendant, on the other hand, relies upon Olsson v. Savage et al., 119 Kan. 603, 240 Pac. 586, wherein it was held that under the treaty between the United States and Sweden, proclaimed March 20, 1911, a subject of Sweden is entitled to inherit personal property from a citizen of the United States. The plaintiff contends that the Olsson case is not controlling because of a difference in the wording of the two treaties. The language of the treaties is so similar that it is difficult to distinguish them. However, the decision need not rest upon the provisions of the treaty. Our constitution (original section 17 of the bill of rights) provided that “no distinction shall ever be made between citizens and aliens in referencé to the purchase, enjoyment or descent of property.” So far as real property was concerned, this was a-n abrogation of the common-law rule which prevents the inheritance by aliens of real property. This provision of the constitution was amended in 1888. The section then adopted and now in force reads:
“No distinction shall ever be made between citizens of the state of Kansas and the citizens of other states and territories of the United States in reference to the purchase, enjoyment, or descent of property. The rights of aliens in reference to the purchase, enjoyment or descent of property may be regulated by law.” (Bill of Rights, § 17.)
This amendment, without a statute regulating the rights of aliens with reference to the purchase, enjoyment or descent of property, reinstated the common-law rule (Johnson v. Olson, 92 Kan. 819, 821, 142 Pac. 256), which now obtains, but alienage is not at common law any obstacle to the acquisition of title to personal property by next of kin. (2 C. J. 1069, and cases cited.) No reason is apparent, therefore, why the husband in the instant case, although a British subject, may not inherit his wife’s personal estate. The question needs no further elucidation.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This action is by the Farmers State Bank of Cunningham, the present receiver of it, and the state bank commissioner of Kansas against the former receiver of the bank and the Globe Indemnity Company of New York, surety on his bond as receiver, for the loss sustained by the plaintiffs by reason of the breach thereof by the receiver and his preconceived design, willful negligence and fraudulent conduct in handling and disposing of the property of the bank, to the great financial detriment and loss to the plaintiffs and the depositors and creditors of the bank. Issues were framed and the case tried to a jury, which returned a verdict against the defendants for $10,000, the full amount of the bond, and answered special questions. Judgment was rendered for $10,000 and interest against defendants, who bring the case here on appeal.
The amended petition recites the failure of the bank, the appointment of E'. C. Crow as receiver, his giving the bond sued upon herein, his entering upon the duties of receiver, his organization of another bank and housing and maintaining it in the same office he used as receiver, and his conceiving the plan and purpose to not press the collection of the notes of the defunct bank and later selling them in order to close the receivership and to purchase them himself at a profit. It is alleged at great length that he carried out this plan, telling parties offering to pay that there was no hurry, neglecting to notify parties of their mature obligations and failing to get security where obtainable; later, through the bank commissioner, predecessor of the plaintiff, making application to the court to sell the bank assets, the face value of which aggregated nearly $255,000; securing with the order of sale the appointment of temporary receivers so that he might be a purchaser at the sale; purchasing nearly all the assets, alleged to be worth about $50,000, for less than $6,500; then, after confirmation, proceeding promptly to make collections and obtain security, thus making for himself large and handsome profits, to the loss and damage of the plaintiffs of more than $50,000; the amended petition setting out details as to many particular instances, and alleging that the plaintiffs had no knowledge or notice of any of such designs or fraudulent purposes on his part until after the sale and confirmation.
The appellants, before answering, moved the court to strike out numerous portions of the amended petition and to require plaintiffs to separately state and number the various causes of action. The court overruled these motions. We think it properly did so, especially the motion-to require the several causes of action to be separately stated and numbered. This is a suit upon a bond, which ordinarily consists of only one cause of action. The motion to strike out certain paragraphs or parts thereof could very properly have been sustained, especially where the substance of an exhibit attached was stated in the language of the pleader. Other allegations that possibly were immaterial or which pleaded'details could also have been properly stricken out, but the failure to sustain the motion and order, them stricken out is not error. Ordinarily, no one but the plaintiff can be harmed by stating things twice or pleading details. Defendants demurred to the amended petition on the ground that it failed to state facts sufficient to constitute a cause of action. Prior to the filing of the demurrer, however, they moved to strike the amended petition from the files, and after the demurrer objected to the introduction of any evidence under it, all for the same reason.
We will consider them all together, since they all go to the sufficiency of the petition. Appellants argue that since the bank ánd the bank commissioner were interested in the receivership case they should have protected their rights and the rights of those whom they represented in that action by objecting to the conduct of the receiver of which they now as plaintiffs complain; that it would be most unconscionable to allow them to maintain this action after permitting the assets to be sold without objection. Whatever might be said of such proposition generally, the objection is fully answered in this case by the allegation that plaintiffs had no knowledge or notice of such scheme and fraud until long after the sale.
It is further argued that this action is in effect one to set aside the order of sale, the confirmation, and the judicial proceedings in the receivership case. Numerous authorities are cited holding that such cannot be done by a collateral attack. We thoroughly agree with appellants as to the conclusion, but cannot accept the premises. This is a suit on a bond. As far as the record reveals, this is the first time any court’s attention has been called to this bond and the misconduct of the receiver furnishing the bond.
It is insisted that since the bond runs to the state of Kansas the attorney-general is the only proper party who could maintain this action, and further that the plaintiffs have no legal capacity to sue.
“When an officer, executor or administrator within this state by misconduct or neglect of duty forfeits his bond or renders his sureties liablé, any person injured thereby, or who is by law entitled to the benefit of the security, may bring an action thereon in his own name against the officer, executor or administrator and his sureties to recover the amount to which he may be entitled by reason of the delinquency. .' . .” (R. S. 60-424.)
"... Provided, however, That whenever the bank commissioner shall have paid any dividend to the depositors of any failed bank out of the bank depositors’ guaranty fund, then all claims and rights of action of such depositors so paid shall revert to the bank commissioner for the benefit of said bank depositors’ guaranty fund, until said fund shall have been fully reimbursed for payments made on account of such failed bank, with interest thereon at three per cent per annum.” (R. S. 9-204.)
“The defendant has a right to insist that an action against him shall be brought by the real party in interest, as the statute provides, but the purpose of the statute has been attained if the defendant is not shut out from defenses and counterclaims and will be fully protected by the judgment from any further liability on the same cause.” (Rullman v. Rullman, 81 Kan. 521, syl. ¶ 3, 106 Pac. 52.)
We think the amended petition states facts sufficient to constitute a cause of action and that at least the bank commissioner is a proper party plaintiff and has legal capacity to sue on the bond.
Appellants particularly urge there is no allegation of depreciation of value of securities during receivership and that property must have brought its full value at the sale. This is met by reference to allegations of neglect in obtaining securities and failing to take mortgaged property; also by the specific instances where debtors offered more than was later received at the sale.
Before commencing the trial the appellants moved for a change of venue, or at least a change of trial judge, because the presiding judge was a material and necessary witness for the defendants in connection with the alleged fraud and misrepresentations before the .court in obtaining the order of sale. In support of defendants’ motion, evidence of a local attorney was introduced showing what took place and what was said in that connection. It was then stated by attorney for plaintiffs:
“I will consent that all of the testimony of C. C. Calkin may be read to the jury in the trial of this case as the facts in the case, subject to the plaintiffs’ right to object as to the incompetency, irrelevancy, and immateriality of such testimony.”
Attorney for plaintiffs then asked the court the privilege of striking out, and did strike out, the allegations in the petition as to fraud and misrepresentation in connection with obtaining the order of sale and confirmation of sale. The court then very properly overruled the application for change of venue, as no issue on that subject remained and no witnesses would be necessary or material.
“Therefore we think that where a judge is a material and necessary witness in a case, he is ‘disqualified tó sit.’ If the district court had overruled the application to change the place of trial upon the affidavit presented, we would unhesitatingly pronounce the ruling eminently correct,, because it seems to us that the true rule in such case is, that such facts and circumstances must be proved by affidavits, or other extrinsic evidence, as clearly show that the judge is a material and necessary witness; and unless this clearly appears, a reviewing court will sustain an overruling of the application.” (Gray v. Crockett, 35 Kan. 66, 71, 10 Pac. 452.)
It is strenuously urged that the court erred in admitting improper evidence and in refusing to admit proper evidence and allow cross-examination along certain lines. It is quite probable in a long, closely tried case like this that mistakes of this kind were made. Some such were pointed out, but none of them appear to be of such a character as to prejudice the rights of the defendants or justify a reversal. (Meyer-Bridges Co. v. Warehouse Co., 94 Kan. 288, 146 Pac. 361; Spencer v. Casualty and Surety Co., 116 Kan. 491, 227 Pac. 357.)
Appellants insist that the court erred in refusing to give the jury a peremptory instruction in favor of them, as requested, and in refusing to give the other instructions requested by them, and that it also erred in giving the instructions it did give, particularly 33, 34, 35 and 50, which are as follows:
“33. Ordinarily a receiver is precluded from buying from his estate property in his hands as such receiver.
“34. In this case, however, it appears that special receivers were appointed by the state bank commissioner and approved by the district court to conduct the sale of the remaining assets of said bank for the purpose of enabling E. C. Crow, as receiver, to bid upon and purchase certain of said properties.
“35. In this connection you are instructed that the fact that special receivers were appointed to conduct the sale, and such sale was by them conducted, and such sale was confirmed, did not relieve the said E. C. Crow from his duty to exercise the utmost good faith in his dealing with said insolvent bank. It was still his duty to deal fairly and aboveboard with all the properties of his estate and prospective purchasers thereof, and to fairly and honestly present and impart all information and facts tending to show the true value and condition of the assets to be sold, and not withhold any information acquired by him as such receiver tending to show the true value and condition of such assets. The appointment of such special receivers did not give the said Crow all the rights of a stranger to said estate, nor give him the right to deprecate the assets to be sold, nor to chill the bidding for same.
“50. You are instructed that if you find and believe from the evidence that there was collusion or an understanding between the said E. C. Crow, receiver of said bank, and C. J. Peterson, state bank commissioner, and that said Peterson and the said Crow both profited by such collusion or understanding at the expense of the creditors, stockholders and depositors of said bank, then I say to you that the orders and advice or instructions given by said bank commissioner to said receiver respecting the method of handling said properties would be no excuse for the misconduct of said Crow, if any, concerning the matters of such orders, advices or instructions in which the said receiver and the said bank commissioner may have both profited.”
Appellants point out particular features of the case wherein they claim the evidence in support of necessary allegations is entirely wanting, and therefore the peremptory instruction they requested should have been given. We shall consider this question further in connection with the answers- of the jury to the special questions submitted. At this time we will say that there is, we think, at least some evidence on all the essential points necessary for a recovery, and sufficient evidence thereon to submit the matter to the jury. As to the failure to give the instructions requested by the defendants, we observe, as usual in such requests, that the court in this case has in his own language embodied in his instructions the same principles of law as contained in some of those requested; and, as to those not given in substance or otherwise, we see no error in declining to give them.
Appellánts complain seriously of the court emphasizing the desire of Crow to bid at the sale and the filing of the application for such privilege, and also the explanation given, to the effect that such privilege did not give him all the rights of a stranger. Is this not the law? He was the receiver all the time except at the sale and in all things except those in connection with the sale. He was actively such up to the time of the sale, and resumed the duties immediately thereafter. An administrator who steps aside while his own claim against the estate is being considered owes to the estate all the duties which his official position imposes except the one from which he has been temporarily excused.
Instruction 50 is criticised partly because there is no allegation in the petition charging the former bank commissioner with any impropriety in connection with this case. In the progress of the trial the defendant Crow apparently attempted to justify himself by showing he was following the instructions of his superior officer. The subsequent cross-examination of Crow revealed some very intimate financial connections between the two officers and the respective financial institutions they represented. The changed features of the case were brought about by the evidence of the defense. It is not right nor fair to litigants to quit with the showing that defendant was following the advice of another, without inquiry as to collusion, if any, between them and the interest and motive of the adviser. We think the court met this new situation by stating the law fairly in instruction 50.
“In an action on the bond of an agent or employee given to secure the payment to the, principal of moneys handled by him, it is no defense that . . . the money was derived from a business transaction, unauthorized, or prohibited by the corporation’s charter, or that the cashier of the corporation consented to the defalcation or overdrafts, and the directors were negligent.” (9 C. J. 85.)
Appellants allege that the trial court erred in not sustaining their motion to set aside the answers to certain of the special questions submitted, especially the third, fourth, fifth, sixth, seventh, eighth, and thirtieth, for the reason that they are not supported by the evidence and because they are leading and negative questions, which have been regularly criticized by the courts, as in A. T. & S. F. Rld.
Co. v. Butler, 56 Kan. 433, 43 Pac. 767; McClintock v. Pyle, 91 Kan. 393, 394, 137 Pac. 788; Tire Co. v. Equipment Co., 111 Kan. 719, 722, 208 Pac. 659. These questions and answers are as follows:
“3. Do you find that during the time that E. C. Crow was acting as receiver of the Farmers State Bank of Cunningham, Kansas, that he willfully, purposely, deliberately, and fraudulently conceived a plan and formed an intent to cheat, wrong and defraud the stockholders, creditors and depositors of the Farmers State Bank of Cunningham, Kansas? A. Yes.
“4. If you answer the above question in the affirmative, then state whether or not the said E. C. Crow, while acting as receiver of the Farmers State Bank of Cunningham, Kansas, willfully, purposely, and fraudulently carried out his plan and intent to the extent that the creditors, stockholders and depositors of said bank were defrauded by his acts. A. He did.
“5. Do you find that the said E. C. Crow, while receiver of the Fanners State Bank of Cunningham, Kansas, well and faithfully discharged all the duties of receiver of said bank according to law? A. No.
“6. If you answer the next above question in the negative, state how much more, if any, you find would have been realized to said receivership had said E. C. Crow well and faithfully discharged all the duties of his office according to law. A. $20,650.
“7. What sum, if any, over and above the sum of $6,440 do you find that the said E. C. Crow, receiver, could have collected during the ordinaiy course of the receivership upon the notes listed as classes A, B and C, of the motion to confirm sale, had the said E. C. Crow, receiver,. well and faithfully discharged the duties of this office according to law? A. $14,210.
“8. If you find that the said E. C. Crow, receiver, received or followed any instructions from C. J. Peterson, state bank commissioner, relative to his (Crow’s) note pressing or to delaying the collection of certain assets, state whether or not E. C. Crow followed such instructions in good faith. A. Crow followed Peterson’s instructions, but we do not believe that Crow or Peterson were either in good faith.
“30. If you find that the plaintiffs suffered loss and damage by reason of the fraudulent' acts, statements, and conduct, state the specific items of damage and the amount thereof that you find that the plaintiff sustained with reference to each specific note or item of personal property as appears from the evidence in the case, as follows, to wit:
“(A) On the W. A. and Inez Lash note of $1,807.83? A. $750.
“(B) On the Harry Renner notes of $1,000 and $2,514.74 respectively? A. $1,500.
“(C) On the G. C. Haden notes of $100 and $469.87 respectively? - A. $400.
“(D) On the M. L. Walker notes for $1,311.12 and $2,400.75 respectively? A. $2,500.
“(E) On the notes listed under schedules A, B and C in the report of sale of November 24, 1924, and marked ‘Plaintiffs’ Exhibit 3’? A. $20,000.”
There is no doubt that at least one or more of these questions are subject to the criticism of being leading and negative, and should have been submitted to the jury in a different form or not at all. The three cases cited above severely criticize questions in this form, and the latest case refers to such questions as being “outlawed” in Kansas, but none of the cases hold that the failure of the.c.ourt to exclude them is reversible error. None of the cases cited was reversed. Appellants particularly urge the setting aside of the answer to question 8 for the same reasons assigned as objections .to instruction 50.
Error is alleged in the failure of the court to sustain defendants’ motion for judgment in their favor on the answers to the special questions, notwithstanding the general verdict. In this connection our attention is directed to the answers, which show Crow was appointed receiver because the bank was insolvent; that the officers knew it was insolvent; that Crow did not prevent the officers from knowing the true condition of the bank; that he got an order to sell before he did anything toward the sale of the assets, and that he followed the order of the court; that he did not prevent anyone from bidding at the sale; that the sale was made by competitive bidding to the highest bidder; that there was no objection made at the sale and no prevention of such on his part; and that full report was made to the court; also, particularly to the answer to question 26, which is as follows and should be considered in connection with its companion question, 27:
“26. Did E. C. Crow, as receiver, in any manner fail to discharge all the duties of said receiver according to the orders of the court and the directions of the bank commissioner? A. No.
“27. If you answer the above question in the negative, then state what orders of the court or duties as receiver he failed to carry out. A,. He failed to cany out his duties as receiver in that he did not collect as much of the assets of the bank as he could have and in not keeping his securities up.”
We think these favorable answers of proper discharge of certain official duties are not sufficient in themselves to justify the segregation óf them from the answers to other questions showing neglect, failure, and misconduct in an official capacity as a basis for a judgment notwithstanding the general verdict.
Before the case was submitted to the jury the court dismissed the case as to the Farmers State Bank of Cunningham and Charles W. Johnson, as receiver, and submitted it, as stated in the instruc tions, with Roy L. Bone, state bank commissioner, as the sole and only plaintiff. A cross appeal by the bank and Johnson submits this as error, but we think it can be fully answered and the decision of the trial court sustained by reference to the statute, R. S. 9-204, quoted in the early part of this opinion, to the effect that when the bank commissioner shall have paid any dividends to the depositors, as he did in this case, then all claims and rights of action of such depositors shall revert to the bank commissioner.
We think there was no error in overruling the motion for a new trial, that there was sufficient evidence to support the general verdict, and that the answers to the special questions are not inconsistent with the general verdict.
The court had, under the undisputed facts in this case, a perfect right to add interest at the rate of six per cent per annum to the general verdict from March 20, 1925, the day on which the defendant Crow ceased to act as receiver, as admitted in the answers of the defendants.
“When in such case it clearly appears from the findings of the jury that no-interest has been included in their verdict, and it also clearly appears from such findings, from the admission of the party to be charged, or other incontrovertible evidence, from what date interest should be allowed, the court may compute the interest and include it in the judgment.” (Smith v. Railway Co., 90 Kan. 757, syl. ¶ 4, 136 Pac. 253.)
“Ordinarily, where a party is entitled to interest and the jury have neglected to add it, and it can be ascertained and supplied by mathematical calculation, it is not error for the court to add it.” (Fall v. Tucker, 113- Kan. 713, syl. ¶ 4, 216 Pac. 283. See, also, Berry v. Dewey, 102 Kan. 392, 170 Pac. 1000; Smith Bros. v. Hanson, 106 Kan. 32, 187 Pac. 262; Manross v. Oil Co., 107 Kan. 71, 190 Pac. 619.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover $1,000 which defendant received from plaintiff as an advance payment pursuant to a written contract for the purchase of sixty-five shares of bank stock. The contract was not carried into effect; defendant refused to return the down payment; and in the lawsuit which followed plaintiff was defeated, and appeals, assigning error on the trial court’s refusal to give certain instructions and’ to submit certain special questions to the jury requested by plaintiff. The one special question submitted to the jury and the answer returned read:
“Q. Did the defendant refuse to deliver, transfer and assign sixty-five shares of the capital stock of the Carlton State Bank to the plaintiff upon November 10, 1926? A. No.”
Appellant opens his argument thus:
“There is really but one question for determination in this case in this court. Did the trial court err in refusing plaintiff’s request for its several special instructions concerning rescission of the contract, by either of the parties and acquiescence by the other; and abandonment of the contract by both parties or by the defendant; and in refusing the plaintiff’s request for the submission of special questions to the jury.”
It is difficult to discern any issue of rescission and acquiescence in this case. Plaintiff’s petition did allege that after making the written contract for the sale of defendant’s sixty-five shares of bank stock, there were negotiations between the parties relative to a reduction of the number of shares which defendant was to sell. But the trial court disposed of that matter by an instruction to which no objection was made in the trial court and on which no error is assigned in this appeal. It reads:
“Some evidence has been introduced as to negotiations between the parties for a modification of the written contract so that it would apply to fifty-one shares instead of sixty-five shares of the capital stock of said bank, but you are instructed that there is no evidence that such a modification of said contract was ever consummated, and the evidence in that regard should therefore be wholly disregarded by you.”
This instruction became the law of that feature of the case with which it dealt. (Duigenan v. Claus, 46 Kan. 275, 26 Pac. 699; Dryden v. C. K. & N. Rly. Co., 47 Kan. 445, 28 Pac. 153; Railway Co. v. Schroll, 76 Kan. 572, 92 Pac. 596; 14 R. C. L. 808, 822.)
Following the failure of the negotiations to change the number of shares, plaintiff’s version of the facts reads:
“A. I went back there on the tenth. ...
“Q. Now the tenth was the date mentioned in the contract as to when you should pay the balance on the contract — the balance of the money? A. Yes.
“Q. And get your stock? A. The tenth was the day that our contract was supposed to be closed and complete. . . .
“Q. Well, when you got down there what if anything did you say to him and what did he say to you about closing up- this deal? A. I told him that I came down to close the deal with him that day, and he said that he didn’t care to discuss it any further, and he didn’t believe that he was ready to do anything right now, and he gave me to understand- . . .
“Q. What did he do? A. Well he turned around, turned his back to me and walked off and went to work at his books. . . .
“Q. You went home? A. Yes, sir.
“Q. Did you ever go back? A. I went back on the 12th. . . .
“Q. And did you find Mr. Hunter at the bank that day? A. Yes. . . . I introduced Mr. Gemmill, and I told him that I came down to close up the deal.
“Q. What, if anything, did Mr. Hunter say? A. He said that he didn’t think that we could do anything on the closing of the deal, and I told him then that if we couldn’t do anything on the close of the deal and he wanted to pass it up that I wanted my money back, and he turned around and walked over and went to working on his books again. . . .
“Q. When you went down there on the tenth, you may state whether or not you were ready, able and willing to close the deal? A. I was.”
The evidence for the defendant completely controverted the foregoing narrative; but assuming its truth, what is there about it which called for the giving of instructions covering the law of rescission and acquiescence, or of mutual abandonment of the contract? We discern nothing. Plaintiff did not aver that he himself rescinded and that defendant acquiesced. He did not testify that defendant rescinded and that he (plaintiff) acquiesced. Nor did he give any testimony which by fair inference could be said to amount to abandonment of the contract by mutual assent. Plaintiff’s petition sufficiently alleged, and his evidence sufficiently tended to prove, that defendant refused to carry out the contract, but that matter is completely foreclosed by the jury’s special finding to the contrary. And it cannot be gainsaid that the testimony given by defendant fully supported that finding. It is needless to quote from that testimony, but in substance it was that plaintiff told him he had been disappointed in the matter of raising the money to buy the sixty-five shares, and he asked defendant to accept his note for part of the purchase price; that defendant rejected that request, and that he was at all times ready, willing and able to deliver the stock according to the terms of the contract if plaintiff’s money had been forthcoming.
A point is urged against defendant because he did not comply with one feature of the contract which stipulated:
“Said first party [defendant] agrees to use his influence and best efforts to elect or have elected said second party on board of directors and officer of said Carlton State Bank; in case of failure to said election all moneys paid on this contract shall be refunded to said party of the second part.”
Necessarily an election of plaintiff to a place on the board of directors and as an officer of the bank could not precede his ac quisition of the bank stock, or at least of a sufficient number of shares to qualify him. (R. S. 9-109, 17-227.)
It is also argued that the contract did not provide for a forfeiture of the advance payment. True; but the contract did specify the particular condition under which the advance payment would be returned; and as the carrying out of the precedent terms of the contract never progressed far enough for plaintiff’s election to the directorate to be properly undertaken, the contract clause for the return of the down payment furnished no basis for a judgment in plaintiff’s favor. There is good authority for the rule of law that one who has bound himself in a written contract for the purchase of property and makes a partial payment thereon is not entitled to recover such payment if the sale fails solely because of his own fault. (Donahue v. Parkman, 161 Mass. 412, 42 A. S. R. 415; Neis v. O’Brien, 12 Wash. 358.) This rule is certainly not inequitable where the contract specifically states the condition under which the partial payment is to- be returned. In such case the parties are presumed to have deliberately excluded from the contract all other grounds under which a refund could be demanded.
We have noted the nine special questions prepared by plaintiff, all of which (except the seventh quoted above) the trial court refused to submit to the jury. The first four covered matters not in dispute. The matters covered by questions 5 and 6 were disposed of by the court’s instruction quoted above. No. 8 was not important; and No. 9 was properly rejected.
The judgment is affirmed.
Btjbch, J., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Henry C. Krenkle brought this action against Arthur Selleck and his wife, Julia Selleck, to recover damages for alienating the affections of his former wife, Eva Krenkle. At the trial plaintiff offered his evidence, and when he had rested the court sustained a demurrer to his evidence and gave judgment for defendants. He appeals from the ruling and judgment.
Did the evidence produced by plaintiff tend to establish a right of action against the defendants for the alienation of the affections of his former wife? is the only question presented on this appeal. It appears that the plaintiff and Eva Mears were married October 9, 1923. Each had been married before, and each had children by the former marriage. He had three children who were living apart from him, while Mrs. Krenkle had two children by a former marriage, namely, Paul Mears, aged sixteen years, and Ruth Mears, aged fourteen. He owned a tract of land which was incumbered, and she was living on an improved farm of 240 acres that had descended to her, one-half of which was owned by her and the remaining one-half by her children, Paul and Ruth. Before her marriage he presented to her a prenuptial agreement which contained among other things stipulations to the effect that they should occupy and operate her farm and would divide the products upon a certain basis. It was stipulated in the agreement that each should waive the right of inheritance in the property of the other, and that the property of each should ultimately pass to his or her own children. She was not satisfied with the agreement because it did not contain provisions relating to her son, Paul, who wished to gain a college education. He told her he would write such a provision in the agreement, if she would word it, but it was signed without alteration.
The evidence tended to show that shortly after the marriage she complained that the contract was unfair as to Paul and wanted to know where the money was coming from to send him to college, and he testified that she kept on nagging him day after day for money to educate Paul. During the months following the marriage there were disagreements, and she ultimately applied for a divorce. At one time in September, 1925, she telephoned to her parents, the defendants in the case, to come to her home; and they went there and found plaintiff and his wife discussing their differences in a heated manner, and after listening to their discussion for about two hours, Mr. Selleck made the remark, “If you cannot get along any better than this, the only thing you can do is to be divorced.” There was some talk of their entering into a new agreement, and the defendant, Arthur Selleck, remarked that another agreement would not do any good; if you cannot live together with the agreement you have, you had better be divorced. No other representations were made by defendants or any interference by them shown. Afterwards plaintiff and his wife with the defendants went to the office of the probate judge, with a view, it seems, of obtaining a divorce, and were told by the judge that he had no authority to grant one. They then called on a lawyer and discussed their troubles with him, and the defendants left and went to their own home. Shortly afterwards a divorce was granted to Mrs. Krenkle on the ground of gross neglect of duty and extreme cruelty. The plaintiff entered his voluntary appearance in the suit and did not contest the granting of the divorce. No attempt was made to show ill will or malice of the defendants toward the plaintiff. On the contrary, plaintiff testified that his relations with defendants were pleasant, and that until they came in response to the telephone message mentioned they had treated him well, and neither had said anything indicating animosity towards him. According to the testimony the sum total of the defendants’ offending was the statements quoted. The plaintiff and his wife had been quarreling for months, and defendants had just listened to a “spat” which lasted for about two hours before the remark was made. It was not the first suggestion of a divorce either, as the question had already been talked over between plaintiff and his wife. There was nothing to show that defendants sought to prejudice their daughter against her husband or to alienate her affections for him, if any existed. His testimony tended to show sentiment of friendship for him by the deféndants, and there was no attempt to prove that defendants had advised their daughter to separate from him other than has been stated. On the other hand they showed marked distress when they learned of the domestic trouble and had listened to the quarrel which invoked the statement mentioned. The statement itself was not made to their daughter alone but was openly made to both the spouses. In view of the hostility manifested between them during the visit of the defendants, it was not an unnatural nor an unwise declaration for a parent to make. They did not intrude themselves on the quarreling Krenkles, but went there upon a speoial request, and we discover nothing in the evidence betraying any improper motives or any conduct from which that might be inferred. Malice or bad motives of parents interested in the protection of a child cannot be presumed. The burden is upon the plaintiff to establish improper motives on the part of the defendants, but in this the plaintiff has utterly failed. It has been said that:
“The father stands in a very different relation toward his married son or daughter than a stranger would occupy towards the same persons. Natural affection would imply that the advice and counsel extended to them were prompted by good motives and unworthy objects cannot be presumed. They ought positively to be shown or necessarily deduced from the facts and circumstances detailed.” (Eagon v. Eagon, 60 Kan. 697, 705, 57 Pac. 942.)
Another quotation from the same opinion is:
“ ‘The reciprocal obligations of parent and child last through life, and the duty of discharging these divinely implanted obligations is not and cannot be destroyed by the child’s marriage.’ ” (p. 704.)
In Meek v. Meek, 118 Kan. 106, 233 Pac. 1032, it was said:
“In an action for alienation of affections brought against a parent of the plaintiff’s spouse, proof of a higher degree, if not of a different kind, is required than in the case of a stranger.” (p. 108.)
See, also, Powers v. Sumbler, 83 Kan. 1, 110 Pac. 97; Erickson v. Erickson, 98 Kan. 244, 158 Pac. 48; Cooper v. Cooper, 102 Kan. 378, 171 Pac. 5; Wohlfort v. Wohlfort, 125 Kan. 234, 263 Pac. 1062.
No testimony is found in the record showing malice or any improper motive, and nothing in the conduct of defendants from which a valid inference might be drawn that defendants were actuated by any improper motives, nor was there any such interference as would give a right of action for alienation of his wife’s affections.
The judgment sustaining the demurrer to plaintiff’s evidence must therefore be affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
Defendant was found to be the father of relatrix’s' bastard child, and an appropriate judgment was rendered. Defendant appeals.
The proceeding was instituted by complaint of the relatrix, filed in the city court of Wichita. The document was entitled, “The State of Kansas, Plaintiff, vs. C. W. Hatfield, Defendant.” Warrant was issued and served, a hearing was had, and defendant was required to give recognizance to appear in the district court to abide its orders. An information was duly filed in the district court which bore the same title as the complaint. Defendant filed a motion to quash, a plea in abatement, and a demurrer, all on the ground the action could not be prosecuted by the state alone, but must be prosecuted by the state on the relation of the prosecuting witness. The county attorney .asked leave to amend the title of the information by inserting after the words “The State of Kansas” the words “on the relation of Mrs. Blanche Wilbur.” Leave to amend was granted, the title was amended accordingly, the motion and plea were denied, and the demurrer was overruled. The statutory period within which the prosecution could be commenced expired after the information was filed and before the amendment was made. Motions for judg ment notwithstanding the verdict and for' a new trial were filed and denied.
The defendant concedes the action was a civil action. The state concedes the statute pertaining to illegitimate children prescribes the procedure for prosecution of the action, and to the extent the procedure is prescribed it must be followed. The defendant quotes the following provisions of the statute:
“The prosecution shall be in the name of the state of Kansas, on the relation of the prosecuting witness; but the rules of evidence and the competency of witnesses shall be the same as in civil cases.” (R. S. 62-2303.)
“No prosecution under this act shall be instituted after two years from the birth of such bastard child.” (R. S. 62-2317.)
The contention is the prosecution was not in the name of the state on the relation of the prosecuting witness until the amendment was made. Therefore, the prosecution was not instituted until the information was amended, which was too late.
Section 62-2303 of the Revised Statutes appears in the portion of the bastardy act relating to the hearing of the initial complaint. It is literally true, first, that the prosecution was in the name of the state; and second, that the prosecution was in fact on the relation of the prosecuting witness. If the defendant desires the case to be ruled by technicality, the words of the statute were satisfied. The statute, however, contemplated the title of the case should be formally correct throughout the prosecution. Outside of cities having a city court, such prosecutions are commenced by complaint filed before a justice of the peace. In cities having a city court, the city court has the jurisdiction of a justice of the peace. Informalities frequently occur, and the amendment which the court allowed was specifically provided for in this way: The bastardy act contains the following provision:
“The trial and proceedings of such prosecution, both before the justice and in the district court, shall in all respects not herein otherwise provided for be governed by the law regulating civil actions.” (R. S. 62-2308.)
The law regulating civil actions contains the following provision:
“The court or judge may, before or after judgment, ia furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of the party, or a mistake in any other respect, . . . when such amendment does not change substantially the claim or defense. . . .” (R. S. 60-759.)
In this instance, failure to complete the title by addition of the proper words was doubtless an oversight. Whether oversight or error of judgment, the omission constituted a mistake in the name of the party plaintiff, within the meaning of the civil code. The amendment had nothing to do with the claim or defense, and because the merits were not affected, trial and judgment were not barred by the statute of limitations.
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 by the widow of John W. Phillips, to obtain compensation for his death. While- employed as ticket agent for defendant at its station in Kansas City, Kan., he was fatally injured by blows on the head inflicted by some one whose identity has not been ascertained. Plaintiff recovered, and defendant appeals.
The injury occurred December 6, 1925. Phillips did not regain consciousness, and died December 9. Plaintiff was wholly dependent on his earnings, and was the sole dependent. Claim for compensation was made and consent to arbitration was tendered January 28, 1926. Defendant did not respond, and on March 31, 1926, plaintiff filed in the district court a petition in all respects sufficient as a petition in an action for compensation. The petition concluded with the following prayer:
“Wherefore, plaintiff prays that she recover herein the sum of twenty-eight hundred and eighty ($2,880) dollars, with costs hereof, and that, in the event the defendant fails and refuses to agree on an arbitrator, the court appoint a suitable person to arbitrate her claim in the foregoing petition set forth, pursuant to the provisions of chapter 218, Laws of 1911 of Kansas, and laws amendatory thereof.”
Unless defendant consented to arbitration of issues other than amount of compensation, other issues were determinable only by trial in an action. Plaintiff was privileged, however, to require arbitration of amount of compensation if she so desired, and since it was evident she would need court aid, it was proper for her to initiate both courses of procedure at the same time. While the prayer of the petition contemplated arbitration of plaintiff’s entire claim, the prayer was sufficient as one for arbitration of amount of compensation, and that issue having been determined by arbitration, for judgment for plaintiff.
Defendant filed a general denial and the court appointed an arbitrator. Over defendant’s objection, the court referred all issues to the arbitrator — something the court was not authorized to do without defendant’s consent, and defendant did not consent. Defendant did not appear before the arbitrator. The arbitrator determined all issues in favor of plaintiff, and made an award accordingly. Defendant filed a motion to review the award on two grounds: first, the arbitrator acted without authority, and second, the award was grossly excessive. The first ground of the motion was good as to all matters embraced in the arbitrator’s findings except those relating to amount of compensation, and should have been sustained except as to amount of compensation. Amount of compensation being a matter properly referable, the amount of the award would stand, unless defendant moved for-review, and the motion for review did not waive the unauthorized submission to arbitration of other issues.
Plaintiff filed a motion for judgment on the award. As the case then stood, a single one of several issues in the compensation proceeding — amount of compensation — had been determined, and the award was up for review. All other issues were made up by the petition and answer, the cause stood on the docket awaiting trial, and plaintiff was not entitled to judgment until those issues were tried and the motion to review the amount of the award was disposed of. Defendant contends the action has not been tried.
Trial by jury has been waived by both parties by failure to demand a jury within ten days after issues were joined. (R. S. 44-534.) The questions of fact in the action and the questions of fact raised by the motion to review, were triable by the court. The court made an order that evidence be produced by affidavit, and the parties entered into the following stipulation:
“It is hereby stipulated and agreed that the above-entitled cause be submitted, without argument, to the Hon. C. A. Miller, judge of division No. 4 of the above-entitled court, on the record and files herein, including the motion of defendant to set aside the award of the arbitrator and the motion of plaintiff for judgment on the award of the arbitrator, with affidavits submitted by both parties in support of said motions pursuant to the order made herein by the judge of division No. 4 aforesaid, and briefs heretofore submitted by both parties. Counsel to furnish additional briefs or affidavits if desired by the court.”
Pursuant- to the stipulation, both parties filed affidavits. Defendant’s affidavits were not confined to amount of compensation, but related to liability to pay compensation. There was really but one question in the case, whether the injury arose out of the employment. Apparently all available evidence on that subject was embraced in the affidavits, and the fact that the case was submitted to the court for final determination on the merits is established by the journal entry of judgment, which defendant has not caused to be corrected if wrong, and which reads as follows:
“Now on this 23d day of July, a. d. 1927, at the June term of court, this cause comes on for hearing before Hon. C. A. Miller, judge of division 4, on the application and motion of defendant to review and set aside the award of the arbitrator heretofore submitted herein and the motion filed by plaintiff for judgment on the award of the arbitrator heretofore submitted herein and the stipulation agreed to by both parties submitting said cause to this court without argument for final judgment on said motions supported by the affidavits and briefs filed by both parties hereto.”
Defendant granted privilege to Phillips to operate a lunch counter, handling sandwiches, coffee, drinks, candies, cigars and magazines, in the waiting room of its station building. The material terms of the concession follow:
“It is further understood and agreed that for and in consideration of the concession hereby granted, . . . said party of the second part shall handle and sell the tickets for passenger transportation on the railway line of said party of the first part, including conductors’ tickets and supplies, in a good and businesslike manner, in the waiting room of said building; that said party of the second part shall keep said stand and waiting room open and sell tickets for said first party continuously from the hours of 7 a. m. to 10:15 p. m. . . .
“It is expressly understood and agreed that said party of the second part, in operating the concession hereby granted, shall at all times do so in a courteous, respectful and businesslike manner, and that the same shall be kept in a neat and sanitary condition, and that the habit of individuals undesirable to said party of the first part loafing in said waiting room be not allowed or permitted by said party of the' second part; that the fixtures to be furnished and used by said party of the second part shall in all respects be first-class fixtures, which will in no way impair the general appearance of said waiting room.”
The waiting room was thirty feet long north and south and fifteen feet wide east and west. The entrance was on the west side, south of the center.' Commencing a few feet north of the door were show cases located to leave space between them and the west and north walls, in the form of an L ten feet in length north and south and six feet in length east and west. The entrance to the space was through a small gate at the south end. The ticket case and ticket window were at the east end of that portion of the space which extended along the north wall. There were toilet rooms, and seats for passengers in the waiting room.
Phillips received his injuries on Sunday, the day receipts of the ticket office were largest. In the afternoon he deposited in the safe in the freight room of the station the receipts from sales of tickets up to 1:15 p. m., amounting to $122. His wife, who had been with him during the afternoon, left the ticket office at 6:45 p. m., and nothing is known of events occurring in the waiting room until approximately 9 p. m. At about that hour a woman and her daughter, who intended to take the 9:15 car for Leavenworth, came into the waiting room and took seats. When they entered they saw no one. Presently they observed that the little gate by the candy counter was open, and that inside the gate a man was crouched in a sitting posture on the floor between the wall and the showcase, and was apparently unconscious. The woman called the driver of the automobile in which she came to the station, and he called the police. Phillips had been beaten to insensibility by blows on the head, which caused concussion at the base of the skull. After he had been taken to a hospital, a captain of police, together with defendant’s auditor, inspected the room. The door of one show case was open, and about twenty dollars in money were found, some in the ticket drawer, some in a cigar box, and some in a cigar can under the counter. Fifteen dollars in bills were found in Phillips’ pockets when he was undressed at the hospital. A few days later his spectacles were found in a bent and damaged condition, under the ice box. The station was located at a well-lighted traffic center in Kansas City, Kan., and the waiting room was well lighted. Within the two years Phillips acted as agent of the company the ticket office had been robbed four or five times, and a highwayman had robbed defendant’s freight agent in the daytime.
Employment was not contested. Defendant put in evidence the lease, which proved employment. Besides that, the arbitrator’s findings essential to computation of amount of compensation disclosed that defendant paid Phillips a salary of $30 per month, in addition to granting the concession, which was worth $50 per month.
Phillips was required to keep the stand and waiting room open, and to sell tickets continuously, from 7 a. m. to 10:15 p. m. of each day. He was also required to police the waiting room. Whatever . else he might do by way of conducting the stand, he was required to be on duty for railway purposes during the stated period. He was on duty for those purposes when he was injured. Therefore he was injured in the course of his employment, if the injury arose out of the employment.
The workmen’s compensation act applies to hazardous employments, including employment on a railroad. Defendant’s railway is an electric interurban railway. It is included in the definition of “railway” contained in the workmen’s compensation act. Employment on railways includes work in depots. (R. S. 44-508.) Therefore, the hazardous nature of the employment and the locality of the accident were not subjects of controversy.
Defendant contends there was no evidence plaintiff’s injury was within the workmen’s compensation act, because there was no proof the injury originated in anything connected with his employment by defendant. Plaintiff produced some hearsay testimony indicating the station was robbed at the time Phillips was injured, but the testimony may not be considered, and defendant contends any proposed solution of the affair must rest on speculation and conjecture, or must involve the rearing of inference upon inference rather than derivation of inference from established facts.
As indicated, whatever happened, Phillips was on duty, serving defendant according to contract, when he was injured. This is true even if he was injured in an altercation relating to something having no relation to defendant’s business. The employment was such that it invited assault with intent to rob (Stark v. Wilson, Receiver, 114 Kan. 459, 219 Pac. 507). The waiting room was a place where robbers did ply their trade, and it was doubtless because of this fact that Phillips kept his money scattered here and there about the place in small sums. The inclosed space in which Phillips’ duties required him to be was invaded. The time chosen by the intruder for his appearance in the waiting room was the nighttime, and was a time when the waiting room was not occupied by anyone who gave an alarm. The open door of the candy case suggests that Phillips was lured to the place of assault near the gate by a pretended patron. Those who inspected the place do not refer to any implement of attack or defense which Phillips possessed. He was mortally wounded by repeated blows on the head with some deadly weapon which was not found on the premises. The departing person left the gate open. These circumstances fairly indicate assault with ■ criminal intent, and not merely lawful resistance to an act of aggression by Phillips. What was the nature of that intent — gratification of private grudge by a personal enemy, or the gaining of access to money known to be kept somewhere behind those show cases? While the basis for inference is not entirely satisfactory, the court is unable to say there was no substantial evidence to support the district court’s finding that Phillips “was slugged by a bandit while on duty as ticket agent and station keeper for the defendant railway company.” The finding being valid, the injury arose out of the employment.
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The opinion of the court was delivered by
Dawson, J.:
This was an action in behalf of a widow and four children against a power company for the death of the husband and father of the bereaved family.
Briefly the facts were these: Charles Elliott Richards resided with, his family on a farm near Madison. His house was wired for electricity supplied by this defendant.. In August, 1924, Richards planned to raise his house and set it back a short distance and build 'a new residence oil the site. He requested defendant’s employee, one Miles, to disconnect the electric wires on his old house from defendant’s power lines, but Miles said it was unnecessary that the family be deprived of electricity while the house was being moved, and he .supplied some extra wire which he instructed Richards how to handle: By direction of Miles the slack of this additional wire was wrapped around a small tree near the house. From this small tree to the house the wire hung low and near the ground. While the power wires of defendant were connected with Richards’ house in this fashion, an electric and rainstorm arose; the temporary electric wires were discovered to be ablaze; an adult son of Richards rushed out with an axe and severed the wire, but the part attached to the power line began to twist and writhe and to emit fire and sparks and apparently came in contact with the young man’s body and gave him a shock which knocked him down. Richards rushed out to rescue his son and received a shock which killed him instantly.
Plaintiff charged the defendant power company with negligence in various respects, but particularly in failing to install proper devices to arrest and ground the violent currents of electricity which get into high tension wires in times of electrical storms and wreck the transformers whose function it is to reduce the high voltage to a degree safe for domestic use.
Defendant’s answer included a demurrer, á denial of negligence on the part of defendant and its employees, a denial that Miles had any authority to give instructions to Richards concerning the connecting and disconnecting of electric wires, and an allegation that Richards’ death was occasioned by his own negligence.
Jury trial; special findings; general verdict for plaintiff; defendant’s motion for judgment on special findings overruled; judgment for plaintiff; appeal.
Defendant presents but one question for our review. It contends that it was entitled to judgment on the special findings of the jury, particularly on the two following:
“6. Do you find that the wires were struck by lightning, and if so was that fact’the direct and proximate cause of the injury sustained by the deceased? A. Yes. . . .
“9. If you find the defendant company negligent, state what particular acts constituted such negligence. A. Insufficient groundage was not installed at transformers, and that the one said Miles did not make such connections or disconnections for said company on plaintiff’s request.”
Defendant argues that since the jury found that a stroke of lightning was the proximate cause of the death of Richards, there can be no recovery against it because of its negligence in failing to install sufficient ground wires at the transformers.
This contention is superficially plausible, but we cannot adopt it. In the first place, question No. 6 is a double question and the second part of it was simply a careless and inapposite use of legal phraseology. There was no allegation, no issue, in this case that Richards was killed by a stroke of lightning. Defendant itself does not make that claim. Its position, as well as its understanding of plaintiff’s position, is thus stated in its brief:
“In the case at bar the theories of the opposing parties, and the facts offered in support of those theories, were directly conflicting. As heretofore suggested, appellee contended that lightning struck the line, breaking down the transformers and permitting the high voltage current to flow into the secondary wires. Appellant denied that lightning had struck the line; denied that the transformers had broken down, and claimed that appellee was killed by 110 volts.”
In overruling defendant’s motion for judgment the trial court so minimized the second part of finding No. 6 that it was virtually set aside, as it should have been. The court said:
“I have never attached so very much importance to the answer of the jury to question 6, even admitting that it is an affirmative answer to both angles of the question. The answer made by the jury cannot change the fact, and in this case, under the record, the jury having found what the negligence was, if in fact there was any, I believe it becomes a question for the court to say what was the proximate cause of the injury.”
The trial court then proceeds to discuss the evidence and the pertinent law as deduced from our not very consistent precedents, particularly Simon v. Telephone Co., 97 Kan. 42, 154 Pac. 242, and Crow v. Colson, 123 Kan. 702, 256 Pac. 971, and reached the conclusion that—
“Failure to put in the ground wire, if negligence, and this has been passed as established, did not simply furnish the condition or give rise to the occasion, whereby the large voltage on the high line got over onto the house line and killed the man, but that such was itself the proximate cause of its so doing.”
Of course the problem of proximate cause is commonly a question for a jury; but where plaintiff tendered an issue and evidence as to the cause of Richards’ death and defendant joined issue thereon, it was the function of the jury to decide that issue, and not to return an irrelevant and baseless finding on a matter not in issue. But we do not blame the jury. Its affirmative response to the second part of the dual question No. 6 was manifestly induced by their inadvertent assent to the matter not in issue which was improperly included in that question. Furthermore, even if Richards’ death had been caused by a bolt of lightning, and its deadly work had only been possible because of defendant’s negligent failure to install ground wires at the transformers, defendant’s liability would have been absolute nevertheless. -. A defendant is not relieved of liability for negligence on the excuse that the “proximate cause” was some act of God like a stroke of lightning where the act of God would not have wrought the injury but for the human negligence which contributed thereto.
In Jackson v. Wisconsin Telephone Co., 88 Wis. 243, 26 L. R. A. 101, some telephone wires were negligently left strung on a county fair building and on' plaintiff’s barn. The wires had theretofore been temporarily connected with defendant’s trunk-line wires near by. The jury found that a stroke of lightning hit the county building and that the lightning electricity passed over the abandoned wire to plaintiff’s barn and set it on fire. In affirming a judgment against the telephone company for damages for the destruction of the barn, the court said: .
“The further argument is made that the stroke of lightning was the ‘act of God,’ for which no one is responsible. Certainly a stroke of lightning is an ‘act of God’; but that is not the question here presented, or rather another element — i. e., the negligence of man — is added to the question, which materially alters its scope. If I, owning a high mast or building, which I know is so situated as to be very likely to be struck by lightning, construct an attractive path for the lightning to my neighbor’s roof, so that his house is destroyed by a bolt which strikes my mast or building, shall I escape liability for my negligent or wrongful act by pleading that the lightning was the act of God? Certainly not. I invited the stroke of one of the most destructive powers of nature, and negligently turned its course to my neighbor’s property.” (p. 253.)
In 22 R. C. L. 131 it is said:
“Where an act of God unites with human negligence in causing injury, decisions may be found in which the negligence- of the human agent is treated as a condition, and not as a cause of the injury, but this view has been discarded by most courts, and the rule laid down that, when negligence of a responsible person concurs with a flood or storm or other so-called ‘act of God’ in producing an injury, the party guilty of such negligence will be held liable for the injurious consequences, if the injury would not have happened but for his failure to exercise care. Thus a person whose negligence is the primary cause is not excused because a stroke of lightning intervenes to precipitate an injury.”
Recent cases illustrating and applying this rule are: Starling v. City of Gainesville, (Ela. 1925) 106 So. 425; Bennington v. Fillmore & Slade et al., 98 Yt. 405, 421.
In Kindell v. Franklin Sugar Ref. Co., 286 Pa. St. 359, 363, the same principle was reduced to the terseness of a legal maxim:
“He whose negligence joins with the act of God in producing injury is liable therefor." (Syl. If 2.)
In Pinson v. Young, 100 Kan. 452, 164 Pac. 1102, a fireman was killed by an explosion of dynamite negligently stored in a building which caught fire. The fire caused the dynamite to explode. This court said:
“It is next contended that the fire, and not negligent storage of the dynamite, was the proximate cause of Pinson’s wrongful death. Both were proximate causes. The fire alone would not have caused his death. The dynamite alone might not have caused it. Perhaps the fire was the result of negligence. The storage of the dynamite was undoubtedly so. These two contributing delinquencies, the fire and the negligent storage of the dynamite — both proximate — wrought this result.” (p. 455.)
And so here. The lightning would not have wrecked the transformers and let the high-tension current into the secondary wires leading to the house but for the negligence of defendant in failing to install sufficient ground wires to render the lightning harmless. The lightning, the high-tension current, and the negligence, were all contributing factors to the death of Richards; and the trial court did not err in overruling defendant’s motion for judgment on the special findings.
A point raised by appellee should' be noted. In the oral argument of this case appellee’s counsel found fault because of appellant’s failure to provide a transcript of the testimony and to abstract the same for our perusal. In their brief, also, they are nonplused because this court denied their request to be furnished with “an abstract of the evidence setting up the reasons” why this court relieved appellant from making an abstract of the record. Counsel are entitled to have that mystery unraveled. The application was granted as of course. No evidencé was adduced in its support. It required none. Since the only question presented for review was whether judgment should have been entered for defendant on the. special findings of the jury, the existence of sufficient evidence to support those findings was conceded; so why waste the client’s money printing that evidence, and why impose on our eyesight the
useless task of reading it? In Lasnier v. Martin, 102 Kan. 551, 171 Pac. 645, it was said that the failure to provide a transcript of the
evidence merely had the effect of excluding from the scope of the review those features of the lawsuit dependent thereon. For such limited review as appellant desired in this case, all that was needed was an abridgment of the pleadings to show what the. lawsuit was about, the special findings and general verdict, defendant’s motion for judgment on the special findings, and the trial court’s ruling thereon. The student of appellate practice who would lighten his own labors as well as those of this court, without disadvantage to
his cause, will find helpful suggestions on this subject in Hegarty v. Refining Co., 110 Kan. 171, 204 Pac. 144; Buckwalter v. Henrion, 111 Kan. 781, 208 Pac. 645; King v. Stephens, 113 Kan. 558, 560, 215 Pac. 311; Amusement Syndicate Co. v. Martling, 118 Kan. 370, 376, 235 Pac. 126; Smith v. Tri-County Light & Power Co., 120 Kan. 354, 241 Pac. 1090; Commerce Trust Co. v. Pioneer Cattle Loan Co., 120 Kan. 712, 716, 244 Pac. 840.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action in equity to have an instrument' in the form of a deed adjudged to be a mortgage, to determine the amount due thereon and tendering payment thereof, and to quiet title as against such instrument. The trial court made exhaustive findings of fact, also conclusions of law, and rendered judgment for plaintiff. Defendant has appealed.
Briefly, the pertinent facts are: In 1921 plaintiff and her husband owned and resided upon a ten-acre tract of land near Wichita, of the value of about $8,000, and encumbered by mortgages aggregating $3,650. They then borrowed additional money from the defendant, executing their note to him for $1,050, and secured the same by executing to him a deed on this property, and defendant executed to them an agreement to reconvey the property on the payment of the amount of the note and interest. Plaintiff and her husband paid the interest on this indebtedness, and perhaps some additional, until in January, 1924. At that time they desired additional money to enable them to procure the title to a half section of land in Montana. At that time the amount of the original debt to defendant and the new money secured was computed and agreed to be $1,200, for which plaintiff and her husband gave defendant a new note. To secure this indebtedness defendant retained the deed to the ten-acre tract near Wichita, and the deed to the Montana land was made to him. Defendant executed to plaintiff’s husband an agreement to reconvey on the payment of this $1,200 and interest. Some payments were later made on this indebtedness. In March, 1925, plaintiff’s father, M. C. Gaffney, a resident of Greenwood county, died intestate, leaving some personal property and 840 acres' of land in Greenwood county, which was encumbered by mortgages aggregating $4,400. He left ten children, and plaintiff inherited from him an undivided one-tenth of his real and personal property. In November, 1925, the mortgages on the ten-acre tract near Wichita were coming due and it was necessary to refinance them. The deed from plaintiff and her husband to defendant, given as security' for the money they borrowed of him,.had been recorded in December, 1924. The record title standing in defendant embarrassed plaintiff and her husband in refinancing the indebtedness on that land. Eor the purpose of getting a reconveyance of the property near Wichita from defendant, plaintiff told him of her interest in the property left by her father and proposed to give him a deed to her interest in that property as security, in lieu of the deed on the ten-acre tract, and also proposed to give him an assignment of her interest in the personal estate of her father, the money distributed thereon to be credited upon the indebtedness. Defendant investigated plaintiff’s interest in the personal and real property of her father in Greenwood county and accepted the proposition made by plaintiff. Thereupon he executed a deed reconveying the ten-acre tract to plaintiff, or her husband, and took from them a deed to plaintiff’s interest in the real property in Greenwood county left by her father. He also received an order on the administrator, or an assignment of plaintiff’s interest in the personal estate of her father, and thereafter received from the administrator of that estate sums distributed by him, the checks for which were made payable both to plaintiff and defendant herein. At the time of this transaction defendant continued to hold the deed to the Montana land and the notes given by plaintiff and her husband to defendant, and contracts for reconveyance, previously mentioned, were never canceled nor surrendered. About four months after this transaction the defendant reconveyed to plaintiff’s husband the Montana land. About that time oil development was taking place in the neighborhood of the Greenwood county property. Plaintiff approached defendant with respect to making an oil and gas lease for her benefit on the Greenwood county property and then learned that defendant claimed to be the absolute owner of what was formerly her interest therein. Plaintiff then tendered to defendant a sum of money in payment of the indebtedness of plaintiff and her husband to him, which sum tendered proved to be in excess of that due, but defendant declined to receive it, claiming there was no indebtedness and that he was the owner of the Greenwood county property. Soon thereafter this action was brought.
Appellant here complains of some of the findings of the court. There is not much merit in this complaint. Both parties testified that the original $1,050 note represented a debt, and that the deed given on the ten-acre tract to defendant was in effect a mortgage and not a conveyance. Their testimony is in substantial accord that when the deed to the Montana land was taken in the name of defendant, and the amount of the debt was then agreed to be $1,200, that both deeds — the one on the ten-acre tract and the one to the Montana land — were to secure that debt, and were in effect mortgages. The only place where there is any substantial divergence of testimony is with respect to the circumstances under which the deed was given on plaintiff’s interest in the real property she inherited from her father in Greenwood county. Defendant’s testimony was that he actually bought this property and bought plaintiff’s interest in the personal estate of her father for the amount of the debt then due him from plaintiff and her husband. The trial court heard all this evidence, saw the witnesses, and on the controverted facts found for plaintiff, and there is ample evidence in the record to sustain that finding. The finding is binding on this court.
But appellant contends that evidence on behalf of plaintiff as to this transaction is not of that clear and convincing character which is required to establish the fact that an instrument is not what it purports to be on its face. Whether evidence to establish a fact of that character is sufficiently clear and convincing to do so is ordinarily to be determined by the trial court — whose function it is to weigh evidence — rather than by this court. (Hoover v. Hopkins, 122 Kan. 65, 67, 251 Pac. 411; Reitz v. Cooper, 123 Kan. 755, 764, 256 Pac. 813; Wilson v. Stafford, 124 Kan. 382, 260 Pac. 627.) But passing that view, it seems reasonably clear that the evidence measured up to the required standard.
Appellant contends that the petition did not state a cause of action, for the reason that it did not allege plaintiff to be in possession of the land, and hence failed to state a cause of action to quiet title under R. S. 60-1801; and, second, that it was not sufficient to state a cause of action in equity independent of the statute, for the reason it did not pray for a disclosure of defendant’s claim or interest in the land. (Citing Douglass v. Nuzum, 16 Kan. 515, and allied cases.) It may be noted that the petition was not attacked by motion nor by demurrer. Defendant answered. The only objection made to the petition was to the introduction of evidence. When an objection is made at that time the petition should be construed most favorably to plaintiff. As to whether plaintiff was in possession of the land, the court found that she was. Appellant complains of that finding. Prior to giving to defendant a deed for her interest in the land, and an assignment of her interest in the personal property, the land was in possession of all of the heirs, and looked after by the administrator as agent for them. He continued to do that. There was no change in actual possession. This justified the court’s finding that plaintiff was in possession, unless the wording of the order on the administrator, or assignment of plaintiff’s interest in the personal estate to defendant which she gave the administrator, would have the effect of transferring plaintiff’s possession to defendant. We do not regard it necessary to make a careful analysis to determine whether that was the result, for we regard the petition as being good as one in equity to quiet title by one out of possession. It did set out and disclose what plaintiff contended was the interest of defendant in the real property, as required by the holding in Douglass v. Nuzum, supra. It alleged that he claimed title under a certain deed, and set out facts which, if true, would make such deed an equitable mortgage. That the claim of defendant was correctly alleged in the petition is shown by defendant’s answer; that is, in his answer he did claim title by reason of this deed. So, whether the petition was good in an action to quiet title under the statute, it is good as an equitable action to quiet title by one whether in possession or not.
Appellant contends that plaintiff offered no evidence of her legal title to the property — that the title was good in M. C. Gaffney, and if so, how it passed to plaintiff. That question was not a controverted issue in the case. Defendant’s claim of title was through plaintiff, and amounted to a concession that she had title, prior to executing to him the deed which she claimed, and the court found to be a mortgage.
We find no error in the record. The judgment of the court below is affirmed: | [
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The opinion of the court was delivered by
Hopkins, J.:
On the evening of June 20, 1926, William Harvey, the defendant, shot and killed George McCray. Harvey was convicted of second-degree murder, and appeals.
Harvey and McCray had been acquainted for several years. At the time of the fatal shooting the defendant was in the employ of the garbage department of Kansas City, Kan. He also owned and operated a place of business at Third and Oakland streets, where he had two barber chairs, two pool tables, and sold tobacco and soft drinks. McCray had on numerous occasions come to the defendant’s place of business, and had occasionally slept there. The place where McCray had been living was raided by the police a night or two befor'e the tragedy under consideration and a quantity of home brew had been found. McCray blamed Harvey for having informed the police about it, and it was claimed made threats against the defendant for having done so. It was contended by the defendant that the threats had been communicated to him; that he was fearful of what McCray might do, and that on the afternoon of the tragedy defendant had gone to the police seeking protection. He testified that the police told him to go. back to his place of business; that they would soon be there and give him the protection needed; that before they arrived McCray appeared on the scene and he, the defendant, shot McCray in self-defense.
The defendant contends that the trial court erred in excluding testimony of the police that the defendant appealed to them for protection. The rejected evidence appears, not to have been offered on the motion for a new trial, so that its exclusion is not available as a basis for error in this court.
Complaint that evidence of specific acts of violence on the part of McCray which were known to the defendant was excluded cannot b'e sustained. No specific act on the part of the deceased concerning which the defendant offered to testify, appears to have been excluded.
It is contended that I. F. Bradley, special prosecutor, in his argument to the jury, made improper statements concerning the evidence greatly to the prejudice of the defendant. It appears that Attorney Bradley, in the argument, made a statement to the effect that the defendant had been convicted of a felony, whereas there was no evidence on which to base the statement. A colloquy occurred between counsel for the state and defendant, at the time or immediately following the statement of Bradley, in which the court also took part. On consideration of the motion for a new trial Bradley filed an affidavit to the effect that while he had made the statement that defendant had been convicted of a felony, he immediately withdrew it upon objection being made by counsel for defendant.
The lower court had the entire matter under consideration and undoubtedly concluded that no prejudice had resulted from the misstatement of counsel, and we are unable to say that any was shown which would have warranted the granting of a new trial or would warrant a reversal by this court on that account.
Contentions that the verdict was contrary to the evidence and that the court erred in its instructions cannot be sustained. An examination of the record discloses no error which would warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action upon a promise in writing to pay the debt of another. The defendant demurred to the petition on the ground that it failed to state facts sufficient to constitute a cause of action. The demurrer was overruled and defendant then elected to stand upon his demurrer. The trial court then rendered judgment in favor of plaintiff and against the defendant for the full amount of the obligation of the original debtor with interest.
The appellant insists that his demurrer to the petition should have been sustained for the reason that the petition failed to state a definite and certain unqualified promise to pay at a time certain out of his own funds and that plaintiff relied upon such promise and accepted it as a guaranty, and because there was no consideration for the promise.
The promises alleged in the petition are contained in two letters written by the defendant to the plaintiff, which contain the following clauses:
“One thing I will say and that is if this party does not come up with the money soon I will get it and send myself, as I do not intend to keep you waiting much longer.”
“But I will sure make it good myself if I do not succeed in collecting it, as [it] is no fault of yours.”
The first clause was in a letter dated February 25, 1922, and the second in one dated July 18, 1922. These letters are set out in full in the petition, and, together with the allegations of the petition, show that defendant, as a real-estate agent, sold the land of the plaintiff for $1,600, of which $600 was to be paid in cash and $1,000 in three years at six per cent interest, to be secured by a mortgage on the land. Plaintiff sent deed in blank as to the name of grantee, and defendant closed the deal by filling in the name of the purchaser in. the deed and delivering it to the purchaser, taking back from him his personal check for $600, payable to defendant, and a note and mortgage for $1,000 in favor of plaintiff. The check of the purchaser to defendant was dishonored and the purchaser has never paid either the plaintiff or the defendant the $600 he promised to pay in cash.
The two clauses above quoted from the letters most certainly show that the writer promised to pay this part of the purchase price out of his own funds in case the purchaser failed to do so. This was the only condition imposed which makes his promise a guaranty. He leaves no uncertainty about it, even as to time, when he says it will be “soon,” and will not keep him “waiting much longer.” In another part of one of the letters he says, “Think in a few days he will have it.” Two other places in the same letter he refers to it being “right soon now” and “right soon.” The concluding words of the second letter are: “In conclusion will say that you certainly have treated me fine and that you will not lose.”
Where time of performance is not fixed or is indefinite in a contract the usual rules of construction by the courts are employed to ascertain the intention of the parties and what would be a reasonable time under all the existing facts and circumstances rather than to hold such a contract void for uncertainty. Absolute certainty is not required. A promise not in itself certain may be rendered certain by a reference to something certain. (18 C. J. 269.)
“If, with the aid of the usual tests and principles of construction, the court is able to ascertain and to enforce the intention of the parties, their agreement will not be held uncertain.” (13 C. J. 268.)
“The failure of an executory contract to state the time within which it is to be performed does not render it void for uncertainty, since it will be implied that performance is to be within a reasonable time.” (13 C. J. 270.)
As to the plaintiff relying upon the promise and accepting it as a guaranty, there is no need of a formal acceptance where the original debt is preexisting. The acceptance and reliance sometimes necessary is in cases where the promise of the third party is made at the time or prior to contracting the debt as a promise in order to obtain credit for the real debtor. (25 R. C. L. 486.) The intervening space between the two letters and between the last letter and the commencement of the suit show that plaintiff was depending upon defendant to either collect from the purchaser or pay it himself as he had promised. If any reliance upon the promise is necessary it is shown conclusively in the bringing of the suit to enforce it. No earlier indication is necessary where the original debt is preexisting.
“Where the offer is to do something if the offeree will not merely promise to do, but do, something, compliance with the condition of the offer by doing the act in the way prescribed is ordinarily sufficient evidence of the acceptor’s assent, and it is not necessary to show that he notified the offerer that he accepted the offer and would perform the condition.” (13 C. J. 284.)
The case of Miami County Nat. Bank v. Goldberg, 133 Wis. 175, cited by appellant, applies, as above stated, to indebtedness not yet incurred. There the third party requested the bank to let another make overdrafts, and it was held the bank, in order to bind such guarantor, must signify its acceptance.
Was there any consideration to support this promise to pay the debt of the purchaser? There may not have been any consideration moving directly to the defendant, but none is necessary for such a guaranty. It is sufficient if it benefit the original debtor or be an inconvenience or deprivation to the promisee.
“The consideration need not be one passing from the guarantee to the guarantor; a benefit to the principal debtor or an injury to the guarantee is sufficient; such as a promise by the creditor to refrain from legal proceedings against the principal debtor, or an extension of time to the principal debtor.” (12 R. C. L. 1077.)
“An extension of the time of payment of an obligation constitutes in legal effect a forbearance to sue, and, under the rules stated in the preceding paragraph is a sufficient consideration for a guaranty of the obligation. And, if the debtor avails himself of the extension of time, it is not material that the promise to extend indulgence is given to the guarantor rather than to the principal debtor. The extension of time need not be for a definite period; if the duration of the extension is not expressed and the creditor forbears for a reasonable time, a guaranty of the debt is based on a sufficient consideration.” (12 R. C. L. 1080.)
“A promise to a creditor to pay his debtor’s debt, the debtor not being discharged by the arrangement, in consideration of the creditor giving time to the debtor, or forbearing to sue him ... is within the statute of frauds for the reason that such considerations are not regarded as directly beneficial to the promisor.” (27 C. J. 150, 151. See, also, 25 R. C. L. 494; 2 Page on Contracts, § 1218.)
Any delay was an inconvenience and detriment to the promisee and also a benefit to the original debtor in that it gave him further opportunity to meet the obligation. We have no hesitancy in holding in this case that there was a good and sufficient consideration to support the written promise of the defendant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
These cases, which were consolidated for trial, were actions to recover, on separate bonds executed by the defendant H. J. Carey, to insure the fidelity of the late Claude B. Carey, of Hutchinson, in his capacity as local soliciting and recording agent for the plaintiff insurance companies. The agent died about two months after the bonds were given, at which time he was in arrears in his remittances to plaintiffs for insurance premiums collected by him for insurance policies' issued to various persons through the local agency of Claude B. Carey.
Typical of both petitions was that of the Star Insurance Company, which alleged that on February 9, 1922, Claude B. Carey was its local recording agent in Hutchinson; that it was his duty to solicit the writing of insurance and to collect premiums thereon; that on February 9, 1922, Claude B. Carey as principal and this defendant H. B. Carey as surety entered into an undertaking with plaintiff whereby they bound themselves to pay all premium moneys due plaintiff which Claude B. Carey should collect on its behalf and that he would well and truly perform all his duties as plaintiff’s agent. The fact of Claude B. Carey’s death in April, 1922, was pleaded; and it was alleged that between February 9, 1922, and the time of his death two months later he effected the writing of insurance policies and collected premiums thereon for which he had made no remittance to the extent that he was indebted to plaintiff in the sum of $1,087.75. Plaintiff also alleged that in due time its claim for this sum was presented to the administrator of Claude B. Carey’s estate, but it was not paid because the estate was insolvent. Wherefore plaintiff prayed judgment against H. B. Carey, surety on the fidelity bond.
Defendant answered, admitting the matters not fairly susceptible of controversy; and alleged that prior to February 9, 1922, the date of the execution of the fidelity bond sued on, Claude B. Carey had written policies of insurance for which he had failed to remit to the plaintiff its proportionate share of the premiums, and that he was in default thereof at the time the bond was executed. Defendant alleged that the plaintiff’s representative came to Hutchinson and required Claude B. Carey to give bond for the future collection of premiums and the proper management of his recording agency; that defendant was induced to sign the bond; and that plaintiff’s repre sentative and Claude B. Carey canceled outstanding policies and issued new ones, giving credit to the policyholders for the unearned premiums and collecting premiums for the terms specified in the new policies; and that the purpose of these cancellations and renewals was to make it appear that the defendant surety was liable for the defalcations of Claude B. Carey which had occurred prior to the giving of the bond.
After issues were joined, but before the trial, defendant was permitted to amend his answer by interlineation thus:
“That the effect of such transactions was to carry forward the defalcations to a time after the execution of said bond, thus fraudulently making said Howard J. Carey liable for said prior defalcations of said Claude Carey.”
After the trial another amendment to defendant’s answer was permitted:
“That by reason of concealing from the said H. J. Carey, and withholding from the said H. J. Carey, information of the previous defalcations, of the said Claude B. Carey, [no concealment or withholding pleaded] this defendant was defrauded into signing said bond; the said H. J. Carey having no knowledge of said previous defalcations of said Claude B. Carey.”
At the trial the plaintiffs established-their prima facie actions along the lines pleaded in their petitions. On behalf of defendant the testimony was that prior to February 9, 1922, Claude B. Carey had collected various sums as premiums for which he had made no remittances, and that he was delinquent in the sum of $1,506.84 due the Star Insurance Company. A similar delinquency of $428.66 due the California Insurance Company was likewise shown. After the giving of the bond sued on, February 9, 1922, Claude B. Carey collected certain premiums on newly written policies less certain credits allowed policyholders for unearned premiums on policies canceled on or about February 9, 1922. Carey, the agent, used the moneys thus raised to pay the insurance companies part or all of what was then overdue them prior to the giving of the bonds under which they sued the defendant surety.
The record is clear that neither the plaintiffs nor their representatives had any communication with the defendant surety. The representatives merely told Claude B. Carey that he would have to give bond, and he went and procured his kinsman, this defendant, to sign the required bonds as surety, and the bonds so executed were mailed to the .plaintiffs.
The evidence is somewhat equivocal as to whether the surety, H. J. Carey, knew or had any intimation that .Claude B. Carey was delinquent in his remittances to plaintiffs at the time he signed the bonds. He testified:
“Q. Mr. Carey, did you meet some agents of the California Insurance- Company here about the time this bond was executed? A. I dc-n’t recall that I met them at that time. I know that they were here at that time. They were in conference with Claude Carey. . . .
“Q. What relation is Claude Carey to you? A. An uncle. . . .
“Q. Do you know whether or not this is the first time that any bond had been required of him in his agency? A. Apparently so. He had been writing without a bond up to that time.
“Q. Did you know at that time that Claude B. Carey was indebted to the company for premiums received? A, No, sir.....
Cross-examination:
“Q. Who asked you to sign the bond; Claude Carey or somebody from his office? A. Claude- Carey. . . .
“Q. Did he tell you why they wanted the bond? A. He didn’t have to tell me why.
“Q. You'knew why — you knew he was slow in his payments or in arrears or something? A. Yes, sir. . . .”
The trial-court rendered judgment for defendant, supplementing it with informal findings which in part read:
“I further find that Claude B. Carey obtained the defendant, H. J. Carey, to execute, the bonds required by the state agents for the above named plaintiffs, and that the defendant was not informed, nor had he any knowledge, of the shortage- or default of Claude B. Carey in the payments of premiums collected by him.
“It is also very apparent that Claude B. Carey, for the purpose of raising money to square up with plaintiffs, canceled paid-up policies and issued new ones to the Carey companies, receiving additional premiums above the cancellation rebates, and from these extra premiums paid the past due and defaulted premiums on other policies, and failed and neglected to pay the premiums on the new policies; that is, the various policies mentioned and sued on herein as being taken out on the 9th day of February and subsequent thereto. By this scheme Claude B. Carey was able to transfer his past due and defaulted premiums over to futures and to bring apparently under the terms of the bond a liability which was in fact a prior liability, which, had it not been for this switching or kiting, there would have been no liability under the bond, and this kiting c-r switching process must have been known to the plaintiff companies if they had used ordinary diligence and observation as to what was going on, and the necessary results as well as the purposes of the switch, and in my judgment acting in good faith and using ordinary diligence they were bound to know and did know what Carey was doing, and lent themselves to this switching of premiums so as to attach a liability under the bonds which did not rightfully belong there and was a fraud upon the bondsmen.
“I also believe that the plaintiffs through their state agents committed a fraud in 'law in obtaining the bonds sued on without informing the sureties of the already default of their agent and that it was by reason of this default and failure to pay the premiums collected that made them require the bonds so as to continue the agency, and that by reason of the fraud above mentioned, both actual and constructive, there is no liability under the bonds by H. J. Carey to either insurance company.”
So far as these findings of the trial court are based on any evidence they are, of course, conclusive. This rule of appellate review settles the point as to whether the defendant knew Claude B. Carey was delinquent in his remittances on February 9, 1922, when the bond was executed. Perhaps the point whether the cancellations of outstanding policies on February 9 were made in good faith a,nd in due course of business and new policies issued, or merely as a stratagem to raise funds to meet his shortages existing at that time, is similarly settled. Plaintiffs contend that there was no evidence to support that finding, but we are not prepared to say the circumstances did not justify an inference to that effect. But there was no evidence and no facts to justify an inference that plaintiffs knew of this “switching and kiting” strategy to raise funds to extinguish his overdue indebtedness to plaintiffs; nor were plaintiffs required by any rule of law to exercise “diligence and observation” to discover “what was going on, and the necessary results as well as the purposes of the switch.” The record is devoid of evidence or facts which fairly warrant an inference that plaintiffs or their state agent or representatives committed any fraud on defendant, unless their failure to apprise defendant of the exact status of the financial accounts existing between them and Claude B. Carey constituted a fraud as a matter of law; and to the solution of that question we now give attention.
Turning to the law books and decided cases we do not discover that unanimity of opinion which is desirable. (Brandt on Suretyship, §§ 365, 367; 32 Cyc. 64; 12 R. C. L. 306; 21 R. C. L. 991, 992; note in 63 A. S. R. 327 et seq.) There is much support for the .rule that the obligee of a fidelity bond owes a duty,to a person about to become a surety for the future conduct of an officer, agent, or other functionary, to apprise him of any past misconduct involving downright dishonesty, embezzlement or similar criminal delinquency of which the bonded person has been guilty and of which the obligee was aware. (Fire, etc., Assurance Co. v. Thompson, 68 Cal. 208; Indiana & Ohio Live Stock Ins. Co. v. Bender, 32 Ind. App. 287; Belleview Loan and Building Association v. Jeckel, etc., 104 Ky. 159; Franklin Bank v. Cooper, 36 Me. 179; Capital Fire Ins. Co. v. Watson, 76 Minn. 387; The Third Nat. Bank v. Owen, 101 Mo. 558, syl. ¶ 2; Sooy ads. State, 39 N. J. L. 135; United States Life Ins. Co. v. Salmon, 36 N. Y. Supp. 830; Dinsmore v. Tidball, 34 Ohio St. 411, 418; Lauer Brewing Co. v. Riley, 195 Pa. 449.)
A fair reflection of the court’s views in the cases just cited also supports the doctrine that where an agent or employee without bond for a period of time has committed a criminal delinquency known to his principal and the principal is unwilling to continue his agency or employment and trust him without bond, and where a bond is procured while the bondsman is kept in ignorance of such prior derelictions of the agent or employee, the failure of the obligee to inform the bondsman of these matters releases the surety and discharges the bond. Thus in Capital Fire Ins. Co. v. Watson, 76 Minn. 387, 389, it was said:
“It is immaterial 'whether the dishonesty of Watson was disclosed while he was acting as the agent of plaintiff or the agent of some other insurance company. Plaintiff by proposing to take Watson for its agent, impliedly represented that, as far as it knew, he was honest, and that it believed him to be so. If, at this time, it knew that he was dishonest, and a defaulter, it perpetrated a fraud on the defendant sureties in failing to disclose to them its knowledge that he was dishonest and a defaulter. See Traders Ins. Co. v. Herber, 67 Minn. 106, 69 N. W. 701; Lancashire Ins. Co. v. Callahan, 68 Minn. 277, 71 N. W. 261; Assurance Manchester F. A. Co. v. Redfield, 69 Minn. 10, 71 N. W. 709.”
On the other hand, there are many well-considered cases which hold that something more than mere silence on the part of the obligee or his mere failure to disclose known facts is necessary -to vitiate a fidelity bond. There must be concealment, willful withholding of information asked for, or the making use of some device intended to mislead, to defeat the bond. And to constitute a good defense of concealment in an action by an obligee of a fidelity bond, some affirmative act of misrepresentation or willful concealment of essential facts must appear. Thus in Magee et al. v. Manhattan Life Ins. Co., 92 U. S. 93, 23 L. Ed. 699, a New York insurance company sued the sureties on a bond much like the one at bar, alleging a withholding of the company’s money by the agent for whose fidelity the bond was given and a consequent liability of the defendant sureties under that bond. The defendants pleaded that the company, as a condition upon which it would retain in its employment the agent then largely indebted to it, required such bond, and also his agreement to apply all his commissions thereafter earned to his former indebtedness to it; that the agreement was made, and the commissions were so applied; that the company knew that the agent had no property, and depended upon his future acquisitions for the support of himself and family; that the defendants were ignorant of such indebtedness and agreement; that, had they been informed thereof, they would not have executed the bond; that the agreement as to the commissions and its performance were a fraud on them; and that the bond as to them was thereby avoided. It was held that the plea was bad, as it set forth neither the circumstances attending the delivery of the bond, nor averred misrepresentations, fraudulent concealment, opportunities to make disclosure on the part of the company, inquiries by the sureties before the bond was delivered, or knowledge by the company that the sureties were ignorant of the facts complained of, and further, that this agreement had no such connection with the undertaking of the sureties as to give them a right to be informed thereof, except in answer to inquiries. As none were made, the company was under no obligation to volunteer the disclosure.
In the opinion the court said:
“The plea does not set forth any of the circumstances attending the execution and delivery of the bond. It does not aver that there was any misrepresentation, anything fraudulently kept back, or any opportunity to make disclosures on the part of the company, or any inquiry by the sureties, before the bond was delivered. Nor is it averred that the company was aware that the sureties were ignorant of the facts complained of. It is, perhaps, to be inferred from the plea that the fact was — as the record, aside from the plea, shows it to have been — that the bond was executed at Mobile, and sent by Voorhees by mail to the company in New York. If this were so, the company, upon receiving it, was under no obligation to make any communication to the sureties. The validity of the bond could not depend upon their doing so. The company had a right to presume that the sureties knew all they desired to know, and were content to give the instrument without further information from any source. Under these circumstances, it was too late, after the breach occurred, to set up this defense.” (p. 100.)
In Watertown Savings Bank v. Mattoon, 78 Conn. 388, which was an action on the fidelity bond of a bank official, the defendant sureties pleaded that the directors of the bank knew that the officer had committed a prior embezzlement and that they did not inform the defendant sureties. It was held that this constituted no defense when it was not shown that the sureties signed the bond at the directors’ request.
In Sherman v. Harbin, 125 Ia. 174, 181, where the surety on the bond of the president of a mutual life association did not inquire about the past conduct of the president, the association was not guilty of fraudulent concealment by mere nondisclosure of the fact that he had misappropriated the funds of the association, and the sureties were held to their obligation.
The case of Hebert v. Lee, 118 Tenn. 133, 12 L. R. A., n. s., 247, is noteworthy. Tt recognizes the duty of the obligee to act in the best of faith towards the party about to become'a surety on a bond, but in section 2 of the syllabus it was said:
“The mere failure of the obligee in a bond such as that described in the preceding headnote, to inform the sureties thereon, in the absence of investigation or inquiry on their part, that their principal had fallen behind in his accounts until at the time of the execution of the bond, he was considerably indebted to the obligee, does not relieve the sureties from liability, if such undisclosed acts of the principal obligor do not involve moral turpitude, but are such as are consistent with honesty, and only tend to show that he is negligent, dilatory or unskilled.”
An excerpt from the opinion reads:
“We think there can be no doubt that the mere failure upon the part of the complainant to inform these sureties of the fact that their principal, Lee, had fallen behind from time to time in his accounts as agent, until his liabilities had amounted at the execution of these two bonds to the sums stated, would not be sufficient to relieve them from liability. If the present case was that— in other words, if this was a case in which the agent was simply behind in his accounts, and the complainant had failed to communicate, in the absence of investigation or inquiry upon the part of the sureties, this fact to them — wq think this would not constitute a ground for resisting a recovery on these bonds.” (p. 137.)
The opinion discusses New Jersey, Ohio and Georgia cases, some of which we have cited above, in which the rule imposing the duty of disclosure is rigorously applied, but the court continues thus:
“The rule is otherwise if the acts of the agent, undisclosed to his surety, do not involve moral turpitude, but are such as are consistent with honesty, and only tend to show that the agent is negligent, dilatory, or unskilled. In such case the law does not impose the duty upon the obligee, unasked, to give the surety information of such facts. This distinctive principle is recognized in Screwmen’s, etc., Ass’n v. Smith, 70 Tex. 168, 7 S. W. 793; Atlas Bank v. Brownell, 9 R. I., 169, 11 Am. Rep. 231; Home Insurance Co. v. Holway, 55 Ia. 571, 8 N. W., 457, 39 Am. Rep., 179; Watertown Fire Ins. Co. v. Simmons, 131 Mass. 85, 41 Am. Rep. 196; Domestic Sewing Machine Co. v. Jackson, 15 Lea, 418.” (p. 140.)
In an earlier Tennessee case, Sewing Machine Company v. Jackson, Atkin and Gaut, 83 Tenn. 418, sureties on the bond of a sewing machine agent resisted liability on the ground that prior to their execution of the bond the agent had fallen into debt to the complainants and that they agreed to continue to furnish him sewing machines to sell, upon his executing a bond with security, with the design to use the means realized on the new business to pay the prior indebtedness, and to make the sureties on the new sales liable to pay the new debts. The sureties also alleged that they did not know of the existing indebtedness of the agent upon previous transactions, at the time they signed the bond, and alleged it was a fraud in complainants not to communicate to them the facts in relation thereto, and that all, or nearly all, of the proceeds of the new business were applied to the old indebtedness, leaving all, or nearly all, of the later purchases unpaid. It was held that the facts alleged in the answer did not constitute a defense. Some of the pertinent headnotes read;
“A failure to disclose to the sureties the previous indebtedness of their principal, when not requested to do so, is no evidence of fraud.
“To hold the surety was discharged because of the omission of the creditor to advise him of the previous transactions between the debtor and creditor, in the absence of any inquiry on the subject, would establish a rule that would make instruments requiring a surety of little value. . . .
“The strict rule in respect to nondisclosures, applied in insurance cases, does not extend to the contracts of suretyship and guaranty.”
In the opinion it was said:
“But the strict rule in respect to nondisclosure applied in insurance cases, does not extend to contracts of suretyship or guaranty. If inquired of, the creditor is bound to answer fully and truly. But he is not bound voluntarily, without being asked, to disclose any circumstances unconnected with the particular transaction in which he is about to engage, which will render the position of the surety more hazardous, or to inform him of any matter affecting the general credit of the debtor: Kerr on Frauds, 122; Brandt on Suretyship, sec. 365; 82 N. Y., 127.” (p. 425.)
Many other cases to the same effect are summarized in a pertinent note in 12 L. R. A., n. s., 247 et seq.
From the foregoing survey of the decided cases it seems necessary to hold that some sort of active fault must attach to the obligee of a fidelity bond before the surety will be released from his obligation. Here the plaintiffs and their representatives who demanded that Claude B. Carey give bonds for his future fidelity did nothing reprehensible to induce H. J. Carey to become surety for his kinsman. They simply did nothing. They had no dealings with the surety, had no communication with him, and were not inquired of touching the risk the surety was solicited by his kinsman to undertake. Moreover, in the cases noted above where the sureties were released because of the mere failure of the obligee to make it his special business to inform the sureties of the prior defalcations, embezzlements and similar derelictions of the person for whose fidelity the bond was required, it seems that actual criminality was involved in the undisclosed delinquencies of the bonded person. It is not a fair analysis of the financial status of Claude B. Carey’s accounts with the plaintiffs to characterize that status as one of embezzlement or criminal delinquency. In the matter of handling the companies’ moneys which came into his hands as premiums he had 45 days after the end of the month in which he had collected them before he was required to remit the proportionate share of these premiums to the companies. In the discharge of this duty to remit he was not shown to have been a criminal defaulter. He was merely dilatory, negligent, slow. Nothing more. He had not been remitting promptly nor within the specified time he was allowed to retain the funds collected by him.
Under these circumstances this court is constrained to hold that no facts were shown which justified a release of the defendant surety, and it follows that the judgment entered in his behalf must be set aside.
It also appears that there is nothing left of this case to try, and judgment should be ordered as the code provides. (R. S. 60-3317.)
Reversed, with instructions to enter judgment for plaintiffs. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover a commission on the sale of a half interest in a large tract of land in Florida, and also for a commission for the service of procuring a sales-agency contract on the remaining half interest in the same property.
It appears that the defendant, Erie W. Thompson, was a dealer in lands and owner of vast tracts of real estate in Florida and elsewhere. Plaintiff was a real-estate agent, and in the last few years had negotiated several sales of land for plaintiff. His commission was $1 per acre on all such sales.
In 1923 defendant owned a tract of 18,000 acrés of unimproved land near Melbourne, Fla., subject to a mortgage for $77,000, and he engaged the services of plaintiff to effect a sale of that property or to obtain a sales-agency contract for its disposal. A sales-agency contract, according to the record, is a contract between the owner of a large tract of land and a real-estate dealer whereby the latter undertakes to subdivide the land into small parcels and sell them to settlers at a sharp advance over the pro rata price of the entire acreage named by the owner.
Plaintiff first attempted to dispose of the property to a sales-agency firm in Oklahoma named Parrish, Harrell and Keys. That contract of employment read:
“November 20, 1923.
“George A. Platts is to receive from me a commission of $1 per acre on lands-sold under option to Parrish & Harrell and Dennis B. Keys as such lands are paid for by them, and such commissions are to bear 6 per cent interest from this day when earned and paid. The lands optioned in Brevard county, Florida, total 17,527 acres, but the commission is to be paid only when land is actually purchased and paid for. When I receive any cash payment on such lands Platts is to receive his proportionate share of the commission on the same.
“E. W. Thompson.
“Accepted by me this date. — Geo. A. Pratts.”
This Oklahoma deal failed, but plaintiff got on the track of another with C. L. Davidson and Lock Davidson of Wichita; and it was orally agreed between plaintiff and defendant that- if plaintiff effected a deal with the Davidsons his commission would be the same as that defined in the written contract of November 20, 1923, when the Oklahoma deal was in contemplation. The Davidsons owned a cattle ranch in New Mexico covered by a mortgage of $125,000, and a herd of live stock covered by a mortgage of $80,000, which they were willing to trade for defendant’s tract of 18,000 acres near Melbourne, Fla., but the incumbrances on the New Mexico ranch and live stock made complications not easily surmounted; Eventually, however, a plan was devised whereby defendant was to mortgage his Florida land for an additional $125,000 and loan this sum to the Davidsons to reduce the indebtedness on their New Mexico ranch and live stock, and the Davidsons were then to trade the ranch for a half interest in the Florida land burdened by two mortgages aggregating $202,000. By advice of counsel and for the better protection of defendant’s interests, the title of the Davidsons in the New Mexico ranch was vested in a corporation created for that purpose, and the 18,000-acre tract of Florida land was similarly vested in a corporation, and the entire capital stock of the New Mexico corporation was transferred to defendant by the Davidsons, and defendant transferred to the Davidsons one-half the stock in the Florida corporation. Following this exchange of interests in the New Mexico and Florida lands, or contemporaneous therewith, the Davidsons agreed to undertake the subdivision and marketing of the entire tract under a sales-agency contract.
When these complicated transactions were effected, plaintiff called on defendant for his commissions, and after a good deal of delay and some rather testy correspondence a settlement was agreed upon by which defendant was to convey to plaintiff 20 acres of land near Wichita and 480 acres of Finney county land in full settlement of plaintiff’s commission, and plaintiff was to convey a small tract of Florida land clear of incumbrances, and defendant was to arrange for a loan on these Kansas lands to raise the money to enable plaintiff to pay off the incumbrances on the Florida tract included in this settlement.
This settlement was not carried into effect. Plaintiff charges that it was breached by defendant, and brought this suit for his commissions on the sale of a half interest in the 18,000 acres to the Davidsons, and for obtaining the sales-agency contract between defendant and the Davidsons for the disposal of defendant’s remainder interest in that property.
Defendant answered admitting the employment of plaintiff on a specified commission of $1 per acre for whatever of plaintiff’s Florida lands defendant should find a buyer, such commission to be due and payable when the land was actually sold and paid for. Defendant pleaded a somewhat different version of his transaction with the Davidsons than that alleged by plaintiff, or as outlined above, but virtually admitting that plaintiff had earned, certain commissions in defendant’s service for which he had not been paid.
Answering further, defendant alleged that—
“There arose a dispute between said plaintiff and defendant as to the amount of the commissions, if any, to which said plaintiff was entitled to receive, and that after a full and complete discussion of said matter said plaintiff and said defendant did, on the 8th day of August, 1925, agree to and with the said plaintiff, in full compromise, adjustment and settlement of the claims of said plaintiff for commissions growing out of the alleged sale of the said Florida lands, . . . which is in words and figures as follows, to wit:
“ ‘E. W. T. conveys 20 acres Wichita clear and 480 Finney Co. clear
“ ‘For
“‘Full settlement Platts acct. with E. W. T. Davidson deal; also Platts convey clear of incumbrance 117x600 feet North of Melbourne Riverside drive.
. “ ‘E. W. T. will arrange within 90 days loan for $5,000 on Kans. lands; out of this amt Platts is to pay off mortg on Melbourne and repay any advances made him by E. W. T.
“‘(Signed) E. W. T.
“‘(Signed) G. A. P.
“ ‘8/8/25.’ ”
Defendant alleged that he had always been and still was ready to carry out that agreement, but that plaintiff had repudiated it. Defendant prayed judgment for costs.
Plaintiff’s reply denied that the contract of settlement was breached by him, and alleged that it had been repudiated by defendant, and that plaintiff had merely acquiesced in such repudiation and stood on his rights under his contract of employment.
At the trial, over plaintiff’s objection, defendant was permitted to introduce testimony tending to show that the 480 acres of Finney county land was to be conveyed in full settlement of all of plaintiff’s claims for commissions, and that the exchange of plaintiff’s small tract of Florida land for defendant’s 20 acres near Wichita was a separate and unrelated transaction which the parties agreed to after the plaintiff’s claims for commissions had been settled.
In the course of the trial, plaintiff testified that on a certain occasion defendant met plaintiff on a street in Wichita, at which time defendant—
“Stated to me that he would protect me in the sum of $9,000 on the Davidson deal. I made no reply to it. That was not satisfactory to me. Mr. Thompson had finished the deal at that time. I was walking down the street in a hurry, and I made no reply. I didn’t consent.”
An item of $1,000 paid by defendant to plaintiff on account was not disputed.
The jury returned a general verdict for plaintiff for $9,000 less $1,000 advanced by defendant. Special findings were also returned by the jury, to some of which space must be given:
“4. Q. Did defendant Thompson secure a sales-agency contract for the sale of the Florida lands in question with the Davidsons? A. Yes.
“5. Q. Did the securing of said agency -contract result from the services of the plaintiff performed for the defendant in pursuance of any agreement between plaintiff and defendant? A. No. . . .
“8. Q. Did the transaction between Thompson and the Davidsons, whatever. you may find that to be, result either in Thompson disposing of approximately 18,000 acres of Florida lands in question, or obtaining a sales-agency arrangement thereon, or both? A. Both. . . .
“10. Q. Did Platts and Thompson agree upon a basis of commission of $1 per acre, payable when and if E. W. Thompson received the actual consideration for said transaction, . . . ? A. Yes.- . . .
“13. Q. Did the plaintiff and defendant agree that for whatever services the plaintiff rendered in connection with the Davidson deal that the plaintiff should receive the sum of $1 per acre upon 9,000 acres of land? A. Yes.
“13 A. Q. If you answer question No. 13 in the affirmative, then state whether said commission of $9,000 was to be payable when Thompson received payment for the land? A. Yes. ...
“15. Q. Did the plaintiff and defendant agree when in Palm Beach, Fla., that in full consideration and settlement of all claims for commission on the Davidson deal, the plaintiff would receive and the defendant convey three quarter sections of land located in Finney county, Kansas? A. Yes.
“16. Q. Has the defendant at all times been able, ready and willing to convey the said three quarter sections of land in Finney county, Kansas, to the plaintiff? A. Yes.
“17. Q. Do you find from the evidence that the plaintiff, George A. Platts, was the proximate and procuring cause of the transaction between the defendant and the Davidsons relative to the Melbourne, Fla., land? A. Yes.
“18. Q. Do you find from the evidence that, at the time of the so-called Davidson deal, there was an agreement between the plaintiff and defendant that the plaintiff’s commission in said matter would be $1 per acre for the land actually sold or land covered by sales-agency contract, payable only when and if the defendant received the consideration therefor? A. Yes.”
Defendant moved to set aside 'the general verdict and for judgment in his behalf on the special findings of the jury.
Plaintiff moved to set aside findings 5, 13, 13A and 15 on the ground that they were not supported by any competent evidence and were contrary to the evidence. Plaintiff also moved for judgment in-his behalf for $18,000 and interest based on the undisputed evidence and the findings other than those attacked in his motion to set aside.
All these motions were overruled. An item of $28.40 concededly due plaintiff and interest was added to the judgment, the credit of $1,000 due defendant was deducted, and judgment was entered in the sum of $9,387.38 in plaintiff’s favor.
Both parties appeal.
Defendant’s contentions are that the special findings do not accord with the general verdict and therefore supersede it, that the special findings are well sustained by the evidence, and that his motion for judgment on the special findings should have been sustained.
Plaintiff objects to some of these findings, particularly 5, 13, 13A and 15, on various grounds; that finding 5 was contrary to all the evidence and at variance with the general tenor of the other pertinent findings, and especially with specific finding No. 8; that findings 13 and 13A were induced by an erroneous instruction of the trial court touching the effect of certain immaterial testimony, and in disregard of the memorandum settlement of August 8, 1925; and that findings 15 and 16 are based upon the same misconception of that contract of settlement.
With such divergent contentions to consider, it will facilitate their disposition to inquire first whether the challenged special findings of the jury should stand.
This court has repeatedly held that where a claim is fairly made that a verdict or special finding is without support in the evidence it is incumbent on the adverse party to cite or quote from the record the evidence relied on to uphold it, and that burden is not sustained by the mere assurance of opposing counsel that there was such testimony but that it is unnecessary to abstract or produce it for our review. (Railway Co. v. Cordon, 77 Kan. 324, 329, 94 Pac. 148; Bank v. Price, 79 Kan. 283, 285, 98 Pac. 222; State v. Nichols, 117 Kan. 630, 632, 638, 232 Pac. 1058.) The testimony, of which there was abundance, and all to one effect and with none to the contrary, was that plaintiff was the procuring cause of the business engagements entered into between defendant and the Davidsons touching the 18,000-acre tract of Florida land, not only in that part of the deal-whereby a half interest in that tract, through incorporation and transfer of stock ownership, passed to the Davidsons, but also in the matter of the sales-agency contract entered into between de fendant and the Davidsons for the disposition of the entire tract, which necessarily included defendant’s remaining half interest therein. And such is the specific finding of the jury No. 8:
“8.Q. Did the transaction, between Thompson and the Davidsons, whatever you may find that to be, result either in Thompson disposing of approximately 18,000 acres of Florida lands in question, or obtaining a sales agency arrangement thereon, or both? A. Both.”
Finding No. 17 is to the same effect; and plaintiff’s motion that finding No. 5 be set aside should have been sustained.
Findings Nos. 13 and 13A were manifestly founded on the immaterial testimony that at a chance meeting on a Wichita street defendant .said to plaintiff that he would protect him to the extent of $9,000 on his deal with the Davidsons. Defendant could not manufacture evidence in his own behalf by a chance remark of that sort. Plaintiff was under no duty to have a fuss with defendant on the street to avoid the implication that by silence he was giving his assent to such amount as a complete settlement of what was due him. (Leach & Co. v. Peirson, 271 U. S. 520.)
The trial court’s instruction No. 20, which manifestly pertained to this inconsequential street remark was erroneous and undoubtedly induced the jury to limit its verdict in plaintiff’s favor to $9,000.
Touching plaintiff’s objection to finding No. 15, it is hornbook law that the interpretation of a written instrument is a judicial and not a jury question, and this court is constrained to hold that the memorandum contract of settlement dated August 8, 1925, was nor susceptible of the interpretation sought to be given to it by defendant and which he induced the trial court and jury to adopt. That contract plainly says that defendant agrees to convey the 20 acres near Wichita and the 480 acres of Finney county land in full settlement in the Davidson deal and the Melbourne Riverside property. On these main features of the contract there is no obscurity, no ambiguity, and parol testimony should not have been received to distort those terms into two agreements, one that the Finney county land should be in full satisfaction of plaintiff’s commissions and the other a memorandum of an exchange of the 20 acres for plaintiff’s Florida tract. Of course parol evidence might be given to explain that the initials of the signatories were those of the litigants, that the “20 acres Wichita” was the only 20 acres defendant owned thereabout, that the “480 acres Finney” was the only land he had in that county, and similarly to define plaintiff’s Florida tract; but none of these matters was in dispute. And on the minor point of plaintiff that the 90 days’ time should have been written 30 days’ time, that, too, was of no consequence since the court was not asked to change the contract to conform to the intention of the parties. It is therefore correct that finding No. 15 should also have been set aside. Plaintiff also objected to finding No. 6 relating to the fair value of plaintiff’s services, but we do not regard it as of any consequence. The fallacious interpretation of the contract of settlement insisted on by defendant, and his refusal to comply with its terms, amounted to a repudiation of that contract and restored to plaintiff his rights under his contract of employment.
It follows that defendant was not entitled to judgment on the special findings.
With findings Nos. 5, 13, 13A and 15 set aside, what effect does that have on the matters raised in plaintiff’s cross appeal? According to findings Nos. 8 and 17, plaintiff was the procuring- cause of the sale of a half interest in the 18,000 to the Davidsons and of obtaining a sales-agency contract with the Davidsons for the disposition of the other half of the same tract. The jury expressly said that plaintiff accomplished both of these undertakings. At the agreed commission of $1 per acre, plaintiff was entitled to $9,000 on the sale of the half interest, less the $1,000 advancement. At the agreed commission plaintiff was and continues to be entitled to $1 per acre for whatever land is disposed of under the Davidson sales-agency contract until he receives $9,000 more. Plaintiff advocates a theory, which the court cannot follow, that the entire balance of his commission is already due. By the plain terms of the Oklahoma contract set out above, and which was orally adopted as the terms of his employment in effecting a sales-agency contract with the David-sons, he was only to receive his proportionate share of commission thereon as fast as the land was sold. Up to the time of the trial, however, the Davidsons had sold an aggregate of 2,910 acres under their sales agency, consequently the substantial sum of $1,455 was due plaintiff, and judgment in his behalf for that amount should have been added to the amount accorded him on the sale of the first half interest in the property. (Mitchell v. Derby Oil Co., 117 Kan. 520, 531-534, 232 Pac. 224.) And the terms of the judgment should also have adjudicated and upheld plaintiff’s right to the balance of his commission, and should have provided for an accounting thereof as it may fall due hereafter on the further disposition of the.Florida lands under the Davidsons’ sales-agency contract, and thus put an end to further litigation on this subject. (Civ. Code, § 581; R. S. 60-3317.)
The cause will be remanded to the district court for modification of its judgment in accordance with the views outlined herein. | [
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The opinion of the court was delivered by
Hopkins, J.:
This controversy involves an interpretation of section 9 of chapter 255 of the Laws of 1927, which provides for reimbursement to the taxpayers of funds paid by them for the construction of hard-surfaced roads in benefit districts when such funds have been collected and are available for such reimbursement purposes. The pertinent part of section 9 reads:
“The board of county commissioners in any county in which state highways have been built . . . shall . . . when such fund is not necessary to construct a state highway in accordance with some federal-aid specification to connect with such highway so constructed across an adjoining county, apply the county and state road fund provided for in this act to the payment of the installments of the benefit district tax assessed on the property in such benefit districts as the same become due, and to the reimbursement to the taxpayers, of all assessments made and collected on such lands, but no more than one of the assessments made and collected shall be reimbursed to the taxpayers in the district in any one year, such payments and reimbursements to be made in full'upon the land which lies one mile or more from the road for which the benefit district tax was assessed, and upon the lands which lie within one (1) mile of such road in the amount over and above two per cent (2%) of the appraised value of said land and improvements as the same was fixed and used in making such special assessments, except, however, that when the road which the benefit-district tax was assessed is a class 'B’ road as defined by section 8 of this act, then the reimbursement upon the land which lies within one (1) mile of such road shall be in an amount equal to fifty per eent (50%) of such assessments.”
It is conceded that there were sufficient funds under control of the county commissioners not necessary to construct state highways in accordance with federal-aid specifications; that such funds are not necessary to maintain the roads now constructed in the county and are available for the purpose of paying installments now due. The trial court made certain findings from which an appeal has been taken by the commissioners. One of them reads:
“Where a taxpayer whose land is located one mile or more from the road for which the benefit district tax was assessed, has paid, in one payment, the full amount assessed against his land, he should be reimbursed by a single payment, the full amount so paid, without interest.”
Under the statute in question, a landowner could pay his assessment in full in one payment or in installments covering a period of twenty years. The question arises under this finding of the court, whether when a taxpayer has paid his full assessment in one installment, he should be reimbursed in one year for the entire amount. The defendants contend “that to do so would work a hardship upon other landowners paying their assessment by installments; . . . that this especially would be true should the legislature repeal the reimbursement statute under consideration.”
The construction placed upon the section by the trial court is, in our opinion, contrary to the intention of the legislature because there is a provision that no more than one of the assessments made and collected shall be reimbursed to the taxpayers in the district in any one year. . We think the confusion arises from the unfortunate use of the word “assessments,” which appears in this instance 'to have been used synonymously with the word “installments.”
It is quite apparent that the legislature intended to reimburse the two classes of taxpayers who had been required to pay special assessments in connection with the construction of hard roads. All of the statutes under which highway improvements have been made have provided that the landowner might pay the full amount of his assessment in one payment, or in equal installments over a period of years. In passing the act providing for reimbursement the legislature declared a purpose to reimburse both classes of taxpayers, first, by applying available road funds to the payment of the installments yet to become due, and second, to reimbursement of assessments or installments already paid. But it went further and expressly provided that no more than one of the assessments or installments should be reimbursed in any one year. It appears more reasonable to us that the legislature intended That the taxpayer who paid his assessment in full be limited to reimbursement of one-twentieth thereof, in any one year, the same as he who paid in installments. In so holding, we are applying the rule often invoked when ascertaining the true legislative intent.
In Coney v. City of Topeka, 96 Kan. 46, 49, 149 Pac. 689, it was said:
“It is familiar law that legislative enactments are not any more than any other documents to be defeated on account of errors, mistakes or omissions. Where one word or figure has been erroneously used for another or a word omitted, and the context affords the means of correction, the proper word or figure will be deemed substituted or supplied. This is only making the naked letter of the statute yield to its obvious intent.” [Citing cases.]
(See, also, Pfleiderer v. Brooks, 122 Kan. 647, 253 Pac. 549; City of Independence v. Turner, 114 Kan. 731, 733, 220 Pac. 195; Van Doren v. Etchen, 112 Kan. 380, 382, 383, 211 Pac. 144; State, ex rel., v. City of Hutchinson, 106 Kan. 532, 534, 535, 188 Pac. 433; Tatlow v. Bacon, 101 Kan. 26, 31, 165 Pac. 835.)
The trial court also found that:
“Where payment and reimbursement are proper and funds are available therefor, the law contemplates both the payment of the current installment of benefit district tax (sinking fund and interest) and the reimbursement of one installment of the benefit district tax previously assessed and collected during the same year.”
That is to say, “that th’e taxpayer may in the same year, receive a refund of assessments paid, and also be relieved from paying the assessments coming due.” We think not. The legislature said, first, the funds shall be applied to the reimbursement of the taxpayers of all installments as the same become due; second, the funds shall be applied to, the reimbursement to the taxpayers of all assessments made and collected on such lands; third, no more than one of the assessments made and collected shall be reimbursed to the taxpayers in the district in any one year.
Of course, so far as installments to become due are concerned, there can be but one in each year. The act clearly provides that installments are to be paid as they become due, which means one per annum. The legislature limited the reimbursement of “assessments made and collected,” to one assessment (installment) in any one year. The limitation proviso contains no reference to the question of payment of installments to become due. The literal language of the statute would perhaps require an affirmative answer to the question as returned by the trial court, but this does not dispose of the difficulty. Should the question be answered in the affirmative, a taxpayer paying on the installment plan would enjoy the cancellation of the installment coming due and the reimbursement of the installment in the same year. On the other hand, a taxpayer who had paid his assessment in full would be limited to the reimbursement of but a part, equivalent to one installment a year. Thus a marked discrimination would result between the two classes of taxpayers, which was not contemplated by the. legislature. Undoubtedly the legislature intended to treat all alike. The taxpayer therefore may not in the same year receive a refund of the assessment paid and also be relieved from paying the assessment coming due.
The court also found that:
“Since there was no appraised value of the lands and improvements fixed and used in making the special assessments against the lands within one mile of the several roads for which the respective benefit districts involved in this action were created, there is no basis for computing an amount to be charged against the amount to be reimbursed to the taxpayer for benefit tax assessed and collected on lands within one mile of said roads, nor any basis for computing an amount to be deducted from the amount to be applied from the county and state road funds towards the payment for the benefit district tax assessed against the property within one mile of said roads for the year 1927 and subsequent years. It therefore follows that the amount to be reimbursed to the taxpayer for the benefit taxes assessed and collected on lands within one mile of said respective roads is the total amount of the assessment made and collected; likewise, the amount to be.applied from the county and state road fund towards the payment of benefit district tax assessed for the year 1927, and subsequent years, is the total amount of the assessments made or to be made for said years.”
It is quite clear that the legislature intended to put a limitation on reimbursement to owners of land located within one mile of the highway on one class of road not to exceed an amount over and above two per cent of the value of the lands and improvements as the same was fixed in making such special assessments, and in another, an amount equal to fifty per cent of the assessment. It is strenuously argued that the road-improvement statutes contain no provision for appraisement of the real estate and the improvements thereon; that they provide only that the cost of building and improving a highway is to be apportioned among the various tracts of land in the benefit district according to the benefit accruing to the real property and improvements thereon; that the limitation of reimbursement contained in the act now under consideration refers to an appraisement which is nowhere provided for by law and which does not in fact exist, and that, therefore, the phrase is ineffectual and should be disregarded as was done in State, ex rel., v. Gardner, 122 Kan. 508, 252 Pac. 453, and that the owner of lands located within one mile of the highway be reimbursed in the same way as the owner of land located more than one mile therefrom. We cannot assent to this interpretation. We believe that the true intent of the legislature is found by simply disregarding or omitting the word “appraised,” so that the statute will read: “Such payment and reimbursements to be made . . . upon the lands which lie within one mile of such road in the amount over and above two per cent of the value of said land and improvements as the same was fixed and used in making such special assessments.” It is quite apparent that the draftsman of the act, perhaps being not entirely clear in his own mind, inadvertently inserted the word “appraised,” before the word “value” and there exists no good reason for denying effect to this portion of the statute because of such inadvertent or unfortunate use of the word. The board of county commissioners in constructing the roads made a personal investigation of the lands and improve ments within the benefit district and placed thereon values according to zones, and in accordance with such values, assessments were levied. (Hamm v. Jefferson County, 113 Kan. 301, 214 Pac. 105.) The legislature, in enacting the reimbursement statute, concluded that the taxpayer owning lands within a mile from the highway should be reimbursed in part only. We think the language used should be given its full effect by omitting what might be termed the descriptive word “appraised.”
The judgment is reversed and remanded with instructions to proceed in accordance with the views herein expressed.
Harvey, J.. dissenting. | [
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The opinion of the court was delivered by
Hopkins, J.:
A motion for rehearing was granted in this action on the question as to whether the construction and maintenance of a sewer is a governmental function as distinguished from ministerial or proprietary. Additional briefs were filed on the question and oral argument had, since which time we are advised the judgment has been paid. Under the circumstances, the case has become moot and no decision on the question submitted is necessary. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in quo warranto by the state, on the relation of the county attorney, inquiring by what authority the defendant drainage district has engaged in the business of conducting a sand plant for profit, and for a declaratory judgment construing certain state statutes, and particularly R. S. 24-408. The petition alleges that defendant was organized under chapter 215 of the Laws of 1905 (R. S. 24-401 et seq.); that defendant and its directors are making arrangements to engage in the private business, to wit, the taking of sand from the Kansas river and preparing the same for market, and to market the same at wholesale or retail, and for such purpose have purchased a tract of ground, paying for the same the sum of about $8,000, and have erected a tipple and other equipment for the preparation of sand for the general market, and a crane for loading trucks, and are arranging for the construction of railroad tracks to reach the sand plant, and are intending to use the dredge boat belonging to the drainage district, which was purchased for the purpose of dredging the river and keeping the channel clear of obstructions to pump sand for the sand plant, and that the employees of the sand plant are carried on the pay roll of the drainage district and paid out of money raised by taxation; that defendant has contracted with parties to sell sand for building and street-paving purposes. It is alleged that these acts are not authorized by statute, and if R. S. 24-408 should be so construed as to authorize the same it is unconstitutional. Several sand companies operating sand plants in or near the drainage district asked leave to intervene on the part of the plaintiff, which request was granted. In its answer defendant admitted its organization as a drainage district under chapter 215 of the Laws of 1905, and alleges it has the 'powers authorized by that statute and statutes supplemental thereto; that the drainage district has constructed levees along the banks of the Kansas river for a distance of approximately nine miles, and' has widened, deepened, enlarged and improved the channel of the river at an expense of $1,750,000; that the district has not yet secured adequate flood protection; that it has employed several engineers to advise defendant as to what flood protection work would reasonably be necessary for the protection of life, business and property in the district, and as to the probable cost thereof; that several of the engineers have reported that adequate flood protection for the district would cost approximately a million and a half dollars in addition to the sum heretofore expended, and one engineering company reported that to care for flood waters such as the flood of 1903 would require an expenditure of approximately $7,000,000; that in any event it will cost several million dollars to provide the flood protection necessary for the safety of life and property in the drainage district; that for the payment of interest on bonds previously issued and providing a sinking fund and a general fund the taxes in the district are already so' heavy that the directors of the drainage district do not deem it advisable to issue additional bonds, or levy special assessments, or increase the tax rate for the construction and maintenance of additional flood improvement; that the present board of directors, elected in March, 1926, declared in their platform for election, “We favor the use of the dredge for the production of sand for sale,” and that the directors of the defendant deemed it necessary, advisable and for the best interests of the district to operate a sand plant for the sale of sand to secure funds for the construction and maintenance of flood protection work; that the defendant district and board of directors duly found, declared, decided and ordered that it was necessary to the exercise of its corporate, legislative and administrative powers, and to the accomplishment of the purpose of its organization, and to secure funds necessary to provide flood protection improvement necessary to the safety of life and property in defendant district, to take from the Kansas river — a navigable river within the corporate limits of the district — sand, and to sell the same and to use the proceeds for the construction and maintenance of levees and river walls and for dredging and other improvements necessary and authorized to be made by the defendant district; that on November 30, 1926, defendant, by resolution, provided for the purchase of a tract of land to be used for a sand plant; that the defendant district is using its hydraulic dredge, of the value of more than $50,000, in the operation of its sand plant, and has purchased machinery and appliances necessary to the operation of the sand plant at a cost of $29,117.70; that defendant has expended in securing land and the installation of equipment and operation thereof, since November 30, 1926, out of the general fund of the district, approximately $36,683.96; that it has sand now on the ground at the plant of the approximate value of $10,000, and has sold sand to the amount of approximately $2,319.04, and that defendant’s directors believe that they can successfully and profitably operate the sand plant; that the plant is now in actual operation, producing merchantable sand. ’ Defendant further alleges that the business of producing sand for sale, for use generally in Kansas City, Kan., is controlled and practically monopolized by a few corporations, which charge substantially- the same prices for their products, and demand, charge and receive unreasonable and excessive prices therefor, and that it will be for the best interests of the public to establish and maintain a sand plant at which sand can be purchased by all persons for reasonable prices; that the pendency of this suit prevents defendant from entering into contracts for the sale of sand in wholesale quantities and expending money for the purchase of machinery and equipment and enlarging its plant; that defendant will suffer irreparable injury and be compelled to increase the rate of taxation for drainage district purposes unless it can avoid doing so by the operation of the plant, and that defendant will suffer injury if forced to sell its plant on account of want of authority to operate the same. It alleges that it has ample authority to operate the plant under the statute, and particularly under R. S. 24-408.
Plaintiff has moved for judgment upon the pleadings filed. This presents the issues — whether the drainage district is authorized, under the statute, to construct and operate a sand plant for profit, the proceeds to be used for flood protection work, and the secondary question, whether it is authorized to use its general fund to purchase the land and equipment and to pay employees necessary for the operation of the sand plant.
At the first regular session after the disastrous floods, especially in the Kansas river valley, of 1903, our legislature enacted a comprehensive statute (Laws 1905, ch. 215), for the creation of drainage districts. The general purposes to be accomplished are well stated in the title of the act as follows:
“An Act in relation to natural watercourses, providing for the protection, control, deepening, widening, removing obstructions from, changing, regulating, establishing and maintaining the channels thereof; the construction, maintenance and repair of levees along the same to prevent overflow and the raising or elevation of railroad tracks and public highways that interfere with the construction and maintenance of such levees; the construction and regulation of drains and other works conducive to the public health, convenience and welfare in districts subject to overflow; and to these ends providing for and authorizing the organization of public corporations to be known as drainage districts, and prescribing the duties and defining the powers of such public corporations.”
The act provides, among other things:
“That each drainage district incorporated under the provisions of this act shall be a body politic and corporate, and (subject to the superior jurisdiction of the United States over navigable waters) is hereby granted exclusive control of the beds, channels, banks and of all lands the title to which is vested in the state of Kansas lying between the banks at high-water mark of all natural watercourses within such district.” (R. S. 24-407.)
And the drainage district was given power—
“Fourth. To take charge of and exercise exclusive control over all natural watercourses within its territorial limits and to so widen, deepen, establish, regulate and maintain the channels thereof, and to construct and maintain such levees along the banks thereof as may be deemed necessary or proper to prevent or restrain overflow or lessen the volume thereof or the injury deemed likely to result therefrom; also to make and maintain such ditches, drains, sewers and canals through lands subject to overflow as may be deemed necessary to carry off and prevent water from standing or remaining in pools or ponds and becoming stagnant upon overflowed lands, or as may be deemed necessary for sanitary purposes or conducive to the public health, convenience, and welfare; also to alter, change or abandon the channel or any part of the channel of any natural watercourse and relocate or excavate and establish a new channel for such watercourse or any part thereof situated within the district, and to these ends may take private property for public use by exercise of the right of eminent domain in the manner hereinafter provided; and may condemn and cause obstructions in such watercourses to be removed; and may acquire by gift, purchase or condemnation such lands for the purpose of constructing levees along or widening, deepening, changing or otherwise improving the channels of such watercourses or for relocating, excavating and establishing new channels or constructing cut-offs, as may be deemed necessary.” (R. S. 24-407.)
Other specific powers, in harmony with those in the provision quoted, were specifically granted. To pay the expense of all of this the district was given power (1) to levy an annual tax on the property in the district to create a general fund, (2) to levy special assessments on property specifically benefited, to defray the cost of construction and maintenance of levees or other works, and (3) to issue bonds to pay the costs of widening, deepening or otherwise improving the channels and constructing embankments, drains, levees and other works.
The defendant drainage district was organized under this act. The Kansas river, from its junction with the Missouri, west for several miles, is within the district. It has built levees and performed other duties authorized by the act, as stated generally in its anwser. A drainage district so created is a quasi municipal corporation, an arm of the state, created by the legislature to perform a function of government, namely, to provide a drainage system for the district. See Roby v. Drainage District, 77 Kan. 754, 95 Pac. 399; Jefferson County v. Drainage District, 97 Kan. 302, 155 Pac. 54; State, ex rel., v. Drainage District, 102 Kan. 575, 171 Pac. 634; Euler v. Rossville Drainage District, 118 Kan. 363, 235 Pac. 95; State, ex rel., v. Drainage District, 123 Kan. 191, 254 Pac. 372.
In 1913 our legislature enacted what is commonly known as the sand and gravel act (Laws 1913, ch. 259) in which the state was declared to be the owner of any sand, oil, gas, gravel or other mineral, in the bed of any navigable stream in the state; and made it unlawful for any person, firm or corporation to take any part of it therefrom, without obtaining consent of the executive council, and upon such terms as it deemed just, the compensation therefor to be paid to the state. The act did not prevent the taking without payment of sand or gravel to be used exclusively for public highways, public buildings or other public use, or by the person taking the same for his own domestic use, and provided that if the taking was from a drainage district, organized under chapter 215 of the Laws of 1905, one-third of the proceeds should be returned to the drainage district and two-thirds retained by the state. This act was tested in this court (State, ex rel., v. Akers, 92 Kan. 169, 140 Pac. 637), and held valid, in April, 1914, and the decision affirmed by the supreme court of the United States (Wear v. Kansas, 245 U. S. 154).
In 1917 our legislature passed an act in relation to drainage districts organized under chapter 215 of the Laws of 1905, and delegating to such district certain powers, as follows:
“All drainage districts incorporated under the provisions of chapter 215 of the Session Laws of 1905, shall have power: First, to take from any navigable river within their corporate limits, sand, gravel, rock, or other minerals, without the payment to the state of any compensation therefor, and sell the same and use the proceeds in the construction or maintenance of levees, or river walls, or for dredging, or other improvements authorized to be made or maintained by such districts. Second, to construct and maintain streets upon, along, adjoining or over any river wall, dike or levee, and approaches thereto from adjacent or intersecting streets, and to contract with any city or other municipal corporation in which the same may be situated, or with any private corporation or person, for the making of such improvements, or for the payment of a portion of the cost thereof, and to levy taxes and issue bonds, in accordance with and subject to the provisions of chapter 215 of the Session Laws of 1905, and acts amendatory thereof, to pay the cost of such improvements. Third, to contract or otherwise cooperate with any city or other municipal corporation in which the same may be situated, or with any corporation or person, for the construction and maintenance of sewers, drains, or ditches for the drainage of any drainage district or portion thereof, or to prevent the same from being overflowed by surface water from adjoining lands, and to levy taxes and issue bonds in accordance with and subject to the provisions of chapter 215 of the Session Laws of 1905, and acts amendatory thereof, to pay for the cost of such improvements.” (R. S. 24-408.)
Defendant concedes in its brief that prior to the enactment of the statute last quoted it had no power to go into the business of operating a commercial sand plant for profit, but contends that this statute granted a new plenary power in that respect; that it was intended by this statute to provide funds for improvements and maintenance of improvements without taxation, by a new method; that the purpose of the act is to confer the general power to take and sell sand, by such method and under such circumstances as the board of directors of the district deem advisable, and, presumably, in such quantities and for such price and on such terms as the directors deem prudent.
In accordance with the scope and purpose of our constitution, and especially section 8 of article II, it is our policy for neither the state nor subdivisions to engage in any purely commercial enterprise. In State v. Kelly, 71 Kan. 811, 836, 81 Pac. 450, it was said:
“It has been the policy of our government to exalt the individual rather than the state, and this has contributed more largely to our rapid national development than any other single cause. Our constitution was framed, and our laws enacted, with the idea of protecting, encouraging and developing individual enterprise, and if we now intend to reverse this policy, and to enter the state as a competitor against the individual in all lines of trade and commerce, we must amend our constitution and adopt an entirely different system of government.”
See, also, National Bank v. City of Iola, 9 Kan. 689; State, ex rel., v. Osawkee Township, 14 Kan. 418; McConnell v. Hamm, 16 Kan. 228; City of Geneseo v. Gas Co., 55 Kan. 358, 40 Pac. 655; State v. Lawrence, 79 Kan. 234, 100 Pac. 485; and Savings and Loan Assoc. v. Topeka, 20 Wall (U. S.) 655; and Com. Nat. Bank of Cleveland v. Iola City, 22 L. Ed. 463, construing Kansas statutes.
The question before us is to determine whether the legislature, by enacting the statute last quoted, intended to make a complete change of its policy in this respect (if indeed it had constitutional authority to make such a change), and to confer on drainage districts full authority to engage in'what has always been regarded, and in fact is, a purely commercial enterprise, even though the language used, broadly interpreted, might be so construed. Our answer must be in the negative.
Unless a contrary intent clearly appears, statutes are presumed to have been enacted with the view that they will be interpreted, .not only in accordance with the constitution of the state, but in accordance with a definitely known public state policy. So viewed the broad language of the statute is greatly restricted.
The statute in question refers to the statute authorizing the creation of drainage districts (Laws 1905, ch. 215; R. S. 24-404 et seq.), and must be construed in accordance with the general purpose of . that act. That purpose has been heretofore defined by this court. The act authorizes the creation of drainage districts for the purpose of carrying out a governmental function; namely, the drainage of overflow land. (Railway Co. v. Montgomery County, 93 Kan. 319, 144 Pac. 209; Drainage District v. Railway Co., 99 Kan. 188, 161 Pac. 937; Todd v. Drainage District, 109 Kan. 754, 201 Pac. 1096), and cases cited, supra. The legislature had no intent to create quasi municipal corporations for the purpose of conducting a purely commercial enterprise.
Construing the statutes heretofore cited, as above indicated, it seems clear that the statutes of 1917 simply authorize the drainage district to sell such sand, gravel, etc., as might be produced in performing the functions for which it was created, without paying any of the royalty provided by the sand and gravel act, and this without respect to whether it was sold for the building of roads or other governmental purposes.
But defendants contend that if the statute be so interpreted, then it is really useless for the reason that sand taken in the ordinary dredging of the river, removing sand bars and the like, is not in condition to be sold until it is washed, cleaned and graded, and that these operations require a sand plant. It is much better that the statute be so construed as to have no useful purpose than to construe it so as to create a power directly opposed to our definite state policy, as provided in our constitution and elsewhere, that the state, or its municipal subdivisions, shall not engage in purely commercial enterprises.
The conclusion we have reached makes it unnecessary to discuss at length any other question argued. It necessarily follows that defendants have no authority to use money raised by taxation for the purchase of land and equipment, and employing men to conduct a sand plant as a purely commercial enterprise.
Judgment will be entered for plaintiff. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by G. H. Beeler against the Emmett State Bank and the receiver of that bank to have it adjudged that a certain fund in the hands of the receiver was a trust fund to which plaintiff was entitled. Each of the defendants filed a demurrer to plaintiff’s petition, alleging that no cause of action was stated in the petition. The court sustained the demurrers and plaintiff appeals.
The following is a summary of the averments in the petition; The Emmett State Bank was a corporation engaged in the banking business, and on May 17, 1926, it became insolvent and a receiver therefor was appointed. Prior to that time and on April 23, 1920, several persons executed a note for $8,000 payable one year after date at the Emmett State Bank, on which interest was paid from time to time up to October 23, 1925. On January 23, 1926, the bank commissioner finding the funds of the bank impaired made an order requiring an assessment upon the stockholders of 100 per cent, and requiring that the moneys paid in on the assessment should be held a fund apart from all other moneys until the assessments had been paid. On February 17, 1926, a meeting was held by the stockholders of the bank, at which a resolution was passed levying the assessment as directed and providing that it should be paid on or before April 19, 1926. The resolution recited that the proceeds of the above assessment were to be used first to pay the Beeler note of $8,000, and the balance used to charge off paper which had been listed as questionable or worthless. On this assessment, stockholders responded with payments amounting to more than $8,000, but the note in question was not paid. Plaintiff alleged that the money paid in on this assessment constituted a special deposit, and instead of paying the notes as it should have done, the funds so derived were mingled among the funds of the bank, increasing the assets of the bank in a sum more than $8,000, and it became and constituted a trust fund in favor of the plaintiff, and therefore plaintiff was entitled to a judgment holding that it was a trust fund, and that the receiver should be. directed to pay plaintiff the amount due on his note.
Within the decisions recently made it must be held that the money derived from the assessment made cannot be regarded as a trust fund, which the plaintiff may follow and claim. The capital of the bank was found to be impaired, and the bank commissioner in compliance with the statute notified the bank to make the impairment good within the time specified. (R. S. 9-145.) In response to the notice, the stockholders adopted a resolution levying an assessment to make good the impairment and enable the bank to continue as a going concern. The assessment was a stock liability instead of a personal obligation. The stockholder had the option to pay the assessment or to suffer his stock to be sold as the statute provides. (Citizens Bank v. Needham, 120 Kan. 523, 244 Pac. 7.) The money paid in under the assessment became capital the same as the other capital of the bank, which was provided for the benefit of all depositors and creditors. When paid in as the law provides, no creditor had or could have a preferred right to any of it. It was decided in the late case of Bernard v. Emmett State Bank, 124 Kan. 233, 257 Pac. 949, that payment by a stockholder of an assessment made to meet impairment of the capital stock of the Emmett State Bank under the same resolution as is pleaded by plaintiff, “was not a special deposit or trust fund — it just went to the bank to take up bad paper.” (p. 236. See, also, Mulligan v. Emmett State Bank, 124 Kan. 699, 261 Pac. 567.)
Following these decisions it must be held that the demurrer of the defendants was properly sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Frank Rutkowski brought this action against The J. I. Case Threshing Machine Company to recover damages for personal injuries suffered by him through the alleged negligence of the defendant. A verdict awarding damages to plaintiff in the sum of $2,000 was returned by the jury, upon which judgment was rendered. The defendant appeals.
It appears that plaintiff, a fanner living near Murdock, in King-man county, ordered a harvesting thresher, commonly called a combine, from the defendant, a manufacturer of such machines. The order was made direct to the defendant and was handed to Robert Stoehr, a local hardware merchant at Murdock, who was aiding the defendant in the disposition of combines. The order was forwarded to the branch house of defendant at Wichita, and was accepted by Ahlberg, the agent of the defendant, and the combine was transported to plaintiff’s farm. Shortly afterwards, H. F. Cobb, an expert machinist, was sent out by Ahlberg to supervise and set up this and other combines sold in that community. It was the general policy and custom of the company to send experienced help to set up machines of this kind and make them ready for operation. Cobb set up the plaintiff’s combine and when he deemed it to be complete he said to plaintiff, “Well, we will start the motor,” and he directed plaintiff to crank or start it. Plaintiff at first declined, but Cobb said, “You have got to leam it sooner or later anyhow, it is all ready to start.” Plaintiff then undertook to start it, which resulted in an explosion or two and the motor stopped. Cobb advised a further effort, saying that “it would go the next time, and that it was safe,” and on the next effort the motor kicked back and the handle struck plaintiff’s face destroying his right eye, fracturing the bones of his face and causing other serious injuries. There was a safety device 'called an impulse starter, designed to prevent the kicking back of the crank, but C'obb had not adjusted this device. Plaintiff did not know anything about this mechanism and Cobb had not only failed to adjust it, but had not advised plaintiff concerning the device or the danger of cranking when the device was not set. There is no contention as to the character and extent of the injuries suffered by plaintiff. Defendant says the only issue involved in the appeal is whether Cobb was the agent of the defendant or the agent of the local dealer, Stoehr, at the time the injuries were sustained by plaintiff.
It was a clear case of negligence to undertake to start the motor or to direct the plaintiff to start it without adjusting and setting the safety device, and the question is, was it the negligence of defendant’s agent? The defendant contends that as nothing was said in the order of purchase as to the setting up^ of the machine or that defendant would furnish an expert to do so, and that as the contract provided that no local dealer or any other person had any authority to waive, alter or enlarge the contract, it was not responsible for the negligent acts of Cobb. It was shown that defendant had a contract with Stoehr to the effect that defendant would not be bound by the acts of Stoehr’s employees or for any person in Stoehr’s service, and that for any default or misconduct of such employees who assist the dealer in soliciting sales, exhibiting samples or on other work, they should be regarded as Stoehr’s employees while so working. It will be noted that plaintiff knew nothing of this contract between the defendant and the local dealer, and it may be questioned whether the testimony as to that contract was admissible unless knowledge of it was brought to the attention of the plaintiff. As we have seen, the order was made direct to the defendant and not to Stoehr. While it was handed to and forwarded by Stoehr to the defendant, the contract was made between plaintiff and the defendant direct. It was not made between Stoehr and the plaintiff. Stoehr had informed plaintiff that the defendant would send out an expert to set up and start the combine. Cobb was employed, as we have seen, and was sent out by defendant to supervise the setting up of the machine it sold to plaintiff. There were six or eight of such combines to be set up in that community and Stoehr provided for the transportation of Cobb from one place to another where machines were to be set up. One or two of Stoehr’s men helped Cobb in the process and plaintiff was present when the combine was assembled and set up, but Cobb was the expert and in control of the process. He was employed by the defendant, was sent out by the defendant and his wages for the service were paid by the defendant. There was testimony to the effect that it was the common practice for the defendant to send out an expert to supervise the setting up of the machines. Stoehr said he did not direct Cobb in setting up the machine sold to plaintiff, and was not even present when it was done. The contract of defendant with Stoehr provided, it is true, that defendant should not be bound by the acts of the dealer’s employees, but the negligent act was not performed by an employee of the dealer. It was the default of Cobb himself -that caused the injury, and under the evidence he cannot be considered as the employee of Stoehr. Cobb testified that he entered-the employ of defendant in May of 1926, as setting up and service man. Following his employment and during the month of June he set up about twenty-eight machines, and then was sent to western Kansas, where he set up fifty-two machines. In his testimony he said that he instructed plaintiff as to the use of the safety device, and he denied that, he had made a statement shortly after the accident that it was too bad that he had failed to adjust or set the impulse starter, but there was evidence to the contrary which the jury chose to believe.
Defendant cites authorities to the effect that a servant may be loaned by a master to a third person, and when that is done such servant becomes the servant of the third person with all the legal consequences of the new relation. (Phillips v. Armour & Co., 108 Kan. 596, 196 Pac. 245; Baker v. Petroleum Co., 111 Kan. 555, 207 Pac. 789; 39 C. J. 1274.) But the evidence does not show that Cobb was loaned to Stoehr or that he was hired to him. Stoehr did not have control of the operation and had no authority to direct the kind of work to be done by Cobb. Nor did Cobb look to Stoehr for direction as to the manner of doing the work assigned to him, but rather he was directed to take charge of the work and fulfill the obligation assumed by the defendant of setting up the machine. Cobb was not only selected and employed by the defendant for this work, but it was done in furtherance of its business. Selection alone is not sufficient to give rise to the relation of master and servant, but this right must be accompanied by tHe power and duty of control. The power to direct what work shall be done and the manner of performance is said to be one of the principal tests of the relationship. It has been said that:
“To constitute the relation of master and servant for the purpose of fixing liability on the former for acts of the latter under the doctrine of respondeat superior, it is indispensable that the right to select the person claimed to be a servant should exist. Furthermore something more than the mere right of selection is essential to the relation. This right must be accompanied with the power and duty to control the alleged servant while in- his employ; this, it is said, is one of the principal tests of the relation. . . . It is also essential to the relation of master and servant that the right to remove for unskillfulness, neglect of duty, or other cause, should exist.” (39 C. J. 1269, 1270.)
A case closely in point is Tuttle v. Farmers Handy Wagon Co., 124 Minn. 204, where a silo was sold to a farmer and shipped to him in a knocked-down condition and the farmer hauled it out to his farm. The seller had agreed .and assumed the obligation to furnish an expert to superintend the erection of the silo. He was sent to the farm for that purpose by the seller and was assisted in the erection of the silo by men furnished by the farmer. The expert who was employed by the seller took full charge and control of the work. In doing the work plaintiff was precipitated to the ground from the top of the silo through the negligence of the expert and suffered severe injuries in the fall. It was claimed by the seller that the expert had been loaned to the farmer and that the expert and those assisting him were all the servants of the farmer. The court held that although the seller had not contracted to erect the silo,, it had agreed and assumed the obligation to furnish a man to superintend its erection. The farmer had no voice in the selection of the expert, nor any control over him. He was sent to take charge of and direct the work in fulfillment of the obligation assumed by the seller, and it was held that he was not only an employee of the seller but was engaged in the business of the seller while performing the duties assigned him in the erection of the silo. The court said:
“It seems clear that he was not only an employee of the company, but also engaged in the business of the company, while performing the duties assigned him by the company in respect to the erection of this silo. If a servant be loaned by one employer to another, the servant, for the time being, and for the purpose designated, must cease to be a servant of the one and become the servant of the other. For the time being and for the purpose designated, he must be engaged in furthering the business of the master to whom he is loaned, and not in furthering the business of the master who loans him. The right to control and direct him in the performance of his duties, including the right to dispense with his services, must pass from one to the other.” (p. 208. See, also, Standard Oil Co. v. Anderson, 212 U. S. 215; Dalrymple v. Covey Motor Car Co., 66 Ore. 533; Driscoll v. Towle, 181 Mass. 416; Hooper v. Brawner, 148 Md. 417; W. S. Quinby Co. v. Estey, 221 Mass. 56.)
In the Tuttle case it was said that the seller had agreed to furnish a man to set up the silo. There was no express agreement of the defendant with plaintiff that an expert would set up the combine, but there is sufficient evidence to show that it was not only the general custom for the defendant to furnish such an expert to set up the combines, but that it in fact assumed the duty and obligation to furnish such an expert to set up the plaintiff’s machine. It sent its own agent to do so with full power and control ovér him, and the expert must be regarded as its employee and it is answerable for his tortious acts.
We conclude that Cobb was the servant and agent of defendant and not of Stoehr, and that defendant, is liable for his negligence which resulted in the injuries for which the action was brought.
In a cross appeal plaintiff asserts that there was error in the instructions as to estoppel, and also that the amount of the damages awarded is inadequate, but on an examination of the record we find nothing substantial in these claims of error.
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 Charles A. Shepard, a constable of Holton township, Jackson county, and Phil Metzker and Frank Kabance, his bondsmen, to recover the amount named in an execution placed in the hands of Shepard to levy on the property of R. M. Marshall, and sued Mrs. Ralph Marshall (Nellie Marshall) and W. H. Marshall, her bondsman, on a bond given by them to Charles A. Shepard, constable, conditioned for the return of property on which the constable had levied the' execution. Judgment was rendered in favor of the defendants, Charles A. Shepard and the sureties on his bond, and against Mrs. Ralph Marshall and W. H. Marshall for the amount named in the execution, interest thereon and costs. There is no appeal from the judgment in favor of Charles A. Shepard and his bondsmen. Mrs. Ralph Marshall and W. H. Marshall appeal from the judgment against them.
The facts disclosed by the evidence were as follows: On April 15, 1924, the plaintiff recovered a judgment before a justice of the peace against R. M. Marshall for the sum of $104.35 and costs, taxed at $5.85, with interest at eight per cent from the date of the judgment. On May 14, 1925, execution was issued on the judgment, and on June 15/1925, the execution was returned wholly unsatisfied. On July 16, 1925, an alias execution was issued, and on July 18, 1925, the execution was levied on a Dodge automobile. On July 18, 1925, Mrs. Ralph Marshall and W. H. Marshall executed to Charles A. Shepard, constable, a forthcoming bond, conditioned that the defendant R. M. Marshall “shall deliver said property to said constable on the 28th day of July, a. d. 1925, at 9 o’clock a. m. at Holton, to be sold on said execution, or will then and there payy said constable the value of said goods and chattels.” Mrs. Ralph Marshall claimed the automobile as her property, and on July 28, 1925, the trial of the question of the ownership of the property was continued to July 31,1925. Other continuances thereafter occurred, and on August 10,1925, that question was tried, which was followed by a judgment before the justice of the peace declaring the automobile to be the property of Mrs. Ralph Marshall. It was ordered by the justice of the peace to be delivered to Mrs. Ralph Marshall by the constable. From that judgment the plaintiff appealed. So far as the abstract shows that appeal has not been determined. The record does not disclose any disposition of it.
The present action was commenced April 17, 1926, and was tried June 1, 1927. The evidence on behalf of the plaintiff consisted of the judgment before the justice of the peace, which recited the facts hereinbefore stated. The execution issued on that judgment, the return of the execution which showed the levy on the automobile and the forthcoming bond were introduced in evidence. The testimony of Mrs. Marshall tended to prove that she was present in the justice of the peace court 'on July 28, 1925, and then told the constable where the car was. The court found “that the said defendants, Mrs. Ralph Marshall and W. H. Marshall, are indebted to the said plaintiff in the sum of $130.44, which said sum should bear interest at the rate of 8 per cent per annum from this date,” and ordered “that the said plaintiff have and recover of and from the said defendants, Mrs. Ralph Marshall and W. H. Marshall, the said sum of $130.44 with the interest thereon at the rate of 8 per cent per annum from the date of this judgment.”
Did the giving of the bond estop Mrs. Ralph Marshall from afterward claiming title to the property? On this question, there are two lines of authority in this state. The original declaration concerning one line is found in Sponenbarger v. Lemert, 23 Kan. 55, in which this court said:
“Where a constable, holding an execution, issued in the case of L. v. F., levies on certain personal property as the property of F., and F. and B. afterward gave to the constable a redelivery bond, admitting in such bond that the property belongs to F., and by reason of such bond the constable allows F. to retake possession of the property, held, that the constable receives said bond merely as a ‘security for his own indemnity,’ and that F. and B. are afterwards estopped from denying that the property belongs to F.”.
That principle has been recognized or followed in a number of cases since that time. (Wolf v. Hahn, 28 Kan. 588; Case, Bishop & Co. v. D. M. Steele & Co., 34 Kan. 90, 8 Pac. 242; Olson v. Nunnally, 47 Kan. 391, 395, 28 Pac. 149; Peterson v. Wollen, 48 Kan. 770, 30 Pac. 128; State v. Guaranty Co., 81 Kan. 660, 671, 106 Pac. 1040.)
The other line of authority begins with Dent v. Smith, 76 Kan. 381, 92 Pac. 307, where this court said:
“Before the acts of one person can be successfully invoked as an estoppel by another, such other must have relied upon and been prejudiced by the acts of which he complains.”
In the present action, a constable levied on property claimed by Mrs. Ralph Marshall. If that property was hers, it was not subject to sale under the execution issued against her husband, Ralph M. Marshall. Giving the bond did not decrease her rights in that property, nor increase the rights of the constable, nor of the plaintiff in the action, to sell that property under the execution. The condition of the constable and of the parties to the action was not changed by the giving of the bond.
In Commission Co. v. Tate, 91 Kan. 538, 138 Pac. 602, this court said:
“The terms of a bond executed by third persons claiming cattle seized on execution and the conduct of such persons in procuring the sheriff to accept the bond and release the cattle considered, and held not to estop them from claiming title to the cattle in a suit by the execution creditor on the bond.”
In Commission Co. v. Hicks, 92 Kan. 922, 142 Pac. 276, is found an exhaustive discussion of estoppel by giving a redelivery bond for property attached. This court there reached the conclusion that the claimant of the property was not estopped by giving the bond.
In Smith v. Eby Construction Co., 104 Kan. 178, 178 Pac. 405, this question was again before this court, and this court said:
“The giving of a bond by the intervener for its own benefit, conditioned that the attached property or its appraised value in money shall be forthcoming to answer the judgment of the court, did not estop it from demanding an adjudication of the ownership of the attached property.”
Again, in Robertson v. Andrus, 125 Kan. 730, 266 Pac. 53, a thorough discussion of the subject is found, and this court said:
“An intervener in an attachment action is not estopped to maintain her plaim of ownership of the property attached by subsequently signing.a forthcoming bond in the case as surety.”
If there is a conflict between the earlier decisions of this court and the later ones, it must be held that the latter overrule the former.
What effect must be given to the finding of the court on the evidence introduced on the trial of the present action? Mrs. Ralph Marshall, so far as the abstract shows, did not introduce any evidence to prove that she was the owner of the property. The evidence of the plaintiff by the recitals of the judgment before the justice of the peace, tended to prove that she was the owner of the property. The burden was on the plaintiff to prove that the automobile was the property of R. M. Marshall when the execution was levied on it. He did not prove that fact. If his evidence proved anything it proved the contrary. It follows that the judgment against Mrs. Ralph Marshall and W. H. Marshall must be reversed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action to partition real property and for an accounting for rents. A jury was impaneled and the evidence introduced. The court then sustained plaintiff’s motion for judgment. Defendants have appealed.
The parties are the children of Alfonso Templeton, who owned the real property in controversy, subject to a mortgage of $1,500 at the time of his death, March 16,1924. He left a will executed January 24, 1924, in which a few small bequests were made, including $4 to plaintiff, and the remainder of his property was divided among his other four children, the defendants, Dora M. Knapp, Nora N. Roach, Jos. W. Templeton and Geo. H. Templeton, one-fourth to each. On February 18, 1924, these four children, evidently having been informed of the provisions of the will, entered into an agreement in writing among themselves to keep “the tract of land intact and undivided for a period of not less than five years from this date.” This was signed also by Alfonso Templeton as indicating his satisfaction therewith. The will was duly admitted to probate March 24,1924. No action was brought to set it aside. Defendants claim title to the real property in controversy under this will. In this action plaintiff makes no claim under the will, nor does she seek to set it aside. Her claim is based on a written memorandum executed by defendants under date of March 22, 1924. On that day the plaintiff and the defendants, except Geo. H. Templeton, met at the Severy Bank where Alfonso Templeton had transacted his business and where he had a box in which he kept his papers. The box was-opened, the will taken therefrom, and it was there read in the presence of plaintiff and the three defendants. The plaintiff expressed displeasure with the terms of the will and left immediately after it was read. The three defendants remaining then looked through other papers in the box and there found notes or other instruments which they understood indicated that their father in his lifetime had advanced to plaintiff sums aggregating $859. They then had the banker write this memorandum:
“Severy, Kan., March 22, 1924.
“We, the heirs of the Alfonzo Templeton estate, do by these presents agree by and between ourselves and in the presence of each other that when we have received an equal amount of the estate of Alfonso Templeton that Jessie Wellman has now received, which amount is $859, that the balance of the estate will be divided equally between his five children counting Jessie Well-man as one.”
This was signed on that day by the three defendants present and was later sent to Geo. H. Templeton, who signed it in -Arizona. Thereafter a copy of it was sent to plaintiff. It appears that in April, 1925, plaintiff wrote defendants and offered to accept the agreement if the heirs would agree to cut the amount down to $300 instead of $859. Defendants did not consent to this. Under date of February 20, 1926, plaintiff wrote each of the defendants as follows:
“I am writing you in regard to that agreement that you children have drawn up and signed giving me my share of my father’s estate, after you have received the same amount as you claim we have already received. If you will take off what should be taken off of this said agreement I will accept the agreement. Come to Severy and we will all meet and have a settlement or give administrator authority to make settlement for you, or we will go to the probate court and settle. We will, wait until the 5th day of March, 1926, and if not settled by that time we will throw it into the courts.”
Plaintiff had no agreement with defendants in response to that letter. On April 23, 1926, counsel for plaintiff wrote each of the defendants advising they had been employed by plaintiff, who had been dissatisfied with the allowance made to her under the will of her father, and that she contemplated bringing suit to set the same aside. The instrument of March 22, 1924, is referred to and it is stated that, relying upon this written instrument, plaintiff had not instituted a suit to break the will; that the estate had now been closed, and that the probate court had held that all notes and obligations due the estate from either Jessie Wellman or Roy Wellman had been liquidated, paid and set off by claims which they had against the estate, and making demand for an equal one-fifth division of the entire estate. Two of the defendants replied, denying the correctness of the position taken by plaintiff’s counsel; the other two defendants made no response.
On January 7, 1925, Roy Wellman, the husband of plaintiff, filed claims against the estate of Alfonzo Templeton for certain labor and for material furnished in repairs. On the same day V. L. Knapp, administrator with the will annexed of the estate, filed as a counterclaim certain notes owed to the estate by Roy Wellman. After hearing the testimony the probate court found that the portion of the claims allowable against the estate are an equal and adequate set-off for the notes held by the estate against the claimant, and an order was made allowing the claims and declaring the notes paid and canceled. The amount of the claims made by Roy Wellman, or the notes so set off against them by the administrator, is not disclosed. Plaintiff brought this action predicated on the written instrument of March 22, 1924, and alleged that the instrument was made in consideration of plaintiff foregoing bringing suit to contest the will. It was alleged that defendants at that time were under the impression that plaintiff had received advancements in the amount of $859, “and especially agreed that the said plaintiff should share equally with each of the defendants in all of the estate remaining, after each of the defendants should receive a sum equal to the amount advanced to the plaintiff.” It was further alleged that no advancement had ever been made to her; that notes owed by her and her husband were offset by indebtedness from the decedent, which fact had been adjudicated by the order of the probate court of January 7, 1925. The prayer was for one-fifth of the real property and rents. Defendants denied that the instrument of March 22,1924, was made by them in consideration of plaintiff’s foregoing to bring suit to contest the will, and alleged that it was intended as a voluntary gratuity to plaintiff; that it had never been accepted by plaintiff, and that the same was of no force. The reply was a general denial.
On the trial plaintiff testified that at some time after receiving a copy of the instrument of March 22, 1924, she talked with the defendants, Mrs. Knapp and Jos. W. Templeton, and told them that the agreement was all right, but the amount wasn’t right, “and they both of them, Mrs. Knapp and Joe Templeton said if the amount wasn’t right that the administrator, or Mrs. Knapp told me the administrator had the authority to take off what didn’t belong there.” That Mrs. Knapp further told her that she didn’t know anything about the amount, and if the courts would take it off they would have to take it off. Mrs. Knapp testified that she never had any such conservation with' plaintiff. The court could not have predicated his ruling on the motion for judgment on this controverted testimony. It is not contended by plaintiff that any of the other defendants ever intimated that the amount named in the instrument of March 22, 1924, should be modified. Her testimony is that defendants never at any time agreed to “take off the amount” named in that instrument, or to modify it in any way.
Plaintiff contended in the court below and here that the instrument of March 22, 1924, was made by defendants for the benefit of plaintiff, and that plaintiff could therefore maintain an action upon it. To do so, of course, it would be essential that plaintiff accept it. Her testimony is that she never did accept it as written; that she accepted it all except as to the amount, and that defendants never agreed to modify or change the amount. This is not a sufficient acceptance unless we construe the instrument as plaintiff contends it should be construed, to be later described. It is fundamental that an offer must be accepted as made before it becomes an enforceable contract. (13 C. J. 279.) When an agreement is made by two or more parties for the benefit of a third, the rule is, of course, the same. Such an agreement, if beneficial to the third party, may be presumed to have been accepted by him, but such presumption cannot be indulged in this case, for the uncontroverted eyidence- is that plaintiff did not accept it as made.
Plaintiff contends that the words “which amount is $859” in the instrument of March 22, 1924, should be disregarded or construed as an estimate. It is argued that the real purpose of the instrument is to set forth an agreement among the defendants that each of the five children of Alfonzo Templeton should share equally in his estate; that defendants thought at the time this instrument was written that there had been advancements to plaintiff in the sum of $859-, and hence they agreed among themselves that when each had received that amount from the estate plaintiff should share with them in the remainder; that in effect plaintiff had not received any advancements, as was determined by the judgment of the probate court of January 7, 1925, and hence that the intention of the defendants that the estate should be divided equally among the five children could only be followed out by disregarding these specific words. The court below evidently took this view of the instrument. Defendants complain of that construction. We think it was erroneous. The fair interpretation of this instrument of March 22, 1924, is that defendants were willing that plaintiff, who had practically been left out of her father’s will, might share equally with them in the estate after each of them had received the amount out of the estate that plaintiff “has now received, which amount is $859.” For the purpose of this agreement they themselves determined the amount plaintiff had previously received from the estate, and they named the conditions on which they expressed a willingness to permit her to- share with them in the distribution of the estate. They had a perfect right to name any conditions they saw fit to name. The amount was not approximated nor indefinite. The statement is positive, “which amount is $859.” It was not left to the probate court, nor to anyone else, to determine that. What the probate court found with reference to claims of plaintiff’s husband against the estate is of no consequence in interpreting this instrument. Even if the probate court had found the amount which had previously been advanced to plaintiff, it would have been of no importance in construing this agreement, for the simple reason that the agreement was not predicated upon nor to be determined by such finding.
Plaintiff alleged in her .petition that this agreement of March 22, 1924, between the defendants was made in consideration of plaintiff’s foregoing bringing suit to contest her father’s will. There is no evidence to support that allegation. Plaintiff’s own testimony was that she left the bank soon after the will was read.
“Q. Then you didn’t have any conversation with your brothers and sisters there at that time? A. Not right in the Severy State Bank, but I told my brother-in-law after I left the Severy State Bank I wasn’t going to stand by the will, or there would be trouble.”
There is no evidence that what she told her brother-in-law was ever communicated to the defendants; but if it was, it was certainly after this instrument was drawn. The testimony of the other witnesses is that she left the bank as soon as the will was read after expressing her dissatisfaction of the will. She did not then threaten any suit, nor did she ask defendants to make any agreement with her to keep her from bringing suit; nor does she contend in her testimony that she made any agreement with defendants before this instrument was written, or at any time, by the terms of which she would forego bringing suit. In her letter of February 20, 1926, previously quoted, she threatened to throw it in the courts if she did not have a settlement by March 5,1926. But she had no agreement in response to that letter. The result is that there is nothing in this record to justify a judgment predicated upon the premises that this instrument of March 22, 1924, was made by defendants in agreement with plaintiff and in consideration of her foregoing to bring suit to set aside the will.
The judgment of the court below will be reversed, with directions to enter judgment for defendants. | [
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The opinion of the court was delivered by
Burch, J.:
The administrator of an estate appeals from a judgment of the district court affirming an order of the probate court directing him to sell real estate which belonged to the decedent at the time of her death, to pay a judgment establishing against the administrator a stockholder’s liability attaching to bank stock owned by the decedent at the time of her death.
The proceeding to sell real estate was a, sequel to the judgment affirmed in the case of Farmers’ State Bank v. Callahan, 123 Kan. 638, 256 Pac. 961. To the facts stated in the former opinion nothing need be added except that at the time of her death Ora J. Callahan owned the real estate described in the probate court’s order, and that final settlement of her estate had not been made when the proceeding to appropriate the real estate to satisfaction of the judgment was commenced.
The statute relating to decedents’ estates provides that, subject to certain reservations not material here, the real estate and personal effects of an intestate “not necessary for the payment of debts” shall be distributed to heirs. (R. S. 22-101.) For the purpose of settling the estate, the. administrator takes title to personal effects. Real estate descends to heirs, but descends to heirs subject to power of the administrator to sell real estate to pay debts. The statute further provides:
“As soon as the executor or administrator shall ascertain that the personal estate in his hands will be insufficient to pay all the debts of the deceased and the charges of administering the estate, he shall apply to the probate court for authority to sell the real estate of the deceased, or any interest he may have in any real estate situated within this state subject to the payment of debts.” (R. S. 22-801.)
Appellant contends there was no debt of the deceased for which, in the admitted absence of personal assets, the real estate could be sold.
Originally, “debt” was a common-law term having a technical signification fixed by procedure:
“The legal acceptation of debt is, a sum of money due by certain and express agreement: . . . where the quantity is fixed and specific, and does not depend upon any subsequent valuation to settle it. . . . Actions of debt are now seldom brought but upon special contracts under seal; wherein the sum due is clearly and precisely expressed; for, in case of such an action upon a simple contract, the plaintiff labors under two difficulties. First, the defendant has here the same advantage as in an action of detinue, that of waging his law, or purging himself of the debt by oath, if he thinks proper. Secondly, in an action of debt the plaintiff must prove the whole debt he claims, or recover nothing at all. ... If, therefore, I bring an action of debt for 30 l., I am not at liberty to prove a debt of 20 l. and recover a verdict thereon; any more than if I bring an action of detinue for a horse, I can thereby recover an ox. For I fail in the proof of that contract, which my action or complaint has alleged to be specific, express and determinate.” (3 Blackstone’s Comm. 154, 155.)
As the tight form of action of debt fell into disuse, the meaning of the term expanded:
“Debt is a sum of money due by certain and express agreement; in a less technical sense, it is any claim for money; and in a still more enlarged sense, it is any kind of a just demand. Debt is also used to signify an action of debt, which is a remedy for the recovery of a debt eo nomine and in numero, . . .” (3 Bouvier’s Bacon’s Abridgment, 82.)
The approved usage is given in Webster’s New International Dictionary :
Debt: “That which is due from one person to another, whether money, goods, or services; that which one person is bound to pay to another, or to perform for his benefit; thing owed; obligation; liability.” (p. 576.)
The term was not used in the statute relating to decedents’ estates in the primary common-law sense, and it had no peculiar signification which precluded interpretation according to context and approved usage. (R. S. 77-201, second.) Broad meanings of the term were recognized in the cases of Henley v. Myers, 76 Kan. 723, 93 Pac. 168, 173, and Abernathy v. Loftus, 95 Kan. 87, 147 Pac. 818. In the opinion in the Abernathy case appears a quotation from the opinion in the case of Carver v. Braintree Mfg. Co., 2 Story (U. S. C. C.) 432, which justifies use of the phrase “liability incurred” as the equivalent of “debt contracted.” There is no difficulty, therefore, in holding that any obligation originating with a person who afterwards dies, which should be discharged by appropriation of assets of his estate, is a debt. Furthermore, while the liability of a shareholder is imposed by statute, this court has uniformly held that assumption of the liability by acquiring ownership of shares is contractual in nature with respect to the corporations and its creditors; and the result is, the judgment against appellant as administrator relates back to a contractual liability of Ora J. Callahan to pay an additional sum equal to the par value of her shares.
The liability of Ora J. Callahan was a burden incident to ownership of shares. If the liability had matured while she was alive, it would have been dischargable out of her property, including real estate not exempt. After her death the liability continued to be a burden incident to ownership of the shares. The shares passed to her administrator, not for his personal benefit or detriment, but in his capacity as her personal representative. While it was necessary because of her death to establish the liability against her administrator, the liability was dischargeable out of her property, including real estate not exempt.
The foregoing simply follows the decision of this court in the case of Douglass v. Loftus, Adm’x, 85 Kan. 720, 119 Pac. 74. In 1893, Ryan, a shareholder in a corporation, died testate. A portion of his property was distributed to heirs and devisees, but the shares remained a portion of his unsettled estate. In 1906 Douglass recovered a judgment against the corporation. In 1910 Douglass’ administratrix commenced an action against the administratrix of the Ryan estate to recover from her in her representative capacity the amount of the judgment. Heirs and devisees were made parties, and the prayer was that the amount of the judgment be made a lien on the Ryan estate. The syllabus reads:
“The estate of a deceased stockholder is liable upon stock held and owned by him in the same way and to the same extent that he was liable in his lifetime. The heirs at law or devisees of a deceased stockholder are liable in a suit upon a judgment rendered against the company after the stockholder’s death to the extent of the property inherited by or devised to them.” (p. 5.)
Appellant endeavors to distinguish the Douglass case by saying the action against Loftus, administratrix, referred to undistributed personal property, and the action against Ryan’s heirs referred to real estate. This court knew nothing of such a theory of the case, and the decision was that the estate of the deceased stockholder is liable in the same way and to the same extent the stockholder was liable in his lifetime.
In the opinion in the Douglass case, the court cited the case of Matteson v. Dent, 176 U. S. 521. The opinion in the Matteson case reviewed authorities and fully sustained the decision in the Douglass case. Appellant endeavors to distinguish the Matteson case on the ground the decision rested on a construction of the laws of the state of Minnesota. The law of the state of Minnesota was only incidentally involved. It related to continued existence of the estate for the purpose of enforcing debts, and the Callahan estate is still in existence for that purpose.
In the opinion in the Douglass case, the court quoted from Cook on Corporations the statement that an executor or administrator is charged on shares of stock of the decedent “to the extent of the property which comes into his hands, as personal representative of the decedent.” (p. 732.) Appellant calls attention to the fact that in this state real estate goes to heirs, and personal property only comes into the hands of the administrator. Very true; but with the personal property there also comes to the administrator power to subject real estate to payment of debts when personal property is insufficient to discharge them.
Appellant’s brief contains the remarkable assertion that in the former appeal — •
“The supreme court pointed out that it [the claim against the administrator] was not a ‘debt’ of the deceased, since it did not accrue or become a liability until long after her death.”
The word “debt” does not appear in the former opinion. The former opinion states that “all debts and claims presented” against Ora J. Callahan’s estate were settled, and it was held that, under the peculiar circumstances stated in the opinion, it was no defense that the shareholder’s liability was not presented as a claim against the estate nor exhibited to the administrator. It was further held, for reasons which were stated, that to consider the particular liability involved as one against the estate was not to take a comprehensive view of the legal question presented. The particular liability considered was liability of the administrator in his capacity as administrator, by virtue of his being ad interim title holdér. The opinion concluded with a signpost, in the form of a quotation from the opinion in the Douglass case, pointing to the fact that the estate of a deceased stockholder is liable in the same manner and to the same extent the stockholder was liable in his lifetime.
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The opinion of the court was delivered by
Burch, J.:
The action is one of mandamus to compel the surgeon of the state hospital for the insane, located at Topeka, to perform an official duty prescribed by statute. The cause is submitted on a motion to quash the alternative writ. The alternative writ required defendant to perform the operation of vasectomy on Emil Luthi, or show cause why he should not do so. The motion to quash raises two questions: First, constitutionality of the sterilization statute; and second, regularity of proceedings under the statute.
It is contended the statute contravenes the fourteenth amendment to the constitution of the United States in that it violates a fundamental right of the inmate and hence exceeds the police power of the state. The supreme court of the United States has decided otherwise. (Buck v. Bell, 274 U. S. 200.)
It is contended the statute denies to the inmate equal protection of the law in that only those persons are to be sterilized who, in the judgment of the institution official, would procreate defective or feeble-minded children having- criminal tendencies. If the supposed 'discrimination is between those who are inmates of institutions and those who are not, the statute is valid. (Buck v. Bell, 274 U. S. 200.) If the supposed discrimination is between those who are inmates of institutions, there is none. Likelihood that an inmate possesses the baleful potency is necessarily a matter for the institution head to discover. If he believes it exists, he is required to bring the matter to the attention of the board of governors, who bring it to the attention of the board for the enforcement of the sterilization act, and the regulation applies to all inmates.
It is contended the statute breaches the constitutional guaranty of due process of law in that no appeal lies from the sterilization order made by the examining board, which is a nonjudicial body.
“Due process of law is not necessarily judicial process, nor, is the right of appeal essential to due process of law.” (Reetz v. Michigan, 188 U. S. 505.)
The headnote summarizes the doctrine of the opinion, and there are numerous cases to the same effect.
The result is the act does not violate the provisions of the constitution of the United States.
The interest of the individual invaded by the statute is of the highest order, and the invasion can be justified only as a necessary protection to some more important interest. Reducing this problem of reconciliation of personal liberty and governmental restraint to its lowest biological terms, the two functions indispensable to the continued existence of human life are nutrition and reproduction. Without nutrition, the individual dies; without reproduction, the race dies. Procreation of defective and feeble-minded children with criminal tendencies does not advantage, but patently disadvantages, the race. Reproduction turns adversary and thwarts the ultimate end and purpose of reproduction. The race may insure its own perpetuation and such progeny may be prevented in the interest of the higher general welfare.
The legislature provided a tribunal eminently competent to deal with the peculiar interests involved, and the procedure is adapted to the nature of the subject.
Before any order for sterilization can be made, there must be a hearing at a meeting of the board. The inmate, and his guardian if there be one, must have at least thirty days’ notice of the meeting and hearing. At the hearing, the board must make the most searching inquiry, and the inmate may be represented by counsel and may introduce such evidence as he may desire.
The judicial tribunals are open to the inmate to test the validity of the law and the thirty-day period gives him reasonable time in which to institute proceedings to that end. If the jeopardy of a hearing may not be forestalled by action for an injunction, the declaratory judgment act may be utilized.
The court concludes the statute does not violate any provision of the constitution of the state of Kansas.
There is confusion in the statute relating to meetings of the board. It is evident the first draft of the statute provided for a meeting of the board on a fifteen-day call. At that meeting cases were to be investigated, findings returned, orders promulgated, and a record made, all without notice to inmates or opportunity for them to be heard. When the defect in procedure was noted, provision for the thirty-day notice was inserted without adjusting the dislocations which it caused. The legislative purpose is plain enough, and all provisions of the statute may be preserved by reading it in this way: A sterilization proceeding is initiated by a certificate and recommendation of the institution officer to the governing board, to be acted on within fifteen days; the chairman of the governing board calls a meeting of the board for enforcement of sterilization; the inmate is given thirty days’ notice of the meeting; and, at the meeting, a hearing is had upon the question whether a sterilization order shall be issued. So considered, the terms of the statute are consistent with themselves and with the legislative intention. The proceedings in Luthi’s case were consonant with this interpretation.
The motion to quash the alternative writ is denied, and a peremptory writ is allowed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action, one in replevin, to recover the possession of a piano. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
The plaintiff, at St. Louis, Mo., was engaged in the sale of pianos. J. T. Pierson operated a music store in Emporia, Kan. He received the piano in controversy from the plaintiff under a written contract, which contained the following provisions:
“The undersigned will take your instruments on consignment, to be accounted for at agreed prices, and upon the following conditions:
"First: The instruments and proceeds of sale are your property, subject to your order and free from any claim whatsoever. The undersigned agrees to take good care of all instruments consigned and to be responsible for the safe keeping of the same; also to keep them insured for your benefit, with policies made payable to you in case of loss, to an amount not less than the consignment price of same.
“Ninth: It is expressly understood that nothing in this agreement shall be in any sense construed as constituting a sale of said goods to the undersigned or as giving the undersigned an interest of any kind whatsoever in them.”
The contract contained numerous provisions concerning the manner in which the piano was to be handled, but at all times studiously avoided using language which might be construed as meaning that the plaintiff intended selling the piano to Pierson. The piano in controversy was shipped to Pierson under the contract and was received by him at Emporia, Kan. After its receipt he executed to the defendant a chattel mortgage on it to secure the payment of a note in the sum of $750. The contract between the plaintiff and Pierson was not filed for record in the office of the register of deeds in Lyon county until April 21,1927. The chattel mortgage was filed for record March 27, 1927. The plaintiff claims to be the owner of the piano and as such is entitled to the possession of it. The defendant had possession of the piano at the time the action was commenced and claimed the right of possession under the chattel mortgage. The question presented is not a new one.
In McKinney v. Grant, 76 Kan. 779, 93 Pac. 180, this court said:
“The contract copied in the statement of facts is held to be an agreement providing for the consignment of musical instruments by the presumptive owner thereof to an agent for sale, and not a contract of sale and purchase.”
This case concerned the right to the possession of a piano consigned under a contract very similar to the present one.
Another case of the same nature is Van Arsdale v. Peacock, 90 Kan. 347, 133 Pac. 703. That action concerned a piano consigned by this plaintiff to a music dealer in Wichita under a contract similar to the one involved in this action. There this court said:
“An order and contract for the consignment of a piano are examined and held to create an agency, and that a mortgage made by the agent is not effective against the principal.”
In the present action William Price, the president of the defendant bank, testified:
“I heard Mr. Samuel, our attorney, ask Mr. Veatch how much he had against the piano, and Veatch said something like $1,200 or $1,250. That was about a week before the suit was filed. The Baldwin people demanded the piano of us and we refused to turn it over to them. We considered that we had a lien against it by reason of our mortgage.”
The evidence disclosed that Mr. Veatch was the general agent of the Baldwin Piano Company. The defendant argues that the statement of Mr. Veatch amounted to an acknowledgment that the piano had been sold to Mr. Pierson. The court does not so construe the language used by Mr. Veatch. It was a response to a question by the attorney for the defendant concerning the claim of the plaintiff against the piano. The statement made by Mr. Veatch was not sufficient to create an estoppel against the plaintiff. (Dent v. Smith, 76 Kan. 381, 92 Pac. 307; Simmons v. Shaft, 91 Kan. 553, 555, 138 Pac. 614; Commission Co. v. Hicks, 92 Kan. 922, 931, 142 Pac. 276; Jacquart v. Jennings, 118 Kan. 224, 227, 235 Pac. 101; and Nevins v. Shepard, ante, p. 456, 268 Pac. 859.)
In L. R. A. 1917B, 626, is found an exhaustive note on “Construction of contract having some provisions peculiar to consignment and agency contracts, and others to sale contracts.” H'owever, the two Kansas cases cited are decisive in the present action; and, unless they are overruled the judgment cannot be sustained.
The judgment is reversed. | [
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The opinion of the court was delivered by
Marshall, J.:
The appellants, defendants named above, commenced this proceeding under section 60-2530 of the Revised Statutes to open a judgment which had been rendered against them by default on publication notice and to permit them to defend in the action. The application came on for hearing, when the court made an order sustaining an objection to the introduction of any evidence to sustain the application to open the judgment. From that order the defendants appeal.
The judgment by default in favor of the plaintiff and against the defendants was rendered April 30, 1927. The petition to vacate the judgment and the answer of the defendants in the action were filed on April 30, 1927. The petition to open the judgment alleged that the defendants were residents of Oklahoma; that they were served by publication notice only; that they had a defense to the action; that the judgment had been procured by fraud; and—
“That these defendants were prevented by an unavoidable casualty and misfortune from filing an answer in this case for the reason that they were advised, informed and believed that the answer day in the publication notice was April 27, 1927, and, therefore, believing and relying upon the fact that the last day to answer was on the 27th day of April, 1927, instead of the 21st day of April, 1927, and did not file, or cause to be filed, an answer in said action setting up their respective defenses thereto.”
The petition to vacate the judgment further alleged—
“That said judgment was obtained by the plaintiff through his fraud in this, to wit: That his entire claim for all work, labor and material, as alleged by him, amounts to the sum of seven hundred thirty-nine and 18/100 ($739.18) dollars, and that he fraudulently alleged in his petition that said amount of seven hundred thirty-nine and 18/100 ($739.18) dollars was wholly due and unpaid when, at said time, he knew that he had been paid the sum of one hundred seventy-three ($173) dollars on account thereof. . . .
“That said omission was intentional and was perpetrated by him knowingly and for the purpose of collecting one hundred forty-one ($141)’ dollars more than he alleges his total claim to be, and that said judgment ought not to be permitted to stand.”
The first question to be determined is, Did the petition filed by the defendants show that they did not have notice of the action pending against them before the judgment was rendered? The petition to vacate the judgment did not allege that the defendants did not have actual notice of the pendency of the action in time to appear and make their defense. The statute, section 60-2530 of the Revised Statutes, provides that before the judgment shall be opened, the applicant shall make it appear to the satisfaction of the court that he had no actual notice of the action in time to appear and make his defense. If these defendants had actual notice of the pendency of the action in time to appear and make their defense, they have no right to have the judgment opened for the purpose of permitting them to defend. That they did not have such notice should have been alleged in their petition to have the judgment opened. Not only was that fact not alleged in their petition, but facts were alleged which disclosed that the defendants did have notice of the pendency of the action. The defendants in their brief say—
“It is not claimed that the defendants were without actual knowledge of the pendency of the suit. They knew the suit was pending, but thought they had until the 27th day of April in which to answer.”
The defendants did not bring themselves within the statute permitting the opening of judgments rendered on publication only. (Garrett v. Minard, 79 Kan. 470, 100 Pac. 55; Wood v. Cobe, 80 Kan. 496, 103 Pac. 101; Garrett v. Minard, 82 Kan. 338, 108 Pac. 80; McLeod v. Palmer, 103 Kan. 238, 173 Pac. 533.)
Was such fraud alleged in the petition to open the judgment as would justify the court in granting the prayer of the petitioner? The fraud alleged was that in obtaining the judgment plaintiff had alleged that more was due him than was in fact owing to him. He asked for too much and obtained judgment for what he asked. The defendants say they did not owe him that much. That would have made an issue proper to submit to a jury. In Garrett v. Minard, 82 Kan. 338, 108 Pac. 80, this court declared that—
“While a judgment may be vacated and a new trial had 'for fraud practiced by the successful party in .obtaining it,’ it is such fraud as is collateral and extrinsic to the issues involved in the action and on which the judgment was founded, and hence a party against whom a judgment by default was rendered is not entitled to have the judgment set aside and the issues retried because the allegations in plaintiff’s petition, which constitute the merits of the case, are alleged to be untrue.”
(See, also, Blair v. Blair, 96 Kan. 757, 153 Pac. 544; Gooden v. Lewis, 101 Kan. 482, 485, 167 Pac. 133; Marler v. Mortgage Co., 111 Kan. 488, 493, 207 Pac. 823; Potts v. West, 124 Kan. 815, 262 Pac. 569.)
The fraud alleged was not such as would justify the court in vacating the judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appellant in this case was convicted on two counts of being a persistent violator of the prohibitory liquor law. The errors relied upon in his appeal are the overruling of his motions in arrest of judgment and for a new trial.
The points set up in the motion in arrest of judgment are not pressed in the brief of the appellant, and we learn from the brief of the appellee, although not shown in the abstract, that appellant waived a preliminary hearing before a justice of the peace and gave bond for his appearance in the district court, which would entirely dispose of these questions. But we have disregarded this statement and have considered both points raised in that motion, and we find no error in the overruling of the motion, and a further discussion of those questions would serve no good purpose here.
The motion for new trial and supplemental motion for new trial are upon the ground of newly discovered evidence and misconduct of the jury. The defendant was convicted largely upon the testimony of two confessed confederates, Patton and Brown, who had later pleaded guilty to the violation of the prohibitory liquor law in connection with the same transaction in which the defendant was accused and convicted, and they were at the time they testified in this case serving their sentences in the jail of Barton county.
The defense was an alibi, both for the defendant and for the car in which it was said the transportation of the liquor was made. Part of the newly discovered evidence was that of three parties who had met these two witnesses early Saturday evening, who said these two witnesses were then drinking liquor and offering to sell liquor to others, whereas the two witnesses for the state said they did not have any liquor that evening nor obtain the liquor in question until after midnight. It is argued the newly discovered evidence is neither cumulative nor impeaching, and therefore is such newly discovered evidence as will justify and require the granting of a new trial. But our attention is directed to the testimony of Melvin E. Bowser, who was called as a witness for the defendant at the time of the trial, and testified he saw these two witnesses on that Saturday evening between nine and ten o’clock, that they had been drinking liquor, that he smelled it on their breath, and that they at that time offered to sell liquor to him. This testimony is along identically the same lines as that of the three witnesses now furnishing the newly discovered evidence, except that one of the three witnesses says he went with them part way to where they said they had liquor hid, and they gave him a drink of liquor after procuring it near by. They told him they had found it in a field near a windmill in a five-gallon container, and that they had brought it to the edge of town with them in the evening. This last part about both of them bringing it to town with them in the evening is not in harmony with any theory of the case and was entitled to very little, if any, credence. The giving of a drink to this witness is along the same line as drinking it themselves and offering to sell it to others — it tended to show possession.
The entire testimony of these three witnesses on the theory of the defense is, we think, both cumulative of that given by the witness Bowser and impeaching the testimony of two witnesses of the state, and was,'therefore, not sufficient to require the trial court to grant, or to justify it in granting, a new trial.
“Ordinarily a new trial is not allowed on the ground of newly discovered evidence when such evidence seems to be competent only for the purpose of impeaching witnesses of the opposite party, or, when it is merely cumulative.” (State v. Stach, 116 Kan. 187, syl. ¶ 3, 226 Pac. 238. See, also, State v. Fleeman, 102 Kan. 670, 171 Pac. 618; State v. Smith, 114 Kan. 186, 217 Pac. 307.)
Another line of newly discovered evidence is that given by the two witnesses for the state by affidavit after they had been released from jail and had left Barton county, in which affidavits each separately recanted his testimony given at the trial and entirely absolved the defendant from any connection whatever with the transaction, thereby admitting that the testimony originally given by them at the trial was absolutely false. The testimony of any witness who recants his sworn statements is not worthy of very much credence — either the original testimony or the recanting testimony. The trial courts, therefore, when confronted with such false swearing at one time or the other, are required to take into consideration all the facts and circumstances in the case upon- which reliance can be placed, observing the reasonableness of the several statements.
The trial court may well have doubted the truthfulness of these affidavits because of their unreasonableness and their failure to state things necessarily incident to the circumstances therein related — for instance, what Morris, the farmer who brought the witness Patton and the liquor from his farm in his car, did and said in connection therewith. Men do not usually transport liquor and bootleggers in their own cars and then drop entirely out of the transaction. Morris is charged with such transportation as freely and completely by Patton as he had previously charged the defendant. Patton further says Morris helped to hide it two miles from town. To credit this the trial court would have to conclude, among other things, that as far as Patton was concerned there was no honor among bootleggers, for Patton took into the deal a new comrade, Brown, and apparently eliminated Morris. Again, both say they drove out to the place, two miles out of town, to get it, and, Brown says, in a car that Patton had. Why avoid a specific description of the car? Patton excuses himself for the giving of the original testimony charging Smith, the defendant, instead of Morris, on the ground of his being kept in the jail forty-eight hours without food.
These, and possibly many other statements of these recanting witnesses, viewed in the light of all the facts and circumstances by the trial court, as well as the appearance and conduct of these two witnesses who changed their testimony, could fairly and reasonably' have convinced the trial court that credit should not be given to these two affidavits. Recanting affidavits are generally looked upon with more or less suspicion. Usually, if made to satisfy the compunctions of conscience, the relenting and remorseful falsifier consistently acknowledges his defenseless guilt and honorably submits himself to the just punishment which a merciful court may impose. The facts and circumstances disclose sufficient in this case to fully justify the trial court in concluding that the recanting testimony was not worthy of credit, and in refusing a new trial.
“The recantation of his testimonjr, by a witness for the prosecution in a criminal case, does not necessarily entitle defendant to a new trial. . . .
“When a witness for the prosecution recants his testimony, and a consideration of all the facts and circumstances of the case lead to the conclusion that the recantation is false, the new trial should be refused.” (State v. Buton, 124 Kan. 509, syl. ¶¶ 1, 2, 260 Pac. 634.)
“When a witness for the prosecution in a criminal case recants his testimony in an affidavit used by defendant on a motion for a new trial, the court should look on such recanting affidavit with suspicion. It is only in extraordinary and unusual cases that the court should grant a new trial because of such recanting affidavit.” (State v. Birzer, 126 Kan. 414, syl. ¶ 2, 268 Pac. 842.)
The last ground urged for a new trial is the misconduct of the jury. The affidavits of the defendant, his wife, and two others show that they were seated thirty or more feet from the jury room down the hall of the court house and heard the jurors discuss the .case, referring to the defendant with improper epithets as “damn nigger” and other similar expressions, which it is claimed showed prejudice sufficient to justify the granting of a new trial. Both sides refer to the fact that ordinarily it would be impossible to hear even loud talking in that room at the place where these witnesses were seated, and appellee calls our attention to the fact that no complaint was made by the defendant or his counsel as to this conduct prior to or at the time of the rendition of the verdict.
No one will attempt to justify the jury or any of the jurors in the use of such epithets and unbecoming appellations, nor in commenting on the connection of the defendant with the case in any other way or manner than that shown by the testimony; but the rule is that such improper statements are not sufficient to authorize the granting of a new trial unless it appears that prejudice resulted therefrom or that they raise a presumption of prejudice. Without condoning or excusing in the least the use of any such language, we can see how the trial court would be at a loss to determine that there was actual prejudice on the part of the jury toward the defendant or that the facts .raised a presumption 'of such prejudice, and therefore the trial court committed no error in refusing a new trial.
“It is not error to deny a motion for a new trial in a criminal case for misconduct of the jury, unless the facts are such that the court may presume that prejudice resulted therefrom to the defendant.” (State v. Stevenson, 74 Kan 193, syl. ¶ 1, 85 Pac. 797. See, also, State v. Gould, 40 Kan. 258, 19 Pac. 739.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment entered in favor of the board of county commissioners of Kingman county against A. H. Hufford for $101 as the rental value of a twelve-acre tract of farming land which had been subjected to condemnation proceedings under R. S. 68-137 for a gravel pit. Following such condemnation, during the years 1924 and 1925 the county did not use the property for public purposes, and the defendant continued to farm the land as he had theretofore done under a lease from the owner of the property.
The county board’s cause of action against the defendant (and his landlord) was predicated on the theory that by the condemnation proceedings the county had become the owner of the property, and that in consequence it had a valid claim to its fair rental value. This theory was altogether erroneous. Our condemnation statutes do not authorize the taking of the fee. The title to the twelve acres did not pass by the condemnation proceedings under R. S. 68-137, nor was a transfer of ownership effected thereby. The owner and his tenant, A. H. Hufford, may still use the property according to their good will and pleasure so far as that may be consistent with the dominant public uses for which it was condemned. This is elementary law. In Harvey v. Railroad Co., Ill Kan. 371, 207 Pac. 761, it was said:
“One whose property is subjected to condemnation for railway or other public uses is none the less the owner of the fee and holder of the ultimate title. He has what the law calls the servient estate. The party for whose use the condemnation was made has what is called the dominant estate. And while the fee holder, after condemnation and compensation, may not interfere with the rights of the holder of the dominant estate, yet as owner he may still continue to use the property for any purpose which does not frustrate the public aims and ends for which the property was condemned.” (p. 372. See, also, 20 C. J. 1221 et seq.; 10 R. C. L. 88 et seq.)
Reversed with instructions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a criminal prosecution. The information charged, that defendant unlawfully drove “a motor vehicle in, upon and over the public highways . . . while under the influence of intoxicating liquor and'while in a state of intoxication.” The jury found him “guilty of the offense charged in the information.” He has appealed.
The evidence, tending to support the prosecution, was as follows: One Sunday, soon after noon, W. F. Wilkerson and his wife, who reside at Spring Hill, started to drive in their Buick car from their home to Baldwin. When about four miles east of Gardner a rapidly driven car overtook them, turned around them, and in doing so cut in so close to the Wilkerson car as to strike the front end of it and throw it into the ditch. Mrs. Wilkerson got a good look at the driver of the car which struck them, and identified him as being the defendant. A Doctor Zumbrun, who was driving near, observed the license number on the car which caused the trouble, and gave it to Mrs. Wilkerson, who wrote it down. Wilkerson, with some help, got his car out of the ditch and drove to Gardner. There he located the car bearing the license number Mrs. Wilkerson had written down. It was at defendant’s home, and was still hot from driving. He inquired for defendant. His wife stated that he was upstairs in bed and not in condition to be seen. She later permitted the marshal to go to his room. He was taken into custody and to the police station, and soon thereafter to the sheriff’s office, where he gave bond. Several witnesses, including the peace officers, who saw defendant when he was taken into custody, or soon thereafter, testified that he was drunk, and that this was evidenced by his appearance, his movements and his talk, which was voluble and in part profane. There was evidence, also, that the car which forced the Wilkerson car into the ditch was “weaving” from one side of the road to the other as it approached them, and continued to do so after it passed them.
The pertinent portion of the statute on which the prosecution was based reads as follows;
“It shall be unlawful for any person under the influence of intoxicating liquor . . . to drive . . . any automobile . . . upon any public . . . highway . . . within the state of Kansas.” (R. S. 21-2160.)
Appellant first complains of an instruction given which reads as follows;
“You are instructed that drunkenness is the condition of a man whose mind is affected by the immediate use of intoxicating drinks. This condition presents various degrees of intensity, ranging from simple exhilaration to a state of utter unconsciousness and insensibility. In the popular phrase, the term drunkenness is applied only to those degrees of it in which the mind is manifestly disturbed in its operations. Whenever a man is under the influence of liquor so as not to be entirely himself, he is intoxicated, although he may walk straight, and although he may attend to his business, and may not give any outward and visible signs to the casual observer that he is drunk, yet, if he is under the influence of liquor so as not to be himself, so as to be excited from it, and not to possess that clearness of intellect and control of himself that he otherwise would have, he is intoxicated.”
The complaint is that this is not an accurate definition of drunkenness. It will be noted that neither the information, nor the instruction complained of, follows accurately the offense as defined by the statute. So far as the degree or extent of the intoxication is concerned, the statute only requires that it be shown that the person was “under the influence of intoxicating liquor.” The information charges that, but further charged that defendant was “in a state of intoxication.” By making this added allegation the prosecution assumed a greater burden than it was required by the statute to do. It is clear that in the instruction complained of the court undertook to define that degree of drunkenness, intoxication, or being “under the influence of intoxicating liquor,” which the statute declares to be an offense. In doing so he placed a somewhat greater burden on the state than the statute required. So we need not stop to inquire whether the court’s definition of when one “is intoxicated” is as full and complete as it should be, for the state did not have to show that defendant was intoxicated. It is clear that the instruction as a whole is as favorable to defendant as he was entitled to have it, and he is not in a position to complain of it.
Appellant contends that the court failed to instruct the jury in material matters of law. Defendant and one other witness in his behalf were each asked a few questions on cross-examination which were obviously designed to affect their credibility as witnesses. It is contended the court should have instructed the jury that these questions and answers went only to their credibility as witnesses, and that the evidence was not received for any other purpose. We note first that the testimony was not objected to, and no motion was made to strike it out; neither was the court requested to give any special instruction concerning it. While the court might very well have embodied a statement of that character in his instructions, we do not regard his failure to do so, in the absence of a request therefor, as being sufficient ground for reversal.
The court gave an instruction frequently given in criminal cases, to the effect that the state is not required to prove that the offense charged was committed on the exact day mentioned in the information, but that it is sufficient to show the offense was committed at any time within two years. The instruction might well have been omitted. It served no useful purpose under the evidence of this case. Appellant contends that it is prejudicial, for the reason that the defendant’s evidence tended to show that while he had made a trip that day which took him over the road where the accident is alleged to have occurred, that in fact he had returned home an hour or more before the accident occurred and remained at home until Mr. Wilkerson and the officers called; and the argument is made that when evidence in the nature of an alibi is received, the instruction given is prejudicial. This instruction as given did not refer to the hour of the day, but only to the day itself, and hence is not open to the objection appellant makes.
Appellant complains that the court did not give an instruction on alibi, since his evidence tended to show that he was not present at the time of the accident. No such instruction was requested, and it has been repeatedly held that in the absence of such a request the fact that the court did not give it is not error.
Further appellant contends that the verdict is against the weight of the evidence. It is true defendant had a number of witnesses who testified in his behalf, but the weight of the evidence was for the jury and trial court, and not for this court.
Lastly, it is argued that the form of the verdict, in view of the wording of the information, makes the offense of which the defendant was found guilty uncertain. Appellant inquires, Was defendant found guilty of “being under the influence of intoxicating liquor,” or “in a state of intoxication.” The obvious answer is that it is immaterial. Either condition constituted an offense under the statute.
Finding no substantial error in the case, the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to enjoin the American National Bank of Augusta and L. L. Wilson, its director and liquidating agent, from selling, or attempting to sell, a promissory note, signed by the plaintiff, for $2,600, payable to the bank, and to cancel the note and hold it for naught. Judgment was rendered in favor of the plaintiff, and the defendants appeal.
The petition alleged that the note had been paid; that it had been given without any consideration therefor; that it had been given for the accommodation of the American National Bank; and that the signature thereto had been procured by fraud. The answer denied the allegations of the petition.
There was evidence which tended to prove the following facts: That on October 23,1919, the plaintiff J. H. Skaer and M. T. Moyle executed a note to the American National Bank for the sum of $3,500; that on April 21,1923, a note for $3,000, signed by the plaintiff J. H. Skaer, was given to the American National Bank; that this note for $3,000 was given to take up the note for $3,500; that on October 21, 1924, a note, signed by the plaintiff J. H. Skaer, for $2,600 was given to the American National Bank to take up the note of $3,000; and that when the $3,500 note was signed the American National Bank advanced to the Odds Oil Company, a corporation of Oklahoma, the proceeds arising therefrom. There was evidence which tended to prove that the $3,500 note had been paid by parties other than the plaintiff before the renewal notes were given; that the $3,500 note had been given for the accommodation of the American National Bank, although there was evidence which tended to prove that the note had been given for the accommodation of J. W. LePorin, cashier of that bank; that the renewal notes for $3,000 and $2,600 had been given for the accommodation of the bank, although there was evidence that those notes had been given for the accommodation of J. W. LePorin. There was evidence which tended to prove that J. H. Skaer did not receive anything when he signed the $3,500 note. There was evidence which tended to prove that the signatures to the $3,000 note and the $2,600 note had been procured by representing to J. H. Skaer that the notes for which each had been given had not been paid.
The defendants urge that the court committed error in giving instruction No. 3. That instruction reads as follows:
“You are further instructed that J. H. Skaer admits execution of the $2,600 note, but alleges as a defense that he executed the same as an accommodation to the parties only, and that same was without consideration; and that said note has been paid. The burden of proof is upon J. H. Skaer to establish one or more of said defenses by a preponderance of the evidence, and if he does establish one or more of said defenses by a preponderance of the evidence then your verdict must be in his favor; on the other hand, if he fails to so establish one or more of his defenses then your verdict must be for the American National Bank of Augusta, Kansas.
“In this connection you are instructed that every negotiable instrument is deemed, prima fade, to have been issued for a valuable consideration and eveiy person whose signature appears thereon to have become a party thereto for value. Value is any consideration sufficient to support a simple contract. An antecedent or preexisting debt constitutes value and is deemed such whether the instrument is payable on demand or at a future time.
“An accommodation party is one who has signed the instrument as maker, drawer, acceptor or indorser without receiving value therefor, and for the purpose of lending his name to some other person.
“Consideration is any benefit, profit or advantage to the promisor, or any loss, detriment or inconvenience to the promisee, and if there is no benefit or the like on the one side or detriment or the like on the other side then there is no consideration.”
It is argued that the instruction was “misleading, ambiguous, and prejudicial to the defendant.” It is urged that the first paragraph of this instruction should have specified who was meant by the word “parties” in the .expression “accommodation to the parties.” The other three paragraphs of the instruction complained of stated correctly applicable principles of law. There was no incorrect statement of law contained in the instruction. It covered the issues on this branch of the case. The criticism made by the appellant concerning the instruction is not that it did not state correct principles of law, ' but that it was “misleading, ambiguous and prejudicial.” This must be because it did not state additional principles. If additional instructions had been desired, they should have been requested.
In Douglass v. Geiler, 32 Kan. 499, 4 Pac. 1039, this court said:
“In a trial by a jury, it is the duty of the court to instruct the jury on questions of law which he deems applicable to the case as made by the pleadings and evidence; and if a party desires other or different instructions, he must make his request in writing for them, as provided by section 275 of the code. If no such request is made, the instructions given stand as the law of the case for that trial. A judgment will not be reversed in this court on the ' ground that the trial court should have given other or different instructions, where a request in writing for such instructions was not made on the trial.” (Syl. II.)
See, also, State v. Rhea, 25 Kan. 576; State v. Peterson, 38 Kan. 204, 16 Pac. 263; State v. Rook, 42 Kan. 419, 22 Pac. 626; Phinney v. Bronson, 43 Kan. 451, 23 Pac. 624; State v. Falk, 46 Kan. 498, 26 Pac. 1023; Hoyt v. Dengler, 54 Kan. 309, 38 Pac. 260; Railroad Co. v. Noland, 75 Kan. 691, 694, 90 Pac. 278; State v. Page, 80 Kan. 389, 102 Pac. 780; State v. Miller, 83 Kan. 410, 111 Pac. 437; Hamilton v. Railway Co., 95 Kan. 353, 357, 148 Pac. 648; Murphy v. Gas & Oil Co., 96 Kan. 321, 326, 150 Pac. 581; Warders v. Railroad Co., 105 Kan. 4, 181 Pac. 604; State v. Woods, 105 Kan. 554, 185 Pac. 21; State v. Davis, 106 Kan. 527, 531, 188 Pac. 231; Turman v. Process Co., 114 Kan. 693, 696, 220 Pac. 510; Stone v. City of Pleasanton, 115 Kan. 378, 223 Pac. 312; Lawson v. Brokmann, 116 Kan. 102, 226 Pac. 252; State v. Taylor, 119 Kan. 260, 237 Pac. 1053; Briley v. Nussbaum, 122 Kan. 438, 252 Pac. 223; and Foley v. Crawford, 125 Kan. 252, 264 Pac. 59.
The fifth subdivision of section 60-2909 of the Revised Statutes reads:
“When the evidence is concluded and either party desires special instructions to be given to the jury, such instructions shall be reduced to writing, numbered and signed by the party or his attorney asking the same, and delivered to the court. The court shall give general instructions to the jury, which shall be in writing and be numbered, and signed by the judge, if required by either party. Before reading the instructions to the jury the court shall, when requested, submit the same to counsel on either side and give counsel a reasonable time to suggest modifications thereof.”
The last sentence in this statute was placed there in 1909 when the code of civil procedure was revised and amended. The change in the statute gives to litigants better opportunity to prepare and request additional instructions whenever they deem it necessary. The statute gives to counsel the right to inspect the instructions before they are given to the jury. If on inspection it is discovered that the instructions are not what counsel desires them to be, he has an opportunity to prepare special instructions to correspond with his wishes and submit them to the court with the request that they be given to the jury. Failure to do either of these things renders unavailing any complaint that the instructions were not as full and complete as they ought to have been. (Foley v. Crawford, 125 Kan. 252, 262, 264 Pac. 59.) The judgment should not be reversed because of the failure of the court to make the instructions more specific.
It may be argued that Murray v. Geiser, 79 Kan. 326, 99 Pac. 589; Railway Co. v. Woodson, 79 Kan. 567, 100 Pac. 633; Coblentz v. Putifer, 87 Kan. 719, 125 Pac. 30; and Thompson v. Dyson, 120 Kan. 591, 244 Pac. 867, are contrary to the conclusion reached in the present action. Murray v. Geiser and Railway Co. v. Woodson were decided under the code of civil procedure as it existed before it was amended and revised in 1909.
In Coblentz v. Putifer, 87 Kan. 719, 125 Pac. 30, decided in 1912, the court said:
“It is not for the jury to say whether a deed was reasonable or unreasonable, and unless they are properly instructed as to the meaning of reasonable it is error to charge that they may consider reasonableness as a basis for setting it aside.”
That was an action to set aside deeds on the ground that they had been obtained by undue influence on the grantor, and that the grantor was not of sound mind and was incapable of making deeds. The court instructed the jury that it had the right to take into consideration “her physical and mental condition, her relations to her children and the grantees in the deeds, 'the nature of the trans action of executing said deeds, the reasonableness or unreasonableness of such deeds, and every other fact and circumstance in evidence touching upon the question.’ ” No comment was made by this court concerning the change in the statute.
In Thompson v. Dyson, 120 Kan. 591, 244 Pac. 867, this court said:
“Under R. S. 60-2909 it is the duty of the trial court to give general instructions to the jury. These should include a statement of upon which party rests the burden of proof, at least upon the main issues of the case.”
In criticizing the instruction that had been given by the trial court, this-court said:
“The difficulty with applying the rule here stated is that the instruction given in this case was not true as a general statement. The statute (R. S. 60-2909) requires the court to give general instructions to the jury, and includes a general statement of the burden of proof as it applies to the case, and if either party desires special instructions to be given, they should be requested. The error was in giving no general instruction on the burden of proof as applied to plaintiff, but in placing all of it upon defendants.” (p. 693.)
These cases do not control in the present action.
The defendants argue that the court committed error in refusing to give the following instruction requested by them:
“You are instructed that an accommodation party is one who has signed an instrument as maker, acceptor or indorser without receiving value therefor, and for the purpose of lending his name to some other person. But an accommodation party is liable on the instrument to the holder for value notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party.”
The first sentence of the requested instruction was given, but the last sentence was not. The instruction requested stated the law correctly so far as it went, but it did not go far enough to justify the court in giving it to the jury. It should have defined a holder for value and should have declared his rights as such and the liability of the plaintiff as an accommodation maker of the note if the jury should find that he was such an accommodation maker.
In Douglass v. Wolf, 6 Kan. 88, this court said:
“The district court is not required to give instructions which need limitations and qualifications to make them applicable to the case. Instructions must be good as asked, or it is not error to refuse them.” (Syl. H 2.)
The first sentence of that language was repeated in Condiff v. K. C. Ft. S. & G. Rld. Co., 45 Kan. 256, 25 Pac. 562.
In Stone v. City of Pleasanton, 115 Kan. 378, 223 Pac. 312, this court said:
“It is not error to refuse to give a requested instruction which fails to mention an important fact necessary to be considered in connection with the matters set out in the instruction.” (Syl. If 13.)
In Kansas Ins. Co. v. Berry, 8 Kan. 159, this court said:
“If an instruction as asked is not correct as.an entirety, the court is not bound to correct it, but may reject it altogether.” (Syl. If 5.)
In Dickson v. Randall, 19 Kan. 212, 214, this language is found:
“An instruction must be good as asked, or it is not error to refuse it.”
See, also, State v. Perkins, 112 Kan. 455, 457, 211 Pac. 139, and Stone v. City of Pleasanton, 115 Kan. 378, 223 Pac. 312.
Because the instruction' requested did not state the law as it should have béen given to render it applicable to the issues on trial in the present action, there was no error in refusing to give it.
It is argued that the court committed error in giving instruction No. 4. That instruction concerned the false representations that had been made to the plaintiff when his signature to the last two notes had been procured. There was evidence to show that false representations had been made to secure the signature of the plaintiff to them. It cannot be said that there was not evidence of false representations sufficient to justify the court in giving the instruction.
Complaint is made concerning the admission of evidence. This has been examined, but no prejudicial error has been discovered therein.
The judgment is affirmed.
Johnston, C. J., and Harvey, J., dissenting. | [
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The opinion of the court was delivered by
Burch, J.:
The proceeding was one to enforce payment of alimony. Defendant claimed he had paid the judgment of $3,000 in full, and $210 interest, making $3,210 in all. Plaintiff claimed a balance due on the judgment of $490, interest $460.50, and some miscellaneous items in the sum of $36.50 which did not pertain to alimony, making a total of $987. The court found defendant owed plaintiff $950, and defendant appeals.
' At the conclusion of the trial, the district court requested the attorneys for plaintiff and defendant to make statements of their claims. Plaintiff’s statement, showing payments which she claimed defendant had made, follows:
October, 1921.................. $100
November .................... 150
December..................... 150
January, 1922.................. 150
February ..................... 150
March ........................ 100
April ......................... 100
May.......................... 100
July, 1922...................... 200
September .................... $100
November .................... 100
January, 1923.................. 250
April ......................... 300 December, 1926................ 460
February, 1923.-................ 100
Total .....................$2,510
Defendant’s statement, showing payments which he claimed he had made, follows:
October 21, 1921............... $100
Nov. 1, 1921................... 150
Dec. 10, 1921................... 150
Dec. 12, 1921................... 150
Jan. 16, 1922................... 150
Feb. 15, 1922................... 150
Mar. 10, 1922.................. 100
Mar. 14, 1922.................. 100
Apr. 3, 1922.................... 100
May 8, 1922................... 100
July 15, 1922................... 200
Sept. 21, 1922.................. 100
Dec. 3, 1923.................... $150
Jan. 22, 1923 ................... 250
Feb. 26, 1923.................. 100
Feb. 26, 1923................... 300
Mar. 24, 1923.................. 150
July or Aug., 1923.............. 250
Balance of judgment paid to clerk ...................... 460 $3,210
—which is interest and principal,
but the two statements may be Neither statement is correct, readily reconciled.
Plaintiff contends the following items in defendant’s statement are duplicates:
Dec. 10, 1921................................. $150
Mar. 10, 1922 ................................. 100
Mar. 24, 1923 ................................. 150
This contention appears to be well founded. In making up his statement, defendant omitted an item of $100 paid November 14, 1922. Plaintiff herself acknowledged receipt of this item, and her attorney allows credit for it in his statement. Therefore, defendant’s statement should be corrected as follows:
$3,210
400
$2,810
100
$2,910
Plaintiff contends an item of $100 of November 1, >1921, found in a list of items on page 8 of the abstract, was a duplication. We are not here concerned with that item or that list. The list was a summary made by defendant’s attorney at the trial. It was not the list which he submitted for consideration by the court when the case was taken under advisement. That list has been printed above. It shows but one item for November, 1921 — an item of $150. A check for the item, indorsed by plaintiff, was introduced in evidence at the trial, and plaintiff’s attorney includes the item in his statement.
Plaintiff does not give credit for an item of $150 paid in December, 1922, by check signed by defendant, payable to the order of Dave Carson, and indorsed by plaintiff. When the check was introduced in evidence the amount of it was not given, but when defendant’s statement was made up, the amount was inserted as paid December 3; 1923.
Plaintiff does not give credit for an item of $250 paid in July or August, 1923. The following testimony shows the item should be allowed:
“And Mr. Finigan, you admit that in July or August I gave you a check for $250? A. Yes, sir.”
The result is, plaintiff’s statement should be corrected as follows:
$2,510
$150
250
- 400
$2,910
There can be no doubt that plaintiff’s statement should be corrected as indicated. That being true, defendant’s statement becomes immaterial. However, plaintiff’s corrected statement is verified by defendant’s corrected statement.
Interest in the sum of $210 was agreed on, and was included in the last item of $460 appearing in each statement. There then remained due on the judgment for alimony $90, which should bear interest until paid.
The proceeding was one to enforce payment of alimony. The district court properly disallowed the items which did not belong in the alimony account.
The judgment of the district court is reversed, and the cause is remanded with direction to render judgment as indicated. | [
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The opinion of the court was delivered by
Dawson, J.:
Defendant was convicted of the penal offense of making an illegal sale of morphine and appeals, assigning three errors, viz.: Prejudicial remarks of the court in the presence of the jury, improper questions propounded to defendant by the trial court, and overruling defendant’s demurrer to the state’s evidence.
It will make for brevity to consider the last of these points first. The evidence for the state tended to show that defendant is a licensed physician in Coffeyville. One evening in July, 1926, three deputy sheriffs and one Parvin, a narcotic addict, went to Coffey-ville in a Ford touring car for the purpose of apprehending persons who were dealing in narcotics in violation of law. One of these deputies, L. M. Clubb, pretended to be a drug addict. The other deputies called on defendant and informed him their associate, Clubb, was suffering for want of morphine. Defendant said he had nothing but the “cube” variety, and wanted $20 for a cube, but said he could get two “squares” at $5 each. The deputies gave defendant a twenty-dollar bill. He went into his house and returned with ten dollars in change which he gave them, and told them they would find the morphine in a wagon at some distance up an alley, which' they did. Defendant’s own testimony was not greatly at variance with the foregoing. He said the deputies made him believe their associate was a drug addict who was about to die for want of some “dope.”, Clubb was disguised as a “dope fiend.” Defendant said he had a patient, Robinson, who let him have two cubes which he agreed to sell for $10. Defendant’s testimony continued:
“He went back and told the patient in the office to get the morphine and deliver it in a wagon in the alley, and then went back to see the men in the Ford car, to examine the man to see if he really needed the morphine. They refused to let him examine the man, and the defendant became suspicious and refused to have anything further to do with the case, but showed them where the morphine was.”
Cross-examination:
“Q. Why didn’t you on this occasion when you were going to alleviate a man in great physical pain and distress, give him a prescription on a drug store, instead of going to this man Robinson whom you knew was not a doctor or dentist? A. The law is so strict with regard to writing prescriptions for addicts at all, I absolutely refused to write one. ... I absolutely refused to write a prescription on account of the legal technicalities involved in physicians’ writing prescriptions for addicts.
“Q. Is there any difference in making out a prescription for morphine than it is for any other kind of medicine? A. Materially different.
“Q. Do you have to do anything more than just sit down with pen and ink or a pencil and write it out? A. I am not supposed to write prescriptions out for addicts.
“Q. Whether it is for addicts or not? A. I can write prescriptions for anybody for morphine if I will comply with the law, providing I will mix that so it cannot be used for dope.”
The statute under which defendant was prosecuted is R. S. 65-615, 65-616, 65-617, 65-618, which forbids the sale of opium, coca leaves, etc., and their derivatives, one of which is morphine, under appropriate penalties. The statute does contain an exception relating to the privilege of physicians, dentists, veterinary surgeons and pharmacists to deal in these drugs in the course of their professional practice. But, aside from this exception, a physician has no more right to sell this contraband stuff than any other person. Defendant virtually confessed the crime charged against him when he admitted that he sold or supplied the morphine for pay without conforming to the requirements of the statute (R. S. 65-616), the pertinent part of which reads:
“. . . That such physician, dentist, or veterinary surgeon shall keep a record of all such drugs dispensed or distributed, showing the amount dispensed or distributed, the date, and the name and address of the patient to whom such drugs are dispensed or distributed, except such as may be dispensed or distributed to a patient upon whom such physician, dentist or veterinary surgeon shall personally attend; and such record shall be kept for a period of two years from the date of dispensing or distributing such drugs, subject to inspection, as provided in this act.”
In view of the foregoing it is perfectly obvious that the trial court committed no error in overruling the demurrer to the state’s evidence.
Exception is taken to certain remarks of the court. When defendant was on the witness stand in his own behalf he repeatedly avoided answering questions put to him by the county attorney, and in lieu thereof frequently replied by giving his idea of what the law was which governed the dispensing of morphine by a physician. This the court strove to prevent him from doing and rebuked him for doing. The following excerpts from the record will develop the point:
[Defendant, testifying]: “A. When these men refused to let me examine this man, I grew suspicious and began withdrawing from the case. When they refused to allow me to examine this man, then I withdrew from the case as a physician. A doctor is considered a man’s physician. . . .
“By the Court: I will tell the jury what the law is.
“County Attorney: Q. What wholesale house do you get morphine from when you use these blanks?
[Counsel for defendant]: “To which we object; incompetent, irrelevant and immaterial, and not within the issues of this case.
“By the Court: If he is a duly licensed, registered physician he can get morphine, but he has got to get it in a certain way. If he is getting it from Tom, Dick and Harry, he is getting it unlawfully, he has unlawful possession of it. It is very material. If he has never received any from a legitimate source, then the source that he did receive it from must have been unlawful, and he has it in his possession unlawfully. A registered licensed physician can’t go out to Tom, Dick and Harry and get morphine.
“County Attorney: Q. Have you written any prescription on a drug store there in Coffeyville for morphine? ... A. I wrote a prescription for morphine day before yesterday, but it was in a different form. I didn’t know whether he meant morphine or sulphite or what.
“By the Court: Oh yes, you do; that question is just as plain as the nose on my face; you doctors can answer these questions if you want to.
“Q. Whenever you give a person a prescription for morphine do you make the prescription Out in duplicate, Doctor? A. The law don’t require it.
“By the Court: He didn’t ask you what the law required.
“A. No.
“By the Court: Well, say so then. You seem to know more law than medicine; let me tell them what the law is. . . .
[Counsel for defendant]: “The law says that a doctor can use it in his own capacity as a physician.
“By the Court: Sure, but he must get it in the proper way.
[Counsel for defendant]: “I would like to have the court excuse the 'jury.
“By the Court: No, I don’t want to talk to you about it; I know what the law is; the law says you must get it in a certain way.
[Counsel for defendant]: “You are assuming that the doctor got it in an unlawful way.
“By the Court: No, you are assuming something — sit down — sit down.
[Counsel for defendant]: “I have a right to think.
“By the Court: Don’t think out loud if you are going to think like that. I am just trying to find out from this doctor if he knows how to handle narcotics.”
Defendant’s counsel cite cases to show that the foregoing constitutes reversible error. Of course there' are such decisions; but they are mostly old cases, and not Kansas cases — certainly not recent ones. (L. R. A., n. s., 1916A, 1191 et seq.) In the enforcement of the prohibitory law the courts of this state have been compelled to accord scant charity to the old-fashioned practices of indirection, evasion, and special pleading on’the part of clever, shifty witnesses, especially defendants who turn advocates in their own behalf when they are on the witness stand. And no logical justification can be made to permit greater latitude for gratuitous and impertinent responses on the part of a defendant in a drug-selling charge than in a liquor case. On the power of the court to hold witnesses within bounds and develop all the pertinent facts, see State v. Keehn, 85 Kan. 765, 118 Pac. 851; State v. Marshall, 95 Kan. 628, 148 Pac. 675; State v. Hanger, 108 Kan. 115, 103 Pac. 1092; State v. Ketter, 121 Kan. 516, 247 Pac. 430. See, also, Burns v. Clark, 105 Kan. 454, 185 Pac. 27; and Fowler v. Shaw, 119 Kan. 576, 590-591, 240 Pac. 970.
On the error based on the cross questions asked by the court, little need be said. Those questions were prompted by the defendant’s gratuitous and repeated avowals on the witness stand that he did not and would not conform to the law governing the disposal of morphine by physicians. In State v. Keehn, 85 Kan. 765, 118 Pac. 851, it was said:
“The purpose of a trial in a criminal case is to ascertain the truth of the matters charged against the defendant, and it is a part of the business of the trial judge to see that this end is attained. He is a vital and integral factor in the discovery and elucidation of the facts, and whenever in his judgment the attorneys are not accomplishing the full development of the truth, it is not only his right but it is his duty to examine and cross-examine the witnesses. The presumption is that this liberty will be honorably and impartially exercised in the interest of justice, and in this case it was not abused by the trial judge.” (Syl. U 4.)
Nothing approaching the gravity of reversible error is suggested in this appeal, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The questions involved here are whether a widow had abandoned a homestead, whether a purchaser of the land in question obtained a good title thereto, and whether a judgment creditor of the widow — the bank — had a lien on certain proceeds of the sale.
The facts substantially are as follows: Elmer Roberts, husband of May Roberts, and father of three minor children, Orpha, Ruth and Harold, died October 14, 1922. Prior thereto he and his wife had had domestic difficulties, and he had conveyed to her a life estate in the north half of a certain quarter section of land owned by him, to be hers so long as she remained his wife, or in the event of his death, or a divorce, then so long as she remained unmarried, the remainder in fee simple to her and the three children. By the terms of a will deceased left his wife and the three minors the north half of the land in controversy, and the south half to Earl Roberts, a son by a former marriage. May Roberts, who was guardian of the minors, married C. D. Johnson. Earl Roberts and his wife deeded the south half of the quarter section to her and the minor children for a consideration of $7,400, she having procured from the probate court permission to mortgage the interests of the children to pay the purchase price. The mortgages were signed by her for herself and as guardian of the three minors. Following this, the First National Bank of Beloit obtained a judgment against C. D. Johnson and May Roberts Johnson of $828.05 on which execution was issued and which judgment remains unpaid. Johnson and his wife were divorced and her name, May Roberts, restored. Later she executed a farm lease to one J. B. Haneberg for a term of twelve months, beginning March 1, 1927, and containing a five-year rental option. Previous to that, on January 21,1927, May Roberts and the children removed to Beloit and one of the children entered the schools. A light meter was installed in her house and her personal property taxed in Beloit. On April 26 following, a provision was added to the lease stating that peaceable possession would be given by the lessee on a certain date providing there was a sale of the land. April 26, 1927, Mrs. Roberts entered into an agreement to sell the land to Ray Ross. In consideration therefor it was agreed that he convey to her and the children certain lots in Beloit and 80 acres of land, pay her $2,000 and assume a mortgage on the original homestead. The probate court authorized her, and as guardian she conveyed the land. Upon examination of the abstract, Ross’ attorney passed the title conditioned that the judgment of the First National Bank be paid or cleared of record. Ross drew one check for $1,000 which he paid Mrs. Roberts as guardian of the children, and another in like sum to R. L. Hamilton, as attorney for Mrs. Roberts, payable upon the contingency that the judgment be settled. Ross testified that he conveyed the property, as per his agreement, to the minors, and at the suggestion of the guardian erased her name from the deed. Mrs. Roberts testified among other things that she originally bought the south eighty acres of the homestead for the children and herself; that she put the children’s money only into it; that when she signed her name as Mrs. May Roberts she was not acting in an individual capacity, but was acting for the children. She also testified that she had not definitely decided to leave the farm when she moved to town.
The trial court found that May Roberts had an undivided one-fourth interest in the north eighty acres of land in question; that neither she for herself nor as guardian of the minors had abandoned the land as a homestead; that the purchaser, Ray Ross, took title thereto free from the lien of the judgment of the First National Bank and had a clear title; that May Roberts, guardian, had an undivided one-fourth interest in the $1,000 check; that it is personal property, and $250 of it should be applied on the judgment in favor-of the First National Bank, the other $750 to be paid to May Roberts, guardian of the minors, for their use and benefit.
The bank contends that she abandoned her homestead rights to the land in question; that the probate court exceeded its jurisdiction when it ordered the title to the money and property to be taken in the name of the children, on the exchange with Ross; and that the $1,000 held by R. L. Hamilton had lost its exempt character because it was not necessary for the acquirement of a new homestead.
We are of opinion the evidence was ample to sustain the findings of the court, and from the findings it is'perfectly apparent the judgment was not a lien on the land traded to Ross. We are of opinion, also, that the issues before the court did not warrant payment of any part of the one thousand dollars to the bank. The money was placed in escrow with Hamilton to -await the outcome of the issue as to whether or not Mrs. Roberts and the children had abandoned the homestead, and since the court on sufficient evidence found that they had not, it was not proper to order the funds- in escrow or any part thereof to be paid to the bank, nor was the judgment a lien on the personal property.
Under all the circumstances the bank was entitled to no part of the proceeds.
The judgment is modified to the extent of denying the bank a right to partake of the funds in question, and as so modified is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
In execution-of a flood-prevention project, the city of Wichita condemned land belonging to John Ferriter. He appealed from the award of compensation. At the trial on appeal, the jury returned a general verdict and special findings of fact. The court set aside one of the findings on the ground it was not sustained by any evidence, and granted a new trial. The city appeals.
The condemned tract contained 5.98 acres. All of the tract, except 1.5 acres, lay in the channel of the Little Arkansas river below high-water mark. The value to the landowner of that portion of the tract consisted in a deposit of commercial sand and gravel. After condemnation, the landowner removed 16,820 cubic yards of the deposit. The city counterclaimed for the value of the sand and gravel removed.
The jury returned the following special findings:
“No. 1: What amount do you allow the appellant, John Ferriter, for the value of the sand in the land condemned and taken by the city? A. $12,500.
“No. 2: What was the most advantageous use for which the 5.63 acres was adapted in June, 1925? A. Production sand and gravel.
“No. 3: How much commercial sand and gravel was contained in the 5.63 acres in June, 1925? A. 50,000 cubic yards.
“No. 4: What was the value of such sand and gravel in place per cubic yard in Wichita, in June, 1925? A. 25 cents.
“No. 5: How much do you allow the city for the 16,820 cubic yards of sand taken by Mr. Ferriter subsequent to June 22, 1925? A. $4,205.”
The court set aside the third finding.
The condemnation occurred in June, 1925. In February, 1926, the county surveyor surveyed the tract and, with the assistance of the county engineer, investigated the quantity of sand and gravel. They bored test holes, found the depth of the deposit to be twenty-nine feet, and by mathematical calculation determined the tract then embraced 340,000 cubic yards of sand and gravel. The method adopted was the only scientific method of determining the fact, and that the method was employed with the result stated was not questioned. There was no dispute that the sand and gravel were of commercial quality.
When the land was appraised, F. W. Washburn was pumping sand from the tract, under an arrangement with the owner. The appraisers asked Washburn how much sand there was. Washburn said he could pump it all out in sixty days, pumping three hundred cubic yards per day. The appraisers were witnesses for the city and gave their opinions respecting the value of the land. They testified that in arriving at their estimates of value they took into consideration the quantity of sand, based on the information supplied by Washburn. What Washburn said to the appraisers was not evidence of quantity of sand. It was merely a prop on which witnesses ■called to testify to value of land rested their opinions.
At the trial Washburn testified he had been pumping sand from the tract for more than three years, and the depth of the sand was uncertain. He had pumped at’ one place to a depth of thirty-five feet, and at another place to a depth of twenty-five feet, but had never reached the hardpan below. He had pumped at but few places, and there were plenty of other places to be pumped. By reason of the peculiar location of the deposit in the stream, high water constantly refilled the pit, and this made the supply of sand almost inexhaustible. There was other testimony that every little freshet filled the pit from which Washburn pumped.
A witness for the city testified most of the condemned tract formed the bed of the river and the first overflow bank. Another witness for the city testified the’ available sand was the channel where they had water and to make the remainder available it would be necessary to remove some trees and roots. He hazarded no guess as to quantity of sand. Another witness for the city, who owned a sand and gravel pit on a fourteen-acre tract on the same river, said the deposit on his tract was about seventeen feet thick. It was agreed that between the time the tract was condemned and the time the surveyor and the engineer found there were still 340,000 cubic yards of sand in place, the 16,820 cubic yards for which the jury allowed the city $4,205 had been removed.
The jury disregarded what Washburn said to the appraisers and found there were 50,000 cubic yards of sand and gravel on the tract when it was condemned. Clearly there was no evidence to support the finding. In a proper case, a jury may reconcile conflicting testimony and arrive at a result which does not have the specific statement of any witness to support it. This is especially true in dealing with intangibles such as value. A conclusion that the true value is something more than the lowest estimate and something less than the highest may well be justified. The conclusion, however, must be sustained by evidence. Thus, in the case of Smith v. Tri-County Light & Power Co., 120 Kan. 123, 241 Pac. 1090, the jury allowed damages in the sum of $900 for negligent destruction of a barn by fire. In the opinion, the court said:
“It is true that each witness who placed a value upon the bam in his testimony, placed such value at $2,000, but that is not all of the evidence before the jury as to the value of the bam. Its description was given in detail. Its size, the material of which it was built, the fact that it had been built seventeen years, all furnished ground upon which the jury could base a judgment as to its value, even though no witness had stated a specific sum as to the value. While the jury might have found a different value on the bam, they had evidence to sustain the finding which was made.” (p. 128.)
In this instance, the jury had no background of general or common knowledge respecting about how much sand there might be in a bend of a river. The only information on the subject afforded by the evidence has been recited, and the quantity stated in finding No. 3 was arbitrarily determined without evidence.
The city contends the evidence relating to quantity of sand was improperly received; the finding should have been ignored; and, conceding the finding was inaccurate, a new trial should not have been granted. There were two answers to the contention: first, the general verdict was based on the erroneous finding; second, quantity of sand was a material factor in determining compensation.
The question was, of course, what was the value of the land for its most beneficial use. Testimony on behalf of the city was that the land was worth practically nothing except for the sand which could be taken from it. If the quantity were only one or two thousand cubic yards, the land was not worth much; if the quantity were very much greater, the land was worth considerably more. The law requires that the landowner be compensated. Rules for the ascertainment of damages must be adapted to fulfillment of the purpose of the law. In computing the compensation, other factors were to be considered besides number of cubic yards and selling price per cubic yard; but no fair computation of compensation for the taking could be made until it was known just what had been condemned.
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The opinion of the court was delivered by
Hopkins, J.:
The plaintiff began this action against the defendants in Woodson county to recover the purchase price of a bond which defendants had failed to deliver. Service of summons was procured on Dumond in that county and on the Bankers Mortgage Company in Shawnee county. Dumond filed a motion to dismiss the action on the ground that the petition, as .to him, did not state a cause of action. The mortgage company appeared specially and moved to quash the service of' summons on the ground “that the petition showed that the action was not rightly brought in Woodson county.” Both motions were overruled, whereupon the mortgage company demurred to the petition. The demurrer was overruled and the mortgage company appeals.
The question presented is whether the petition stated a cause of action against both defendants, i. e., whether the district court of Woodson county acquired jurisdiction of the mortgage company. The motion to quash filed by the mortgage company was In the nature of a general demurrer. It challenged the jurisdiction of the court on the ground that the petition showed that the action was not rightly brought in Woodson county, or, in other words, that the petition failed to state facts sufficient to state a cause of action against it and Dumond.
The petition alleged substantially that Dumond was the duly qualified and acting agent in soliciting business for the mortgage company; that he received, as remuneration therefor, certain commissions on the amount of business procured and that, acting for himself and as agent of the defendant mortgage company, he solicited plaintiff to purchase a bond from the mortgage company in the sum of $500; that plaintiff agreed with Dumond to purchase the bond of the company and turned over to Dumond government bonds of the value of $500; that Dumond, acting for himself and as agent of the company, promised forthwith to deliver the bond purchased to the plaintiff; that Dumond took plaintiff’s money and thereafter promised to return it to the plaintiff, but has not done so; that after-wards, Dumond gave it to the defendant company; that the company accepted it and still has it; that Dumond and the mortgage company, by and through their agent, Dumond, obtained $500 in property from plaintiff without any consideration and have made no restitution therefor.
The mortgage company takes the position that the petition stated no cause of action against Dumond, and therefore the court acquired no jurisdiction in Woodson county. We cannot concur in this contention. Segregating the allegations against Dumond, the petition, among other things, states in substance that “Dumond, acting for himself, solicited plaintiff to purchase a bond; that plaintiff agreed with Dumond to purchase a bond and in consideration therefor turned over to Dumond government bonds of the value of five hundred dollars; that Dumond, acting for himself, promised forthwith to deliver the bond purchased to the plaintiff; that Dumond took plaintiff’s money and thereafter promised to return it to plaintiff, but has not done so; that Dumond obtained five hundred dollars in property from plaintiff without any consideration and has made no restitution therefor.”
We are of opinion that, notwithstanding other allegations of the petition that might modify the quoted allegations, they are, so far as their legal effect is concerned, to be taken as true, and that they state a cause of action against Dumond. Without further enumerating the allegations of the petition, so far as the mortgage company is concerned, we are of opinion they stated a cause of action against it. Therefore, the trial court was not in error in overruling the motion to quash nor in overruling Dumond’s motion to dismiss.
It is strongly contended that the court erred in overruling a demurrer filed by the mortgage company on the ground that the court had no jurisdiction of the defendants or the subject of the action; that several causes, of action were improperly joined; that the petition did not state facts sufficient to constitute a cause of action, and that the petition showed on its face that Dumond was only an adventitious defendant. The petition, as heretofore observed,, stated a cause of action against both defendants, and was not improperly filed in Woodson county. A contention that several causes of action were improperly joined, because the petition showed on its face an action in- tort against Dumond and one on contract against the mortgage company, cannot be sustained. The setting out in the pleadings of a copy of a written application by the plaintiff to the mortgage company did not constitute the action one on contract. It was merely a stating of the facts, a matter by way of inducement showing the right of plaintiff to recover against both defendants. There was no error in overruling the demurrer.
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The opinion of the court was delivered by
Harvey, J.:
This is an action for personal injuries sustained by a.pedestrian who was struck by an automobile. The jury answered special questions and returned a verdict for plaintiff. Defendant has appealed, and contends that plaintiff was guilty of contributory negligence which barred his recovery. This question was raised by demurrer to the evidence and by a motion for judgment on the special findings. It is the only question we need consider, for there is ample evidence to support the finding of defendant’s negligence, and no question is now raised on that point. Neither is the extent of plaintiff’s injuries nor the amount of the verdict questioned.
Briefly, the evidence relating to the way the casualty occurred is as follows: The casualty occurred at the intersection of Topeka boulevard and Huntoon street in the city of Topeka. Topeka boulevard is a main-traveled north-and-south street set apart for passenger vehicular traffic. It approaches Huntoon street from an angle a little east of north and at Huntoon street turns directly south, making an angle or “jog” at this intersection. Huntoon street is an east-and-west street intersecting Topeka boulevard and has a heavy vehicular traffic, especially west of this intersection. On the evening in question plaintiff was walking from his place of business east of Topeka boulevard to his home west of that street and on the sidewalk on the north side of Huntoon. It was just about dusk. Some cars were using the lights and some were not. When he reached the east edge of Topeka boulevard he looked to his left .and saw four cars approaching from the south. None of them had lights burning. He waited until they passed and then started west across Topeka boulevard, which is paved sixty-four feet wide at that point. As he proceeded west, and when he approached near the center of Topeka boulevard, he looked to his right and saw what proved to be defendant’s car approaching from the north with the lights burning. It was then about the middle of the block between Eleventh and Twelfth streets. The first street north of Huntoon intersecting Topeka boulevard is Twelfth street, and between Huntoon and Twelfth on the west side of the street is a short block, but from Twelfth to Eleventh street north is a full block. Plaintiff continued to walk west and continued to observe defendant’s car approaching until it crossed Twelfth street, where there are street-car tracks. By this time plaintiff was west of the center of Topeka boulevard. A car was standing near the curb on the west side of Topeka boulevard between Huntoon and Twelfth streets. Plaintiff continued to walk west and to observe defendant’s car until it got to within about 75 or 100 feet of Huntoon. It was then traveling south a little west of the center of Topeka boulevard. Its lights reflected south on Topeka boulevard back of plaintiff as though the driver contemplated driving south on Topeka boulevard and not turning west on Huntoon. At that time plaintiff was within about twelve feet of the west side of Topeka boulevard. He then turned his attention for a moment to see if any cars were approaching him from the west on Huntoon, continuing to walk west. When within about eight feet of the west curb line of Topeka boulevard he was struck by the left fender of defendant’s car, defendant having turned sharply to the right so that the right fender of his car was almost to the west curb of Topeka boulevard. The force of the collision knocked plaintiff some distance and injured him. Defendant was really turning west into Huntoon, and there was evidence that he was making this turn at a speed of thirty miles an hour or more. He did not see plaintiff until he struck him.
The point strenuously argued by appellant is that plaintiff, having seen defendant’s car approaching, should have continued to look at it and kept out of the way of it, and that he was negligent, as a matter of law, when he ceased for a moment to look at defendant’s car and directed his attention to seeing whether a car was approaching him from Huntoon street. We think the question of plaintiff’s negligence was a fair question to submit to the jury under all the facts and circumstances of the case. The real question is: Did plaintiff use due care? It would seem this would require him to know whether a car was approaching from Huntoon. With defendant’s car traveling south not far from the center of the street— and it had to be far enough east of the west curb line of the street to miss a standing automobile there — a prudent man might very well have concluded, when he was within twelve feet of the west curb line of the street, with a car approaching him from the north as much as seventy-five feet away and apparently headed in a way to go south, that he could then take time to observe whether a car was approaching him from the west. It seems clear that plain tiff would not have been struck had defendant not turned his car sharply to the right and at a rapid rate of speed. There was no error in overruling the demurrer to the evidence.
It is not necessary to set out the special questions or analyze them specifically. They follow substantially the testimony of the plaintiff, the substance of which is above stated, hence there was no error in overruling the motion for judgment on the special findings.
Lastly, it was argued that a motion for a new trial should have been sustained because the verdict is not in accordance with the law and the evidence; but this again raises the same question previously discussed.
Finding no error in the record, the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action in mandamus to compel the delivery by officers of the proceeds of property sold upon execution to satisfy a judgment. Hettie Metz sued O. P. Hicklin, marshal of the city court of Wichita, and B. L. Bayman, clerk of that court, alleging that she had recovered a judgment against H. L. Oliver, which had not been paid; that an execution had been issued thereon and placed in the hands of the marshal; that he had levied on a crop of growing, wheat and made a sale of the same for $440, but had failed to turn over to the plaintiff the proceeds of the sale. Upon a demand of payment the marshal stated that he had paid the proceeds of the sale to the clerk of the city court, and that the clerk, Bayman, had represented that he had not received the proceeds of the sale, saying that Hicklin, the marshal, had turned over to him only a worthless check, and it was alleged that plaintiff had been, unable to obtain the proceeds of the execution sale from either of the defendr ants. She alleges that the marshal and clerk are conniving and conspiring together in handling the proceeds, and, although they both have control of the funds, are intentionally and unlawfully withholding and refusing to pay the proceeds of the sale to plaintiff.. .
Among other things pleaded was that an action had previously been brought to enjoin the sale of this property, and that a judgment had been rendered denying the injunction, which judgment had become a finality. Plaintiff asked for the issuance of the writ of mandamus compelling the marshal and clerk to pay the sum of $407.75 as the proceeds of the sale, together with $150 attorneys’ fees expended. in the prosecution of this proceeding and damages resulting from the preparation and trial of the case in the amount of $50. An alternative writ was granted, but a separate motion of Hicklin, the marshal, was made to quash the writ, which the court sustained. An appeal was taken from the order quashing the alternative writ.
Upon the right of the plaintiff to the remedy of mandamus to compel the performance of an official duty by the defendants — that is, the payment of the proceeds of the execution sale — there can be no question. (Kansas City v. Stewart, 90 Kan. 846, 136 Pac. 241; Cates v. Knapp, 104 Kan. 184, 178 Pac. 447; Ramsey v. Bank Commissioner, 115 Kan. 212, 222 Pac. 117.) No good reason is seen for the order quashing the writ. The averments of the verified petition show that a sale on execution was made by the marshal, and a return of the writ showing its execution was also made. - It- is argued that when the writ was executed and a return made to' the clerk his duties and liabilities in that connection were ended. The execution creditor has received none of- the. proceeds of the sale. It is alleged that the excuse given was that a check had-been given by the purchaser which was returned by the marshal to the clerk, and the clerk in turn stated that nothing had been received by him, as the check returned was worthless. Because of these excuses both officers were joined as defendants and charged with conspiring together to defeat a recovery of the proceeds of the sale. The motion to quash the writ was made by the marshal alone, and therefore the liability of the clerk is not before us. As to him the case was continued.
While the officers were shifting or shuffling responsibility, the plaintiff was “holding the sack.” In respect to the marshal,'it was fflis duty to sell for cash, and he cannot escape liability by accepting anything other than cash. If the purchaser declined to pay cash the marshal- could have treated the bid as a nullity and again offered the property for sale. Instead of doing that, the marshal treated the sale as consummated, and he' therefore made himself liable for the amount of the bid. (Walker v. Braden, 34 Kan. 660, 9 Pac. 613; 23 C. J. 648.) The only excuse for accepting a check or something other than cash would-have been the consent or direction of the execution creditor, and this’ was Hot given. Referring to R. S. 61-1412, which provides that it is the duty of constables to pay over to a party entitled thereto money received in their official capacity upon demand, made at any time before a return is made upon the-writ upon which the officer received it, the defendant contends that no demand was made until after he made his return, and • therefore he is not liable. The provision can have no application to a case where no money was returned. Nor is he justified in setting up the defense that the property was not subject to sale. That matter, as we have seen, has been finally adjudicated in an action against his predecessor where the right of the marshal to sell this identical property was involved. The privity between him and his predecessor .made the judgment dissolving the injunction binding upon him. Besides, the property was seized and sold by him, the purchaser bought with his eyes open and took all risks, and cannot set up a defect in the title of the execution debtor. The officer only sells the interest of the debtor. (Treptow v. Buse, 10 Kan. 170.) And it is held that the rule of caveat emptor applies in strictness to sales under an execution. (Dickson v. McCartney, 226 Pa. St. 552; 23 C. J. 654.)
We conclude that the plaintiff was entitled to maintain the action and that the court was not warranted in quashing the writ.
Some argument is made in relation to the allowance of attorneys’ fees and damages in the action, but as the case is here only upon the petition, these questions must wait the ultimate decision of the case.
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for personal injury. The plaintiff recovered, and defendants have appealed. The principal question argued is that the amount of the judgment is excessive. It is further argued that a new trial should have been granted because of the bias and prejudice of the jury as shown by the excessive verdict.
The evidence tended to disclose that on March 16, 1927, about 3:30 p. m., plaintiff boarded one of defendants’ street cars at Eighth and Richmond avenue in Kansas City as a passenger; that the car was equipped with doors and a step that folded as the doors were closed. These were operated by the conductor by means of a lever; that when plaintiff boarded the car, before she had an opportunity to move forward, the conductor closed the doors suddenly and forcibly, so that the doors folded together upon and caught plaintiff’s right foot and heel, causing plaintiff to fall to the floor; that her heel was so firmly caught in the doors that the conductor had to open them before her heel could be released. Plaintiff was confined to her bed about three weeks, and at the time of the trial, some nine months later, she téstified that it had continued to cause her pain when she walked or stood. A physician,, called to treat her the next day after the injury, testified:
“I found her in bed and the heel was pretty badly swollen at that time, and about the size of an ordinary ball. There was present over the plantar súrface of the heel and in the neighborhood of the Achilles tendon, ... a blood clot which was the cause of the swelling. She was unable to bear weight on it for a number of weeks. ... I continued to treat her . . . as late as the 11th of the next month. I think this woman had a rupture of the tendenous portion of the heel, with a pulling away of the periosteum of the heel bone. . . . That sort of an injury would have a tendency to be painful. ... It may be permanent, and as long as it remains it is more or less painful.”
At the time of the trial a commission of physicians appointed by the court examined her, and X-ray photographs were taken. These did not disclose any injury to the bone. They would not show whether there were strained or torn ligaments. The objective examination made by these physicians and the X-ray plates did not .disclose an abnormal condition. These physicians were unable to say whether she suffered pain. There was evidence that plaintiff carried an accident insurance policy on which she was paid for two wéeks for this injury.
The above is a synopsis of the evidence, in so far as it pertains .to the amount of recovery. The verdict was for the plaintiff for $2,000. On the hearing of defendant’s motion for a new trial the court thought the verdict too large and stated he would grant a new trial unless plaintiff consented to a remittitur to $1,000. Plaintiff consented to the remittitur, and judgment was entered for plaintiff for $1,000.
On this appeal defendants contend that the judgment is still much in excess of what it should be, and ask this court to order a further remittitur, and in the event that plaintiff does not consent thereto to direct a new trial. We do not feel justified in doing so on this record. The only time this court feels justified in directing a remittitur is when, under the facts disclosed by the record, there is nothing in the record to indicate passion or prejudice of the jury other than the amount of the verdict, and the judgment is so large that it cannot in reason be allowed to stand. (Stone v. City of Pleasanton, 115 Kan. 378, 223 Pac. 303; Tartar v. Missouri-K.-T. Rld. Co., 119 Kan. 738, 241 Pac. 246.) As was well said in Watson v. Parker Township, 113 Kan. 130, 136, 213 Pac. 1051:
“It is only when the evidence will not support the sum allowed, or the sum itself is so large as to shock the conscience of this court, that we feel at liberty to order a remittitur or a new trial at the option of the plaintiff.”
We cannot say that situation exists in this case. While there is evidence which, if given full credence by the jury, would have justified a smaller amount, there was, on behalf of the plaintiff, evidence which supports the judgment rendered.
Appellants argue that a new trial should have been awarded because of the excessive verdict, and point to the fact that the court cut the jury’s verdict in two, and they argue the reduced sum is still too large; hence that a new trial should have been granted on account of the bias, passion or prejudice of the jury. It not infrequently occurs that a jury, in an action for damages, returns a verdict in excess of that which the trial court or this court deems proper under the evidence, and without any other indication of passion of prejudice on the part of the jury. In such cases the fact that the verdict is larger than the court can sustain does not require a new trial if plaintiff is willing to consent to a proper remittitur. (Mo. Pac. Rly. Co. v. Dwyer, 36 Kan. 58, 12 Pac. 352; Broquet v. Tripp, 36 Kan. 700, 14 Pac. 227; U. P. Rly. Co. v. Mitchell, 56 Kan. 324, 43 Pac. 244; Railway Co. v. Frazier, 66 Kan. 422, 71 Pac. 831; Argentine v. Bender, 71 Kan. 422, 80 Pac. 935.)
The judgment of the court below 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 Shawnee county against the public service commission to enjoin and set aside an order of that official body prescribing rates for the transportation of passengers on motor busses operating in Wichita and vicinity.
The order of the commission was made on the applications of two bus operators in Wichita upon a showing that the five-cent fare they were permitted to charge was insufficient to earn a reasonable return on their respective investments and to furnish proper equipment and provide efficient service. The city of Wichita contested the proposed advance in rates before the commission; a number of other bus operators participated in the hearings, as well as the managing officers of a bus line operated by the local street-car company; and it was understood by the commission and by all concerned that if a substantial increase in rates were sanctioned a new motor bus company would be organized consolidating all the existing lines and make the necessary investment and expenditures to give the Wichita public an efficient motor omnibus transportation system.
The order of the commission gave authority to the bus operators to advance their five-cent rates to the following schedule:
Single fare........................................... $0.08
Two tokens...........................................15
Tickets, five rides — sold only at office of applicant and other'convenient places designated by applicant.....35
Tickets, twenty-four rides — sold only at office of applicant and other convenient places designated by applicant ........................................... 1.50
Following the order increasing the rates, the Wichita Motor Bus Company was organized, and by various negotiations it bought out the several independent- and competing lines, and set about the business of systematizing and improving the service and equipment.
The city brought this action to test the validity of the order on the alleged ground that the rates authorized by the commission were excessive and unreasonable. The public service commission joined issue. The Wichita Motor Bus Company was permitted to intervene. Its contentions were that even the new rates were inadequate, and that the city of Wichita was not a patron of the bus lines and had no financial or other concern with the bus rates sufficient to justify it to maintain the action.
After a full hearing the trial court made certain findings and conclusions, which in part read:
“1. The court is not disposed to hold that the city of-Wichita has no standing to maintain this action. . . .
“2. . . . The cross-petition of the intervener will be denied for the reason that the commission fixed the rates asked for by the predecessors of the intervener, and for the further reason that the rates are, in a measure experimental for reasons that will be stated later in this memorandum, and it can not well be determined, at the present time that the rates are not sufficient. On the contrary, I am inclined to think that they will be found to be adequate.
“3. On the issues made in this case, and under the evidence, a peculiar gituation is presented, unlike that' usually arising in a rate case. The rates fixed by the commission are, to some extent, conditional. It appears and the rates were allowed largely on condition that the intervener was to spend $120,000 for fifteen new motor busses, and build a bus garage to cost', with the site and equipment, nearly $150,000. The investment for these purposes would constitute nearly half of what is included in the assets making up the rate base. If these expenditures are not made, a different question would be presented, but the court would have no right to assume at this time that the representations made to the commission in this behalf were not in good faith or that they will not be substantially carried out. On the assumption that these expenditures are to be made, the court is not able to find that the rates fixed are unlawful, unreasonable or excessive."
“It must be true that the bus business is, to some extent, in an experimental stage. So far as experience has gone in other localities, it appears from the evidence of John L. Fennell before the commission, the record of which was introduced in this case, that the average fare charged in railway operation of motor busses is 8.9 cents. The rate in Kansas City is 10 cents. While rates in other cities where conditions may be different do not set a standard here, they are informing.
“In my opinion, the returns of the bus company for the first three months of 1927 do not furnish a fair standard to measure future receipts by. Doubtless the increased fare has reduced the number of actual passengers, and the transfer system is also responsible for a falling off in the revenue. It seems probable that as soon as the business is better established, and the riding public becomes more accustomed to the new rates, a better showing will be made. The evidence given on behalf of the bus company is to the effect that the falling off because of inoreased fares should be about nine per cent, and that from the change in the transfer system about ten per cent. The nine per cent decrease in passengers carried, where the increase in rates is as much as in this case, about fifty per cent, would not, in my judgment, be a sufficient allowance, especially where a competing electric line carries passengers for six cents. The falling off of traffic would depend quite largely on the extent of the increase in fare. For example, an increase of 100 per cent might drive away a large part of the traffic, especially where there was a competing transportation system which was available. The decrease in business done by the motor bus company during the first three months of 1927 is perhaps the strongest point in favor of the position of the plaintiff in this case. However, under all the evidence, it does not seem to me that a maximum fare of 8 cents, with three options to buy tokens at lesser rates, the minimum being 24 tokens for $1.50, or 6% cents each, should be held to be unreasonable or excessive at the present time.”
Judgment was accordingly entered for plaintiff, and the city appeals, urging, in effect, that the trial court should have found that the rates authorized by the commission were excessive and unreasonable. In its argument in support of this contention, counsel for the city seem to shut their eyes to the limitations of an appellate review, the most elementary of which is that the supreme court cannot serve as a fact-finding tribunal. This elementary rule not only applies in ordinary litigation between private parties but to controversies over utility rate cases as well. Thus in State, ex rel., v. Telephone Co., 115 Kan. 236, 223 Pac. 771, where a schedule of telephone rates promulgated by the public utilities commission had been enjoined by the district court after a lengthy hearing before a referee, the cause was brought to this court for review, and we were constrained to say:
“The public utilities commission argues that this court is not bound by the facts found by the trial court, but may examine the evidence to determine the weight and sufficiency thereof and find other facts different from those found by the trial court, as this court may conclude are established by the evidence. The argument of the commission is that this is a suit in equity, and that in suits in equity the appellate court examines the evidence the same as the trial court. The rule that the verdict of the jury or the findings of fact made by a referee in the district court, when approved by that court, will not be disturbed in the supreme court where the verdict or findings are supported by evidence, has been followed during the whole of the historypf this state. Probably that rule has been followed five hundred times. It has been followed in equity cases as well as in law cases. . . .
“We are, in effect, asked to try this case de novo. Under the constitution, the jurisdiction of this court is appellate only, except in three specific instances. That jurisdiction cannot be extended so as to make this court try appealed cases de novo." (pp. 269, 270.)
Again, in Agricultural Ins. Co. v. Ætna Ins. Co., 119 Kan. 452, 239 Pac. 974, the rivalries of two powerful groups of fire insurance corporations gave rise to protracted litigation in the district court and eventually came to the supreme court on appeal. Notwithstanding the constitutional limitations of this court’s appellate jurisdiction we were asked to substitute our judgment for that of the trial court on a lengthy record covering a multitude of matters of disputed fact, supported and controverted by the testimony of witnesses who had appeared before the trial court but whom we had never seen and whose veracity and knowledge we had no means of testing. This court was asked to accord its own credence to the testimony, “and from a review of all the evidence, direct judgment for plaintiffs.” In restating the age-old rule that it was the exclusive function of the trial court to weigh the evidence and find the facts, Mr. Justice Burch, speaking for the court, cited and quoted from cases covering the entire history of the supreme court from Major v. Major and others, 2 Kan. 337, 339, down to State v. Rieman, 118 Kan. 784, 785, 236 Pac. 641, all holding to the same effect that—
“ ‘The district court is the fact-finding tribunal. Authority of this court is limited to correction of error, and it may not, in case of doubt, declare error in a conclusion of fact unless it has facilities for determining the fact which are equal to those possessed by the district court.’ (State v. Rieman, 118 Kan. 784, 785, 236 Pac. 641.)’’ (p. 459.)
Within the foregoing rule of appellate review, what is there for this court to decide in the instant casé? The trial court held that the city of Wichita did have a right to maintain the action. Its petition did not allege any specific interest in the bus rates, but in the evidence it casually developed that some of its employees used the busses at its expense. But the public utilities act gives “any body politic or municipal organization” a right to complain to the public service commission about utility rates and to be heard before that tribunal when such rates are under consideration, and also to invoke a judicial review of the orders of the commission concerning them. (R. S. 66-111; 66-118; Kansas Gas & Electric Co. v. Public Service Com., 122 Kan. 462, 464, 251 Pac. 1097.) Probably the statute does not mean that any municipal corporation — say Hiawatha, Beloit or St. Francis — could complain of bus rates in Wi'chita or precipitate litigation pertaining thereto; but apparently the legislative theory was that a municipality is a sort of local parens patrios and should have the right to participate in all deliberations where utility rates are to be regulated where its particular community is likely to be affected, although the rates are not so exclusively local that the city itself could dictate them under R. S. 66-104. This view takes nothing from the rule repeatedly announced by this court that a city has no inherent right to provoke litigation over public utility rates until such relief as the public utilities act can furnish has first been invoked. (City of Parsons v. Water Supply and Power Co., 104 Kan. 294, syl. ¶ 3, 178 Pac. 438; Kansas Gas & Electric Co. v. Public Service Com., 122 Kan. 462, 251 Pac. 1097; City of Hutchinson v. Hutchinson Gas Co., 125 Kan. 346, 350, 358, 264 Pac. 68.) But here the city took the proper course throughout; it contested the proposed rate advances before the public service commission; and being dissatisfied with the order of that tribunal, it brought an action thereon as authorized by R. S. 66-118. This court holds that the city of Wichita was a proper party to participate in such rate-regulating proceeding before the public service commission and a proper party to bring a timely action invoking a judicial review of the orders of the commission pertaining thereto.
Turning then to the narrow limits of the present appeal* our difficulty is to discover anything that savors of error or irregularity in the judgment of the trial court. Counsel for the city propound these questions:
“First: What was the fair value of the, property upon, which the intervener is entitled to earn a fair return?
“Second: What rate would produce a fair return?”
But unless those questions were fairly raised for determination in the trial court they are not properly reviewable here. The trial court made no finding of the fair value of the property of the Motor Bus Company, and in the nature of things that was not a fair determinant in this case. The motor bus business in Wichita was a new business. It was not systematically organized. A half a dozen independent business concerns had tried unsuccessfully to make a living at the business on a five-cent fare. The service was poor; the busses were poor, and the operating employees were not uniformed and were poorly paid. And it was in the belief that if higher rates were granted, and the business lines unified and systematized, and sufficient new capital invested, an efficient, up-to-date system of omnibus transportation could be installed to articulate with the street railway system which would give the town' the sort of service it should have. The trial court found that the rates authorized by the commission were experimental. There. were incontrovertible facts to support that finding. The trial court found that the financial results of three months’ experimenting with the newly authorized rates were insufficient to furnish a fair standard by which to measure future receipts of the bus line. It is not possible to overthrow that conclusion. (Railroad and Light Co. v. Court of Industrial Relations, 113 Kan. 217, 223, 210 Pac. 475.) Indeed, all the facts and circumstances presented to the trial court would hardly justify any other conclusion.
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The opinion of the court was delivered by
Dawson, J.:
This was an action for a balance due for wages. The pleaded defense was a general denial.
Judgment was entered for plaintiff, and the one question presented for review is whether there was any evidence to support the verdict on which that judgment was predicated.
The facts were these: Plaintiff was a tool dresser by occupation. He worked for a number of months at certain oil wells being drilled on leased ground near Toronto, where defendant was the man in charge of operations. Plaintiff testified (without objection) that defendant and others owned the lease where the drilling was being, done. Plaintiff received wages from time to time, but eventually a considerable sum, $396, due him was not forthcoming and he spoke to defendant about it.. Defendant said he did not have the money, but would get it for plaintiff in a day or two, and on the next day defendant’s son brought plaintiff a check for $200, which left a balance of $196 due plaintiff, the amount of the judgment, (with interest) brought here for review.
On defendant’s behalf the evidence tended to show that an Oklahoma corporation entitled “The Eureka Drilling Company” was the employer for whom plaintiff had been working, and that defendant was merely its superintendent in charge of operations. Defendant testified that the headquarters of this corporation were at his private residence, and that defendant’s wife was its treasurer. The wage checks by which plaintiff had been paid periodically, prior to the default which provoked this lawsuit, had been signed in the name of this Oklahoma corporation by defendant’s wife as treasurer.
However, it was shown on plaintiff’s behalf, and, indeed, admitted by defendant, that the fact had never been explained to plaintiff that his employer was other than defendant himself. The testimony of defendant reads:
“I never did tell Lefty in so many words that he was working for the Eureka Drilling Company.”
The evidence to support plaintiff’s cause of action was not strong, but this court cannot yield to defendant’s contention that there was a complete dearth of evidence to sustain the verdict and judgment. And the record as a whole makes it reasonably clear — at least a jury would be justified in making the inference — that the Eureka Drilling Company was but a nominal corporation, existing merely on paper, and that defendant was plaintiff’s real employer. So far as concerned plaintiff, defendant personally gave all the manifestations and bore all the indicia of being the employer, even to the point of apologizing to plaintiff because he did not have the money to pay him his wages, but would pay him in a day or two. Pursuant to that apologetic remark and personal promise, he did pay or cause to be paid to plaintiff the larger part of the balance of wages due plaintiff, and this court cannot believe any injustice will be done by insisting that he likewise pay the remainder..
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment rendered against it on evidence introduced and an agreed statement of facts, in part as follows:
“II. That, on or about February 22, 1921, the Farmers Grain and Supply Company, a corporation of Galva, Kansas, delivered to defendant for ship ment to its order at Wichita, Kansas, car No. AT-28483, containing 76,630 pounds .of No. 2 dark hard wheat, and defendant then issued to said Farmers Grain and Supply Company, a shipper’s order bill of lading showing receipt of said car of wheat billed to Wichita, Kansas, to shipper’s order, notify the Hausam-Bateman Grain Company and transported said car to Wichita.
“That, on or about the same date, said Farmers Grain and Supply Company drew their draft on the Hausam-Bateman Grain Company at Hutchinson, Kansas, with said bill of lading attached, properly indorsed. Immediately thereafter the Hausam-Bateman Grain Company requested the Edward Kelly Grain Company of Wichita to procure inspection and sample of said car of wheat and sell it on consignment and for a commission. That the Edward Kelly Grain Company then offered and. sold said car of wheat to the Red Star Milling Company of Wichita, at $1.67 per bushel basis Kansas City, said car to be delivered to said milling company at Wichita. Although said car of wheat was then in Wichita, said bill of lading appeared to have been lost and did not come into possession of the Edward Kelly Grain Company. Thereupon, at the request of the Hausam-Bateman Grain Company, and said defendant railway company, and pursuant to the custom and practice in the grain trade, which was known to all parties concerned, including defendant, and in order to have said car of wheat delivered to the Red Star Milling Company by defendant prior to and without surrender of the shipper’s order bill of lading, the Edward Kelly Grain Company then deposited with defendant its check in the sum of $2,450, which was estimated to be 125 per cent of the value of said car of wheat, said check being received by defendant in lieu of the surrender of said order bill, whereupon defendant delivered said car of wheat to the Red Star Milling Company in reliance on the security so furnished it by said check for $2,450, and .the Red Star Milling Company then unloaded said car of wheat and paid the Edward Kelly Grain Company therefor. The proceeds of the sale of said car of wheat by the Edward Kelly Grain Company to the Red Star Milling Company for the Hausam-Bateman Grain Company, amounting to $1,929.53, were then held and retained by the Edward Kelly Grain Company because of the fact that it had deposited its check for $2,450 with defendant as aforesaid in lieu of the surrender of the said order bill, said price being retained until its check should be returned to it by the defendant.
“That, thereafter, the Hausam-Bateman Grain Company, in order to secure the release to the Edward Kelly Grain Company of the $2,450 check deposited with it as aforesaid, and in order to secure the release from the Edward Kelly Grain Company of said sum of $1,929.53, the sale price of said car of wheat, executed and delivered to defendant, through its agent, C. A. Walker, of Hutchinson, Kansas, on form 2656 bond conditioned to save defendant harmless because of delivery of said car of wheat without surrender to it of said order bill. . . .
“III. That, on or about March 10, 1921, the $2,450 check deposited by the Edward Kelly Grain Company with defendant in lieu of surrender of said bill of lading was returned to the Edward Kelly Grain Company by defendant.
“That the Edward Kelly Grain Company then paid to the Hausam-Bateman Grain Company the proceeds of the sale of said car of wheat.
“IV. That the Edward Kelly Grain Company would not have surrendered and paid the proceeds of the sale of said car of wheat to the Hausam-Bateman Grain Company unless defendant had returned to the Edward Kelly Grain Company said check for $2,450 theretofore deposited in lieu of the surrender of said order bill.
“That, in remitting the proceeds of the sale of said oar of wheat to the Hausam-Bateman Grain Company as aforesaid, the Edward Kelly Grain Company relied upon the fact that defendant had surrendered to it its said check for $2,450. . . .
“V. That, on about January 17, 1923, the Farmers Grain and Supply Company of Galva filed suit in the district court of Reno 'county, Kansas, against defendant herein, the Red Star Milling Company, and these plaintiffs, wherein it alleged that its draft’ for $1,990 drawn as aforesaid on the Hausam-Bateman Grain Company, with bill of lading attached, covering said car No. 28,483 of wheat, had never been paid, and that said defendants wrongfully converted said wheat to their own use, and prayed judgment against said defendants for said sum of $1,990. That on September 19, 1924, judgment' was entered in said cause and court against said defendants for said sum of $1,990 and costs. That, subsequently, the supreme court of Kansas affirmed said judgment as to these plaintiffs and the Red Star Milling Company, but reversed same as to defendant herein (120 Kan. 21). That defendant herein was relieved from liability to the Farmers Grain and Elevator Company of Galva, because of the fact that no claim was made by it within four months after the delivery of the property pursuant to a stipulation in the bill of lading under which said shipment was made.
“That, thereafter, and on the 3d day of June, 1926, these plaintiffs paid half of said judgment so affirmed against them and against the Red Star Milling Company, said payment being in the sum of $1,095.75, which sum has never been repaid to plaintiffs by anyone, and for which they hold no security.
“VI. Plaintiffs paid over to said the Hausam-Bateman Grain Company the proceeds of the sale- of said car of wheat, which money said Hausam-Bateman Company retained and used, all without having paid the Farmers Grain and Supply Company of Galva for said car of wheat. That the Hausam-Bateman Grain Company is insolvent and without financial responsibility, and these plaintiffs cannot recover from said grain company the loss they suffered by reason of paying said judgment as aforesaid.”
This action is largely a sequel to Farmers Grain Co. v. Atchison, T. & S. F. Rly. Co., 120 Kan. 21, 245 Pac. 734. All of the facts material for the consideration of the question presented were disclosed by the agreed statement of facts. For that reason it is not necessary to notice the small amount of evidence that was, introduced.
The contract liability of the defendant was to the shipper of the grain, the Farmers Grain and Supply Company. That contract was contained in the bill of lading. The tort committed by the railroad company was against the shipper of the grain, not against the plaintiff in the present action. The relations between the present defendant and the plaintiff were contract relations entirely. The plaintiff desired the delivery of the grain without surrendering the bill of lading. In order to obtain the grain, the plaintiff gave to the defendant a certified check for $2,450. Within a few days after the check was given it was returned to the. plaintiff by the defendant. The liability of the defendant to the Farmers Grain and Supply Company was determined in Farmers Grain Co. v. Atchison, T. & S. F. Rly. Co., 120 Kan. 21, 245 Pac. 734, where this court declared the defendant not liable to the grain company, because that company had'not complied with the contract concerning notice of loss arising out of the shipment. The plaintiff and the Red Star Milling Company were parties to that action and were bound by the judgment therein. The railroad company, if it was not liable to the Farmers Grain and Supply Company, is not liable to any of the other persons or corporations through whose hands the shipment of grain passed unless it committed some wrong against such other person or corporation. None is shown by the record. No wrong was done the plaintiff in accepting the check, nor in returning it. Under the facts disclosed by the agreed statement of facts, the right of action of the plaintiff is not against the defendant, but is against the Hausam-Bateman Grain Company, which failed to pay the Farmers Grain and Supply Company for the wheat after receiving the money therefor from the plaintiff. The record discloses that the Hausam-Bateman Grain Company is insolvent, but the insolvency of that company does not render the defendant liable to the plaintiff. In, Farmers Grain Co. v. Atchison T. & S. F. Rly. Co., supra, this court held that the railroad company was not liable to the shipper of the grain for the reasons there advanced. The plaintiff and the Red Star Milling Company were parties to that action and were bound by the judgment therein. If the defendant is not liable to the Farmers Grain and Supply Company for the tort committed against it, the defendant is not liable to any of the other parties to that action on account of such tort. The rules there declared must now be followed unless that decision is to be overruled. The plaintiff cannot indirectly accomplish what the Farmers Grain and Supply Company could not do directly.
. The judgment is reversed, and directed to be entered for the defendant. | [
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The opinion of the court was delivered by
Burch, J.:
The action is one of mandamus to compel the county clerk of Stafford county to extend on the tax rolls a levy of taxes for support of a Barnes high school.
Authority is given to the board of county commissioners of a county maintaining Barnes high schools to levy a tax each year of not less than one-fourth of a mill nor more than four and one-half mills on the dollar on the assessed valuation of the taxable property within the county, for the purpose of creating a high-school fund. (R. S. 72-3001.) The county superintendent certified an estimate of funds equal to $1,200 multiplied by 42, the number of teachers in the county, pursuant to R. S. 72-3005 as amended by chapter 235 of the Laws of 1925. The amount was within the limitation on amount of levy contained in R. S. 72-3001. R. S. 72-3001 is a valid enactment, because it is complete in itself, and was duly enacted by the legislature of 1923. For the same reason R. S. 72-3005 was a valid enactment, and chapter 235 of the Laws of 1925 was constitutionally enacted.
R. S. 79-1918 and 79-1919 read as follows:
“That the authority of the board of county commissioners of each county as provided in chapter 397 of the Session Laws of 1905, to levy annually a tax by means of which is raised the necessary funds for the support of the high schools provided for by said chapter 397 of the Session Laws of 1905, is hereby limited so that the board shall not levy in excess of one and three and one-half tenths of a mill upon all taxable property in the county, or in that part of the county subject to taxation for the support of high schools established pursuant to Laws 1905, chapter 397, as amended: Provided, That this act shall not apply to counties having a valuation in excess of twenty-eight million dollars, except such counties or parts of counties as have a population in excess of 25,000 and as support eight or more high schools established pursuant to said Laws 1905, chapter 397, as amended.
“The authority of the board of county commissioners of each county, as provided in chapter 397 of the Session Laws of 1905, to levy annually a tax by means of which is raised the necessary funds for the support of the high schools provided for by said chapter 397 of the Session Laws of 1905, is hereby limited so that the said board shall not levy in excess of one and three and one-half tenths mills upon all taxable property: Provided, That this section shall not apply to counties having a valuation in excess of forty-five million dollars.”
Stafford county, which maintains its high schools under the Barnes law, has a population of 10,696, and a property valuation of $30,819,527. Conceiving that R. S. 79-1918 and 79-1919 applied, the commissioners made a levy of 1.35 mills, which would produce a fund amounting to much less than $1,200 per teacher. The county superintendent then made a levy of 1.74 mills, which would produce the necessary fund. The county clerk refused to extend the levy, and this action was commenced to procure an interpretation of the statutes.
Sections 1 and 2 of chapter 267 of the Laws of 1927 read as follows:
“The authority of the board of county commissioners of each county having a valuation of more than forty million dollars ($40,000,000), as provided in chapter 397 of the Session Laws of 1905, to levy annually a tax by means of which to raise the necessary funds for the support of the high schools provided for by said chapter 397 of the Laws of 1905 is hereby limited so that the said board shall not levy in excess of one and three and one-half tenths of a mill upon all taxable property in such county.
“Sections 72-3012, 79-1918 and 79-1919 of the Revised Statutes of 1923 be and the same are hereby repealed.”
The county clerk contends this statute is void under the decision in the case of Atchison, T. & S. F. Rly. Co. v. Board of Education, 123 Kan. 378, 255 Pac. 60. The contention is well founded. Under the same decision, however, R. S. 79-1918 and 79-1919 are invalid. They cannot stand alone, as does R. S. 72-3001. They are taxation statutes which attempt to amend a school law found in another statute book, which has itself been amended many times, and the method of amendment is to strike out part of the law, insert a substituted provision, and leave the remainder standing. The result is confusion in legislation, which section 16 of article 2 of the constitution sought to forestall.
The levy made by the county superintendent should have been extended on the tax rolls, and the writ is allowed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The defendant appeals from a conviction of keeping and exposing lottery tickets for sale. This case is companion to State v. Rutledge, ante, p. 371. The facts are sufficiently stated in the former case and need not be repeated.
The principal question is whether the evidence was sufficient to support the conviction. The defendant contends that the only evidence against her was the finding of the paraphernalia at her home; that there was no evidence that she kept or exposed lottery tickets for sale, either directly or indirectly, or by aiding and abetting; that the verdict was based wholly upon presumption of guilt; that she did not have the benefit of a reasonable doubt and that the verdict was a compromise.
The state contends that the defendant refused to admit promptly the officer when he exhibited his star; that she immediately pulled the blind, rushed to her dining-room table and scattered therefrom numerous papers admitted to be policy paraphernalia, consisting of tickets, records of alleged sales of tickets and slips showing winning numbers drawn from the wheel, all in quantities, varieties, forms and stages of the game, indicating that such tickets were kept and exposed for sale. It is argued that there was no reason for her throwing this paraphernalia from the dining table if she did not know she was exposing it for sale. We have consid ered the evidence, the surrounding circumstances, and the' fair inferences reasonably to be drawn therefrom and are of opinion the verdict was not without support.
Various authorities cited and relied upon by the defendant are more applicable to offenses against the gambling laws than the facts here. Attention is challenged to the fact that the jury asked the trial court to extend leniency to the defendant. The trial court considered such a request and denied it. Moreover, the matter is not one of which cognizance may be taken on appeal. Other contentions by the defendant have been considered, but we find no error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant was prosecuted for arson in the fourth degree, burning alfalfa hay in the daytime, was convicted, and has appealed.
She urges that one of the jurors who tried her was disqualified on account of his knowledge of facts in the case and on account of his prejudice against her; all unknown to her until after a verdict of guilty had been returned. The juror, at the time of the preliminary examination, was a deputy sheriff of Pottawatomie county, was a constable in that county, and had served subpoenas issued by the justice of the peace before whom the preliminary examination was held, commanding witnesses to appear and testify in that examination. On his voir dire, the juror testified that he had never heard anything about the case or any of the facts connected with it, and had never entertained or expressed any opinion as to guilt or innocence of the defendant, and at the time of his examination did not entertain any such opinion.
On the motion for a new trial, the defendant produced evidence which tended to prove that the juror, when he served subpoenas on some of the witnesses, talked about the case and made remarks derogatory to the defendant. The juror was sent for and testified that he did not know the defendant, that he had never heard of her, that he had not had any conversation with any of the witnesses concerning the facts in the case, and that at the time of his examination as a juror, he had forgotten he had served the subpoenas issued by the justice of the peace on the preliminary examination. Another witness was brought before the court and testified that he went with the juror when the subpoenas were served, and that he did not hear the juror make derogatory remarks concerning the defendant, did not hear her name mentioned, did not remember that they stated what the facts were in the case, and that b.e did not hear any conversation by any of the witnesses with the juror about the facts of the lawsuit. The court, in commenting on the evidence introduced on the motion for a new trial, said:
“I requested that Mr. Morris be sent for — I could hardly believe that a man of his appearance and intelligence would do anything that the evidence heretofore had indicated that he had done — and I am certainly pleased to know that he testified that he never did it or made any mention of the case, and I am inclined to believe his testimony. In view of the further fact that Mr. Hays says that on his visit there was nothing said about a woman — at least he never heard any — and all he did hear was something about ‘a fire.’ ”
In the State v. Moore, 79 Kan. 688, 100 Pac. 629, this court declared the rule to be that—
“Where an issue of fact involving the qualification of a juror in a criminal case is raised by a motion for a new trial, and all the evidence upon the question is oral, the decision of the trial court denying the motion will be held conclusive if there is any substantial evidence in support thereof.”
See, also, State v. Bancroft, 22 Kan. 170; State v. Bassnett, 80 Kan. 392, 405, 102 Pac. 461; State v. McLemore, 99 Kan. 777, 784, 164 Pac. 161; State v. Brown, 114 Kan. 452, 219 Pac. 279.
In the case last above cited, the court said:
“It has been explicitly determined that where all the evidence upon the question of the qualification of the juror is oral the trial court’s decision is conclusive (State v. Moore, 79 Kan. 688, 100 Pac. 629; State v. Bassnett, 80 Kan. 392, 102 Pac. 461), and the principle is the same where only a part of the evidence is oral.” (p. 455.)
Defendant.argues that there was error in the instructions to the jury. She claimed that she .and Elmer S. Kithcard, jointly charged with her as a defendant in the action, were the owners of the hay and urged her ownership as a defense. The instruction complained of was as follows:
“It is not for yon to determine in this case as to who was the owner of the alfalfa hay in question at the time the same was destroyed by fire. The question for you to determine is whether or not the defendant, Ada C. Gardner, set fire to the alfalfa hay in question, which hay or the right to the possession of the same at the time belonged to another or others.”
Other instructions concerning this matter were as follows:
“8. If you find from the evidence in this case beyond a reasonable doubt, that the defendant, Ada O. Gardner, set fire to the alfalfa hay in question, and that such hay belonged to another, or any other person having any interest therein, your verdict should be one of guilty, -unless you should further find that she had the consent of such other person to the setting of such fire, or that she did the same honestly and in good faith, believing that she was the absolute owner of such hay and had the right to set fire thereto.
“9. The fact, if it be a fact, that the alfalfa hay in question, was .paid for by either of the defendants, should not be taken by you as a satisfaction for the criminal charge brought in this case, for if you believe from the evidence, beyond a reasonable doubt, that the defendant, Ada C. Gardner, set fire to the alfalfa hay in question, the property of another, your verdict should be one of guilty, whether such hay has been paid for or not.
“10. Intent is an essential element and ingredient in every crime. If you should believe from the evidence in this case, beyond a reasonable doubt, that the defendant, Ada C. Gardner, set fire to the alfalfa stacks in question, and you should further believe from the testimony in this case that she committed such act honestly and in good faith, believing that she was the owner of said alfalfa stacks, or you have any doubt upon that proposition, then you shordd acquit her. But in determining this question you should consider all of the testimpny and circumstances in the case and the conduct of the defendant, whether or not she acted upon an honest belief that she had a right to set fire to said alfalfa stacks, if, in fact, you find that she did.”
Instruction No. 11, of which the defendant complains, must be read in connection with instructions numbered 8, 9 and 10, because they all concern the same subject.
In State v. Atterberry, 59 Kan. 237, 52 Pac. 451, this court said that—
“Instructions are to be construed as a whole, and an inaccurate expression in one of them is not a ground for reversal where it appears from the entire charge that the jury were not led astray by the inaccuracy.”
See, also, Hays v. Farwell, 53 Kan. 78, 35 Pac. 794; Railway Co. v. Brandon, 77 Kan. 612, 621, 95 Pac. 573; State v. Killion, 95 Kan. 371, 382, 148 Pac. 643; Murphy v. Gas & Oil Co., 96 Kan. 321, 325, 150 Pac. 581, and cases there cited; State v. Husong, 109 Kan. 84, 86, 197 Pac. 874; State v. Wellman, 114 Kan. 671, 675, 220 Pac. 271; State v. O’Brien, 114 Kan. 703, 220 Pac. 208, and cases there cited; and State v. Stewardson, 121 Kan. 514, 516, 247 Pac. 429.
The ownership of the hay was not in issue in this action, so that the finding of the jury on that question would determine the title thereto. Ownership was in issue only so far as necessary to determine the defendant’s good faith in claiming that ownership.
An examination of the instructions discloses that care was exercised in instructing the jury concerning the ownership of the hay, and that the court correctly admonished the jury that if the defendant in good faith believed that she owned the hay, or a part of it, and had the consent of the other part owner to bum it, she should be acquitted. There was no error in the instruction.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
Frank Sargent and Julia Murray were jointly charged with the burglary and larceny of the First State Bank of Lansing. On separate trials each was convicted as charged. They have filed separate appeals. The records in the two cases are similar, and Frank Sargent has stipulated to submit on the abstract and brief filed on behalf of Julia Murray.
It appears to be conceded in this case that the bank was entered, robbed and set on fire the night of November 27,1926, by William C. Hallisy, Pat McConnell and Lawrence Fleming, three underworld characters of Kansas City. These persons were apprehended soon after the offense was committed, made statements admitting their participation therein, and that they had been employed to do so by the appellants, Frank Sargent and Julia Murray. It was not the contention of the state that these appellants were present at the time the offenses were committed. The prosecution is for burglary in the second degree (R. S. 21-520) and larceny in connection therewith in one count under R. S. 21-524, and on the theory that prior to the actual commission of the offense they aided and abetted the same, and hence were guilty as principals under R. S. 21-105. (See State v. Mosley, 31 Kan. 355, 2 Pac. 782; State v. Wolkow, 110 Kan. 722, 726, 205 Pac. 639.)
The evidence tended to show that Julia Murray had been bookkeeper and assistant cashier in the bank for about ten years. She had been married and divorced. Frank Sargent was a contractor residing at Leavenworth. He had been married and divorced. Frank Sargent and Julia Murray had been keeping company for about a year prior to the offense charged. The bank was short in its accounts perhaps $20,000. The receiver who took charge of it soon after the offense charged, after checking it up, found it short about $27,000. Just how this shortage came about is not clearly shown.
In the latter part of November, 1926, appellants got in touch with the three persons who actually committed the offense; either Sargent or both appellants had several conferences with them, and hired them to rob the bank, take out certain of the books and deliver them later to Sargent, and set the bank building on fire so that it would burn and destroy what was left. Appellants were to leave $2,400 in a certain place in the safe, which the hired robbers were to take for their compensation. The evidence tended to show that the three persons who actually committed the offense undertook the employment on that basis; that Frank Sargent and Julia Murray together gave them actual instructions how to get into the building;-that Julia Murray gave them the combination to the vault, told them where the key to the inner steel doors would be found, under a red card in a drawer in a certain desk at the bank; told them the outer door or window that had been boarded up and used to put coal in the basement would be unlocked or open so they could enter that way. They made three trips to the bank for the purpose. On the first trip they entered the bank as appellants told them it could be entered, but made a mistake in attempting to work the combination and could not get into the vault, and left. This was reported to appellants and the mistake explained. They went back the second time; got into the building and into the vault in accordance with directions from appellants. The plan then was to take the small safe, which had a time lock on it, away with them, but it was so heavy they were not equipped to handle it. This was explained to appellants, who informed them that the catches on the time lock would be broken off so that they might open the safe. With this information they went back and entered the bank and the vault under directions given by appellants, found the time lock so they could open the safe, took out the books they were to take and the money which had been left for them, which amount proved to be only about $400 instead of $2,400, as promised, scattered inflammable oil about the building and set it on fire, and made their escape. As previously stated, they were afterwards apprehended, told this entire story in detail, and testified to it in the trial of the cases of these appellants. The fire was put out before a great deal of damage was done and the burglary and robbery discovered. The evidence which the state relied upon to sustain the conviction is almost wholly that of the three persons who committed the offenses, there being a few items of circumstantial corroborating evidence.
On this appeal appellants present several questions. It is contended, first, that the information was fatally defective. The information charges the breaking in with the'intent “to commit some felony therein,” and charges larceny. The statute (R. S. 21-520) uses the expression “with the intent to steal or commit any felony therein.” Appellants contend that the information does not conform to the statute in alleging the purpose of the entrance. This point has no substantial merit. As provided by R. S. 21-524 the charge of the burglary and larceny were in the same count, and while it is charged that the intent was the commission of a felony, the count proceeds to charge the specific felony committed, and hence is not sufficiently indefinite to preclude a proper defense. More than that, at the preliminary examination, held prior to the filing of the information, the evidence, which was substantially the same as at the trial, disclosed the specific felony which the state charged had been committed after the entrance, and the intent of the persons entering, hence appellants were not misled by the wording of the information. No motion to quash the information was filed. The question was raised only by a motion in arrest of judgment, under R. S. 62-1605, which permits but two questions to be raised (State v. Yargus, 112 Kan. 450, 211 Pac. 121), neither of which is good in this case.
Appellants contend that the evidence was not sufficient to support the verdict, hence that their demurrer, or motion for a discharge at the close of the state’s evidence, should have been sustained; also their similar motion at the close of all the evidence. The brief recital of the evidence previously made discloses that this point has no merit. The testimony of those who did the actual robbery was sufficient, even if not corroborated. (State v. Eyth, 124 Kan. 405, 260 Pac. 976, and cases there cited.)
Appellants contend that the evidence did not disclose a breaking into the building, and hence does not support the conviction of burglary. There is some confusion in the testimony of the witnesses on behalf of the state as to whether or not the door or window through which they 'entered the bank building was open or simply unlocked so they could open it, which they did. The jury might very well have concluded that the door was simply unlocked so that the persons entering it could open it. But if we give the evidence the construction appellants now contend, that the door or window was actually open so that the persons who went in had to do no breaking or opening, it avails the appellants nothing in this case, for, under the evidence, that must of necessity have been done by the appellants, hence to that extent they participated in the actual burglary. It is clear from the evidence that when the cashier left the building late in the afternoon before the burglary and robbery at night that the windows and doors were all locked and securely fastened. Hence in this case it is immaterial whether the persons who went into the building and committed the actual robbery unlocked or broke open the outer door or window, or whether that was done by the appellants in order that^the other parties might enter. With this construction of the evidence, which seems inevitable, the authorities cited by appellants, that there must be an actual breaking to constitute burglary, are not in point.
Complaint is made that the court did not give an instruction that the evidence-of accomplices should be received with caution. There was no request for such an instruction. In the absence of such a request the general instruction on the weight to be given to the testimony of the various witnesses was sufficient. (State v. Ross, 77 Kan. 341, 94 Pac. 270; State v. Patterson, 52 Kan. 335, 34 Pac. 784.) The same may be said of the complaint that there was no instruction on the defense of an alibi, for which there had been no request. (State v. Nichols, 117 Kan. 630, 232 Pac. 1058; State v. McManaman, 120 Kan. 376, 244 Pac. 225; State v. Cassady, 121 Kan. 331, 332, 246 Pac. 508.)
Complaint is made that the court received evidence of the setting fire to the building. The contention is that that was a separate offense, not alleged, and hence prejudicial. It was evidence pertaining to the conduct and acts of the parties at the time of the burglary and robbery, and is, for that reason, competent, notwithstanding the fact it may have disclosed that another offense was committed.
Complaint is made of the refusal of the court to give certain instructions requested. These, so far as they were proper, were embodied in the instructions given.
We find no error in the record, and the judgment of the court below is affirmed as to each of the appellants. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a landlord to recover from a tenant, who abandoned the leased premises and ceased to pay rent, the difference between the stipulated rent and the amount the landlord was able to obtain for use of the premises by reletting them to various temporary tenants. Plaintiff was denied full recovery and appeals.
There were two inconsistent defenses: Consent of the landlord to surrender by the tenant, and eviction of the tenant by the landlord. The abstract states there was no evidence of eviction. The jury were asked to state what plaintiff did to constitute eviction, and the special question was not answered. Therefore, the verdict and judgment do not rest on eviction.
The jury found the tenant surrendered with the consent of the landlord because the landlord did not consult the tenant with respect to reletting, did not notify the tenant of the terms of the re-lettings, and did not notify the tenant what he would be expected to pay, or that he would be held for the difference. A tenant may not, by abandoning the premises and ceasing to pay rent, relieve himself of obligation to pay rent. He cannot reap an advantage from his own breach of the contract. If he desires to surrender he must secure the landlord’s consent, and if he alleges surrender he must establish unequivocal manifestation of consent on the part of the landlord to termination of the relation of landlord and tenant. When a tenant abandons leased premises and ceases to pay rent a landlord is not privileged to collect stipulated rent in full if he can make the premises earn something by reletting them. The tenant does not need to be told what his obligation is. He knows it is to pay rent to the end of the term, according to the covenant of the lease. Therefore reletting does not establish release of obligation to pay rent, and notice of reletting is not necessary to prevent surrender. All this has been said before, in the opinions in the cases of Brown v. Cairns, 63 Kan. 584, 66 Pac. 639, and Hoke v. Williamson, 98 Kan. 580, 158 Pac. 1115.
In the opinion in the case of Rogers v. Dockstader, 90 Kan. 189, 133 Pac. 717, appears the following:
“In Engstrom v. Tyler, 46 Kan. 317, 26 Pac. 735, it was held to be a good defense to an action for rent that during the term of the lease the landlord entered and took possession and leased to various parties and collected and retained the rent.” (p. 193.)
This statement of the effect of the decision in the Engstrom case is incorrect. The material portion of the opinion reads:
“While this answer is not well drawn, yet we think it states a cause of defense at least to some part of the plaintiff’s claim.” (Engstrom v. Taylor, 46 Kan. 317, 318, 26 Pac. 735.)
The items of plaintiff’s claim were not disputed, and he is entitled to the full amount prayed for. The cause is remanded to the district court with direction to modify the judgment accordingly. As modified, the judgment is affirmed. | [
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The opinion of the court was delivered by
Hiutchison, J.:
This is an appeal from an order in a divorce action granting a modification of an order for permanent alimony and for the support of the minor child. In May, 1926, the plaintiff, Grace Dague, obtained a decree of divorce against her husband, awarding her the custody of the minor child, certain real property, and $30 per week as permanent alimony for her and for the support of the child. In April, 1927, less than one year after the granting of the decree, the defendant husband filed a motion to modify the weekly allowance because of his inability financially to comply with the order on account of the decrease in his income and the decline in his business generally. The court heard the motion and evidence as to the business and the income and expenses in connection therewith and sustained the motion by reducing the weekly payments to $15 per week until September 1, 1927, and after that date until the further order of the court to $20 per week.
The plaintiff, appellant here, contends that this weekly allowance is, as the original decree states, permanent alimony and is in effect a judgment and cannot be changed. The appellee, defendant in the trial court, insists that it is not permanent alimony but is really support money for the minor child, and under R. S. 60-1510, can be modified or changed at any time to suit the circumstances of the parties and the best interests of the child.
The legal aspect is hardly debatable until the premise is established. If the weekly allowance is really permanent alimony, it will, we imagine, be conceded that it cannot be modified, and a similar concession, we think, would be as readily made in favor of modification if this weekly allowance is not permanent alimony, and is intended, either in whole or in part, for the support of the child. The following is the language of the journal entry as far as it concerns the question of alimony or support of the child:
“The court finds that the plaintiff should be declared and decreed to be the owner of lots 38 and 40 on Water street in Allen’s resurvey of Turner’s addition to the city of Wichita, Sedgwick county, Kansas, and that the balance due on said property in an approximate amount of 8450 should be paid by the defendant. The court further finds that the plaintiff should have and recover as permanent alimony the sum of 830 per week, which said amount should be paid on ■ Monday of each week into the office of the clerk of the. district court of Sedgwick county, Kansas, and the court further finds that the defendant should pay plaintiff’s attorney an additional sum of 850.
“It is, therefore, by the court considered, ordered, adjudged and decreed that the bonds of matrimony heretofore existing and now existing between this plaintiff and this defendant be dissolved, set aside and held for naught, and that the plaintiff herein should be divorced from the defendant, and it is further ordered that the defendant shall, on each Monday of each week pay into the office of the clerk of the district court of Sedgwick county, Kansas, the sum of 830 as permanent alimony for the plaintiff and for the support of Virginia Belle Dague.
“It is further ordered that the plaintiff is adjudged to be the owner of lots 38 and 40 on Water Street in Allen’s resurvey of Turner’s addition to the city of Wichita, Sedgwick county, Kansas, together with all of the improvements thereon, and that the defendant shall pay the balance due on said property, in an approximate amount of 8450, and that such amount should be paid at such times and in such amounts and in such manner as is provided in the mortgage securing the same.
“It is further ordered that the care, custody and control of Virginia Belle Dague be vested and given to the plaintiff herein.”
Our attention is directed to some difficulties with reference to concluding the weekly allowance to be permanent alimony. One is the failure to state the time this allowance is to continue. Is it to-continue during the life of the wife? Is it to be paid out of the estate of the husband if she should survive him, or is it to discontinue at his death? These are pertinent questions. In the Case of Bassett v. Waters, 103 Kan. 853, 176 Pac. 663, the court held that permanent alimony was subject to assignment and permitted the collection of the remaining installments due by the assignee of the wife after her decease. Again, this allowance is not designated as a part of an aggregate sum, and for that reason it is impossible to compute the total amount of it. Permanent alimony is generally put in the form of a judgment, which requires the amount to be definite. That is impossible in this case. See Scott v. Scott, 80 Kan. 489, 103 Pac. 1005. True, the journal entry states twice that this allowance is made its permanent alimony, but calling it such is not conclusive. If it is permanent, what construction must be given the phrase, “and for the support of Virginia Belle Dague”? Appellant says the wife was given the allowance and the custody of the child, and was expected to support the child out of this allowance and her other means, but that will not relieve the father from the support of the child if the mother should die or for any reason fail or be unable to support the child. In such case the court would, without hesitation, impose on him that duty regardless of the wife and.her ability or attitude. (Combs v. Combs, 99 Kan. 626, 162 Pac. 273.) This was the particular contention in Miles v. Miles, 65 Kan. 676, 70 Pac. 631.
“Under the provisions of section 645 of the code of civil procedure (Gen. Stat. 1901, § 5138), the court retains the right at any time, upon its own motion, or the suggestion of any one interested, to make such reasonable order as may be necessary on either or both of the parties to a divorce action to provide for the guardianship, custody, support and education of. their, minor children, and such orders may from time to time be changed. Such right exists independently of the provisions of section 568 of the code (Gen! Stat. 1901, §5054).» (Syl.) '
“The district court granting a divorce may, on proper motion and notice, modify or change any order originally made, providing for the custody, support and education of the minor children, whenever circumstances render such change proper." (Kendall v. Kendall, 5 Kan. App. 688, syl. ¶ 2, 48 Pac. 940. See, also, Greenwood v. Greenwood, 85 Kan. 303, 116 Pac. 828.)
Taking the theory of the appellant as far as possible, one cannot avoid the conclusion that at least a part of the weekly allowance was intended for the support of the child; perhaps not all of it; .It would require a very strained construction of the language of the journal entry to conclude that the weekly allowance was all intended for the wife and was absolutely and entirely intended for permanent alimony. We concur with the trial court in holding that it was not so intended and was therefore capable of being modified at any time “whenever circumstances render such change proper.”
It is urged that the financial accounts and statements rendered and introduced in evidence do not show any change in the earnings and income of the appellee, but the only change shown is the increased expense assumed by him in supporting a second wife. Without taking into account this very natural increased expense, we think there was evidence showing a decrease in his income, and at least sufficient proof along that line to support the necessary and implied finding of the trial court in that respect.
The order modifying the order of the decree is affirmed.
Marshall, J., not sitting. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an original proceeding in mandamus to compel the defendants, the members of the board of county commissioners of Leavenworth county, to proceed át once with the construction of a hard-surfaced improved highway between the towns of Tonganoxie, in Leavenworth county, and McLouth, a short distance across the county line in Jefferson county. The motion for an alternative writ sets out in detail the various steps taken for the approval, establishment and construction of the road in question. The alternative writ was issued and an answer was filed thereto by the defendants, which justifies the action of the defendants upon three grounds, or for three reasons, as expressed by defendants in their brief: ' First, “the evidence in the case at bar does not warrant a peremptory order [as prayed for] ... for the reason that it has not been shown said defendants have been guilty of such dereliction of duty as merits such orders”; second, the evidence in the case does not show the defendants have so willfully and maliciously neglected or refused to do their duty as to merit a peremptory court order enjoining them to do dutiful acts which they are ready and willing to do in so far as they are able; third, the original petition for the road in question is null and void and of no effect.
A stipulation was filed agreeing to, or modifying, the several allegations of the motion, and depositions were taken as to a few points not covered by the stipulation, mostly as to the attitude of the defendants toward the completion of the road in question. It appears from the stipulation that this road was regularly approved by resolution adopted by the board of county commissioners of Leavenworth county on July 26, 1919, finding all necessary preliminary steps had been regularly taken. Steps were promptly taken by the board to meet in conjunction with the board of county commissioners of Jefferson county as to the establishment and construction of the road on the county line and its extension beyond the line. The necessary joint action and action by Jefferson county for the extension were regularly taken approving the road. It is also stipulated that between July 20, 1920, and August 29, 1920, the board of county commissioners of Leavenworth county proceeded with the making of the survey, and its engineers surveyed, laid out, and did much of the preliminary work upon the road.
It is further stipulated that, beginning with the month of April, 1925, the board has constructed five culverts in the road up to grade and according to the specifications and requirements of the state highway commissioner. In doing so the board cut down two fills and expended for culverts and grading more than $12,000. In this same connection five separate pieces of right of way have been purchased to avoid sharp and hazardous turns. The stipulation further shows that since 1924 the board signed up an application for federal aid on this road, and requested it to be recognized as a state highway, which request was granted. It is also stipulated that two other hard-surfaced roads approved by the board, one in 1925 and the other in 1926, are under construction in Leavenworth county; that the work on these other roads will not likely be completed before the year 1932 or 1933.
The depositions show the attitude of defendant Short to have been and to be against building the road, and that he knows no good reason why it could not have been built if the petitioners had pressed it as they are now doing; that he has been on the board since 1904, except the years 1913, 1914,1915 and 1916; that he has never taken any steps towards the construction of this road because he was not in favor of building it at any time. It is shown that defendant Hand has been on the board since 1922; that he signed an application for federal aid for this road, but it was never presented; that he has never Hone anything to bring this matter before the board for action; that-he knows of no good reason why the grading contract could not have been let and the road built, outside of the fact that none of the commissioners were pushing it. Defendant Rush has been on the board since 1925. The road in question lies in his district as commissioner. His attitude is and always has been in favor of constructing the road.
The first point raised and .urged by the defendants is that the defandants have not been derelict of any duty, and the evidence does not warrant a peremptory writ. The facts above enumerated from the stipulation and the depositions show an unusual delay in completing this road approved almost nine years ago; that two other roads for which petitions were filed six or more years later are progressing faster and work is being done on them, and the most encouragement that has been obtained from the board is that .this road may be taken up after the other two are completed, which may be in 1932 or 1933. We concur with the defendants Short and Hand, whose testimony is substantially quoted above, in saying we can see no good reason why the grading contract should not have been let and the road constructed. They add that it would have been if the petitioners had pressed the matter as they are now doing. We hardly think it is necessary for parties interested in a project to press it upon public officers in order to get action on the matter-by them; but if it is, the stipulation shows in paragraph six that “the parties interested in said proposed road have from time to time requested the defendant commissioners to proceed with the construction and completion of the same.”
One of these two commissioners says he has never done anything to bring this matter before the board, while the stipulation shows he was frequently requested to proceed with its construction. The other plainly admits that he took no steps toward constructing it because he was not in favor of building it at any time. These expressions sound very much like personal views and preferences as against the official action of the board. From the record here, it would seem that some of these defendants failed to heed the pronouncement of the law in a similar case against them, where it was said:
“Where the county commissioners have allowed a petition for the hard-surfacing of a road over a definite route, making the appropriate findings and orders, they cannot upon the strength of a new petition make a substantial change in the route.” (State, ex rel., v. Leavenworth County Comm’rs, 121 Kan. 148, syl. ¶ 1, 245 Pac. 1051.)
The evident change proposed here is the abandonment of the route by inaction. The facts here plainly show there is no good reason for this continued inaction and'that it is the duty of the board to proceed with the construction. The excuses given of being busy on two other roads for which petitions were filed six years later do not justify the discrimination of postponing the earliest one until the others are finished.
“Where a road is petitioned for and the petition has been found by the board of county commissioners to be adequate and valid, and the road of public utility, and an order for the improvement has been made by the board after a hearing had upon due notice to all persons interested, and the order has become a finality, it is the duty of the board to proceed without delay in making the improvement.” (State, ex rel., v. Johnson County Comm’rs, 124 Kan. 511, syl. ¶ 3, 260 Pac. 985.)
“The fact that other roads are contemplated or in course of construction affords no reason for abandoning or refusing to proceed with the road petitioned for and ordered built.” (State, ex rel., v. Johnson County Comm’rs, supra, p. 516. See, also, State, ex rel., v. Franklin County Comm’rs, 124 Kan. 141, 257 Pac. 716; State, ex rel., v. Linn County Comm’rs, 120 Kan. 356, 243 Pac. 539.)
As to the second point raised by defendant, that the evidence does not show that the defendants have willfully and maliciously refused to do their duty, the motion does not seem to charge that their refusal was malicious, nor do we think such charge and proof necessary for the issuance of a peremptory writ. But there can be no question that the refusal was willful in the sense that it was intentional.
For the third point the defendants urge that, by virtue of chapter 215 of the Laws of 1925, the original petition is null and void because no action was taken and no improvement made within three years following the date of the approval of the road. The stipulation shows that the survey was ordered within one year after the approval and made within fo'urteen months after the approval. The stipulation further shows the construction of the five culverts was commenced in April, 1925, and the law cited became effective May 28, 1925. These defendants did several things with reference to the completion of the road after 1924, and if for any reason the three-year provision should apply they are not in a position to urge it after building culverts, buying land to avoid sharp corners, and having the road recognized as a state highway. The defendants have waived any such limitation, if it ever did apply, and are estopped to urge it now after recognizing the road as it was ap.proved by the board and after spending more than $12,000 on its construction. Such conduct is manifestly inconsistent with the intention to insist on a limitation. (37 C. J. 721.)
The judgment of the-court is that the peremptory writ issue commanding the board to proceed at once with the necessary steps for the construction and completion of the highway. Jurisdiction will be retained for the purpose of making the judgment effective in case further orders become necessary. The cost of the action is taxed to the defendants. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one by a mortgagee to recover the value of corn sold and delivered by the mortgagor to the defendant. Defendant prevailed and plaintiff appeals.
The facts are substantially as follows: The plaintiff held two mortgages on certain corn of John Wensuc, growing in different fields, one for $201, another for $178.75. During November and December, 1924, Wensuc sold 1,174 bushels and 20 pounds of corn to the defendant. The manager of the defendant company testified that Wensuc told him in November the corn was mortgaged for $385. On December 6 plaintiff sent defendant’s manager a note which reads:
“Dick, you may give John a check for $201 in my name for one note and it will be all right. John Slocum.
“P. S. — And pay him the balance on what he has.”
Wensuc later sold more corn to the defendant, who paid him the amount due, and plaintiff received nothing on his second mortgage. The sole question is whether or not the defendant placed the proper construction on the written note signed by Slocum. The note appears definite in that defendant was to make a check for $201 to Slocum. The postscript, “And pay him the balance on what he has,” could readily be interpreted to mean that the mortgagee desired the balance for the corn to be paid to the mortgagor. The major portion of the corn had been delivered, and if plaintiff desired to enforce his rights under the mortgage he should not have instructed the elevator company to pay the balance to the mortgagor.
The trial court, considering all of the facts and circumstances and the relationship of the parties, found as a fact that the defendant correctly interpreted the letter sent by plaintiff, and that plaintiff could not recover. We are of opinion the statement contained in the postscript was so definite as to what was to be done with the balance of the proceeds of the corn that there can be no question but that defendant acted in accordance with the instruction. No good reason appears for having written the statement contained in the postscript unless the plaintiff meant that the defendant should pay the mortgagor for the balance of the corn.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The plaintiff has filed a motion to modify the decision rendered in this action on May 5, 1928. He asks that the surveyor be directed to establish the quarter-section marker equidistant between the unquestioned government markers found at the northeast and northwest corners of the sections.
It was stipulated between the parties that the only question to be decided was whether the survey should be made on the proportionate basis provided by the statutory rule or on some other basis. On the theory that the quarter-section stones had been set on the middle of that line by the surveyor according to the statutory rule prescribed in R. S. 19-1422 and that his action had been approved by the trial court, its decision was affirmed by this court. A closer examination of the record reveals that the quarter-section stone had not been set on the basis of the statute equidistant between.the established government corners. It becomes necessary, therefore, to modify the judgment in that respect; and the district court is directed to modify its judgment requiring the surveyor to establish the middle line of the section equidistant between the unquestioned government corners so that the deficiency of territory in the north half of the section shall be equally divided between the owners of the northeast and the northwest quarters of the section.
So modified, the judgment will stand affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an original proceeding in mandamus to require the presiding judge of the Montgomery county district court to grant a jury trial in an action pending in his court in which the petitioner herein is plaintiff and four corporations are defendants.
The verified motion for the writ makes it appear that the action in which the jury trial is demanded as a matter of right is for the recovery of a money judgment on three common-law counts:
The first pleaded the breach of a certain contract whereby four defendant corporations bound themselves to take 10 per cent of the daily open-flow production of a certain gas well on a leasehold of plaintiff and to pay 7 cents per 1,000 cubic feet therefor. It was alleged that the daily open flow was in excess of 10,000,000 cubic feet, but defendants took no more than a total of 7,645,000 cubic feet in a period of 68 days, when they should have taken at least 68,000,000 cubic feet and should have paid 7 cents per 1,000 cubic feet therefor, for which cause of action plaintiff prayed judgment in the sum of $4,264.87.
The second count was for an alleged balance of $70.15 due plaintiff for gas taken by defendants.
The third count was based on an alleged loss of gas because of a leak in the connection installed by defendants between plaintiff’s gas well and the meter whereby 51,000,000 cubic feet was permitted to escape, and that this quantity of gas was worth 7 cents per 1,000 cubic feet, and defendants were liable to the plaintiff therefor in the sum of $3,570. The total recovery prayed for on the three counts was $7,905.02.
The answers of three of these defendants contained general denials, some minor admissions; one defendant pleaded that it had no interest in the contract; and two defendants specially pleaded that plaintiff’s gas well was wet, the gas therein loaded with water, the well incapable of delivering gas to the pipe line, and that the gas was of such poor quality that it was unacceptable to defendants’ customers.
On this joinder of issues the cause was set down for a jury trial at the January, 1928, sitting of court, but on a belated motion of defendants it was taken out of the list of jury cases and assigned for trial before a referee. Defendant's motion which induced the making of that order set out the following grounds therefor:
“1. That the cause of action involves a long account of a highly technical nature necessitating technical evidence upon question of geology, the open-flow capacity of the gas well, computation of pressure, calculations of meter charges, and other similar material difficult of ascertainment by a jury.
“2. That the second cause of action involves an alleged error in the cal dilations and reading of some 90 charts, not readily understood by laymen, and each involves mathematical calculation and computation of a technical nature.
“3. The third cause of action is for an alleged leakage of gas, and involves technical evidence similar to that required by the first and second causes of action.”
Plaintiff made timely objection to this motion- and the order of reference, made timely and proper application to have it set aside, claimed her constitutional right to a -jury trial, but all to no avail. She therefore invokes the jurisdiction of this court for the only adequate redress available to her — our prerogative writ of mandamus to require the respondent to grant her a jury trial.
What sort of an action did plaintiff state? Surely it was one justiciable at common law. Common counts were stated therein. It was not essentially an action for an accounting, although defendants chose to ascribe that character to it in their motion for a reference. The substance of the pleadings, not the label designated by the pleader, determines the character of an action. (Lapham v. Oil and Gas Co., 87 Kan. 65, 123 Pac. 863; Boam v. Cohen, 94 Kan. 42, 145 Pac. 559.) When a cause is properly justiciable before a jury such a trial may not be denied without the assent of parties. (Kansas Bill of Rights, §§ 5, 18; Kimball and others v. Connor, Starks and others, 3 Kan. 414; Atchison Street Rly. Co. v. Mo. Pac. Rly. Co., 31 Kan. 660, syl. ¶ 1, 3 Pac. 284; 34 Cyc. 778, 779; 23 R. C. L. 288.) So far as the code of civil procedure attempts to govern this subject, its provisions (R. S. 60-2903, 60-2923) must be read and construed in the light of our constitutional guaranty of jury trial where such trial is demandable as a matter of right; and a compulsory reference in derogation of such right can receive no countenance by this court, charged as it is with the solemn and responsible duty of supervising the administration of justice in all the courts of this state.
It is not enough to justify a compulsory reference that a jury trial would be protracted and tedious, or that a mass of technical or complicated facts constitute the evidence. While these conditions might make a reference desirable (23 R. C. L. 284), it could only be had by assent of parties. In Andrus and another v. Home Ins. Co. of New York, 73 Wis. 642, 3 L. R. A. 271, the action was on a policy of insurance covering a stock of drugs, paints, oils, medicines, stationery, books, wall paper and other miscellaneous merchandise. There had been a total loss by fire. The motion for compulsory reference was founded on affidavits showing that it would be necessary to examine bills of sale, inventories or accounts consisting of 1,200 or 1,500 items to ascertain the loss of the insured. The court held that it was not a case for compulsory reference. In part, it was said:
“Does such a case come within the statute authorizing the court, without the consent of the parties, to direct a reference on the ground that the trial of the issue requires the examination of a long account on either side, within the meaning of section 2864, Revised Statutes [of 1878]? It seems to us it does not. Though the examination of numerous items may be necessary to ascertain the amount of damages, yet that does not involve, directly, the examination of a long account. The value of the property destroyed is only collaterally involved as affecting the measure of damages. . . .
“Substantially the same ruling was made in Camp v. Ingersoll, 86 N. Y. 433, which was an action upon an award for the failure of the defendants to deliver certain stock; and it was insisted that to ascertain the value of the stock the examination of a long account would be necessary.
“But the court say 'though the examination of numerous items of damages may be involved, they do not constitute an account, technically and properly speaking, between the parties.’
“An account implies dealings and transactions between the parties; and where the action is based upon such an account which has to be examined and investigated in order to settle the rights of the parties, a reference can be made. But it is where the action is based upon the account itself, that a compulsory reference can be made. But it does not follow because a variety of items has to be examined to ascertain the amount of damages recoverable, that the same rule obtains. There the examination of the account is merely an incidental matter, not the main issue in the cause.” (p. 643.)
(See, also, notes in 25 L. R. A. 67 et seq.; 13 L. R. A., n. s., 146, 147; and 23 R. C. L. 289, 290.)
Counsel for respondent rely upon the case of Culbertson v. Cement Co., 87 Kan. 529, 125 Pac. 81, to justify the order of reference. In that case plaintiff did not even know what he was entitled to until a long and involved accounting should first be taken of gas drawn from under his land through gas wells on adjacent lands. It is hardly possible to discover an analogy between that case and the one at bar.
Counsel remind us that compulsory reference was in force in this Kansas territory prior to the adoption of the constitution, and that the guaranty of jury trial does not extend to cases not so triable at the time the constitution was adopted. Quite true. But as we have seen, plaintiff’s action is one on common counts, and neither in our territorial era, nor before nor since, has such an action been triable without a jury except by consent of parties. (23 R. C. L. 286, 287.)
It seems, also, that where a jury trial is demandable as a matter of right and that right is withheld, mandamus may properly be invoked. In this case, that point is not disputed. But see, Ex Parte Simons, 247 U. S. 231, 62 L. Ed. 231; McKee et al. v. DeGraffenreid et seq., 33 Okla. 136; Nichols v. Cherry, 22 Utah, 1; State, ex rel., v. Hart, 26 Utah, 229.
The foregoing necessarily disposes of the legal questions presented. This action in some respects is like the familiar one where mandamus is invoked against state officers and official boards who decline to perform some duty from no unworthy motive, but merely to lay the ground for a speedy and authoritative decision of this court to guide their official conduct. Judgment frequently goes against them, but the formality of issuing a writ is dispensed with. And under our practice the same is or may be true where the duty of *a district judge is drawn in question, although the determination of the legal question may similarly require the entry of judgment against him. In Bishop v. Fischer, 94 Kan. 105, 145 Pac. 890, where mandamus was sought against a district judge, this court settled the controverted question of law adversely to the view held by the respondent,- but concluded thus:
“The judge of the district court acted candidly and conscientiously. . . . Under these circumstances the present order will be that if the order of the district court be set aside within ten days from the filing of this opinion, this proceeding will be dismissed without costs, which are practically nominal, to either party.” (p. 115.)
We think a similar disposition should be made of the present proceeding. If the order of reference be set aside within ten days of the filing of this opinion and an order granting a jury trial be awarded, this proceeding will be dismissed without costs to either party.
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The opinion of the court was delivered by
Harvey, J.:
On July 9, 1925, William F. Ogg sued his wife, Sophia M. Ogg, for divorce. On consideration of her motion therefor the court allowed her $100 suit money and attorney’s-fees, which plaintiff paid, and also allowed her as temporary alimony $50 per month beginning August 1,1925, which payments plaintiff has made. There was other litigation between the parties growing out of their marital relations, some of which reached this court (Ogg v. Ogg, 122 Kan. 244, 252 Pac. 205; id., 124 Kan. 443, 260 Pac. 647). For some reason, perhaps because of the other litigation, there was delay in bringing this divorce action to trial. In March, 1927, defendant applied for additional temporary alimony and suit money, which was allowed in the sum of $502.70, and was paid. The merits of this allowance are not before us for review — it is mentioned simply as a part of the litigation. The divorce case was tried on its merits in April, 1927. Defendant resisted plaintiff’s action for divorce, but had no cross petition for divorce, or other affirmative permanent relief. The trial of the divorce case on its merits resulted in a judgment for defendant. Plaintiff filed a motion for a new trial, which was not disposed of until September 30,1927. During the pendency of this motion plaintiff continued to pay the $50 per month temporary alimony in accordance with the order of the court soon after the action was filed. In June, 1927, defendant filed a motion for an additional allowance of $425.68. This motion, and plaintiff's motion for a new trial, were presented to the court on affidavits and argument September 13, and were taken under advisement. On September 30, the court having advised the parties he was ready to decide the motions, they appeared in court, and plaintiff then asked permission to withdraw his motion for a new trial, which request was granted. The court then ruled on defendant’s motion for an additional allowance, and allowed the same in the sum of $225.68.
Plaintiff’s appeal in this case is from this order making this allowance of $225.68. No point is made of the fact that the order for this allowance was made a few minutes after plaintiff had withdrawn his motion for a new trial, for plaintiff conceded that both motions had been submitted to and considered by the court and were ready for decision. (See Gossett v. Patten, 23 Kan. 340.)
Appellant contends that the district court had no jurisdiction to award temporary alimony or expense money after the final rendition of the judgment in the divorce action, especially as the term of court at which the judgment was rendered had expired- and no jurisdiction to make further orders concerning alimony had been reserved, and that under R. S. 60-1507 temporary alimony is simply an interlocutory relief which expires with the entry of final judgment along with the power to make further orders of that character.
It cannot be said that the court had no jurisdiction to entertain and pass upon the motion. The case had not been finally disposed of in the trial court. It was still pending on plaintiff’s motion for a new trial, which the court had jurisdiction to sustain or overrule. Had the judgment in the case on its merits or the ruling of the court disposing of the motion for a new trial been appealed, this court would have had authority, as a part of its appellate jurisdiction, to make any appropriate order for temporary alimony and expense money pending the disposition of the case in this court. (Kjellander v. Kjellander, 90 Kan. 112, 132 Pac. 1170.) If plaintiff’s contention, that after the judgment in the case on the merits and before disposing of the motion for a new trial and an appeal to this court the trial court had no jurisdiction to entertain a motion of this kind, is correct, then there would be a period of time from the beginning of the action until its final disposition in this court when neither the district court nor this court would have authority to entertain such a motion.. There is no reason to so construe our statute as to make such a hiatus in jurisdiction.
In 2 Bishop on Marriage and Divorce, 6th ed., § 393, in speaking of suit money and temporary alimony, it is said:
“Though the common course is to make this allowance whenever the case is ripe for it, as will be hereafter explained, yet it is equally proper, on specific application for it, at any stage of the proceeding, whether before or after a verdict or appeal. And it is the same of temporary alimony to the wife.”
For the purpose of allowing temporary alimony and suit money the jurisdiction of the trial court continues as long as the case is pending (R. S. 60-1507) in any form in that court (1 R. C. L. 881; 19 C. J. 209, 210). Appellant cites Davis v. Davis, 141 Ind. 367. It does not support his contention. See, also, Hilker v. Hilker, 153 Ind. 425. Appellant cites Stockman v. Whitmore, 140 Ia. 378. This was an action by the attorneys of a wife who had sued her husband for divorce, and after a judgment against her on the merits and an appeal had been taken, had dismissed her appeal on her own motion against the husband for legal services rendered the wife. It was held plaintiff could not recover. The holding appears to be in conflict with our decisions (Gossett v. Patten, supra; Eisenbise v. Eisenbise, 98 Kan. 108, 157 Pac. 416), but cases on this point, many of which are collected in 25 A. L. R. 354, have little bearing on the question before us. Appellant cites Coons v. Coons (Mo. App.), 236 S. W. 364. There a divorce was granted to the husband plaintiff at the May term of court. Defendant filed a motion for a new trial. About two months later, and at the September term of court, defendant filed a motion for temporary alimony, which the court overruled, on the ground of lack of jurisdiction. This ruling was sustained by the court of appeals. The case differs from the one before us. There the divorce had been granted and the marriage relation dissolved. Here the divorce had been refused and the marriage relation continued. We have not analyzed the Missouri reports to see if, under them, there is a period of time which, in a case such as the one be fore us, no court would have jurisdiction to sustain a motion for support and suit money; and counsel has not analyzed them with this point in view. But if such be the holding of the courts of that state it does not accord with our judgment and with the rule which appears always to have prevailed in this state. Under our policy there is no time, from the beginning of the action in the trial court until its final disposition on appeal, if it be appealed, when either the trial court or this court does not have jurisdiction to entertain such a motion.
Appellant cites Roe v. Roe, 52 Kan. 724, 35 Pac. 808; McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546, and allied cases, holding that where a divorce is granted and no provision is made for alimony in the decree, and the question is not reserved by the court, a. later action for alimony cannot be maintained. These cases are, of course, not in point on the question before us.
Appellant cites Earls v. Earls, 26 Kan. 178, in which an order for temporary alimony is spoken of as being an order preparatory to trial, and in which it was said:
“Its force is spent before any trial is had or any decision reached upon the merits of the case.”
The language correctly characterized the order in the case then before the court, but the opinion does not attempt to be a thesis on the subject of temporary alimony and suit money, and the language should be interpreted with respect to the question then before the court. Appellee cites this case on the point that appellant’s appeal cannot be maintained, for it was there held that there could be no appeal from an order allowing alimony pendente lite before the disposition of- the case in the court below. But the case is not authority on that point, for the case before us has been disposed of in the court below. On the termination of the divorce suit, the order for the payment of temporary alimony became a final judgment. (Paul v. Paul, 121 Kan. 88, 245 Pac. 1022.) Considering all the arguments presented we conclude the trial court was not without jurisdiction to entertain the motion and make the order complained of.
Appellant contends that the award was erroneous on its face for the reason that it was for items of personal expense by defendant necessitated by her illness which arose after the hearing of the case on its merits, and argues that the previous allowance of $50 per month then being paid should have been notice to the world that that was the limit of plaintiff’s liability. This contention lacks merit. Allowances of this kind may be modified — either increased or diminished- — as changed circumstances warrant. It is further contended that the court erred in adjudicating the amount of the award in a summary manner. The application- was by written motion, the hearing was on affidavits filed by both parties pertaining to all features of the controversy. This is the ordinary way of hearing such applications.
Lastly it is argued that the order was not justified by the evidence. Having filed no motion for a new trial appellant is not in position to be heard upon that question. In Union Nat’l Bank v. Fruits, 124 Kan. 440, 260 Pac. 638, it was held:
“In the absence of a motion for a new trial there can be no reexamination of issues of fact.”
Earlier cases are there cited.
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The opinion of the court was delivered by
Harvey, J.:
This is an action to determine the title and right of possession to a quarter section of land. It was tried to the court, judgment was rendered for defendants, and plaintiff has appealed.
The facts, as disclosed by the pleadings, or found by the court, briefly stated, are as follows: Plaintiff is the holder through mesne conveyances of the title based on a tax deed, regular and valid on its face (but irregularities in the tax proceedings prior to its issue rendered it voidable), issued August 24, 1898, and duly recorded. The grantee in this tax deed and his successors in interest timely took actual and exclusive possession of the real property, and were thereafter and for more than five years continuously in the actual and exclusive use, occupation and possession thereof, but latex ceased to use the same, voluntarily removed all fences and other improvements, and left it vacant and unoccupied. They have paid the taxes on the land each year since the tax deed was issued.
In 1906 Dennis D. Doty, the holder of the record title based on the government patent, brought an action in ejectment against the then holder under the tax deed. In that case the trial court held the tax deed void on its face, and rendered judgment for plaintiff, from which the defendant appealed to the supreme court, where it was held (Doty v. Evans, 81 Kan. 463, 106 Pac. 278) that the tax deed was not void on its face and should be received in evidence to show title, and the judgment of the court below was reversed for further proceedings in accordance with the views expressed in the opinion. On the filing of the mandate in the trial court plaintiff asked to dismiss his action, which request was granted and judgment rendered against him for costs.
Some time after plaintiff had left the land vacant and unoccupied, defendants, claiming under a quitclaim deed from Dennis D. Doty, without the consent or knowledge of plaintiff, who was a nonresident of the state, to.ok actual possession of the land and were farming a part of it when this action was brought.
Appellant contends that the trial-court erred: (1) In holding that his title based on the tax deed was subject to attack in this case for defects not appearing on the face of the deed; (2) in holding that there were irregularities in the tax proceeding which rendered the tax deed voidable; and (3) in holding that the prior case was not res judicata. We find it necessary to discuss the first question only, for if that be decided in accordance with plaintiff’s views, the second becomes immaterial; and as to the third question, whether we consider the decision of this court in the prior case, or the finding of the trial court in this case, the tax deed is valid on its face — a fact not now questioned.
Turning our attention to the first question argued. It has been repeatedly held that a valid tax deed starts a new, independent chain of title to real property (R. S. 79-2501) and extinguishes and destroys all other titles and liens. (Board of Regents v. Linscott, 30 Kan. 240, 1 Pac. 81; Beltz v. Bird, 31 Kan. 139, 1 Pac. 246; McFadden v. Goff, 32 Kan. 415, 4 Pac. 841; Douglass v. Lowell, 64 Kan. 533, 538, 67 Pac. 1106; Cone v. Usher, 86 Kan. 880, 884, 122 Pac. 1049; Beeler v. Elwell, 92 Kan. 586, 141 Pac. 551.)
The holder of a tax deed has a limited time (two years) within which to bring an action for possession of the property (R. S. 60-303, 3d clause), but if he acquires possession of the property, a suit against him for the recovery of the land must be brought within five years after the deed is recorded. (R. S. 79-2505.). Generally speaking, these statutes relating to time for bringing action have been held to be “shields of defense,” rather than “swords of attack.”
But when a holder under a tax deed, valid on its face, has been in the actual possession of the real property described therein for more than five years after the tax deed was recorded, the tax deed and possession under it “ constitute a title sufficient to extinguish all rights, titles and interests of prior origin,” and may constitute a marketable title. (Van Gundy v. Shewey, 90 Kan. 253, 133 Pac. 720.) The holder of such a tax deed under such circumstances is entitled to a decree the effect' of which is to quiet his title against prior mortgages, titles and liens. (Trust Co. v. Jones, 81 Kan. 753, 106 Pac. 1052.) He may quiet his title against one Whose title was cut off by the tax deed. (Beeler v. Elwell, supra.) And when the holder of such a tax deed is in possession of the real property he may maintain an action in ejectment against one who wrongfully deposes him by force, fraud or stealth. (Nicholson v. Hale, 73 Kan. 599, 85 Pac. 592; Millikin v. Lockwood, 80 Kan. 600, 605, 103 Pac. 124; Buckner v. Wingard, 84 Kan. 682, 115 Pac. 636; Bank v. Sadler, 89 Kan. 321, 323, 131 Pac. 585.)
Appellees recognize the force of the decision above referred to, but argue that the case is not governed by the principles of law stated in Nicholson v. Hale, supra, and allied cases, for the reason that the possession of the premises taken by the defendants was not by “force, fraud or stealth.” They cite no authority in support of this contention; in fact they say: “We have in this case a different situation than in any reported case we have been able to discover in Kansas, or any other state.” It is difficult to see the force of appellees’ argument. Defendants went into possession at a time when plaintiff was absent from the premises, and without his knowledge or consent. It is difficult to see what greater rights defendants would have to do so, whether plaintiff’s absence from the premises was for a day only, or for several years. The only title appellees, or their grantor, had to this property had been extinguished; in fact, their grantor had abandoned an action for possession of the property after a decision adverse to him in the supreme court. Their title having been extinguished, they had no more right to the possession of this property than a stranger, and their act of going into possession was not under any right which they had, and was necessarily wrongful. Perhaps it is not necessary to stigmatize their conduct by harsh terms; but if so, their taking possession might be characterized as by stealth, for it was unknown to plaintiff and unauthorized by him, and without any legal right on their part. We think the rules of law stated in Nicholson v. Hale, supra, and allied cases, control the question before us. From this it necessarily follows that the judgment of the court below was erroneous. It is reversed with directions to enter judgment for plaintiff.
Hopkins, J., not sitting. | [
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The opinion of the court was delivered by
Hutchison, J.:
In this action the defendant was convicted of assault with intent to kill, and in his appeal urges four reasons for reversal. The first of these is error of the trial court in refusing a change of venue on account of intense feeling and prejudice of the local people, aroused by the printing and publishing of an article in the local paper and another article in a paper having general circulation in the county where the case was pending, both calculated to arouse prejudice and bitterness toward the accused. The two published articles are attached to the affidavit of the defendant. One of them purports to be a statement of facts by an eyewitness who later testified at the trial, the other of the quarrel and injury, as well as the occurrences supposed to have led up to the injury. The articles appear to be narrations of occurrences said to have taken place. They do not express opinions nor appeal to the prejudice or passion of the people, yet appellant claims he should have had a change of venue because these articles were reflections.on the character of the defendant. Reflections on the character of an accused from newspaper statements of alleged events, without conclusions or opinions, even though the statements are false, are not usually grounds for a change of venue. Justice Brewer said in the case of State v. Furbeck, 29 Kan. 533, with reference to certain newspaper articles being the basis for a change of venue.
“We have examined these articles, and find in them nothing more than ordinary newspaper accounts of .an alleged crime, the arrest of the party charged, and the preliminary examination. They are simply records of matters of public interest, alleged to have taken place; they contain no denunciations, invectives, appeals to passion, or efforts to create a prejudice against the defendant. If they did create a prejudice, it is simply because the matter's stated therein to have been done by the defendant are not popular with a community which believes in respecting the rights of property.”
In the opinion in State v. Welch, 121 Kan. 369, 373, 247 Pac. 1053, it was said:
“Newspaper articles which reported results of police and other activity, and undertook'to detail defendant’s connection with the Howard robbery, were of the ordinary kind, and would not disqualify a juror whose impressions respecting defendant’s guilt were derived from that source.”
It appears from the record in this case that a jury was easily and quickly procured, and that appellant waived his last challenge. A change of venue should not be granted by the trial court unless it appears to his satisfaction that on account of prejudice the defendant cannot have a fair and impartial trial. (State v. Bassnett, 80 Kan. 392, 102 Pac. 461.) The record does not present a very-strong case of that kind.
The second specification of error is for refusal to grant a continuance because of the prevalence of the excitement and prejudice in the minds of the inhabitants at the time the case was called for trial, and because the stenographer had refused to furnish defendant with a copy of the evidence taken at the preliminary hearing. This matter is wholly within the discretion of the court and there is nothing here to indicate any abuse of that discretion. (State v. Sweet, 101 Kan. 746, 158 Pac. 1112; State v. Waldron, 118 Kan. 641, 236 Pac. 855; State v. Carter, 122 Kan. 524, 253 Pac. 551.)
The third ground for reversal urged by appellant is the failure of the trial court to set forth without request the theory of self-defense maintained by the defendant in the trial by reference to the facts shown in support of such defense. If the defendant had requested such instruction it would have been the duty of the court to have given it, but it is not necessary for the court in his instructions to enumerate or discuss the items of evidence which may tend to show the defendant was acting in self-defense unless requested. All that is necessary in such case is to set out and explain to the jury in general instructions the whole doctrine of self-defense and the way for it to apply them to the evidence. This he did, and therefore his failure to go further into details without request was not error.
“Where the general charge of the court fairly presents the case to the jury, a party who desires an instruction upon some particular question should request it, and cannot predicate error upon the omission if he has not done so.” (State v. Ross, 77 Kan. 341, syl. ¶ 2, 94 Pac. 270. See, also, State v. Wood, 118 Kan. 58, 233 Pac. 1029.)
“In a murder case, where there is some evidence which tends to show a killing in self-defense, and that previous threats had been made by the deceased against the defendant, but the defendant makes no request for special instructions, and the court instructs the jury as to the burden of proof and in general terms as to the law of self-defense, it is not error to fail to expand the instructions on those subjects so as to apply them to the facts which the defendant claims the evidence shows.” (State v. Page, 80 Kan. 389, syl., 102 Pac. 780.)
The appellant strongly relies upon the fourth ground for reversal because of failure to grant a new trial on account of newly discovered evidence. The newly discovered evidence was that of the injured party in the quarrel. He was in the court room at the time of the trial but had not been called to testify. On the motion for new trial he testified for the defendant, giving a comparatively full statement of the surroundings and circumstances of the quarrel between him and the defendant, telling where he and the defendant went before or after each other, and stating, “I wanted to get to him, but he was just a little too fast for me . . . and when I opened the door leading to his room he got me.” It is contended by appellee that this is merely cumulative evidence along the line of that given by other witnesses at the trial. While for the most part it is cumulative, yet we would hesitate to so denominate that part above quoted where it is the testimony of the injured party and the appellant is relying upon self-defense. The fact that evidence is cumulative is not the only ground for refusing to grant a new trial on account of its being newly discovered. It is the duty of the court to consider the credibility of the testimony and whether it would probably produce a different verdict. (State v. Baker, 78 Kan. 663, 97 Pac. 785; State v. Nordmark, 84 Kan. 628, 114 Pac. 1068; State v. Fleeman, 102 Kan. 670, 171 Pac. 618.)
At the trial of the case a physician and surgeon testified that he had seen the injured party on the day of. the injury and “he had a knife blade stuck in his skull just above the left eye,” and further, “I examined him again this afternoon and find him suffering from mental disability. His brain functions correctly, but that portion of his brain used for putting his thoughts into words does not function properly. By reason of the injury he cannot convey the ideas he has in mind accurately.”
Thé evidence of the injured party was given in open court on the hearing of the motion for new trial, nearly three months after the trial, and upon cross-examination the injured party testified:
“I was present at the trial of the case, but my physical and mental condition was such that I could not testify at that time. I couldn’t remember scarcely anything at that time. My memory of what occurred the night I was hurt came back to me about two weeks ago. I started living with my wife again about a week ago. From the time of my injury until about a week ago we were separated.”
It is very apparent from this testimony that the trial court may very properly have questioned the credibility of the testimony of this witness on the ground of mental weakness or otherwise, and considered it improbable that a different result would be obtained in a new trial if granted. In connectiqn with the last part of the cross-examination above quoted it is not insignificant to note that the wife of the witness was a witness for the defendant in the trial. We think the trial court could have very reasonably entertained doubts as to the credibility of the witness giving the newly discovered evidence, and have been convinced that it probably would not produce a different verdict in a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover $165 and interest, the purchase price of a weighing machine bought by the defendant from the plaintiff. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
The action was tried without a jury. Special findings of fact were made. Those findings disclosed that the plaintiff, under a written contract, sold to the defendant a weighing machine for an agreed price of $165, and that the contract contained the following provision:
“It is sold to us with the understanding that we may return it to you at any time within thirty days from date of arrival of machine, instead of paying the purchase price. Return shipment to be made to the above address, by freight only; freight charges collect. Should we not ship it back to you within thirty days from date of its arrival, we will pay you the purchase price thereof, namely, one hundred sixty-five dollars, as follows: Ten dollars per month until paid; first payment to be made within forty days from date of arrival of the machine.”
The findings further showed that the machine was delivered to the defendant on September 20,1926; that the machine, when it was unpacked, was found to be defective; that the defendant wrote the plaintiff concerning that defect; that the plaintiff made no effort to remedy it; that on October 17, 1926, the machine was delivered by the defendant to a transfer company to be recrated and reshipped to the plaintiff, but that the machine was not delivered by the transfer company to the railroad company until November 1, 1926.
The plaintiff contends that because the defendant did not return the machine within thirty days after its arrival he was obligated to pay the purchase price therefor. The controversy turns on the quoted portion of the written order for the machine and whether or not the delivery of the machine by the defendant to the transfer company to be recrated and shipped to the plaintiff complied with the terms of the order giving to the defendant the right to return the machine within thirty days 'after its arrival. The contract means that the defendant had thirty days after receiving the machine in which to start it on its return trip to the plaintiff. The defendant delivered the machine to the transfer company, a common carrier, within thirty days after receiving it. His delivery of the machine to that company started the machine on its return trip to the plaintiff and complied with the conditions of the contract. The plaintiff cites cases holding that under a contract like the present one, where property is delivered under conditions similar to those in the present case and the purchaser retains the property beyond the length of time in which he has the right to return it, he is obligated to pay the purchase price therefor. The distinction between those cases and the present one is that in those cases the purchaser retained the property beyond the stipulated time; here, the purchaser started the property on its return trip within that time.
This conclusion renders it unnecessary to discuss the other questions presented by the plaintiff.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action in mandamus to compel the defendant, Frank J. Ryan, secretary of state, to issue to the plaintiff a certificate showing his election to the office of judge of the district court of the thirty-seventh judicial district, composed of Allen and Woodson counties, for a full term of four years commencing on the second Monday in January, 1927.
In November, 1924, R. E. Cullison was elected judge of the district court of the thirty-seventh judicial district for a full term of four years. On August 17, 1926, he tendered his resignation to the governor to become effective August 31, 1926. The resignation was accepted, and John W. ‘Brown was appointed to fill the vacancy. He immediately qualified and entered upon the duties of the office. At the succeeding election, which occurred in November, 1926, the plaintiff was elected to fill the office. He claims he was elected for a -full term of four years commencing at the regular time in January, 1927. The defendant claims that the plaintiff was elected to fill the remainder of the term for which R. E. Cullison had been elected.
The solution of the controversy necessitates an examination of the constitution to ascertain whether or not the situation presented is covered by its provisions.
Section 5 of article 3 of the constitution reads:
“The state shall be divided into five judicial districts, in each of which there shall be elected, by the electors thereof, a district judge, who shall hold his office for the term of four years. District courts shall be held at such times and places as may be provided by law.”
Section 11 of article 3 of the constitution, in part, reads:'
“In case of vacancy in any judicial office, it shall be filled by appointment of the governor until the next regular election that shall occur more than thirty days after such vacancy shall have happened.”
Section 12 of article 3 reads:
“All judicial officers shall hold their offices until their successors shall have qualified.”
Section 19 of article 2, in part, reads:
“The legislature . . . shall have the power to provide for the election or appointment of all officers, and the filling of all vacancies not otherwise provided for in this constitution.”
The constitution does not provide that a judge of the district court, elected when a vacancy has occurred, shall serve for a full term of four years commencing at the regular time for the installation of officers next after his election. The constitution is silent on that subject. Section 19 of article 2 then applies.
Section 20 of the bill of rights of the constitution of this state should be noticed. It reads:
“This enumeration of rights shall not be construed to impair or deny others retained by the people; and all powers not' herein delegated remain with the people.”
In Ratcliff v. Stock-yards Co., 74 Kan. 1, 86 Pac. 150, this court said:
“There are no limits upon the legislative power of the legislature of the state, except such as may be found in the state and federal constitutions.” (Syl. ¶ 3. See, also, The State v. Weiss, 84 Kan. 165, 168, 113 Pac. 388.)
What has the legislature said about filling vacancies in the office of judge of the district court? Section 25-312 of the Revised Statutes reads:
“All vacancies in any state or county office, and in the supreme or district courts, unless otherwise provided for by law, shall be filled by appointment from the .governor, until the next general election after such vacancy occurs, when such vacancy shall be filled by election.”
Section 25-313 of the Revised Statutes reads:
“The regular term of office of all state, district, county and township officers shall begin on the second Monday in January next' after the; election, except as otherwise provided by law.”
Section 25-314 of the Revised Statutes, in part, reads:
“Any of said officers that may be elected or appointed to fill vacancies may qualify and enter upon the duties of their office immediately thereafter, and when elected they may hold the same during the unexpired term for which they were elected, and until their successors are elected and qualified. . . .”
In Bond v. White, 8 Kan. 333, 341, the court used the following language:
“The meaning of the sections above quoted is plain and obvious. No language could be used which would more clearly express the object which the legislature intended to accomplish. In case of a vacancy the governor was t'o designate some one to discharge the duties of the office until the succeeding fall election, at which time the people were to elect a successor. The appointee could hold only until the fall election, and the qualification of the officer then elected. The officer elected held the unexpired term. This construction is supported, if support it needs, by the reasoning in the case of State, ex rel. Watson, v. Cobb, 2 Kan. 53, where the court say: ‘The general principle is that the judioiaiy are elective. The exception made to meet possible necessities, is by appointment to fill vacancies, but that appointment is expressly limited and must expire at the next regular election.’ ”
The court concludes that the plaintiff was elected for that part of the term of office of R. E. Cullison which had not expired when the election occurred in 1926. State, ex rel. Watson, v. Cobb, 2 Kan. 32, lends some support to this conclusion.
The writ is denied. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for personal injury sustained when plaintiff collided with a guy wire of an electric light pole, negligently maintained. The defense was that plaintiff had settled with the company whose negligent maintenance of the wire was the cause of the accident. Plaintiff recovered, and the city appeals.
The electric light pole and guy wire were erected by the Kansas Gas and Electric Company under a franchise providing the electric company should be liable to the city for all damages to person and property occasioned by or incident to the company’s use of the city streets, and should hold the city harmless from all damage or liability occasioned by the company’s occupancy of the city streets. Plaintiff sued the electric company for damages resulting from her injuries. Sladen, the company’s general manager, and Stone, its superintendent of construction and maintenance, were joined as defendants. The case was settled out of court, and plaintiff and her husband executed to the defendants in that action a release, which reads as follows:
“Now, therefore, in consideration of the sum of twenty-five hundred ($2,500) dollars, which has this day been paid to us by the Kansas Gas and Electric Company, H. S. Sladen and W. H. Stone, we, Alpha C. Rasnic and A. J. Rasnic, her husband, do hereby compromise said and all claims and causes of action arising out of or connected with said injuries and accident, and do hereby release and forever discharge the Kansas Gas and Electric Company, H. S. Sladen and W. H. Stone, and all persons and corporations for whose acts or omissions •or to whom the Kansas Gas and Electric Company, H. S. Sladen and W. H. Stone, might be held liable, directly or indirectly, because or in consequence of said injuries or accident or any present or future litigation arising therefrom, from any and all liability, claims, damages, injuries, expenses, actions or causes of action, past, present, or future, arising out of or connected with said injuries and accident to said Alpha C. Rasnic, and do hereby acknowledge full satisfaction of all liability, claims, damages, injuries, expenses, actions, and causes of action in the premises, and we hereby agree to dismiss and we hereby authorize the Kansas Gas and Electric Company, H. S. Sladen and W. H. Stone, to have dismissed, with prejudice, as to said defendants, and at the costs of the Kansas Gas and Electric Company, H. S. Sladen and W. H. Stone, the ease of Alpha C. Rasnic, plaintiff, versus the Kansas Gas and Electric Company, H. S. Sladen and W. H. Stone.
“Except as hereinbefore provided, we, Alpha C. Rasnic and A. J. Rasnic, her husband, hereby reserve and do not in any manner waive any rights or causes of action against anybody else except the Kansas Gas and Electric Company, H. S. Sladen and W. H. Stone.”
Pursuant to the settlement, the action was dismissed under the following stipulation:
“It is stipulated that this case as to the defendants, the Kansas Gas and Electric Company, H. S. Sladen and W. H. Stone, has been compromised, settled and satisfied by and between plaintiff and said defendants, and that plaintiff, by written release, has discharged the Kansas Gas and Electric Company, H. S. Sladen and W. H. Stone, and all persons and corporations for whose acts or omissions or to whom the Kansas Gas and Electric Company, H. S. Sladen and W. H. Stone, might be held liable, directly or indirectly, because or in consequence of the injuries and accident alleged and involved in this case, or any present or future litigation arising therefrom, from any and all liability, claims, damages, injuries, expenses, loss of service, actions or causes of action, past, present, or future, arising out of or connected with the said injuries and accident, but that otherwise plaintiff hereby reserves and does not in any manner waive any rights or causes of action against the city of Wichita or anybody else.”
The court instructed the jury that plaintiff reserved privilege to sue the city, and the release and stipulation did not bar her from recovery from the city for the negligent acts which were the basis of the action against the electric company.
The pertinent portion of the release may be segregated as follows:
“Do hereby release and forever discharge the Kansas Gas and Electric Company . . . and all persons and corporations ... to whom the Kansas Gas and Electric Company . . . might be held liable, directly or indirectly, because or in consequence of said injuries . . . from any and all liability, claims, damages . . .”
The electric company was under liability to the corporation, the city of Wichita, and the city was plainly relieved from liability to plaintiff. The reservation in the release begins thus: “Except as hereinbefore provided.” Therefore, the reservation related to something other than what had been provided for, and did not conflict with the release or render it ambiguous.
The terms of settlement included dismissal of the action, and the release contained a provision for dismissal. The stipulation for dismissal recited the release. The reservation in the stipulation begins thus: “But that otherwise,” and so refers to something other than what was denoted by the release. What that may have been is not material in this litigation.
Plaintiff argues it was the intention of the parties to the release and the stipulation that plaintiff might still sue the city. If so. the settlement reduces to an advancement to plaintiff by the electric company of $2,500 on account, because the electric company must hold the city harmless. However, the intention of the parties must be ascertained from the writings and from the writings alone, unless they are ambiguous; and they are not ambiguous.
Plaintiff says certain statements made by the city attorney in the course of examination of veniremen to determine their qualifications to become jurors constituted waiver of the release as a defense. The statements had no such effect. The issues were made by the pleadings. When the jury was empaneled and the trial began, the release was urged as a defense at every opportune stage of the proceedings, and in denying an offer of proof made by the city near the' close of the trial the court said:
“Well, the objection is sustained, and the offer is refused, for the following among other reasons: That the defendant, the city of Wichita, in this action is relying upon the release and the stipulation to the Kansas Gas and Electric Company, ...”
The cause of action in both cases was negligent maintenance of the guy wire in such a manner as to imperil persons using the sidewalk on which plaintiff was walking when she was injured. Settleihent with the electric company discharged the city from liability, unless privilege to sue the city was expressly reserved.- The reply to the answer setting up the release pleaded the reservation in the release as the basis of maintenance of the action against the city. The reply also pleaded the release was procured by fraud. Therefore, plaintiff undertook to take advantage of the release, and to repudiate it. Early in the trial the court indicated its view that privilege to sue the city was expressly reserved. Plaintiff was satisfied with the ruling, and abandoned the charge of fraud. Nothing more was heard of it in the district court. The city offered to prove the negotiations leading to execution of the release, for the purpose of elucidating intention to discharge the city. The fraud was practiced, if at all, in the course of those negotiations. Plaintiff objected to evidence disclosing the negotiations, on the ground the writings were the best evidence. The objection was sustained, on the ground the writings embraced the transaction between the parties,, and the release specifically reserved privilege to sue the city. The court instructed the jury to the following effect: Plaintiff sued the electric company, seeking to recover damages on account of the acts of negligence complained of in the action against the city; plaintiff executed a release to the electric company, which settled her claim against the electric company and released it from liability for the acts of negligence referred to; in the action against the electric company, the parties made a stipulation which discharged the electric company from liability for damages. The instructions continued as follows:
“But in said stipulation and release Mrs. Rasnic reserved the right to sue the city of Wichita for the acts of negligence set forth in the action of Rasnic v. The Kansas Gas and Electric Company. This stipulation is dated the 18th day of November, 1925, and has been admitted in evidence.
“The court instructs the jury, therefore, that said stipulation and release da not bar the right of the plaintiff to recover damages against the city of Wichita, in this action, if you find under the instructions that she is entitled to recover damages of the city of Wichita.”
The result was a judgment for plaintiff based on the ground the release was valid and contained an express reservation for plaintiff’s benefit. Plaintiff filed no motion for new trial, and defends the judgment in this court. . She now suggests, however, that if this court should hold the release discharged the city from liability, the cause should be remanded to give her an opportunity to show the release was invalid. Hjaving elected to take judgment on the theory the release was good, she is not in position to demand another trial on the contradictory theory that the release is bad.
The judgment of the district court is-reversed, and the cause is remanded with direction to enter judgment for the city. | [
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Per Curiam:
This judgment is affirmed as to plaintiff in error Johns, on the authority of Dickson v. Randal, 19 Kas. 212; and reversed as to the other plaintiffs in error, upon the authority of Monger v. Comm’rs of Harvey Co., ante, p. 318.
The costs of this court will be divided between plaintiff in error Johns, and the defendants in error. | [
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The opinion of the court was delivered by
Valentine, J.:
The only grounds urged for reversal in this case are, that the plaintiff below (defendant in error) was permitted on the trial in the court below to introduce improper evidence, and that all the evidence taken together did not prove the plaintiff’s cause of action.
It would be an inexcusable waste of time for us to comment •at length upon the several points made by counsel for plain-biff in error (defendant below); hence, we shall do nothing more than merely to refer to them, and decide them. Under the act of 1874, “relating to killing or wounding stock by 'railroads,” (Comp. Laws of 1879, pp. 784, 785,) a demand must be made of the railroad company for the value of the stock killed, or for damages for injuries thereto; but this demand “may be made of any ticket agent or station agent of such railway company,” (§3 of said act,) and the demand may be made orally, and not in writing. Hence, when such a demand is made, what the agent says at the time concerning the matter may be given in evidence against the railroad company, in an action brought by the owner of the stock against the railroad company for injuries done by the company to his stock. The agent’s statements made at such a time, and concerning such matter, are admissions within the scope of his authority, and are a part of the res gestee; and ■on the trial of the case, where a proper oral demand is first proved, and no evidence is at any time introduced tending to ■disprove the same, it is not material error .for the court to permit the plaintiff to show by incompetent evidence that a written demand was also made. We therefore do not think that the court below materially erred with respect to admitting evidence concerning a demand, and what was said at the time.
The evidence introduced on the trial, showing what Beller .said, was irrelevant and incompetent, but we do not think that it could have prejudiced the substantial rights of the-defendant below, and hence it was immaterial. The evidence contained in said written demand .concerning the appraisement of the cow (for the injuries to which this suit was brought), we suppose was incompetent. But still, each of tbe appraisers was afterward introduced as a witness, and testified that the cow was worth $30 — just the amount at which said written demand showed that the appraisers had formerly appraised her; and all the other evidence introduced in the case upon that subject tended to show that the cow was worth that amount. Hence, we do not think that any material error was committed, as said evidence was not substantially prejudicial to the defendant’s rights.
We do not think that the court below erred in permitting the letters of W. F. Downs, the general superintendent of the. railroad company, to be introduced and read in evidence. They were objected to generally for incompetency, irrelevancy, and immateriality. The subject-matter thereof was within the general scope of the superintendent’s authority; and the contents thereof were principally admissions of facts, and were not merely offers to compromise. Of course it is improper to introduce in evidence a mere offer to compromise; but admissions of facts may be so introduced. And therefore these letters were properly admitted.
The court below did not err in permitting a witness to testify that he “looked about and saw fiair on the ties; the first tie had a lot of hair on it, and the second one not so much, and so on,” as indicating that the injured cow had •-been pushed along the railroad track by the company’s engine. Such was proper evidence.
We think there was sufficient evidence to authorize the court below and the jury to find that the plaintiff’s cause of action was proved.
Not perceiving any substantial error committed by the court below, the judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The first alleged error presented in thebrief •of counsel of the plaintiff in error is, that the order granting a new trial was erroneously entered, in this: that the case was not tried till December 5, 1877, yet the order purports to set aside a judgment rendered and entered November 24, 1877. Counsel say, “ the order sets aside a fictitious judgment, without any motion, and grants a new trial; which is irregular and erroneous, because the former verdict is in full force.”
Conceding this to be true, (and the “case-made” bears this construction,) then the error is an immaterial one, and does not prejudice the substantial rights of said plaintiff. If the trial and verdict actually had in December, 1877, have not been disturbed by the order for a new trial now complained of, the plaintiff has not been injured. If error was committed, the error was wholly immaterial. In this court all immaterial errors are disregarded, and a judgment or order will not be reversed therefor.
If we were authorized to treat the order granting a new trial as applying to the verdict of December 5th, we are inclined to believe the action of the trial judge should be affirmed. “New trials should be favored instead of being •disfavored, whenever any question can arise as to the correctness of the verdict.” (Atyeo v. Kelsey, 13 Kas. 216.)
As the counsel, under whose supervision the case-made has been prepared, and who brings such case here, insists that the verdict rendered in the case is in full force, and that the order objected to only vacates a supposed judgment, any further consideration of the reasons for reversing the order for a new trial is unnecessary.
The order of the district court setting aside a judgment alleged to have been entered November 24, 1877, will not be interfered with. Costs adjudged against the plaintiff in •error.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
No cause of action was made out by the evidence, and the court properly sustainéd the demurrer. If the case had been submitted to the jury upon the testimony introduced by the plaintiff, and a verdict had been returned in his favor, we have no hesitation in saying that the court-ought to have set it aside. The facts are not only undisputed, but admit of only one conclusion as to the negligence of the-plaintiff. He was familiar with the right of way; the railroad track, and the dangers of crossing; he knew that an empty wagon could scarcely be driven over with safety, and yet, with this knowledge, with his eyes open as to the perils-of trying to cross, he attempted to drive over with a hay-frame on his wagon, partially filled with hay and corn, and containing himself, three children and Mr. Young. Undoubtedly he hoped and expected to cross in safety, but it was a dangerous experiment, and one which was exceedingly unfortunate to him. His misfortunes naturally excite sympathy, but give no legal claim in this kind of action for damages. He was so negligent of his duty to himself, so wanting in care and diligence in his conduct, that the law will not afford him the relief which he seeks. Using the language of the counsel for defendant, we may say: “If he could drive over this place, knowing the crossing never to have been completed, and knowing such driving to be unsafe, and charge the railway company with the fruits of such imprudence, he could have gone across the same place without any part of the crossing having been made, and required the company to pay for the lives and property destroyed by such attempt.” The plaintiff was guilty of ordinary negligence, to say the least, contributing directly to the injury, and of such negligence on his part as defeats a recovery. :
Counsel for plaintiff urge in support of his claim for damages, that where a contract creates a duty, the neglect to perform that duty, as well as the negligent performance of it, is a ground of action for tort — hence it is at the election of the party injured to sue either on the contract or the tort; and then argue that, as the company accepted the deed, it was bound to construct the wagon-road in a reasonably safe manner, and having neglected to perform that duty, it.was re sponsible for all injuries resulting to the plaintiff received by him in attempting to cross the road. The rule of law stated, as a general one, is correct, but the deduction attempted to be drawn therefrom for this case by counsel is not tenable. A party cannot, with his eyes open, imprudently and recklessly walk or drive into a dangerous culvert, or an uncovered pitfall, left by a railway company, where by contract or other duty it is required to cover it safely, and then, notwithstanding his want of ordinary care, recover for his personal injuries inflicted by falling into such culvert or pitfall. This theory would relieve a party thus receiving injury from the exercise of any care. Upon this theory, the greater the carelessness and the grosser the negligence of the person injured, the greater the liability of the company. This doctrine is unsound. Every adult is presumed to be endowed with sufficient reason to enable him to exercise ordinary prudence, and the law demands that every such person must employ reasonable means to foresee and prevent injury.
Notwithstanding the defendant is not liable in this action, the plaintiff had, long prior to this suit, his cause of action against the company for its refusal to build the wagon-roads on the pieces of land conveyed for right of way. He might, perhaps, have brought his action to compel the company to construct suitable roads. He certainly could havembtained pecuniary compensation, in the way of damages, for the breach of duty on the part of the. company in not performing the conditions of the deed.
On account of the negligence of the plaintiff, the other allegations of error are immaterial, and need not be discussed.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Alfred W. Rice against James Hoffmire, for rent. The land for which the rent was claimed belonged originally to one Christian Mullin. But Mullin failing to pay the taxes thereon, Rice procured a tax title thereto. Rice then took possession of the property, and afterward rented it to Hoffmire for a rental of $10 per month. Mullin afterward executed a quitclaim deed for the property to one R. N. Smith, who then commenced an action against Rice for the property, which action resulted as follows: “It was decided and adjudged by. the court, that said tax deed be set aside and annulled, and that said R. N. Smith recover possession of the said premises upon payment to said Rice of the sum of $135.65, the amount of taxes, penalties and interest due upon said tax deed, in accordance with the provisions of §117 of the tax law of 1868.” (Gen. Stat., p. 1057; see also Comp. Laws of 1879, pp. 967, 968, § 142.) Smith failed to pay said $135.65, or any part thereof, and therefore failed to get the possession of said property, and Rice, through his tenant (Hoffmire), still continued to occupy the same. Afterward, and on January 2, 1874, Smith executed a quitclaim deed for the premises to Hoffmire, who from that time on failed and refused to-pay any more rent to Rice. .On June 1, 1875, Rice sued Hoffmire for the rent, and obtained a judgment therefor for $180. On July 21, 1876, Hoffmire paid Rice said $135.65, taxes; and on January 4, 1877, paid said $180 rent. This present action was brought January 5, 1878, for rent alleged to have accrued from June 1, 1875, up to July 21, 1876. The court below found in favor of the plaintiff and against the defendant, and rendered judgment accordingly for $136.66; and to reverse this judgment the defendant below, plaintiff in error, now institutes this petition in error.
We do not think that the court below erred. The judgment rendered in the case of Smith v. Rice is conclusive as between the parties and all persons holding under them; and under that judgment Rice had the right to hold the possession of the property without paying rent or anything else, until said $135.65 taxes were paid to him. And as Rice had the right to so hold the possession of the property until said $135.65 taxes were paid to him (which payment was made-on July 21,1876), and as Hoffmire was his tenant, Rice had the undoubted right to recover rent from Hoffmire up to that time. The rents cannot be set off against the taxes. This is also in accordance with the statutes above referred to. We are presuming, of course, that Rice was under no legal or moral obligation to pay the taxes, that he had a perfect right to purchase the property for the taxes, that the taxes were legal, and that it was merely for some irregularity in the tax proceedings for which said tax deed was set aside. The giving the tax-title holder the right to the possession of the property until the taxes are paid, is one of the means employed by the state to enforce the prompt payment of taxes.
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
Brewer, J.:
John Mullen was a constable, and the other defendants, plaintiffs in error, were sureties on his bond. This action was brought by Selena Mullock on the bond fox-the value of a mule colt alleged to belong to plaintiff, and to have been taken and sold by the constable on an execution against her husband. The execution was issued on a judgment in favor of Ballard, one of the sureties on the-bond, and defendant in this action. The defendants answered sepai’ately. The third count in the answer of plaintiff in error, John Mullen, and the second count in the answer of D. E. Ballard (being substantially the same), which they pleaded as a special defense, is as follows:
“Defendant further states, that on the 19th day of January, 1878, before Henry Ober, a justice of the peace for Little Blue township, Washington county, Kansas, the above-named plaintiff commenced her action against the above-named defendant, D. E. Ballard, for the recovery of the possession of the aforesaid dark-brown max’e mule colt, being the same property levied upon under said execution, and set forth and described in plaintiff’s petition herein; that on the- 25th day of January, 1878, said action was tried and a judgment rendered in favor of plaintiff and against said defendant, D. E. Ballard, for the recovery of the possession of said property, and $10 damages for the wrongful detention thereof, and in case said property was not delivered a judgment against said I). E. Ballard was rendered for $50, the value of said property as found by said justice; that after and on the 31st day of January, 1878, said defendant, D. E. Ballard, filed with said justice of the peace his appeal bond, which bond was duly approved by said justice of the peace and said appeal perfected, and said cause is now pending for 'hearing in'the district court for Washington county, Kansas, and is numbered case 594, and is yet undetermined upon said appeal.”
A demurrer to this defense was sustained, and this is the question for our consideration: Was the action for the value abated by the pendency of the prior action for the possession? It is apparent that the three plaintiffs in error stand in a different position in relation to this question. One of them, Thomas Murphy, did not attempt to raise the question at all, but filed simply a denial. Of course, therefore, the judgment must be affirmed as to him. Another, the constable, John Mullen, was not a party to the replevin action. . Hence, he is in the position of seeking to abate an action against himself, by the pendency of a prior action against another party. This cannot be done. The defense is, “ that there is another action pending between th.e same parties for the same cause.” (Dassler’s Laws, p. 614, §89.) An action pending between A. and B. does not abate one pending between A. and C.; and that, notwithstanding each action may be upon the same instrument and for the same cause. The questions which sometimes arose by reason of there being only a joint liability upon certain instruments, do not arise here, for by our statute, “All contracts which by the common law are joint only, shall be construed to be joint and several.” (Dassler’s Laws, p. 209, §1.) Each party, therefore, may be made defendant in a separate suit, and the pendency of one such suit does not abate any other. This is in accord with a tendency elsewhere manifested in our laws to individualize rights and liabilities. To remove the bar of the statute of limitations, payment, promise or acknowledgment, must be by the person sought to be charged. (Steele v. Souder, 20 Kas. 39.) So here each party may make his own defense, and neither party can plead as a defense for himself, that which is a purely personal defense of his co-defendant. Mullen had been vexed by no prior suit — Ballard had been; and while Ballard may claim that he should not be vexed by two actions at the same time, Mullen cannot defeat the action against himself by reason of the wrongs done to Ballard. The judgment, therefore, against Mullen, must be affirmed. (Smith v. Findlay, 2 Handy, 72; Henry v. Goldney, 15 Mee. and W. 494.) Ballard can plead that the prior action is between the same parties. Can he also say that it is for the same cause? And in answering this question, regard must be had more to substance than to form. The two actions must be for the same cause. Now what is the fact which she alleges as her cause of action? Is it not in each case that she is wrongfully deprived of her mule? True, in one case she alleges that Ballard himself detains the mule, and in the other that he is responsible for the one who took it. This simply shows the relation he bears to the wrong. But the fact which gives her any right to relief as the basis of her cause of action, is her loss of the animal. Because of this wrongful deprivation, she asks in the first action its return, and in the second, its value. But the relief asked is one thing and the cause of action another, and the statute provides that in actions of replevin the judgment shall be for the return, or the value in case the return cannot be had, and the triers are to find the value. Is she entitled to both ? Clearly not. If the property is returned, she has no right to its value. If both actions may stand, both may proceed to judgment. In the one she obtains judgment for the return or the value, and in the other, judgment for the value. If the return is not had, there are two judgments for the value. The principle of the defense of another action pending is, that the same party is not to be vexed twice for the same cause. In> the first action she ob tains the same relief as in the second, or else that which estops her from obtaining such relief.' Is not the defendant being twice vexed? It matters not that in the one action he is charged as principal, and in the other as surety. If a party sign his name to a note, the holder cannot maintain two actions against him —in one charging him to be the maker, and in the other to be a guarantor. He is not twice liable, or liable to two judgments. If he cannot abate the one action by the other, then he must plead alone to the merits, and upon the merits the defendants in the case at bar would seem to have been beaten in both actions. It may be laid down as a general proposition, that where the substantial fact or facts upon which the plaintiff’s right to relief is based, are identical in the two actions, and the relief obtainable in the first includes all relief sought in the second action, the first will abate the second, although the actions differ in matters of form and in the relations of the defendant to the infringement of the plaintiff’s rights. In 1 Bacon’s Abridgement, p. 29, the author says:
“The law is so watchful against all vexatious suits, that it will neither suffer two actions of the same nature to be pending for the same demand, nor even two actions of a different nature. Therefore-it is’a good plea in trespass that the plaintiff has brought a replevin for the same thing, because in both cases damages are to be given for that caption.”
The judgment of the district court as to Ballard will be reversed, and the case remanded with instructions to overrule the demurrer. The costs of this court will be divided between defendant in error and the plaintiffs in error Mullen and Murphy.
All the Justices concurring. | [
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Per Curiam:
This case is dismissed, upon the authority of Transportation Co. v. Palmer, 19 Kas. 471, and laws of 1877, pp. 243, 244. See also, Smith v. Moore, 21 Kas. 161. | [
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The opinion of the court was delivered by
Horton, C. J.:
The principal question presented is, whether a township in this state is liable for injuries caused by unsafe or defective highways? In the absence of an express statute imposing the liability, the authorities uniformly hold that organizations, such as counties, townships, school districts, road districts, and the like, though possessing corporate capacity and power to levy taxes and raise money, have been considered not to be liable for neglect of public duty. The theory of these various decisions is in effect, that such organizations, though corporations, exist as such only for the purposes of the general political government of the state; that all the powers with which they are intrusted are the powers of the state, and all the duties with which they .are charged are the duties of the state; that in the performance of governmental duties, the' sovereign power is not amenable to individuals, and therefore these organizations are not liable at the common law for such neglect, and can only be made liable by statute. (Cooley on Torts, 622; Dillon on Mun. Corp., vol. 2, 761, 763; Town of Waltham v. Kemper, 55 Ill. 346; Comm’rs of Hamilton Co. v. Mighels, 7 Ohio St. 109.)
As our state has not adopted any statute expressly making ■townships liable for injuries on highways resulting from neglect of public duty, these organizations are not, under the authorities, liable in civil actions, for neglect in that regard.
Counsel for plaintiff in error cite the decisions of this court, that cities having power conferred upon them in reference to streets and sidewalks, which in some respects are similar to the powers granted townships, are liable for injuries resulting from failure to keep their streets and sidewalks in safe condition, and assert that, logically, the same doctrine should be applied to townships. Counsel fail to note the distinction between municipal corporations proper and quasi corporations. This distinction is pointed out and commented -on in Beach v. Leahy, 11 Kas. 23. Cities, towns and villages are municipal corporations proper, while counties, townships,, school districts and road districts are quasi corporations. The difference between these two classes of corporations is well established, and a principle applicable to the one class is-not necessarily applicable to the other.
The order and judgment of the district court will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Bkewek, J.:
The single question is, as to when an order •of amercement becomes a lien on the real estate of the officer .amerced, situate within the county, whether at the date of the order,- or at the time of the levy of an execution issued thereon. The district court held that it became a lien from the day of its date, and we think this ruling was correct. In •§477, Gen. Stat., p.723, it is provided that, “all amercements so procured shall be entered on the record of the court, and shall have the same force and effect as a judgment.” But the contention of counsel is, that this applies only to amerce ments of officers of a county other than that from which the execution issued. There is plausibility and ingenuity in the argument made in support of this contention, but still we think it not convincing. It is based upon the arrangement of the sections of the statute concerning amercements. Sec. 472 provides for the amercement of a sheriff or other officer who refuses or neglects certain duties, and that the amercement shall be on motion in court, and two days’ notice in writing. This section is general, and if there were no other, would apply, to all officers, whether of the county in which the execution issued, or of any other county. It says nothing about the force and effect of the order, or the means of enforcing it. Sec. 473 provides for the amercement of clerks. Sec. 474 limits the amount of the amercement. Sec. 475 provides that where execution is issued to the sheriff of another county, he shall have it entered upon the execution docket of his county. Sec. 476 authorizes a return of such execution by mail. Sec. 477 forbids sending money collected on such execution by mail, unless specially instructed; and then follow these words: “In all cases of a motion to amerce a sheriff, or other officer of any county other than that from which the execution issued, notice in writing shall be given to such officer, as hereinbefore required, by leaving it with him, or in his office, at least fifteen days before the day on which such motion shall be made.” The section then closes with the words heretofore cited as to the force and effect of all amercements so procured. Upon this counsel says, that as certain amercements are named in the fore part of the section, the words, “all amercements so procured,” in the latter part, refer only to such amercements; that a limiting clause usually refers to its next preceding antecedent, and especially when there is no other antecedent clause in the same section to which it can refer. Still, as above stated, we cannot assent to this view. Sec. 477 does not contain full provisions for any class of amercement. It is itself based upon § 472, and simply extends the time of notice required .in certain cases. Such construction would make amercements, where the de linquent is an officer of another county, operative as judgments; while those against a delinquent officer of the same county, would not only be without the force of judgments, but would not be enforceable in' any way save by action; for there is no other provision in the statute authorizing an execution upon any order of amercement. No reason appears for so broad a distinction, and it is not reasonable to suppose the legislature intended it.
Again, §478 provides that each surety may be made a party to the judgment rendered as aforesaid against the sheriff, by action. If such judgment of amercement can be only against an officer of another county, as an action can only be commenced in the county where the defendant, or some one of them, resides or may be summoned, how often could the surety be reached and made a party to the judgment? Again, the same section provides that “Nothing herein contained shall prevent either party from proceeding against such sheriff, or other officer, by attachment, at his election.” Are we to infer from this that amercement takes away the remedy by attachment as to local delinquents?
Again, §479, which gives the sheriff who pays on an amercement order the right to enforce the original judgment, evidently implies by the use of the phrase “original judgment,” the rendering of a second or subsequent judgment; and is such right not given to the local as well as the outside sheriff?
Indeed, taking the several sections of the statute together, it seems clear that the legislature intended the provision first cited to apply to all amercements. Such was the practice and understanding in Ohio, from which these sections were taken, and our legislature, in adopting them, adopted them with the settled construction there. (Wadsworth v. Parsons, 6 Ohio, 449; Graham v. Newton, 12 Ohio, 210.)
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 plaintiff in error claims that the petition of the defendant in error does not state facts sufficient to constitute any cause of action against Lyon county or the board of commissioners; and within the ease of Commissioners of Saline Co. v. Geis, ante, just decided, the claim is correctly made. Whether the case was prosecuted and disposed of under §145, ch. 34, Laws 1876, or §120, ch. 107, Gen. Stat. 1058, is immaterial. The sections are nearly similar. No allegation is made in the petition that the county treasurer was without funds with which to pay the defendant in error, and really no reason is given for making the county board a party, except that the treasurer refused to refund his money, and that it has not been returned to him. This is not sufficient. The facts stated neither make the county nor its board of commissioners liable.
Under said § 145, the allegations are not even sufficient to charge the county treasurer, if he had ample funds in his hands for the specific purpose of paying these claims, and had been made a party defendant. Before he can refund, under the law of 1876, the certificate must be- indorsed with the refusal of the county clerk to convey. In this case, the descriptions of the lands assessed and sold for taxes are so uncertain and imperfect that all the tax proceedings, including the certificate, are so erroneous and irregular that the lands ought not to be conveyed. These irregularities are patent on •the face of all the records and certificates. Indeed, the defects are so palpable, that when pointed out to the county clerk, he had no legal right to refuse-to discover them, and in •the performance of his official duty he ought to have indorsed the certificates with his refusal to convey. He had no right to be blind to such errors and irregularities. He might have been compelled to make the indorsements by mandamus, or an action for damages against him could have been maintained, but in the absence of the indorsements under said § 145, the treasurer had no right to refund the money paid.
In this connection we may say, that the answer of the plaintiff in error presented no issuable fact, and the demurrer thereto was properly overruled. If errors or irregularities actually exist, so that the land ought not to be conveyed, it is the duty of the county clerk to discover them when his attention, as in this case, is specifically called thereto; and the fact that he purposely refuses to discover, or refuses to admit the discovery of the errors and irregularities, is no obstacle to the treasurer refunding the money under § 120 of Gen. Stat., and only material under the new § 145 of Laws of 1876, in that the county treasurer cannot act until the county clerk has indorsed his refusal to convey on the certificates, and it is not likely the clerk will make such indorsement so long as he refuses to discover any error or irregularity.
Counsel for defendant in error seems to contend that, independent of the statute, the money paid on the tax certificates may be recovered back. The decisions in New York, Wisconsin, and perhaps some other states, support this doctrine. We think the better rule the other way. A purchaser at a tax sale is a mere volunteer in the payment of the tax. Buying, as he does, property from a person who is not the owner, such party comes strictly and rigidly within the rule of “caveat emptor.” He has the same means of knowing whether the proceedings relating to the assessment of the taxes, the tax sale, and the issuance of the certificate, are valid or not, as. the county has, and he is bound to inquire whether the officers have authority to make the sale. As all the proceedings are matters of record, it is not only prudent for such a purchaser to examine into the matter for his own safety, but if he fails to inform himself of the authority of the officers, he does so at his own risk, excepting that he may have his money refunded where the statute expressly makes such provision, if he pursues the remedy pointed out. The officers of a county can only act in accordance with positive law; and neither the board of commissioners nor the county treasurer can refund any moneys upon the failure of tax titles, except as some statute requires it. (Cooley on Tax., ch. 24, p. 572; Blackwell on Tax Titles, ch. 26, p. 413; Sapp v. Comm’rs of Brown Co., 20 Kas. 243; Hamilton v. Valiant, 30 Md. 139; Lynde v. Inhabitants of Melrose, 10 Allen, 49; The City of Indianapolis v. Langsdale, 29 Ind. 486; Rice v. Auditor General, 30 Mich. 12; Phillips v. Jefferson Co., 5 Kas. 412; Wabaunsee Co. v. Walker, 8 Kas. 431; K. P. Rly. Co. v. Wyandotte Co., 16 Kas. 587.)
The petition being fatally defective, the judgment of the district court will be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
"Valentine, J.:
This was. an action for false imprisonment, malicious prosecution, and libel. Each cause of action was set forth in the petition in a separate count, and all were founded upon a criminal prosecution commenced before a justice of the peace by the defendant as complainant against the plaintiff, for an alleged larceny of a steer belonging to the defendant. The defendant answered, setting up two defenses: First, a general denial; second, new matter purporting to constitute a defense to the whole of the plaintiff’s petition, and to each count thereof. The plaintiff demurred to the second defense of the answer, on the ground that the facts set forth therein were not sufficient in law to constitute any defense to the plaintiff’s action. The court overruled this demurrer, and of this ruling the plaintiff now complains. ¥e think the court below erred; for while the second defense of the defendant’s answer professes to be á full and complete defense to the whole of the .plaintiff’s petition, yet it is certainly no ■defense to the third count thereof, which sets up a cause of action for libel. But the main question discussed by counsel — the question upon which the defendant at least seems to think the decision of the case in this court must turn, and therefore the question to which we shall give our especial attention, and really the only one we shall decide in the case — is the question whether the defendant had a right when he commenced said criminal prosecution to rely upon the opinion, decision and advice given him by the justice of the peace before whom such prosecution was commenced. It will be remembered that all of the ‘plaintiff’s supposed causes of action had their origin in said criminal prosecution, and therefore a statement of the facts of the whole case in the aggregate may be made, and not a statement of the facts of each count or cause of action separately. According to the pleadings, the facts of the case are substantially as follows: The defendant owned said steer. The plaintiff wrongfully, but without larceny, took the same away from the possession-of the defendant’s herdsman. The defendant did not know whether the plaintiff, by these acts, committed a crime in-law, or not; therefore, he and his herdsman went to said justice of the peace, and stated the facts to him; whereupon the-justice decided that the plaintiff had committed the crime of grand larceny, and advised that he should be prosecuted therefor. The justice then drew up an affidavit, stating and' charging that the plaintiff had committed the crime of grand larceny, by stealing said steer valued at $35, which affidavit the defendant then swore to and signed. The justice then issued a warrant for the arrest of the plaintiff, who was-arrested thereon, and imprisoned. The defendant paid no-further attention to the prosecution, which was finally dismissed, and the plaintiff discharged.
We do not think that the opinion, decision or advice given-by the justice to the defendant is a good defense to this action, nor that it is a good defense even to the second count of the petition, which sets forth a cause of action for malicious prosecution. Straus v. Young, 36 Md. 247, 256; Olmstead v. Partridge, 16 Gray (Mass.), 381, 382. See also, in this connection, the following authorities: Murphy v. Larson, 77 Ill. 172; Beal v. Robeson, 8 Ired. (N. C.) 276; Stanton v. Hart, 27 Mich. 539; Burgett v. Burgett, 43 Ind. 78; Wilkenson v. Arnold, 11 Ind. 45; White v. Tucker, 16 Ohio St. 468.
It is not claimed that the justice was a lawyer, or that he had any special education in the laws of the country; hence his opinion or his advice upon this subject is not entitled in-law to any greater consideration than that of the defendant himself, or that of any other person. Besides, a justice of the peace is not the proper officer to give advice concerning criminal prosecutions about to be commenced before him. The county attorney is the proper officer designated by law for such a purpose. A person may, however, rightfully consult any lawyer learned in his profession. And where a person acting in good faith, and under the advice of counsel learned in the law, mistakenly institutes a prosecution against another person who is not liable, and the prosecution fails, the prosecutor does not thereby render himself liable to an action for malicious prosecution, or to any other action. The mere fact that he took such advice under such circumstances is a good defense to any action that might subsequently be brought against him.
Of course, whatever was said or done by the justice, or by the defendant, or by his herdsman, at the time said affidavit was made and warrant issued, would be competent evidence on the trial of this case as a part of the res gestee. Eor what was then said and done is a part of the transactions out of which these supposed causes of action arose, and will tend to explain and qualify the same. The things then said and done may in fact show, when fully proved to the jury, that the plaintiff has no cause of action against the defendant. But what we wish here to say is, that the advice given by the justice, or his opinion or decision, cannot constitute any defense to any action which the plaintiff might have against the defendant, except for such advice, opinion or decision.
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
Brewer, J.:
Defendants in error obtained judgment against the plaintiff in error in two suits before a justice of the peace, filed transcripts thereof in the district court, caused executions to be issued thereon, and levied upon certain real estate. The return of the sheriff shows that he made the levy on said real estate subject to a certain mortgage of prior date; the advertisement specifies that the property is to be sold subject to said mortgage; while on the other hand, the appraisement is silent as to any mortgage, and simply names the property ;■ and the sheriff’s return, after stating the advertisement of sale, reports that he sold “said property.” Both plaintiffs and defendant made motions to confirm the sale, and the sale was confirmed. And the question now before us is, as to the disposition of the proceeds. The court ordered them applied in satisfaction, first, of the costs; second, of the judgment; third, of the mortgage; and the surplus, if any, to be paid to the defendant. To this defendant objected, and moved the court to have the surplus, after payment of the judgment, returned to him.
Whatever may be the hardship in this particular case, there was manifest error in the ruling of the court. This was a simple execution to enforce a money judgment, and the officer, after paying the judgment, was bound to return the balance to the defendant in the execution. The statute in plainest language commands this. (Gen. Stat., p. 719, § 466.) A failure to do this is ground of amercement. (Gen. Stat. p. 722, § 472.) The mortgagees were not parties to the actions, nor named in the execution. No order of the court could bind them, or affect their rights. The inconsistency of the court’s ruling is plain, for according to the return the mortgage was prior to the judgment, yet the court orders the judgment first paid. If it could, without the presence of the mortgagees, bind them by an adjudication of the amount due on the mortgage, it might find nothing due, and they w'ould be cut off from all lien on the premises without a day in court. But where the property is levied on and sold subject to a mortgage, the purchaser takes it subject to the mortgage. The levy determines the sale, and nothing passes by the sale which is not taken under the levy. See .authorities cited by plaintiff in error.
Provision is made for the sale of the mortgagor’s interest where only that interest is sought to be appraised and sold. (Gen. Stat., p. 726, §§491 and 492). No such proceeding was had. The real estate was seized and sold. It was seized and sold subject to the mortgage, and the purchaser took -it subject to the mortgage. The mortgagees were not in court — were asking nothing. Doubtless, if they had come into court and prayed for the surplus proceeds, it would have availed nothing, for the sale was made subject .to their mortgage.
The order of the district court will be reversed, and the case remanded with instructions to proceed in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action on two township warrants-issued by the trustee and clerk to L. P. Cunningham, and by him indorsed. Judgment was rendered in favor of the plaintiff upon one, and against it upon the other warrant. To reverse such judgment, the township brings error. The case-was tried by-the court without a jury, and special findings-of fact were made. These findings show that the one order-was issued for blank lithograph bonds of the township, suitable to be used in issuing bonds to the amount of $75,000,. to the M. C. & N. W. Rly. Co., and the other for moneys-advanced by said Cunningham to said trustee and clerk, as-pay for their services in signing said bonds.
Judgment was rendered against the township upon the first, and its validity is alone in question. The findings further show, that an election was held November 7, 1871, on the question of voting bonds to the extent of $75,000 to the State Line, Oswego & Southern Kansas Railway Company, and that no other railroad bond election was ever held; that on June 1, 1872, said S. L. O. & S. K. Rly. Co. consolidated with a corporation organized under the laws of the state of Missouri, and formed a new corporation known as the M. C. & N. W. Rly. Co.; that said Cunningham was president of this new corporation; that said Cunningham knew that, no other railroad-bond election had been held, and that the township had never to exceed $141,000 of taxable property; that on September 13, 1872, said Cunningham urged and induced said trustee and clerk to sign and issue said bonds, and paid them fifty dollars for such services; that without any previous arrangement therefor, he presented the lithograph blanks and agreed to furnish them at cost, and said trustee and clerk accepted the proposition, and signed and issued the orders. Was the township liable for the cost of the bonds?
Two propositions maybe considered as already settled, and beyond dispute: First, that the warrant being non-negotiable, any defense good against Cunningham, the payee, may be made against the present holder. (Perkins v. School District, 21 Kas. 536; Dillon on Municipal Corp., §406.) Second, that the grant of authority to subscribe stock in one corporation and issue bonds in payment thereof, is no grant of authority to subscribe stock and issue bonds in payment thereof in a new corporation into which .the former is consolidated. (The State, ex. rel., v. Comm’rs of Nemaha Co., 10 Kas. 569.) Here, moreover, the findings do not show any authority to issue bonds to any corporation, for it does not appear what was the result of the election on November 7, 1871.
Further, the question is not presented in this case whether a township may bind itself by a contract for printing blanks in anticipation of an election, or upon an expectation of the grant of authority to issue bonds. And it will be noticed that these blanks are not shown to have been suitable for issue to any corporation, so that they might be of general use to the township, but suitable simply for issue to the railroad corporation named. Their value therefore depended solely on the power of the township to issue such bonds. The question is, whether, when no authority exists to issue bonds, and without anticipation of any, and without any previous contract for printing blanks, a party can tender blanks to a township, and by payment of money to them for their services, obtain the signatures of the township officers to such bonds, and a township warrant for the cost of the blanks, and then enforce the payment of such warrant. Such question, we think, must be answered in the negative. The whole transaction was ultra vires. And it must be taken as a single and entire transaction. A single act may be within the general powers of a municipal or quasi municipal body, (and we express no opinion as to the general powers of a township to purchase blanks for bonds, warrants or other evidences of indebtedness,) but when that act is but part and parcel of a larger transaction, and in aid and furtherance of that, and such transaction is, as a whole, beyond'the powers of the body, and a fraud upon such body and its taxpayers, the vice of the whole will vitiate each part thereof, and all must fail. These blanks were tendered to and accepted and used by the township officers for but a single purpose, and that purpose was a wrongful one, and known to the party who tendered the blanks and received the warrant. In such a case the law will not be critical, and search out some excuse for awarding compensation for some minor service rendered in furtherance of that which, as a whole, is tainted and vicious.
Upon the findings we think no cause of action is shown, and the judgment will be reversed, and the case remanded with instructions to enter judgment upon the findings for costs in favor of the defendant, plaintiff in error.
All the Justices concurring. | [
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Per Curiam:
The above case is precisely like case of Hentig v. James, just decided, and therefore that decision is decisive of this.
The order of the district judge will be affirmed. | [
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The opinion of the court was delivered by
Valentine, J.:
The decision and judgment in this action were rendered in the court below solely upon an agreed statement of facts, which shows in substance as follows: In 1877, Eliza Hall owned a certain piece of land, and on March 1, 1877, leased the same to one McGuire for a period of one year. McGuire took immediate possession of the premises. At the same time George F. Johnson had a warranty deed for the premises from Dubois & Co., and they a warranty deed from Riley, and Riley a quitclaim deed from Ocheltree,. and Ocheltree a tax deed from the county clerk, which tax deed was void upon its face. The plaintiff, James M. Wallace, afterward became the lessee of Johnson, as follows: “On the 24th of February, 1878, the plaintiff obtained a written lease of those premises, including the dwelling-house-thereon, from said Johnson, and on that day demanded possession of said premises of said McGuire, who was then the-tenant of Hall, in the name of Johnson and as the lessee of Johnson; and that McGuire then permitted the plaintiff to enter the premises with his household goods and stock, without the knowledge, authority or consent of Eliza Hall (or her agent), who was then and is now a resident of the state-of Missouri.” None of the parties claiming under said tax deed, except Wallace, ever had actual possession of said premises. When McGuire’s lease expired, he refused to leave the premises, and Mrs. Hall then commenced an action of forcible detainer against him before a justice of the peace to oust him from the premises. On the day before the trial, however, McGuire left the premises, but still Mrs. Hall prosecuted the action to a final termination, recovering; a judgment therein against McGuire “for the immediate possession and restitution of the premises.” The justice then> issued a writ of restitution against McGuire, and delivered the same to George W. Hamilton, a constable, for execution. “In pursuance of said writ, Hamilton, as such constable,, went to the premises aforesaid with a posse for the enforcement of said writ and judgment, and found the said plaintiff herein (Wallace) in the house with his goods and his stock on the land; and also found some of McGuire’s goods in the house — the said house being on the land and being the same house that Mrs. Hall had previously leased to McGuire, and put him in possession of under the lease. But the said McGuire was not then found therein or thereon, he having' vacated the house the day before the trial aforesaid; that said constable ordered and commanded the plaintiff to leave the house and premises forthwith with his property, which the plaintiff then and there refused to do, at the same time claiming to be the tenant of the said George F. Johnson, who claimed to be the owner of the premises; whereupon the said constable proceeded, with the aid of the husband (and son) and agent of said Eliza Hall, to forcibly eject and did so eject the person and property of the plaintiff from said premises, against the protest and remonstrance of the plaintiff; and the said constable and persons aforesaid removed the said plaintiff’s goods, chattels (stock) and personalty in a wagon some nine miles distant to Shawneetown, in said county, and put the goods under shelter.” The plaintiff Wallace was not a party to said action of Hall against McGuire, nor a party to the judgment, nor to the writ of restitution. The writ was against McGuire alone.
We have quoted literally everything found in the agreed statement of facts which would tend to show whether Wallace held his possession of said premises under Hall or McGuire, or adverse to them. It must be remembered that Wallace is the plaintiff in the present action, and Hall and Hamilton are the defendants, and the action is for damages suffered by being ousted from said premises. Hence it will be perceived that the question of how Wallace held the possession of said premises is an important question in the case. The parties in this case, .in submitting their agreed statement óf facts to the court below, agreed in writing; and also submitted this agreement to the court below, that the only question to be decided by the court below was as follows: “Hid the defendants herein [Hall and Hamilton] possess the legal authority, under the said writ of restitution issued on said judgment, to dispossess and eject the plaintiff [Wallace], at the time, in the manner they did eject him and his property from said land and tenements?” And the parties further agreed in writing, that if the court should decide said question in the negative, then it should render judgment in favor of the plaintiff and against the defendants for $25 and costs; but that if the court should decide said question in the affirmative, then that it should render judgment in favor of defendants and against plaintiff for costs. The court decided said question in the affirmative, (the case-made erroneously uses the word “negative,”) and rendered judgment accordingly. And this judgment the plaintiff now seeks to have reversed by this petition in error.
We think tlie court below erred in its decision; for while a constable holding a writ of restitution in an action of forcible detainer generally has a right to remove from the premises the defendant in the writ and his property, and all persons holding under him and their property, yet such constable has no right to remove therefrom a stranger to the writ who does not hold under the defendant in the writ, but holds in good faith by some independent claim. See authorities cited by counsel for plaintiff in error, including Mitchell v. Woods, 17 Kas. 26. Of course, if such stranger should in fact hold under the defendant in the writ, he could not set up some false or sham claim for the purpose of preventing the execution of the writ against him. It does not appear in this action that Wallace held under Hall or McGuire. On the contrary, it appears that he held adversely to them. Nor does it appear that his claim was not in good faith, or that it was false or a sham.
The judgment of the court below will be reversed, and cause remanded with the order that judgment be rendered in favor of the plaintiff and against the defendants for $25 and .costs.
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The opinion of the court was delivered by
Brewer, J.:
This was an action to foreclose a mortgage, and the defense relied on, and raised by a demurrer to the petition, was the statute of limitations. The facts are these: On August 16, 1869, an agricultui’al society of Bourbon county, a corporation organized under the laws of this state, was the owner of the premises, and upon that day executed a bond and mortgage to the plaintiff. By its terms, this bond became due whenever the society ceased- to use the premises as a fair ground. On May 7, 1872, the premises ceased to be so used, having been that day taken possession of by C. W. Goodlander, a purchaser at a sheriff’s sale. Good-lander held possession until October 18, 1876, when the defendants took possession, having purchased them upon an execution against him. This action was commenced March 7, 1878, five years and ten months after the cause of action accrued. Was it barred by the statute of limitations? Prima facie, it was; for five years bar an action upon a written contract. To avoid this, three matters are presented. First, it is said that, in contemplation of law, the agricultural society (the obligor and mortgagor) concealed itself after May 7, 1873, so that no service of summons could be made upon it, and that, therefore,- the time of such concealment must be deducted from the running of the statute. The allegations of the petition in respect to this concealment are quite lengthy, but are in substance, that the officers and members of t.he society renounced all connection with it, or its business or affiairs, and refused to be considered as officers or members; that no meetings were had or officers elected; that nothing was done or attempted to be done in respect to the society or its business, or toward keeping up its organization, or in recognition of its existence; and that there were no officers upon whom a summons could be served. In short, the picture is presented of a corporation whose charter has not expired by lapse of time or been vacated by judicial decree, ceasing all corporate action. Was this non-user of corporate franchises a concealment within the scope of the statute of limitations? We think not. .It may be doubted whether a corporation can ever be said to abscond or conceal itself, but certainly the mere failure to hold meetings, elect officers or exercise corporate powers, in short, the mere non-user of all the corporate franchises, is not a concealment. It would be more like concealment if the corporation attempted- to hold meetings, elect officers and transact corporate business, without letting the public know when or where the meetings were held, who were the officers, and where the corporate business was transacted. There is more of concealment in secret action than in non-action. An omission to keep the corporation in active life is not a concealment of the corporation.
Again, while it- is alleged that there were no officers of the corporation upon whom a summons could be served, yet it is admitted that until May 7, 1872, the corporation had its complement of officers. To avoid the effect of this admission, it is alleged that their terms of office expired before May 7, 1873, and that long before this they had refused to serve as such officers; that they were not reelected, nor were any successors elected. It would seem, from this admission, that there was no time at which service of a summons could not have been made upon the corporation.
In the absence, of an election of a successor or the acceptance of a resignation, the president then incumbent continued ' remain such> and service upon him at any time would have brought the company into court. The society was organized as a corporation under the corporation act of 1866. It is provided by this act that failure to elect officers at the time appointed by the by-laws shall' not operate to dissolve the corporation, but that they may be elected at any other time. (Act of 1866, p. 124, §§7 and 16.) The provision in reference to the appointment of a president' is as follows: “An annual election shall be held for directors at such time and place as the stockholders, at their first meeting, may determine, or as the by-laws of the corporation may. require; and the directors chosen at any election shall, so soon thereafter as may be convenient, choose one of their number president, and shall appoint a secretary and a treasurer of the corporation,” etc. (Sec. 5,. p. 126.) Nowhere in the statute is the term of the president limited to any fixed time, and the provision that he shall be chosen by the directors as soon after their election “as may be convenient,” is directory only, and far too indefinite to fix a specific term. As the corporation is not dissolved by a failure to' elect officers, and as no specific limit is fixed to the president’s term of office, it obviously results that he remains president until a successor is chosen.
It is not true-that an office for which there may be an annual election, necessarily becomes vacant by failure to elect at the time appointed. In Angelí & Ames on Corporations, §143, it is said: “Without doubt a statute or a by-law, or even an appointment, may be so restrictive as to terminate an annual office at the end of the year; but an election for a year has never been considered one of this description. A clause in a charter which directed thát aider-men should be chosen annually, was held to be only directory, and not to determine the office at the end of the year after election; but, that the person legally elected and sworn into office should continue until removal.” (McCall v. Byram Manf. Co., 6 Conn. 428; Foot v. Prowse, 1 Stra. 625; Pender v. Rex, 2 Brown, P. C. 294; Weir v. Bush, 4 Litt., Ky., 433; Queen v. Durham, 10 Mod. Rep. 147; People v. Runkel, 9 Johns. 147; Slee v. Bloom, 5 Johns. Ch. 366.)
Again, it is alleged that during the years 1875 and 1876, the G. W. Goodlander who purchased and had possession of the premises was mayor of Fort Scott. Hence, because he was a necessary party defendant and the chief executive officer of the city, plaintiff’s counsel contends that the running of the-statute must be suspended while such relation existed. It is nowhere alleged that he interfered to prevent suit, or that he took any action whatever in the premises; but the claim is rested upon the single fact that he was mayor. The claim cannot be sustained. The mayor was not sole manager of the city s affairs. JLhe powers were-i i -i M . vested in the mayor and council, lhe right to bring an action existed all the time. The mayor had no-power, and made no effort, to stay the suit. The question-might be different if the sole power to maintain action on the-part of the city was vested in the mayor. The cases of City of Oakland v. Carpentier, 13 Cal. 540, and Ryan v. L. A. & N. W. Rly. Co., 21 Kas. 365, might perhaps then be in point; but the present ease is neither within the letter nor the spirit of any of the exceptions named in the statute. Surely the courts would not be warranted in engrafting an exception and suspending the running of the statute in a case in which there-was in fact no power and no effort to prevent suit by any party interested adversely to the rights of the city.
The third point raised is, that the statute did not rua against these defendants because they have always been nonresidents. But the bond is the principal, and the- , -¶ • « -i , , ¶ , ii mortgage only incident thereto: and where action in the former is barred, it is also on the latter. (Watterson v. Kirkwood, 17 Kas. 9; Schmucker v. Sibert, 18 id. 176.)
Upon the entire record we see no error, and the judgment-will be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
At the September term of the district court of Lyon county, Kansas, for the year 1878, the defendant was tried, found guilty, and sentenced to the state penitentiary for the term of five years. ' The information filed against defendant originally contained three counts, the first of which charges:
“That in May, 1872, one E. P. Bancroft was, by the board of directors of the state normal school at Emporia, duly appointed as agent for the sale of said state normal school lands, and continued to be such agent until June 6, 1877; and that during all of said time, by virtue of such appointment as such agent, he was an agent and officer of the state of Kansas, a public corporation; that from day to day during said time said Bancroft, as agent, received, collected, and took into his possession and under his care, in said capacity as agent and officer of the state of Kansas, about. $13,270.14, derived from the sale of certain of said normal school lands particularly described in said information, and which had been sold by said Bancroft as such agent, and which money belonged to the state of Kansas; and that of this sum, Bancroft, on June 6, 1877, at Lyon county, Kansas, unlawfully, fraudulently and feloniously embezzled and converted to his own use the sum of $9,000, without the assent of said state of Kansas, his employer, or of any other ‘person or persons’ thereto lawfully authorized, and that said embezzlement was concealed by Bancroft until February, 1878.” . .
The third count is similar to' the above, except that instead of charging the fraudulent and felonious embezzlement of said moneys, it charges:
“That on said June 6,1877, said Bancroft had in his possession and under his control all of said $13,270.14, except $-, viz., $9,000, after deducting all his stipulated commissions; that on said day the board of regents of said school demanded of Bancroft (they being thereto lawfully authorized by the state of Kansas, his employer in said agency) that he pay over into the state treasury said sum of $9,000, which Bancroft failed, neglected and refused, and still does fail, neglect and refuse to do, and that he never has paid said sum or any part thereof into said treasury; that said sum and no part of it has been lost by means beyond said Bancroft’s control before he had an opportunity to make delivery thereof to his said employer; that his said employer has not and did not permit him to use said moneys or any part thereof; and that Bancroft concealed the fact of his said crime and of his having said moneys until February, 1878.”
The district court required the state to elect as between the first and second counts in the information, and the state elected to proceed upon the first and third counts, and said second count cuts no further figure in the case.
.A motion was then made by defendant, to compel the prosecution to elect upon which of the remaining counts (the.first and the third) it would proceed, and.to strike out the other on the grounds — 1st, that said information as it then stood did not state the facts constituting a public offense, in plain and concise language, without repetition, ■etc.; and 2d, that said counts were improperly joined. The ■motion was overruled by the court, and defendant excepted.
Defendant then interposed a motion to strike one or the other of said counts from said information, which was' also ■denied, and defendant excepted.
Then followed defendant’s motion to quash each of said counts, on the ground that neither of them stated facts sufficient to constitute a public offense; and that neither count was direct and certain as to the offense charged. This was .also overruled, and an exception duly taken by the defendant.
Thereupon said defendant filed his plea in abatement, duly •verified, alleging that he had never had any preliminary ex-.amiuation for the pretended offense charged, or attempted to be charged, in each of said counts, or in any form waived the same, etc. To this plea the state interposed a general denial. The issue thus joined was tried before a jury, verdict was ■rendered for the state, and judgment for the state was entered thereon, after the motion of defendant for a new trial had been overruled and exception taken.
The defendant standing mute and refusing to plead, the ■court ordered a plea of not guilty to be entered for him as to •each count.
The jury found the defendant guilty, of embezzlement as charged in each of said counts, and found the amount embezzled under said first count to be $3,436.18, and under the thii’d count to be $1,987.24; and thereupon the court adr judged that said Bancroft is guilty of embezzlement as found in said verdict, and that he be taken hence to the penitentiary of the state of Kansas, and there confined at hard labor for the full term of five years, etc.
The statute under which this prosecution was had is the .amendment made in 1873 of §88 of the crimes act, Laws 1873, p. 177, §1, which reads:
“ If any clerk, apprentice, or servant of any private person, •or of any copartnership, except clerks, apprentices and servants within the age of sixteen years, or if any officer, agent, ¡clerk or servant of any incorporation, or any person employed in such capacity, shall embezzle or convert to his own use,, or shall take, make way with, or secrete with intent to convert to his own use, without the assent of his employer, any goods, rights in action, or valuable security or effects whatsoever belonging to any person, copartnership or corporation, which shall have come into his possession or under his care by virtue of such employment or office, he shall, upon conviction thereof, be punished in the manner prescribed by law for stealing property of the kind or value of the articles so-embezzled, taken or secreted; or if any agent shall neglect or refuse to deliver to his employer or employers, on demand, any money, promissory notes, evidences of debt, or other-property which may have come into his possession by virtue of such employment, after deducting his fees as attorney,, charges as agent, or stipulated commission for making collection of such money, unless the same shall have been lost-by means beyond his control before he had opportunity to-make delivery thereof to his employer or employers, or the-employer or employers have permitted him to use the same, he shall, upon conviction thereof, be punished in the manner-, provided in this section for unlawfully converting such money or other property to his own use.”
It is evident that the first count was framed under the first part of this section, and the third under the latter part, and that upon this section the principal question is whether the-state is an incorporation within the meaning of that term as-here used. It is conceded that there is a certain sense in which a state is a corporation, and properly so denominated.. But the contention is that it is not so in the ordinary legal sense of the term, and even if it were, the legislature has by its express definitions excluded it from the scope of the term as used in the statutes. An examination of the authorities will show in what sense the state is called a corporation, and to them we turn. In Angelí & Ames on Corporations, § 15,. it is said:
“Nations or states are denominated by publicists bodies-politic, and are said to have their affairs and interests, and to deliberate and resolve, in common. They thus become as-moral persons, having an understanding and will peculiar to themselves, and are susceptible of obligations and laws. In this extensive sense the United States may be termed a cor poration. They are a collective, indivisible body, which can act and be seen only-in the acts of those who administer the affairs of the government, and also their agents duly appointed. So it may be said of each state singly; so the king of England is a corporation, and so is parliament.”'
So in Dillon on Municipal Corporations, vol. 1, § 14:
“Although not styled such, each one of the United States, in its organized political capacity, is in effect a public corporation. Corporations, however, as the term is commonly used, do not include states, but only derivative creations owing their existence and powers to the state, acting through its legislative department.- Like corporations, however, a state, as it can make contracts and suffer wrong, so it may for this reason, and without express provisions, maintain, in its corporate name, actions to enforce its rights and redress its injuries.”
Thus, according to Angelí & Ames, it is only in an extensive sense of the term that the state may be called a corporation, and according to Dillon the term as commonly used does not include a state. So, while a state is recognized as possessing corporate character so far as to give it status as a plaintiff in-the courts of a sister state, (Woodworth v. Janes, 2 Johns. Cases, 417; Delafield v. Illinois, 2 Hill, N. Y., 159; Indiana v. Noram, 6 Hill, N. Y., 33,) or in its own courts, (State v. Delesdenier, 7 Tex. 76,) yet it seems to be so recognized only in a limited sense, and for certain purposes. It is not broadly and generally called a corporation, or classed with such creations of the law. Again, in so far as a state is a corporation, it is also a person. “Corporations are artificial persons — bodies politic, possessing some of the attributes of natural persons, and are subject to many of the obligations and duties imposed by law upon individuals.” But it has never been held that because, in this sense, a corporation is a person, that when the word “person” is found in a statute it will be construed to mean or embrace a state. Its meaning may be extended by express definition so as to include the sovereignty, but unless so extended it will not be so considered; and the reason is, that “in construing a statute, words are to be taken in their ordinary sense, unless, from a consideration of the whole act, it appears that a different meaning was intended.” As an example of this, we refer to § 314 of the crimes act, which provides: “When the term ‘person’ is used in this act to designate the party whose property may be the subject of any offense, such term shall be construed to include the United States, this state,” &c. See In re Fox, 52 N. Y. 534, et seq.; United States v. Fox, 94 U. S. 320, 321.
These general considerations indicate that the state is not included within the terms “incorporation” and “corporation,” as used in this section, for while it is true of all statutes, it is especially true of penal statutes, that no strained or exceptional interpretation is to be given to their • language for the sake of including offenses not apparently within the purpose of the legislature in their enactment. We must, as a rule, keep within the ordinary meaning of words and phrases in construing criminal statutes, for otherwise the courts will be making those acts offenses which the law-making power has not declared to be such.
But we are not left to mere general considerations and rules of interpretation. The legislature has in terms defined the meaning of the word “corporation,” and such definition must be accepted as conclusive. It was this definition which justified this court in the case of The State v. Smith, 13 Kas. 292, in holding that a county treasurer was included within the section — a conclusion reached with some hesitation, and one not altogether in harmony with decisions elsewhere. This definition, which was broad enough to make the term “corporation” include a county, as plainly makes it exclude the state. It is a definition given by the same legislature which enacted the original § 88, and must be taken as its understanding of the scope of the word as it is used in said section.
In ch. 23 of the General Statutes it is enacted:
“Sec. 1. Corporations are either — first, public; or second, private.
“Sec. 2. A public corporation is one that has for its object the government of a portion of the state.”
This first section is comprehensive: it includes all corporations, and divides them into two classes. There can be no pretense that the state is included within the second class. In np sense is it a private corporation, neither does it come within the definition of the first class. “The government of a portion of the state” is the language. Now the greater may sometimes include the less, but never the less the greater. An organization whose object is the government of the state as a whole, is not included within a term which is limited to those organizations whose object is the government of only a portion of the state. In other words, the legislature has expressly said that in using the term “ public corporation,” it means only those limited and local organizations, such as counties, cities, etc., to which it intrusts the government of portions of the state. With such an express . affirmation of its intent in the use of the term, it would be simply an usurpation for the courts to hold that the term includes something more.
Supporting this conclusion, if it needs any support, it may be remarked that the same legislature made provision for the punishment of any embezzlement by the state treasurer, defining the offense and imposing a penalty therefor. (Gen. Stat., p. 983, § 56.)
Again it had, as already noticed, expressly included within the word “person” the United States, this state, etc. Yet when it used this word in said § 88, it chose to limit it by prefixing the term “private,” as though it would not extend the scope of that section to the United States or the state. It was an unnecessary prefix, unless it intended a limitation which would exclude that which it is now contended should be included. It adds no force to the statute except by way of limitation, and it would be strange if the legislature had taken pains to limit one descriptive term, broad enough to include the state but for such limitation, and at the same time had intended that another descriptive term used in the same section not generally broad enough to include the state and which it had so defined as to exclude the state, should, with out any intimation of its being used with an extended meaning, be so construed as to include the state. The conclusion then to which we are forced is, that the state is not included within the terms incorporation and corporation as used in this section, and therefore that the , 4 7 coun^ m information states no offense under the statutes. This avoids the necessity of examining many of the questions presented and discussed by counsel.
The third count, as we have seen, was framed under the latter portion of the section, and it is insisted that its language is broad enough to include an agent of the state. We quote from the brief of counsel: “The term ‘agent/ as there used, is not dimited, nor is it attempted to be limited, by any words, but is expanded to the fullest extent of our language* Any agent, as there used, means every kind of an agent, and an agent of anybody or everybody who is capable of being represented by an agent. The state can be represented in no other way than by agents — therefore an agent of the state must be included in the words any agent, as there used. The third count charges that the defendant was acting as agent, etc. This is sufficient.” It must be conceded that the expression, “any agent,” is broad enough to include an officer or .agent of the state, though the words . . ° agent and employer are not apt or ordinary to express the relations of a public officer and the state. We had occasion to consider the force of the term employer, as used in this section, in the case of The State v. Smith, supra, and held that its use was not so inconsistent with the relations of an officer to the public as to prevent the application of the statute to public officers. It follows, therefore, that if the latter part of this section stood as a separate and independent act, its language would properly be held to include an officer or agent of that state, and the third count would have to be sustained. What effect, then, does its position as a part of a section have upon it, and how far do its relations to the entire section limit and control its extent? The car dinal canon of construction is, that the intent, when ascertained, governs; so that all mere rules . it n • of interpretation are subordinate, bumming up his remarks on this, Chancellor Kent says: “It will be sufficient to observe generally that the great object of the maxims of interpretation is, to discover the true intention of the law; and whenever that intention can be indubitably ascertained, and it be not a violation of constitutional right, the courts are bound to obey it, whatever may be their opinion of its wisdom or policy.” (1 Kent’s Com. 468.)
The question is one of difficulty. Evidently the words “any agent” mean exactly “any agent,” and include every agent, whether of an individual, a partnership, a corporation or a state, who does the acts thereafter named, or they mean only such agents as have been previously enumerated in the section. Either construction is exposed to objections which are not easily answered. In support of the latter construction, it may be said that it is a rule of interpretation that, “where particular words are followed by general ones, the latter are to be held as applying to persons and things of the same kind with those which precede.” (Potter’s Dwarris on Statutes, p. 236, and cases cited in note.) Having once indicated by the particular words in respect to whom or what it is legislating, further particularity is unnecessary, and general terms and phrases may be used without extending the legislation to any other person or things.
Again, it may be said that this section in the Laws of 1873 is an amendment of § 88 of the crimes act, the amendment consisting in the addition of this latter part under which the third count is framed; and the fact that it is an amendment, indicates its purpose and extent. It is not to be considered as an independent act, creating, defining and punishing an offense. Words and sentences added to a section by way of amendment are added to limit, extend or qualify that which is already in the section. We must look to the original section and compare it with the amendment, to determine what error or omission the latter was intended to remedy and that interprets its scope and effect. In a. section defining and prescribing a penalty for a crime, an amendment may be in respect to the person, the offense, the evidence, or the punishment. It may enlarge or limit the number of persons capable of committing the offense; it may define the offense more fully, or include or exclude certain acts; it may declare the effect as evidence of any act or word; and it may increase or diminish the penalty. Now when the obvious purpose of the amendment is a change in any one of these respects, the language must be construed so as to carry into effect that purpose, and not in either a broader or more-limited sense than it would receive in an independent act. Thus in the case at bar, if the obvious purpose was to enlarge or limit the penalty, that purpose interprets the language and-the use of general phrases and expressions should not be construed as extending the offense or increasing the number of persons capable of committing it. If the amendment of 1873 had read that, “All persons guilty of embezzling, converting to their own use, or secreting with intent to convert,” &c., “shall be punished by imprisonment and hard labor not less than five years,” &c., it would be evident that the thought of the legislature was on the penalty, and that it was not the-intent to define the offense or include within the statute any other acts or persons than before. Now an examination of the amendment actually made indicates that the purpose was to enlarge the offense, by extending it to the case of an improper failure or refusal of an agent to pay or deliver to his employer on demand moneys, property, etc. Is not that all that the amendment intended? And should any general words be held to extend the statute to agents generally, or-should they not rather be construed as referring to such agents only as have been previously enumerated? On the other hand, it may be said that the intent is to be gathered from the words; that if the legislature had intended to limit, this provision to the agents previously enumerated, it would naturally have said “any such agent,” and that, failing to use that or some similar term, and in fact using the comprehen sive expression “any agent,” it intended to include every agent. Again, the rule concerning the limitation of general by prior particular words is not of absolute, controlling force, but always yields to the manifest intent. Indeed, does the rule extend to cases where in one clause certain acts and conduct are imputed to a particular class of persons, and in a subsequent clause different acts and conduct to a more comprehensive class, or is it not limited to cases where the general follow the particular words in the same clause as mere additional terms of description, and where the same acts and conduct are ascribed to, or affirmed of all ? Further, an amendment may extend the original section in all respects, both as to persons, offense, evidence and penalty, and unless this amendment extends to persons as well as offense, it has but a limited and narrow application. Obviously the amendment was intended to reach such agents as attorneys, collecting agents, etc., who collect money for their principals, and to make their improper failure to pay on demand a crime. Now if no persons are includéd save those enumerated in the first part of the section, it would seem that only the attorneys or collecting agents of corporations were reached, for within the terms “clerk, apprentice or servant,” (which are the only terms used in that part of the section with reference to any other agents than those of corporations,) an attorney or collecting agent would not properly fall. Can it be that the legislature intended by this amendment to reach only the agents of corporations? And again, if a mere enlargement of the offense was alone intended, why not, as would be natural, the statement of the act to be prohibited injected into the body of the original section to run along with the other acts prohibited, after the persons and before the penalty, instead of being a complete and separate statement both as to persons, offense and penalty?
The conclusions to which we have now come are with the considerations last named. "While this stands as an amendment of a section, it is complete in itself. It names the persons, describes the offense, and affixes the penalty. It was •doubtless aimed at lawyers and such other collecting agents as are not liable to even a civil action until after demand, and its language was purposely made general, to include all such agents, for whomsoever they were acting. We make this ■extract from 'the argument of counsel for appellant, which, while directed to another question, tends to support the conclusions above reached:
“The two offenses charged are in law just as distinct as if they were covered by separate sections of the statute; the fact that they appear in one section don’t alter their legal character. It is absolutely impossible for a person guilty of .embezzlement of funds under the first clause to be guilty of a criminal refusal to pay over funds collected, as provided for in the second. The second clause was enacted for the purpose of reaching a class of individuals who were not and could not be punished under the first clause: a class of collecting agents who were not even civilly liable until after demand. It is true that a demand and refusal may be evidence of an embezzlement under the first clause, but it would not necessarily constitute the embezzlement; and then it will not ■be supposed that, in enacting this second clause, the legislature was simply putting in a statute of evidence in embezzlement cases. If, by the amendment of 1873, the legislature did not provide for two distinct felonies, and felonies that, so far as the same individual and the same funds are concerned, are as to each other inconsistent and repugnant, then we have in this amendment an indirect attempt to legislate out of existence the statute of limitations so far as embezzlements are concerned, for the addition clearly amounts to this and no more: ‘That whenever any agent, officer or servant mentioned in § 88, ch. 31, shall have embezzled any such moneys mentioned in said section, and shall neglect or refuse to deliver to his employer, on demand, the same, unless the same shall have been lost by means beyond his control,’ &c., ‘or his employer has permitted him to use the same, he shall upon conviction,’ &c. If this second clause does not make the things therein mentioned a crime, and the same did constitute a crime under the first clause, then it is an absurdity; or else the legislature simply meant to say, that if any one has at any time been guilty of embezzlement under the first clause, he is to be convicted and punished, even though prosecution for this crime is barred by the statute of limitations, provided the demand mentioned is made and the other things ■stated exist; and we cannot suppose the legislature intended any such thing.”
As the charge against the defendant falls solely within the last part of this section, it is unnecessary to stop here to consider the questions suggested by counsel. There is no renewing of an old crime by a late demand. The defendant, if ■guilty of any crime under the statutes, is guilty of the crime •of improperly refusing to pay over, on demand, moneys belonging to his employer.
As the jury specially found the defendant guilty under the third count, and as the punishment imposed was no greater than that warranted by such count, we may ignore all matters save those arising under this as a single and separate charge.
Among the questions deserving notice after passing the •construction of the statute, is whether the defendant was in fact an agent. It is claimed that all his authority to act ceased in 1873, and that whatever he did thereafter was done by him upon an unwarranted assumption of authority; that his acts did not bind the state, that the money he received was received by one having no authority to receive it, and that whatever may be the nature of the wrong done to the parties paying, he is gui-lty of no embezzlement of the state’s moneys. This claim is based, not upon any alleged revocation of his authority by any board of directors or regents, but as the necessary result of legislative action. It may be an important question, not only in this case, but also in controversies which may hereafter arise between the state and parties purchasing and receiving contracts of sale from the defendant. For if the defendant was not legally the agent of the state after 1873, then the parties purchasing from him as such agent can have no legal claim on the state for the fulfillment of their contracts or credits for moneys paid to him. A brief reference:to the legislation on the matter will be necessary. These aré the acts:
1st. An act in 1863, establishing and locating the normal school, and endowing it with the salt-spring lands. (Gen, Stat., p. 582.)
2d. An act in 1864, organizing the school, and placing it under the direction of a board of directors. (Gen. Stat., p. 589.) This act contains in detail many provisions for the administration of the school, but says nothing in reference to the-sale of the school lands.
3d. An act in 1866 (Gen. Stat., p.593), and a substitute-therefor in 1872 (Laws 1872, p. 378), providing for the sale of the lands. This act makes no provision for the administration of the school, except that it declares that the interest on the proceeds shall be applied to the maintenance and support of the school under the direction of the directors, but does make full and complete provision for the sale of the-lands, authorizes the directors to sell, and to appoint an agent, with power to make contracts and receive money.
4th. An act in 1873 (Laws 1873, p. 251), placing the government of the school in a board of regents. This was a. general act in reference to all the state institutions of learning, and assigns the government of each to a separate board of regents. It does not attempt to prescribe any detail in reference to their management, but simply changes the governing body, reducing its numbers, and changing its name. It empowers it as a “board of control, with full and complete powers to adopt and enforce all necessary rules and regulations required under the law for the government of said institution.” It makes no special reference to the sale of the-lands. It does not by name repeal any prior act, but in. terms repeals all “parts of acts” in conflict with its provisions.
5th. An act in 1877 (Laws 1877, p.236), changing the number and term of the regents. This act in terms directs the regents to sell the lands under the provisions of the law of 1872, simply reducing the minimum price. It impliedly, therefore, recognizes the act of 1872 as still subsisting and in force. These are all which bear upon the present question.
It is evident, therefore, that the act of 1872 was never in terms repealed. If repealed at all, it has been only by implication, but such repeals are not favored, and can only be sustained when the two acts are repugnant and cannot both have force and effect, or where the latter is manifestly an entire substitute for the former. (1 Kent’s Com., p. 467, and cases cited in note.) Either one of two results seems to us properly to follow: either that the board of regents took the place of the board of directors in the mere administration of the school, leaving the board of directors with the power to continue in the sale of the land, or the board of regents took the place of the board of directors in all matters relating to the school, including both its properties and its administration. The latter, from the* subsequent legislation of 1877, would seem to have been the understanding of the legislature. And the management of not only the normal school, but also of the agricultural college, whose governing board was also prescribed in the same act of 1873, seems to have been conducted upon this understanding. And this is a case where the maxim that that which is within the intent of the statute is within the statute, may well have force; though it matters not which may be the correct interpretation so far as the powers, duties and responsibilities of the defendant are concerned. In either case, he was the state’s agent, with power to se^ anc^ receive pay, and under obligation to pay receip(¡s ]ess hjs commission into the state treasury. Certainly, his plea that though he acted as agent, sold the land as agent, and collected money as agent, and then appropriated it to his own use, yet he was not in fact and in.law an agent, is not one calling for any forced or strained construction of the statutes.
Another matter of moment is that of demand. Under this third count the gist of the crime is the refusal to pay upon demand; a mere neglect to pay when due is insufficient; and a demand must be proved before any conviction can be had. Such demand must also be in the line of authority, and not from a mere stranger. So far we agree with counsel for ap pellant, but we cannot concur in other matters they press in connection with the question of demand. It need not be by the party to whom the money was actually payable, the state treasurer. The defendant held his position as agent by appointment of the board, and was at all times subject to their control and direction. To their care was given the matter of the sale of the lands, and a demand by them, or a committee duly appointed therefor, was a demand in ^ie ^ne authority, aud not a mere intermeddling by a stranger. Neither is it necessary that the authority granted to a committee be an express direction to make a formal demand, nor that a copy of such direction be formally presented; nor that the notification actually given by the committee be in express words a demand for the payment óf the money. It must be borne in mind that this is not a case where a right to retain and use the money existed until demand, in which case more formality and precision might be necessary to change a rightful into a wrongful holding; that the defendant was all the time derelict in duty in withholding payment; and in such a case anything which amounts to a notification by one lawfully authorized, that he is expected now to perform that neglected duty, is a sufficient demand. In the language of the instructions, which we quote with approbation, in order to constitute a legal demand no particular words are necessary to be used. If the party making the demand use language that plainly indicates to the party upon whom the demand is to be made what he is required to do, this would constitute a legal demand. And turning to the testimony, we find ample to sustain a finding of a demand. Indeed, while counsel have placed much stress upon this, none of the questions we notice in this opinion seem to us of so little doubt or difficulty.
The resolutions upon which the committee was appointed and acted, and both of which were passed at the same meeting of the board, are as follows:
“On motion of Mr. Crichton, it was ordered by the board that a committee of two be appointed to report at the regular meeting in June next the amount of normal school lands sold; the condition of the funds derived from lands already sold; to make, a survey of said lands, if practicable; and report generally upon the propriety of further sale of said lands, and upon any other matter germane to the subject.
“Resolved, That the agent of the board of regents for the sale of lands of state normal school be required to deposit all moneys received by him for the sale of said lands into the state treasury as the law provides, as soon as the amount thereof shall be ascertained by the committee to be appointed this day.”
It is not pretended that any copy of these resolutions was ever presented to defendant, or that he ever saw them; but in pursuance thereof, the committee had two interviews with him in relation to the matter, at an interval of nearly a year, in the first of which he gave them a statement of lands sold and moneys received, which he said was complete, and paid over the money; at the second, a much larger sum was named, but no payment made. We make the following extracts from the testimony of one of the committee, James H. Crichton, as to what transpired at the first interview:
“I and Dr. Wright were appointed a committee to call upon Bancroft, and demand settlement and account of his doings as agent. About the 18th of April, 1877, they went to B.’s office, and asked a statement óf the laud sold and money received, and all his transactions. He gave us a small slip of letter paper, which he said contained a list of all lands sold and money received. . . . The total amount of principal he said he had in his hands was $2,148.90, interest $621.33, in all $2,770.23, which amount we received from him then and there. I asked him if that was a full account of his transactions up to that time. He said it was. I asked if he kept any book entry of sales, showing the time of the sale, the land sold, and the purchase price. He said ‘No.’ I demanded of him, on behalf of the board, all papers, etc., pertaining to these lands in his possession. He handed me a small account book, together with a roll of legal cap upon which had been written a description of the land and the appraisement of Prescott. I asked him for a full report, and he had this [referring to above slip of paper] prepared, and said he had that amount and would turn it over. I asked him again why in the name of sense he did not put the money in the treasury.”
Dr. Wright, the other member of the committee, also testified :
“I cannot state the words; the substance was that Mr. Crichton made a demand of Bancroft, asking him for the money, stating that we called to get the amount of money for the land sold.”
And in reference to the second interview, Crichton testified that he said to defendant:
“I understand you have sent in another report. He said, ‘Yes.’ I asked him if he had made a clear report this time. Pie said he had, of all his doings. I remarked, that ‘from that report you owe the state $8,000.’ He said yes — that he had that much of the school funds. I remarked, ‘I suppose you are ready to pay the amount?’ or language to that effect. He said no — he was not. I remarked that the money was what we most needed. He said he was unready to pay. I asked him what he had done with the money. He said he did not know — he had used it for different things.”
Further than this, the defendant had an interview with the board after these interviews with the committee, with reference to his deficiency and a settlement of the sáme, in which he stated his resources, and that he could pay the interest on the deficiency during the year, and the principal in two years.
We see no reason to doubt the sufficiency of the testimony in this respect to sustain the verdict of the jury.
A final matter that we shall notice is the competency of one of the jurors, W. O. Ferguson. On his voir dire this juror testified that he had neither formed nor expressed any opinion as to the guilt or innocence of defendant, and was without bias or prejudice. At the same time, two witnesses were called who testified that they heard him say that he was afraid defendant had got himself into a bad scrape, and had “got his foot into it,” or words to that effect. On reexamination the juror declared he had no recollection of any such ■conversation as stated by these witnesses. A challenge was then overruled, and he served as a juror. On a motion for a new trial, severdl witnesses testified to hearing similar remarks frpm the juror. Eer- ° J guson was recalled, and denied these statements; testified that he had not been on speaking terms with one or two of the witnesses, and had not been present at the times .and places named by others. Some of the testimony on this motion was given by affidavit and some orally. The court ■overruled the motion, and this is alleged as error.
Upon this we' remark, that if this question hinged solely upon oral testimony we should with little hesitation sustain the ruling of the district court as its decision upon a mere ■question of fact. It was, however, presented principally upon affidavits and only partially upon oral testimony, so that it.comes before us in a different attitude. We may remark further, that if the case was one principally of fact, and the .question was whether the defendant did the acts •charged against him, especially if that question was a doubtful one, we should have expected that the district court would have sustained the motion and given the defendant the benefit of the doubt.
But where, as in the case at bar, the questions are principally questions of law, and the. acts and conduct of the defendant as admitted and testified to by himself taken in conjunction with undisputed and unquestioned facts, make out a strong ease of guilt, and 'the district court who saw the juror and heard the testimony, both oral and written, sustains his qualifications, it does not seem to us that substantial justice requires that the judgment be reversed and the case remanded for a new trial. We frankly admit our hesitation in arriving at this conclusion, and only the peculiar character ■of' the case and the questions involved in and presented at the trial, incline us to the opinion that the substantial rights •of the defendant have not been invaded by this ruling.
Many other questions have been presented, and discussed by counsel with great ability. We have endeavored to notice those matters which struck us as most important and difficult. We have examined the others, and see nothing which would seem to us to justify a reversal. Indeed, reading the story of the defendant’s acts and conduct as told by himself, his dereliction of duty presents a crime which no-smoothness of words or politeness of language can obliterate- or conceal.
The judgment will be affirmed.
Valentine, J., concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, brought by T. E. Newlin against Richard L. Walker, for the recovery •of certain goods and chattels. Newlin claims the goods by virtue of a certain deed of assignment executed by A. A. Estlin, transferring the goods to him for the benefit of Estlin’s creditors. Walker, who is sheriff of Cowley county, Kansas, claims the goods by virtue of four certain orders of attachment issued in suits brought by certain creditors of the firm of A. A. Estlin and L. R. Norton, as A. A. Estlin & Co., which orders of attachment Walker levied upon said goods prior to their being replevied. Judgment was rendered in favor of the plaintiff in the court below, and the defendant, now as plaintiff in error, brings the case to this court for review.
The defendant (plaintiff in error) claims that said deed of assignment was and is void, both because of technical irregularities in its execution, etc., and because it was made for the purpose of hindering, delaying and defrauding creditors; and he claims that both the petition and the evidence show these things.
The facts of the case, stated briefly, are, as shown by the pleadings and evidence, substantially as follows:
Prior to. May 16, 1877, A; A. Estlin, of Council Grove, Kansas, and L. R. Norton- or his wife, Annette S. Norton, of St. Louis, Missouri, were partners in the mercantile business at Council Grove, Kansas, and at Winfield, Cowley county, Kansas, under the firm-name of A. A. Estlin & Co. Also, prior to that time said firm had contracted a large .number of debts, among which were those for the enforcement of which said orders of attachment were issued. About that time, to wit, May 16, 1877, said partnership was dissolved — Estlin taking all the property, and agreeing to pay all the debts. Afterward, Estlin carried on said business alone. On June 19, 1877, Estlin drew up, signed and acknowledged said deed of assignment, assigning all his property, that which had previously belonged to the firm of A. A. Estlin &'Co. as well as his other property (except such as was exempt from debts), to said T. E. Newlin, a resident of Morris county, Kansas, for the benefit of his (Estlin’s) creditors. The plaintiff in error, defendant below, claims that the deed of assignment does not sufficiently describe certain of the property assigned. The description is as follows: “My stock of goods now on hand in store in the building on Main street, in Council Grove, Morris county, state of Kansas, and in the frame store building on Main street, in Winfield, Cowley county, state of Kansas, where I now do business.” This deed of assignment was not delivered until July 2, 1877, when it was delivered, and Newlin then accepted the trust tendered by it. On the same day there was filed in the office of the clerk of the district court of Morris county, a schedule of Estlin’s liabilities, with the names of his creditors, the amount of each liability, etc.; which schedule was verified by the affidavit (in the form of a certificate sworn to) of Estlin, stating that the same was true and correct, according to the best of his knowledge and belief. The creditors mentioned in said schedule were the creditors of said firm of A. A. Estlin & Co., and no others, for at that time Estlin had no other «’editors. This assignment was made for the benefit of all of said creditors in proportion to their respective claims. On the same day, to wit, July 2, 1877, Newlin took possession of the property assigned to him situated in Morris county, and on July 4, 1877, took possession of the property assigned to him situated in Cowley county. Prom June 19, 1877, up to July 4, 1877, the agent of Estlin, who had charge of the goods at Winfield, paid some of said creditors in full, amounting in the aggregate to $696, and perhaps sold some of the goods. But all this was done in good faith, and the payments were made without the actual knowledge or consent of Estlin or Newlin, they not being at Winfield, and not nearer there than Council Grove. Afterward Newlin made an inventory of the property assigned to him as required by § 2 of the assignment law of 1868. (Gen. Stat. 94.) On July 7th and 18th, 1877, the said Walker, sheriff, levied said orders of attachment on the property (or a part thereof) situated in Cowley county, and took the same into his possession. On July 31,1877, Estlin’s «’editors had a meeting in accordance with §§ 2 and 3 of the assignment act of 1876 (Laws 1876, pp. 202, 203), and Newlin was duly chosen by them as the assignee to administer the trust created by said deed of assignment. Afterward Newlin commenced this action, replevying the property taken by said Walker on said orders of attachment. A trial was had in the case before the court without a jury. The court held that upon the pleadings the burden of proof rested upon the defendant. The defendant then introduced his evidence, and rested his case. The plaintiff then demurred to the evidence, upon the ground that it did not prove any defense to the plaintiff’s action, and the court sustained the demurrer, and rendered judgment accordingly-
There are a few minor facts which we have not deemed it. necessary to mention. Taking all the facts together, as admitted by the pleadings and proved by the evidence, and we cannot say that the court below erred.
Said deed of assignment took effect July 2, 1877, when it was delivered, and not previously. (Mitchell v. Skinner, 17 Kas. 565; Harrison v. Andrews, 18 Kas. 535, 541; Cain v. Robinson, 20 Kas. 457, 460.)
We think the description of the property was sufficient. At least, the assignee had no difficulty in finding the property. Indeed, we think that everything else was sufficient; and no actual fraud or intention to defraud creditors is shown. Under our present statutes it would take a pretty strong showing of fraud or intended fraud to invalidate an assignment (good in every other respect) made for the benefit of creditors. Sec. 1 of the assignment act of 1876 provides:
“The judge of the district court may appoint a receiver to take and hold possession of the property assigned, in all cases in which it shall be made to appear to him that the assignee is not responsible for the amount of the property assigned, or that there is danger of the property becoming lost, until the assignee shall give security as provided by law.” (Laws 1876, p. 202.)
Sections 2 and 3 of said act provide that the clerk of the district court shall give notice to all the creditors having claims for over ten dollars, of a meeting to be held by such creditors on a certain day, “not less than twenty nor more than thirty days from the day of such assignment,” at which meeting the creditors are to elect an assignee to take charge of the trust, “and until after such meeting the assignee named in such assignment shall exercise no other powers thereunder than the safe-keeping and control of the property coming into his hands under such assignment.” (Laws 1876, pp. 202, 203.) Sec. 4 of said act provides for removals and for filling vacancies, etc., and the entire control of the matter is in the hands of the judge of the district court. A decision, therefore, made under former laws, or decisions made under the laws of other states, may have no application to cases arising under our present laws.
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.:
It is alleged the trial court committed error in admitting evidence that the defendant in error paid $30 as attorney’s fees to secure the corn he received of Bailey, and that the legal proceedings concerning the corn were in a condition to be taken for review to the supreme court. Again, it is alleged that the court erred in instructing the jury they should find in favor of said defendant in error, unless it was shown that Brimm had tendered him sufficient money to make the amount of $250 and the $30; and had further tendered him a bond of indemnity in the suit lately pending in that court regarding the corn. All- of the evidence is not preserved in the record, and the legal controversy between Long and the creditors of Bailey about the corn is very blindly presented. From the findings of the jury and the evidence before us, we ascertain this much: The mules in dispute were sold to Brimm by Bailey, under an agreement between Brimm, Bailey, and Long (the holder of a chattel mortgage, on them), that when Bailey delivered to Long $250 worth of corn at 20 cents per bushel, the mules should be released from the lien of the mortgage. Long actually secured $185.80 worth of corn, but certain creditors of Bailey claimed this under legal process, and Long instituted a replevin action to obtain it for the benefit of Bailey, the latter having agreed to save the former harmless in such proceeding. In the district court Long succeeded, and judgment was rendered in his favor at the December term 1876, but the opposing parties made out a bill of exceptions in that case, and had it prepared to be taken on error to this court. In such action, Long paid out $30 as attorney’s fees. The evidence does not disclose any actual delivery of $250, or of $185.80 worth of corn, to Long by Brimm. The most we can gather is, that by the institution of certain legal proceedings, in which Bailey was to save Long harmless, the latter recovered $185.80 of corn, but paid out to obtain this, $30, and that the proceedings are in a condition to be heard upon error in this court. With this view of the matter, the court committed no error in admitting the evidence objected to, or in its direction to the jury. There was no absolute delivery of any corn; $185.80. worth was obtained by Long upon the expenditure of $30, and it is still questionable whether he will retain it; at least, until the expiration of three years from the rendition of the judgment in his favor, he is liable to be called upon to defend the suit in this court. About all that’we can say is, that Long accepted the $185.80 worth of corn on condition that Bailey should see him harmless in taking it, and the proceedings growing out of such conditional acceptance are not yet ended. The delivery was only a conditional one; the acceptance was only conditional. Long was entitled to have deducted from the value of the corn he received, the attorney’s fees he paid out to secure it, and while the suit over the corn is in condition to be reviewed, certainly Long is not required to give up his lien on the mules, unless protected. Brimm cannot complain of the action of Long, because the proceedings taken by him under his agreement with Bailey were to secure as much of the $250 worth of corn as possible, and the more he obtained the less money Brimm was compelled to pay over or tender. There is nothing in the record, to show that Long was obliged to commence the action to recover the corn out of any duty to Bailey or Brimm. If he had not done so, certainly counsel could not claim that any part of the $250 worth of corn had been paid. The corn was to have been delivered about Jan. 1, 1876, and there had been a failure to comply with the agreement, on the part of Bailey, before the suit of. Long was commenced. Of course, if there had been a delivery of the said $185.80 of corn to Long without any conditions, and an acceptance of it by him, in the absence of any failure of title to the corn Brimm would have been required to tender only sufficient to complete the $250; but the record presents a different case. When it shall finally be settled that the $185.80 worth of corn belongs to Long, then the plaintiff in error will be entitled to the mules in dispute, by paying or tendering sufficient to reimburse LoDg for his expense in securing the corn and the balance of the $250.
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
Brewer, J.:
Defendant was convicted of grand larceny in the stealing of a horse, and from such conviction appeals to this court. One question only requires notice, all other matters having been covered by the opinion delivered in the case of The State v. Cole, ante, p. 474. That question is one of continuance. The facts are these: Defendant moved for a continuance at the term at which the information was filed, on the ground of absent testimony. This testimony was of witnesses to show that he purchased the horse which he was charged to have stolen, and also to prove previous good character. The testimony was unquestionably material, and if due diligence was shown he ought to have received a continuance. He says in his affidavit that he was arrested on or about November 1st, and committed to the jail of Wilson ■county, and that he then employed counsel to defend him; that he remained in said jail until Dec. 3d, when he was removed to the Franklin county jail, where he remained until the commencement of the term on the succeeding February, when he was returned to Wilson county jail. The information was filed February 7th, and the trial had February 15th. During the time of his confinement in Franklin county, he had no opportunity to consult with his counsel, and was destitute of means. Since the filing of the information he has applied for and received a commission to take the testimony of the absent witnesses, some of whom reside in Missouri and some in Nebraska. That immediately after his arrest he wrote to a party named in Nebraska where he resided, asking . him to ascertain the names of parties who would testify to his good character, and also the name of some one to take the depositions; and also that he wrote to a party named at Joplin, Mo., requesting him to go to Baxter Springs, in the vicinity of which place he claimed to have bought the horse, and make inquiry for the person of whom he claimed to have made the purchase. That he also gave to his attorney the name of the last person addressed, and all information he possessed as to his residence and probable-whereabouts; and that, as he is informed and believes, his attorney wrote several letters to parties making inquiry about said witness, but without receiving any information therefrom. That he himself received no answers to the letters he had written, and that within one week after his removabto Franklin county he wrote to the sheriff of Gage county, Nebraska, who he believed was acquainted with the party to whom he had written at Joplin, and to other parties in Nebraska, to ascertain the whereabouts of said party, and that within two weeks thereafter he received a letter from said sheriff stating that he did not exactly know said party’s address, but believed he was at the lead mines in Kansas. That immediately he addressed a letter to said party at Empire City, Kansas, and soon after another to him at Joplin, Missouri, requesting him to make the inquiries previously named. That within two weeks of the sitting of the court, he received a letter from said party stating that one John N. Burton, living near West Point, Missouri, was the man who sold defendant the horse, and that one George Skaggs, living near Joplin, would-testify to material facts as specified, corroborating the sale. Expecting to be returned to Wilson county in a few days, he did not communicate this information to his attorney until he was brought down to Wilson county for trial, as before stated.
We think this was a sufficient showing of diligence. The defendant was in jail, and without means.- He had to rely upon letters and friends for information. He wrote without delay, and continued to write. He could not compel answers, and he could not go himself to make inquiries. His situation was very different from that of one out on bail and able to go in search of testimony, or of one with ample means to employ .assistants. Reasonable .diligence was of course essential; but what more could defendant do? Counsel for the state say that the whole defense was a sham, and it was- apparent to the district court. But how could the court say from the affidavit that it was a sham, or that the' efforts of defendant were not in good faith ? The defendant swears that the witnesses would testify to the facts, and that he believes those facts to be true. There was nothing impossible or even improbable in such testimony, and the defendant ought to have had an opportunity to obtain it if possible. Grant that he might have commenced taking depositions at the very day of his arrest, yet he did not know where these witnesses were, and not until just before the convening of the court and the filing of the information did he discover where they were. The defendant was presumed to be innocent. His efforts-were apparently in good faith, and the testimony he sought was very material. It will not do to say that such testimony was false, or his efforts to obtain it a mere pretense. If the witnesses sought should testify as stated, it will be for the jury to say whether such testimony is true. It cannot be pronounced false in advance, and a party should not be held lacking in diligence who uses all the means at his disposal to obtain his testimony.
For this error the judgment will be reversed, and the case remanded for a new trial. The defendant will be returned from the penitentiary to the jail of Wilson county, to abide the further order of the district court of that county.
All the Justices concurring. | [
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The opinion of the court was delivered by
Hokton, C. J.:
A very extensive record is presented to us in this case, and our attention called to nunierous allegations of error; yet, upon a careful examination of the proceedings of the trial court and the briefs of counsel, we find very little demanding any comment, and nothing in the record requiring a reversal of the judgment. The case turned almost wholly upon controverted questions of fact, and we have decided so often that this court will not disturb-a judgment as against the evidence, even when the evidence seems to preponderate the other way, that it is unnecessary to refer to the testimony further than to say there was evidence before the court to prove every fact necessary to sustain the judgment.
The main allegation of error made by counsel is, that the court erred in overruling the demurrer of the defendant below to the evidence introduced by the plaintiff. In support of this alleged error, counsel say:
1st. Plaintiff failed to have what he did do completed until thirty-two days after the time fixed by the contract, and that time was regarded as of the essence of the contract.
2d. That he did not replaste.r the building as he agreed to do; and,
3d. That he placed the building on a stone foundation, without knowing or caring to know whether it was level or not.
As to the first objection, it is sufficient to say, that while the plaintiff agreed to complete the contract within forty days from its date, it was further stipulated that for each and every day’s delay after the expiration of the' forty days, he was to pay a penalty of six dollars. Therefore, for the delay of thirty-two days, the defendant was entitled to $192 as liquidated damages, to be taken from the amount due the plaintiff; but the fact that the evidence disclosed such delay, was no ground to sustain a demurrer to the evidence.
The other objections to the evidence of plaintiff relate to a failure to perform his work in full compliance with the terms of the .contract. On the side of the plaintiff it is asserted, that as he plastered all that was necessary with three coats, and that-all the .old plastering left on was good, and as the new foundation was better than the old one, the contract was fully completed on the part of the plaintiff, as he was only required to place the building after removal in all respects as good as before. Conceding, however, that the plaintiff should have replastered the whole of the building and leveled the foundation, his failure so to do would not be fatal to his recovery in the case. According to the claim and evidence of the plaintiff, there-was an honest intention to go by the contract, and a substantia], if not an exact, execution of it. It is well settled, that where one party has entered into a special contract to perform work for another and furnish materials, and the work is done and the materials are furnished, but not in the manner stipulated for in the contract, so that he cannot recover the price agreed on in the contract, yet, if the work and materials are of any value and benefit to the other party, he may recover for the work done and for the materials. This is upon the principle that if the other party has derived a benefit from the part performed, it would be unjust to allow him to retain that without paying anything. 2 Pars. Cont. (6th ed.), 523; Duncan v. Baker, 21 Kas. 99.
Another point made by counsel is, that the court below erred in not sustaining the motion of the defendant to have Sweet & Stone,, two sub-contractors, made parties defendant in the action. The record shows that the defendant, in his answer, alleged that G. H. Sweet and F. R. Stone, late partners as Sweet and Stone, duly filed a lien on the premises of defendant on January 9, 1877, for the sum of $300 for labor and services, as mechanics and sub-contractors of plaintiff; that on the trial the defendant moved the court to make said sub-contractors parties defendant, and to cause them to appear in accordance with the prayer of the answer; that the plaintiff admitted in court that Sweet & Stone had filed a lien for work done on the building as sub-contractors: thereupon the motion was overruled. Ordinarily this would have been material error, and sufficient to reverse the judgment; but, considering the result of the case and the inferences plainly drawn from the actions of the court and parties, we do not think the error was prejudicial to the plaintiff in error. The plaintiff originally claimed judgment in his petition for $1,500 and interest; when he submitted the case to the court, he reduced his demand to $1,100. The lien of $300 was admitted by all the parties; there was no controversy over the amount. The court had the right to deduct this sum from the amount due to the plaintiff, as such sum of $300 was set up in the answer. No special findings were asked for, or made, and as the court assessed' the recovery at only $600, with interest from November 9, 1876, considering the admissions of the parties to the amount of the lien, we think we may fairly assume that the lien of $300 was deducted from the sum due for the work and materials. If this was the fact, the only person who could complain would have been, the plaintiff below, not the defendánt. Hence no error was committed to-the prejudice of the defendant’s rights.
We have examined the other questions presented, but in-the condition of the pleadings and record, we think nothing further need be said.
The judgment of the district couj;t will be affirmed.
All the Justices concurring. | [
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Per Curiam:
This case is reversed, and remanded with costs, upon the authority of Gordon v. The State, ex rel., 4 Kas. 489. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover under the workmen’s compensation act (R. S. 44-501 et seq.). Plaintiff prevailed and defendant appeals. The facts are substantially these: Plaintiff had worked for defendant as a laborer for about seventh months. On January 20, 1927, he with five other laborers went with the superintendent of the defendant paper company to a storage house to unload paper. While so engaged a roll of paper sixty-one inches in length and weighing approximately' 1,800 pounds, fell in such a way on a truck the men were using as to cause it to swing around and ■ the handle thereof to strike plaintiff in the abdomen, inflicting the injury complained of. The case was tried to a jury, special findings returned and judgment entered for plaintiff for $650.75 and $11.02 per week from March 14, 1928, until further order of the court, not to exceed eight years from January 20,1927.
It is contended by defendant'that no personal injury through accident occurred; that there was no objective examination evidence of disability which would incapacitate plaintiff from work and that the claimed injury was not shown to have occurred on, in or about the premises of the employer.
The special findings returned by the jury are as follows:
“1. Did the plaintiff suffer an injury to his upper abdomen or stomach while employed as a laborer by the defendants and in the course of his employment? A. Yes.
“2. If you answer question one ‘yes,’ then state whether or not such injury was received on or about the paper mill of the defendants. A. Yes.
“3. If you answer questions one and two ‘yes,’ then state the extent of the injury, by telling whether the plaintiff is totally or partially incapacitated for work by reason thereof. A. Totally.
“4. If you answer question three to the effect that plaintiff was totally incapacitated for work, then state how long such total incapacity for work has existed, and how long it will continue. A. It has existed from January 20, 1927. It will continue permanently.
“7. If you find that the plaintiff’s incapacity for work is permanent, will it continue for a period of eight years from January 20, 1927? A. Yes.”
The answers of the jury to the special questions were returned into court March 3, 1928. Seven days thereafter defendant filed a motion for a new trial.
When a verdict, either general or special, comes in, the party against whom it runs may question its correctness by filing a motion for a new trial. Under the statute such a motion, except for the cause of newly discovered evidence, must be filed within three days after the verdict or decision is rendered. (R. S. 60-3003.) A special verdict is otherwise designated as a special finding, and a motion to set it aside on any of the statutory grounds must be filed within three days. (City of Osborne v. Hamilton, 29 Kan. 1; Clement v. Hartzell, 60 Kan. 317, 56 Pac. 504; Railway Co. v. Osburn, 79 Kan. 348, 100 Pac. 473; Perkins v. Accident Association, 96 Kan. 553, 152 Pac. 786; Doty v. Shepard, 98 Kan. 309, 158 Pac. 1.)
Whether the accident occurred in, on or about the premises and whether otherwise there may have been merit in the defendants’ contentions, need not be discussed for the reason that the findings of the jury are conclusive. The facts in controversy were fully determined by the answers of the jury, and no other matters of law are presented which could affect the result.
The judgment is affirmed. | [
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The opinio'n of the court was delivered by
Hutchison, J.:
This is an original proceeding in mandamus to compel the issuance of duplicate coupons to take the place of coupons formerly issued, which have since been lost or destroyed while owned by the plaintiff. The answer of the defendants denies that the plaintiff is entitled to the relief prayed for, and that the writ states a cause of action and prays that the action be dismissed.
It is stipulated that the petition and application correctly state the facts. The only question involved is whether a coupon detached from the bond to which it was originally attached comes within the provisions of article 7 of chapter 10 of the Revised Statutes of 1923, which authorizes the issuance of duplicate bonds and warrants under certain circumstances and on certain conditions, all of which are admitted to have been complied with in this case. The coupons in question are for six months’ interest due on $1,000 bonus bonds of the state of Kansas, due and payable January 1, 1928, which were clipped and sent to Topeka, Kan., for collection a few days prior to the date of their maturity. They have been lost or destroyed in the transmission. The following is a copy of one of the coupons, except the signatures of the officers. All others are exactly identical, except each coupon is from a different numbered bond.
“No. 1. On the first day of January, 1928, the state of Kansas will pay to bearer at the office of the state treasurer at Topeka, Kan., or at its subfiscal agency in New York, the sum of twenty dollars ($20), being six months’ interest then due on its bond dated July 1, 1927, numbered 29748.
$20.00. • .......................................................................
Governor of the State of Kansas.
Secretary of the State of Kansas.
Auditor of the State of Kansas.”
R. S. 10-701, 10-702 and 10-704 are as follows:
“That whenever any bond or warrant of the state or territory of Kansas, or any county, city, township, or school district, shall become so far mutilated as to become unfit for circulation, or shall be lost or destroyed, a duplicate thereof may be issued by the officer authorized by law to issue such bonds ox-warrants, under the regulations and restrictions hereinafter prescribed.”
"Such duplicate shall correspond, in number, date, amount and coupons, with the original bond or warrant, and shall have indorsed on its face, and on the face of each coupon, by the officer issuing the same, the word ‘Duplicate/ together with the date of its issuance.”
“A duplicate for a lost or destroyed bond or warrant shall not issue until there shall have been filed with the proper officer an affidavit of some person knowing the facts, setting forth the ownership of such bond, the description thereof, the number of coupons thereto attached, and the manner of its loss or destruction, and until there shall have been executed and filed with the same officer an indemnifying bond, with securities to be approved by such officer, in a sum equal to double the amount of such warrant or bond and the coupons attached, conditioned that the parties thereto shall pay all damages which the state, county, city, township or school district, as the case may be, may sustain if compelled to pay such lost or destroyed bonds or coupons.”
Does this statute authorize the issuance of duplicate coupons for lost or destroyed detached coupons? Plaintiff- insists that it does, and cites numerous cases holding that detached coupons are written contracts for the payment of definite sums of money on definite dates, that they are separate promises, are negotiable, and are subject to separate actions after maturity without regard to the production or ownership of the bonds from which they had been detached. Plaintiff also relies upon the decision in the case of National Bank v. City of St. John, 117 Kan. 339, 230 Pac. 1038, as decisive of this case. While the reasoning and some of the language is strongly in line with the views and contentions of the plaintiff, yet the exact question involved in that case was whether the word “may” in the statute above quoted should be considered as “must,” or mandatory. The decision plainly and unmistakably points out a duty and obligation on the part of the issuing officers to issue the duplicates, rather than to exercise a discretion in connection therewith, except as to the sufficiency of the showing of loss and the indemnity offered. The defendants in this case do not contend otherwise as to any bond, warrant or attached coupons mentioned in the statute, but earnestly insist that detached coupons are not included within its provisions, reasoning that the statute provides for issuing duplicates of lost or destroyed bonds and attached coupons, and that it was a new right not theretofore existing in law and cannot be extended beyond the express terms of the statute. They rely upon the general principle of interpretation that the mention of one thing implies the exclusion of another thing not mentioned, and invoke the maxim, Expressio unius est exclusio alterius, citing a number of Kansas cases and Sutherland on Statutory Construction in support of that doctrine. In' most of these cases where that principle has been applied in Kansas it will be observed that the things thus held to be excluded were in no way connected with the thing or things mentioned and could in no sense be included within or related to the thing mentioned, as “other income” when “taxes” are mentioned (State, ex rel., v. Ewing, 22 Kan. 708), “receivers” when “assignees and lessees” are mentioned (K. P. Rly. Co. v. Wood, 24 Kan. 619), “grants, sustains or confirms” when “discharges, vacates or modifies” are mentioned (Snavely v. Buggy Co., 36 Kan. 106, 12 Pac. 522), and “absence from the state” when other limitations are mentioned (Beebe v. Doster, 36 Kan. 666, 14 Pac. 150). In 2 Lewis’ Sutherland on Statutory Construction, 2d ed., §491 (325), the subject of this maxim is introduced thus:
“This maxim, like all rules of construction, is applicable under certain conditions to determine the intention of the lawmaker when it is not otherwise manifest. Under these conditions it leads to safe and satisfactory conclusions; but otherwise the expression of one or more things is not a negation or exclusion of other things.”
There could be no real purpose on the part of the legislature in excluding detached coupons from the provisions of this act and from being 'substituted by duplicates when lost or destroyed. They possess in substance all the elements of bonds, except that of original indebtedness, and are so closely related to the term “bonds” that the difference is only discernible when used .together or in contradistinction with each other.
“When the intention of a statute is plainly discernible from its provisions, that intention is as obligatory as the letter of the statute, and will even prevail over the strict letter. The reason of the law, as indicated by its general terms, should prevail over its letter, when the plain purpose of the act will be defeated by strict adherence to its verbiage.” (25 R. C. L. 967.)
“Statutes must have a rational interpretation, to be collected not only from the words used, but from the policy which may be reasonably supposed to have dictated the enactment, and the interpretation should be rigorous or .liberal, depending upon the interests -with which it deals. It is a familiar principle that rules of strict and literal construction may be departed from in order that absurd results may be avoided, and to the end that a statute shall be effective for the purposes intended.” (25 R. C. L. 1077.)
It will further be observed that the terms “coupons thereto attached” and “coupons attached” appear only in the third section of the above-quoted sections under consideration, or that section which has reference to the furnishing of an indemnifying bond. In the preceding sections, entitled “Issuance of duplicate” and “contents of duplicate,” the instruments named are bonds, warrants and coupons. We think the plain and apparent intention of the legislature was to make good the loss of bonds, warrants and coupons without regard to whether the coupons are attached or detached when lost or destroyed; that the express mention in the third section of attached coupons in connection with the indemnifying bond to be furnished should not control the former sections authorizing the issuing of duplicates for coupons without limitation • or restriction; and further, that the maxim invoked should not apply here where the intention of the legislature is more than apparent.
“Every statute must be construed with reference to the object intended to be accomplished by it. In order to ascertain this object it is proper to consider the occasion and necessity of its enactment, the defects or evils in the former law, and the remedy provided by the new one; and the statute should be given that construction which is best calculated to advance its object, by suppressing the mischief and securing the benefits intended.” (36 Cyc. 1110.)
“General words in a statute should receive a general construction; but they miíst be understood as used in reference to the subject matter in the mind of the legislature, and strictly limited to it, and should also be so limited in their application as not to lead to injustice, oppression, or an absurd consequence.” (36 Cyc. 1118. See, also, Ann. Cas. 1916A, 528.)
Judgment will be rendered for plaintiff. The writ of mandamus will not be issued at this time, but the case will be held open for the purpose of making such further orders as may be necessary. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment overruling a plea in abatement lodged against a cross petition setting up a cause of action for slander.
To develop the question presently under review it is necessary to recapitulate certain litigious matters in which plaintiff and defendant have been embroiled in the last few years, and which, in part, are already chronicled in our reports. (Farrar v. Perkins, 116 Kan. 374, 226 Pac. 714; id., 122 Kan. 141, 251 Pac. 440.) This litigation began on May 4,1921, when plaintiff, W. J. Farrar, commenced an action against the defendant, Fred Perkins, in the district court of Labette county, for the recovery of a sum of money which plaintiff had been compelled to pay his employer, the Missouri, Kansas & Texas Railroad Company, for freight charges on nine carloads of sheep which defendant took from the railway station at Oswego without paying the freight bill thereon — plaintiff being the railway station agent thereat at the time of defendant’s so doing.
Some dilatory plea was lodged against this petition by the defendant Perkins; and on January 3, 1922, plaintiff commenced an action against defendant in the district court of Cherokee county on the same cause of action theretofore set up in Labette county. On January 25, 1922, defendant obtained from the district court of Labette county a restraining order to prevent plaintiff from proceeding with the action in Cherokee county. On February 6, 1922, plaintiff moved to dissolve the restraining order and to dismiss his action against defendant without prejudice and at his own costs. This motion the district court of Labette county did not allow until after defendant had an opportunity to withdraw his dilatory plea and to file an answer and cross petition to plaintiff’s action. When that was effected, plaintiff’s motion was granted, the temporary restraining order dissolved and plaintiff’s action dismissed; and thereafter the Cherokee county action proceeded on its checkered way, and after two trials and two appeals this court ordered judgment in plaintiff’s behalf. (Citations above.) Defendant’s cross action for slander was not pleaded nor litigated in the Cherokee county lawsuit. As theretofore filed in the district court of Labette county, it was permitted to sleep on the docket for a few years; but on March 2, 1927, after judgment had been ordered in plaintiff’s favor in the second' appeal of the Cherokee county case (122 Kan. 141, decided December 11, 1926), it took on the semblance of life when plaintiff filed in the district court of Labette county a plea in abatement thereto. At the hearing of this plea counsel for the litigants joined in a stipulation covering the antecedent facts, following which the trial court overruled the plea, but stayed proceedings so as to permit its ruling to be reviewed in this intermediate appeal.
The statute invoked to justify the filing of this particular kind of plea is limited to defenses to actions involving a breach of the anti-monopoly acts (R. S. 50-116); but names of pleadings are not important, and this pleading may be regarded as a special plea and demurrer to defendant’s cross action.
The substance of the cross action is that Farrar slandered Perkins in the city of Oswego and vicinity by stating orally to divers persons —
"Between the 17th day of February, 1921, and the 1st day of May, 1921, that^ Fred Perkins had robbed the plaintiff of a large sum of money; that he had stolen a large number of sheep from the yards of the Missouri, Kansas & Texas Railway Company, at Oswego, Kansas, without the knowledge or consent of the plaintiff; that he had taken such sheep away without paying the freight thereon, and in the nighttime; that he had refused to pay the charges thereon, although he owed the same; that said Fred Perkins had caused him, the •plaintiff, by such actions, to lose his position as agent for the receiver of the said railway company; that said Fred Perkins had refused to pay his just and honest debts; that said Fred Perkins had acted maliciously and oppressively with and towards plaintiff, and that such actions on the part of the said Perkins were done with the malicious intent of .injuring the plaintiff and causing him to lose his position as station agent.
“And defendant avers that such reports, and each of them, were so circulated by the plaintiff maliciously and with the intent of injuring and defaming and destroying the defendant, and bringing him into disrepute and ruining his reputation as a business man; and were so made by the said plaintiff when he knew that said reports and each of them were false and untrue; . . .
“The defendant avers that by reason of the conduct of the plaintiff, in the circulation of the reports hereinbefore mentioned, the defendant' has been greatly damaged in the sum of §35,000.”
In the plea in abatement (or demurrer) it was alleged that the matters referred to in the cross .petition were connected with an-unlawful contract in which defendant participated; and that the matters in controversy were res adjudícala, having grown out of the transactions litigated to a finality in Farrar v. Perkins, 122 Kan. 141, 251 Pac. 440.
It will be noted that in Farrar v. Perkins, supra, the action was chiefly for the recovery of money, a railway freight bill for the transportation of sheep. The chief defense to the action was the illegal contract set out in 122 Kan. at page 144. But the cross petition stated a prima facie cause of action for slander—Farrar’s statements that Perkin's “had robbed” the cross petitioner, that Perkins “had stolen” the sheep, that Perkins “had refused to pay his just and honest debts.” Now, it is rather obviously true that this intemperate language, if spoken, was provoked by the conduct of Perkins in taking away the sheep from the railway yards without settling for the freight charges and in refusing to pay those charges, with the grievous consequences to Farrar for such delinquencies; but at present our only concern is with the legal questions involved. On paper defendant did state a cross action against plaintiff; and it was regularly brought and was regularly pending and undetermined in a court of competent jurisdiction when plaintiff dismissed his action in Labette county. That dismissal had no effect on the pendency of the cross action. It is true, of course, that Perkins might have chosen to transfer his cross action to Cherokee county and might have litigated it there along with his defense to plaintiff’s action for the recovery of the money due from Perkins for the freight charges. But he was not compelled to do so. Appellant invokes the rule that not only are all those matters concluded by a judgment which the parties chose to litigate, but all matters which they might have litigated, but that is not precisely what the rule is, although sometimes it is thus loosely stated. (Stroup v. Pepper, 69 Kan. 241, 245, 76 Pac. 825.) It is not all matters which the parties might have litigated which are concluded by a judgment between them under the res adjudicata rule, but all such matters as could be litigated under the facts constituting the cause of action. (Snehoda v. National Bank, 115 Kan. 836, 224 Pac. 914, and citations.) The taking away of the sheep without paying and refusing to pay the freight bill, and plaintiff’s own payment of that bill, were the facts which gave rise to Farrar’s cause of action against Perkins. It was the alleged slander purveyed by Farrar against the cross petitioner, calling him a robber, a sheep stealer, and a man who did not pay his honest debts, which gave rise to the cross, action. The latter was a fundamentally different cause of action from the one being prosecuted by Farrar; and while under our liberal practice act it could have been litigated to a conclusion along with plaintiff’s action, it was not imperative that it should be so litigated, and consequently the judgment ordered in that action does not conclude this one. In Stroup v. Pepper, supra, it was held:
“The rule that a judgment in bar, or as evidence in estoppel, is binding not only as to every question actually presented and considered and on which the court rested its decision, but also as to every question that might have been presented and decided, does not apply to a different cause of action between the same parties, except as to questions shown to have been actually decided in the former action.” (Syl. ¶ 1.)
In the opinion it was said:
“The true rule, now well established, is that where a second action between the same parties is upon a different claim or demand the judgment in the prior action operates as an estoppel only as to those matters in issue upon the determination of which the finding was made or the judgment rendered, and does not extend to matters which might have been, but were not, litigated and determined in the former action. The leading case on the subject in this country is Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195, . . . [where] Mr. Justice Field said:
“ ‘In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters arising in a suit upon a different cause of aotion, the inquiry must always be as to the point or question actually litigated and determined in the original action; not what might have been thus litigated and determined. Only upon such, matters .is the judgment conclusive in another action.’ ”
In 34 C. J. 930 it is said:
“But the general rule is that a matter not decided, and not necessarily determined by the judgment,' is not concluded, although put in issue by the pleadings, especially where the matter pleaded was not actually litigated, that is, supported or attacked by evidence, made the subject of the trial, submitted to the jury, or pressed upon the consideration of the court.”
By logic and precedent therefore it seems clear that the circumstance that Perkins’ cross action for slander- might have been litigated in Farrar’s action for a money judgment against Perkins does not render the matter of the alleged slander res adjudicata (Newcomer v. Sibon, 119 Kan. 358, 361, 362, 239 Pac. 1110), although the cross petition may also contain sophistical matter and exhibits which were pleaded and disposed of in Farrar v. Perkins, supra. These are of no consequence so far as concerns the alleged slander and the cross action based thereon.
See, also, Lynn v. McCue, 94 Kan. 761, 769-772, 147 Pac. 808; Newcomer v. Sibon, 119 Kan. 358, 362, 239 Pac. 1110; Topeka State Bank v. Waters, 121 Kan. 126, 245 Pac. 1028; Gage v. Leslie, 123 Kan. 72, 254 Pac. 362.
It follows that the trial court’s ruling on the so-called plea in abatement was not erroneous, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiffs brought this action to recover $500 which they paid to the defendant’s agents, Ellis & Stamm, upon a policy of damage and compensation insurance upon plaintiffs’ coal mine. The payment was made by a cashier’s check on the Mulberry State Bank, dated on June 3, 1926, payable to the Maryland Casualty Company, and received by Ellis & Stamm at their office in Pitts-burg on June 4. On that day the check was deposited in a Pitts-burg bank, and transmitted to a bank in Kansas City, Mo., which in turn delivered the check to the Federal Reserve Bank, and the latter bank on June 5 sent it direct to the Mulberry State Bank for collection. The check reached the Mulberry State Bank on June 6 or June 7, and was stamped paid June 6,1926. To effect this payment, the Mulberry State Bank issued its draft dated June 7 in favor of the Federal Reserve Bank, drawn on the Commerce Trust Company of Kansas City, Mo. This draft was for $5,672.40, to pay for a number of items, including the $500 check, whose course we have traced. This draft was received by the payee on June 8, but not presented to the drawee until June 9, during the business hours of which day it was deposited with the drawee, the Commerce Trust Company, for collection. There was enough money on hand with the Commerce Trust Company to the credit of the Mulberry State Bank on June 8 and June 9 to pay the draft, and payment thereof was not refused at the time it was deposited for collection; but some time on June 9 the Commerce Trust Company learned that the Mulberry State Bank had become insolvent and had not opened for business on the morning of June 9, and prior to 3 o’clock p. m. (presumably closing time) the Commerce Trust Company refused payment of the draft.
Some time later the Maryland Casualty Company declined to issue the insurance policy for which the $500 had been given as a down payment, and plaintiffs brought this action to recover that sum.
Plaintiffs’ petition alleged the material facts, which included an allegation that Ellis & Stamm were defendant’s agents and vested with authority to act in its behalf.
The answer was an unverified general denial.
A jury was waived and the cause was tried by the court. The facts were developed as outlined above. Judgment was entered for plaintiffs and defendant appeals, urging objections to the judgment which will be noted as presented.
It is first argued that the cashier’s check on the Mulberry State Bank which plaintiffs delivered to Ellis & Stamm on June 3 did not constitute a payment of money since no agreement was shown that it should be so received. But the check was thus received and accepted by defendant’s agents, Ellis & Stamm. Moreover, the check was dispatched through regular channels of business until it reached the bank which issued it, and it was there paid.
In 30 Cyc. 1207-1209, it is said:
“The acceptance ... of a check . . . does not constitute payment, unless it is agreed that it shall be taken as an absolute payment. . . . But where the cheek is in fact paid the debt is extinguished. . . .”
(See, also, Griffin v. Erskine, 131 Ia. 444, 9 Ann. Cas. 1196; 2 C. J. 628, 629.)
The fact that the Mulberry State Bank paid the $500 check along with several other checks by issuing a new draft on a Kansas City bank in which it had funds, and the train of events which followed, takes nothing from the force of the fact that plaintiffs paid , $500 to defendant on June 3 by a cashier’s check which defendant’s agents received as payment, and that the check so received was duly honored for payment and paid by the bank which issued it.
It is next contended that Ellis & Stamm had no authority from the defendant to accept checks. However, plaintiffs’ petition alleged that they did have such authority to act for defendant “in all matters and things hereinafter set out,” which covered in specific detail the $500 transaction narrated above. The issues made by defendant’s unverified general denial — probably none at all— certainly did not include one touching the authority of Ellis & Stamm. Plaintiffs’ allegations concerning their authority were thereby conceded to be true. (R. S. 60-729; Hornick p. U. P. Railroad Co., 85 Kan. 568, syl. ¶ 4, 118 Pac. 60; Abel v. Hounsom, 107 Kan. 741, 192 Pac. 384, 193 Pac. 355; Moore v. Insurance Co., 111 Kan. 420, 422, 207 Pac. 760.)
A final objection to the judgment is based on the fact that after the defendant decided not to write the policy of insurance desired by plaintiffs its agents, Ellis & Stamm, sent their personal check for $500 to plaintiffs in return for their down payment in the transaction of June 3. This last check was dated June 30, but the makers, Ellis & Stamm, stopped payment on it two days later, which fact makes this last point of defendant’s too trivial for discussion. Indeed, defendant’s answer did not plead repayment of the $500.
The judgment is affirmed. | [
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'The opinion of the court was delivered by
Johnston, C. J.:
This case comes here by appeal from a decision granting a new trial on the motion of defendants. The action was brought by W. N. Rowe to recover damages from the Glen Elder State Bank, The State Bank of Downs and D. H. Lockridge, for the malicious prosecution of plaintiff upon a charge of feloniously selling and disposing of mortgaged property.
Upon a preliminary examination of the charge in the county court Rowe was discharged, the court holding that there was no probable cause that he had committed the offense charged against him. He then instituted the present action, and at the trial before a jury the district court sustained a demurrer to plaintiff’s evidence as to the State Bank of Downs and overruled it as to the Glen Elder State Bank, and D. H. Lockridge. Evidence was offered in their defense, and the case was submitted to the jury as to the liability of the Glen Elder State Bank and D. H. Lockridge, its president and cashier. The jury returned a verdict in favor of the plaintiff awarding him damages against the two remaining defendants in the amount of $2,000. The defendants filed a motion for a new trial, setting up thirteen grounds, including errors in the instructions, rulings on the competency of evidence admitted, that the evidence was insufficient to sustain a verdict, that the verdict was excessive and was given under the passion and prejudice of the jury, and errors of law occurring at the trial. The court sustained the motion and granted a new trial.
In the entry of the court’s decision there was no specification of the ground or grounds upon which the ruling was based. In the argument on the motion for a new trial considerable was said as to the instructions, and the court indicated in a colloquy with counsel that its failure to give an instruction was a ground for granting a new trial. The court, however, among other things, said that aside from the instruction held to be erroneous, it was “not the only thing in this case the court is not fully satisfied with. I believe it my duty to grant a new trial of the case.”
The court had failed upon request to instruct the jury as to the particular facts found to exist which would or would not constitute probable cause, it being the contention of defendants that probable cause is primarily a question for the court, and that it was its duty to instruct the jury as to what facts constitute probable cause.
While plaintiff assigns errors in the order granting a new trial, it is not open to question that it was the province and duty of the court to decide as a matter of law whether particular facts relied on constituted probable cause. Where the facts as to probable cause are in dispute, it is the function of the jury to find what facts exist, but it is the function of the court to determine and advise the jury what facts if proven will or will not constitute probable cause. This the court failed to do. A general instruction was given on the subject of probable cause, which left the jury to determine not only the existence of the facts but also whether the facts proven or found constituted probable cause. Under the authorities the latter is a question of law for the court to decide. We have said:
“Where the facts are disputed it must be left to the jury to determine what the facts are, but the court should instruct what facts amount to probable cause for an arrest and what do not. The court should summarize the claims of the parties and state to the jury what basis of fact must exist to show probable cause and what will sustain the claim of a want of probable cause.” (Drumm v. Cessnum, 58 Kan. 331, 333, 49 Pac. 78.)
See, also, Parli v. Reed, 30 Kan. 534, 2 Pac. 635; Bell v. Keepers, 37 Kan. 64, 14 Pac. 542; A. T. & S. F. Rld. Co. v. Watson, 37 Kan. 773, 15 Pac. 877; Railway Co. v. Allen, 70 Kan. 743, 79 Pac. 648; Michael v. Matson, 81 Kan. 360, 105 Pac. 537; Buchanan v. Insurance Co., 108 Kan. 520, 196 Pac. 249.
Under the evidence the failure of the court to instruct the jury as to what facts would constitute probable cause was sufficient of itself to justify the granting of'a new trial. Aside from that ground the court in a colloquy with counsel at the hearing of the motion for a’ new trial remarked that the error in the instruction was not the only thing in the case he was not satisfied with, and thereupon announced that he believed it to be his duty to grant a new trial. The record of the action of the court on the motion for a new trial sets out numerous grounds and concludes with a general order granting the motion. If either party desired that the court should specify' the particular ground or grounds on which the ruling was based, that was the time to ask for it. Instead of making such a request, both parties accepted as satisfactory and sufficient the entry directed. As the record fails to state upon what ground the new trial was granted, the order cannot be reversed if it can be sustained on any of those assigned.
The court is warranted in setting aside a verdict which it cannot approve. If we look «beyond the record it is manifest that the court was not satisfied with the result, and hence without his approval of the findings and verdict no error is apparent in the granting of the new trial.
Complaint is also made by plaintiff of the action of the court in sustaining the demurrer of the Downs State Bank to the evidence of plaintiff, and the dismissal of that defendant from the case. It is clear from a reading of the evidence that that defendant did not participate in the institution of the prosecution in any way that would make it liable for malicious prosecution. The remaining defendants have filed a cross appeal and are insisting that their demurrer to the evidence of plaintiff should have been sustained. It is equally clear that under the facts which were within the function of the jury to determine the court did not err in overruling the demurrer of these defendants.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal from an order sustaining an objection and demurrer to a motion filed in a divorce action nine years after the judgment was rendered in the action, and involves the question of the statute of limitations and the question as to fraud alleged in the petition being intrinsic or extrinsic.
In 1917 Ida Putnam brought an action in Douglas county for divorce and alimony. Her husband, C. E. Putnam, appeared and answered. After hearing the evidence the court made findings of fact and conclusions of law and rendered judgment denying the divorce, but adjudging the plaintiff entitled to an equal division of the property then owned by the defendant, and awarding property to her. of the adjudged value of $81,050.
On May 25, 1927, the plaintiff filed in this same action what she denominates as a motion of plaintiff for discovery, accounting and division of concealed property, alleging “that during, said trial defendant wrongfully and fraudulently concealed from plaintiff and concealed from the court the fact that he was the owner of the following-described lands” in Franklin and Anderson counties, Kansas. It also alleges the same as to some property in California. The motion states that plaintiff had no knowledge of the concealment until one month prior to the filing of the motion. The motion con-' eludes with a prayer for disclosure and accounting of the property owned by defendant at the time of the adjudication of the cause.
The objection and demurrer which the trial court sustained was urged by appellee because the motion did not state facts sufficient to constitute a cause of- action and because it was barred by the statute of limitations. In the intervening period of nine years the plaintiff became a' resident of Franklin county and there, in another divorce action, obtained a divorce on service by publication, the defendant having become a resident of Illinois. In the original case an appeal was taken by the defendant from the judgment of the trial court, and such judgment was affirmed. (Putnam v. Putnam, 104 Kan. 47, 177 Pac. 838.)
Appellant, in this review, attempts to avoid the effect of the two-year statute of limitations by asserting that the motion is not filed under the provisions of R. S. 60-3007 to 60-3013, which provide for the opening up, setting aside, or modifying of a judgment by mo tion or petition filed within two years after the judgment was rendered on the ground of fraud practiced by the successful party in obtaining the judgment, but is filed and presented under R. S. 60-306, which provides that—
“Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:
“Within two years: ... An action for relief on the ground of fraud— the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.”
The allegation in the motion as to the discovery of the concealment and fraud only one month before the filing of the motion is in harmony with one of the provisions of this statute. But is this motion an action? Can the motion filed-by the plaintiff be called an action? It was something filed in a divorce action which accrued and was tried out nine years before this motion was filed. Five of the cases cited in this connection by appellant show in the opinions they were brought under R. S. 60-3007 to 60-3013. (Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079; Blair v. Blair, 96 Kan. 757, 153 Pac. 544; Harvey v. Dolan, 103 Kan. 717, 176 Pac. 134; Huls v. Gafford Lumber & Grain Co., 120 Kan. 209, 243 Pac. 306; Potts v. West, 124 Kan. 815, 262 Pac. 569.) Our attention has not been directed to any Kansas case brought like this matter by motion in the original case as being under the provisions of R. S. 60-306.
It' is argued that the court might treat this motion as a new and independent action, the defendant having appeared and filed his pleading thereto; but appearing and filing a pleading in an old and fully-settled case is very different from submitting to the jurisdiction and entering appearance in a new and independent action. Some of the cases above cited were new and independent actions, as was the case of Huls v. Gafford Lumber & Grain Co., supra, but it was being maintained under R. S. 60-3011 and was subject to the limitations above mentioned, with the modification in case of minors. There was no contention that it was a new and independent action under R. S. 60-306.
It is said in Blair v. Blair, supra, that “without the statute power to vacate a judgment merely voidable would end with the expiration of the term at which the judgment was rendered.” (p. 764.) This power is given to the courts by R. S. 60-3008, and the pro ceedings must be commenced within two years after the judgment is rendered. In the case of Potts v. West, above cited, the judgment was rendered quieting title and a new action was commenced to vacate that judgment on the ground of fraud, the plaintiff urging it to be a new and independent suit in equity to set aside the judgment on the ground of fraud. The court in the opinion said:
“The judgment quieting title was rendered on November 24, 1919, the petition to vacate was not filed until September 23, 1925, and the district court had no jurisdiction to inquire whether a genuine cause of action to quiet title existed. When a judgment has been rendered, power of the court to vacate it for fraud continues for two years. At the end of two years the power ceases to exist. The time limitation is a restriction on jurisdiction to act, and the time when the fraud was discovered is not material.” (p. 817.)
The motion being one in effect to set aside or modify a former judgment in the case' on- the ground of fraud is necessarily presented and maintained under the provisions of R. S. 60-3007 to 60-3013, and is not an action under the provisions of R. S. 60-306; and the two-year restriction within which after the rendition of the judgment such motion or petition can be filed controls, and the motion is barred.
Whether the motion States facts sufficient to constitute a cause of action, aside from the question of the restriction or limitation, depends almost entirely upon the question of the alleged fraud or concealment being intrinsic or extrinsic. It is conceded that any intrinsic fraud perpetrated on the trial of the case would not authorize a court to set aside or modify a judgment. This would, of course, include perjury, the introduction of false documents, and concealing the facts during the trial. But appellant contends it would not include the concealing by the defendant from the plaintiff of information as to other property owned by him prior to the commencement of the action. Whatever fraud there might have been in such concealment before the trial, it was lost when that very question became an issue in the trial. The court made a finding as to the property owned by the defendant. The fraud consisted in concealing some of his property from the court, as the motion alleges. Suppose the defendant, prior to the time he was sworn as a witness, concealed from his wife and all others the extent of his property, but when sworn and put upon the witness stand made a clean breast of it and enumerated every piece of it. Would his conduct prior to the trial constitute any ground for setting aside the judgment? The culmination of the whole matter is in the court at the time of the trial, and the question of whether or not there was fraud there will determine that issue, regardless of fraud or concealment prior to the trial. All the fraud alleged in this motion appears to us to be intrinsic rather than extrinsic. It was all concerning matters that were vital issues in the case. The court attempted to ascertain the full extent of defendant’s property, and his action or judgment was intended as a division of all the property. The fraud, if any, was in the trial, and intrinsic.
There was no attempt made to keep the plaintiff away from the trial or to induce her not to ask for her share of the property accumulated by both of them together, or designedly to avoid getting legal service or give legal notice or any of the many fraudulent tricks to prevent her from having a fair trial. These would be extrinsic.
“Fraud consisting in stating a fictitious cause of action and in supporting the stated cause of action by false testimony is intrinsic fraud.” (Potts v. West, supra, syl. ¶ 2.)
“The fraud which will authorize a court to vacate a judgment in an action brought for that purpose under section 570 of the code of civil procedure must be extrinsic or collateral to the matter involved in the former action, and sufficient to justify the conclusion that but for such fraud the result would have been different.
“In an action to vacate a judgment for fraud of the successful party a petition fails to state a cause of action where it relies solely upon the ground that the judgment was obtained upon false or perjured testimony, and shows that the issue to which the alleged false testimony relates was raised by the pleadings and was tried out upon a conflict of testimony, the truth or falsity of which was necessarily determined in the former action.” (Plaster Co. v. Blue Rapids Township, 81 Kan. 730, syl. ¶¶ 2, 3.)
The distinction between intrinsic and extrinsic fraud is well defined in the opinion in the case last cited. By extrinsic fraud is meant some act or conduct of the prevailing party which has prevented a fair submission of the controversy. But fraud is intrinsic and included in the judgment where it relates to questions that were in conflict and which were necessary for the court to determine.
Appellant not only relies upon the prior concealment of property from the wife as being extrinsic fraud, but alleges and urges the practice of furthering such scheme by taking the title to lands in the name of his sister and by deed with the name of the grantee in blank. This is referred to and set out in the opinion in this case on page 49 when it was here before, as one of the features of the case shown by the evidence. We think the motion did not state facts sufficient to entitle the appellant to the relief for which she prayed and that the objection and demurrer was properly sustained.
Having reached this conclusion, it will not serve any good purpose to consider or discuss other points raised in the briefs.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Derby Oil Company brought this action against C. W. Johnson, as receiver of the Farmers State Bank of Kingman, and R. L. Bone, state bank commissioner, to recover $20,000 upon a certificate of deposit issued to Dan F. Callihan, claimed to be the property of the Derby Oil Company, and asking a judgment requiring the bank commissioner to issue a receiver’s certificate for the amount of the deposit and a writ ordering the bank commissioner to pay plaintiff out of the guaranty fund the amount due on the certificate. The court held that the plaintiff had failed to prove that it was the owner of the certificate of deposit and gave judgment for the defendants. Plaintiff appeals.
It appears that Dan F. Callihan was the treasurer of the oil company, and a director in the Farmers State Bank; that on December 3, 1923, Callihan presented a check of the oil company to himself on the bank for $20,000, and had issued to himself a certificate of deposit for that amount payable in three months after date with interest at the rate of four per cent. At the same time he stated to the bank officials that they had refinanced the oil company and were dividing up part of a $50,000 deposit in the bank between Mr. Derby and himself, and asked the bank to issue another certificate in the amount of $15,000 payable to A. L. Derby, the president of the oil company. Callihan asked the bank to indorse the certificate of $15,000 issued to Derby, but the bank refused, and Callihan then asked them to cancel the Derby certificate. About this time the bank appears to have been in financial straits, and on a consultation with the bank commissioner it was determined to make an assessment on the stockholders of the bank for one hundred per cent and thus keep the bank open. Callihan, owning considerable stock, was called on to pay this assessment, and he offered to put up the certificate of deposit upon his assessment. He produced the certificate which had been issued to himself and sent it to the bank, and in a letter asked the bank to cancel his certificate of deposit for $20,000, and place the same in a special deposit account to be used in payment of his assessment, with the understanding that the same should be considered as an offset in case said bank should be closed. Indorsed thereon was the statement, “For double liability and balance to be applied on note.” The bank failed to open on the morning of January 16, 1924, when Mr. Allen was appointed receiver, and continued to act as receiver for a considerable time, and was later succeeded by Wm. Docking. Charles W. Johnson succeeded Wm. Docking as receiver. The certificate, together with other assets, was turned over to the deputy bank commissioner, and remained- in the possession of the bank’s attorney until introduced as an exhibit in this case.
The plaintiff contends that the $50,000 deposit in the bank was the property of the plaintiff; that the check issued to Callihan was only for the purpose of the collection of a part of the deposit; that the certificate of deposit issued to Callihan was indorsed by him and delivered to plaintiff, and thereupon was placed in the safe in Derby’s office; that he wrongfully obtained possession of it and turned it over to the bank to pay for an assessment upon his stock; that the company had never indorsed or delivered the certificate to 'Callihan or anyone else and was still the owner of it. Derby testified that he never authorized Callihan to take the certificate and turn it over to the bank, and that he did not know that it had been done for some time afterwards. He further stated that he did not remember the conversation had with Callihan when the certificate was brought back and placed in the safe of Derby. In regard to Callihan taking it out and sending it to the bank, he admitted that Callihan wrote an order to his secretary to deliver the certificate to him and that she did deliver it to Callihan, taking a receipt therefor. The trial court found that the Derby Oil Company had failed to establish the allegations of its petition and had failed to prove that it was or ever had been the owner of the certificate of deposit and consequently gave judgment for defendants.
The only question presented on this appeal is whether there is testimony to support the finding of the court. The burden was upon the plaintiff to sustain the claim of ownership. The check upon which Callihan obtained the certificate was issued to Callihan personally, and the certificate was issued in his name and delivered to him. Derby testified that the check was issued and certificate obtained for the purpose of collection, but the certificate, as we have seen, was not payable for three months after its issuance; and yet plaintiff made no complaint that cash was not obtained on the check. Again, about the same time, checks-of the plaintiff drawn upon the bank were honored by immediate payments and it was shown that the bank had paid all of plaintiff’s checks upon presentation and had never asked plaintiff’s officers to use discretion in the-presenting of checks. When the check was issued to Callihan he was charged with' the amount of it on the books of the plaintiff, but no credit was entered in his behalf When he returned and placed the certificate in the safe in Derby’s office. Most of' the documents of the plaintiff were kept in one office, while Derby’s personal papers and some of the company matters were-kept in another place where Derby had a safe.
There is testimony, too, that when the certificate was issued to Callihan another check in Derby’s name was presented with a view of obtaining a certificate for him, and in that connection it was stated that they were refinancing the company and that Callihan and Derby were dividing up between them a part of this deposit in the bank, and these two officers appear to have been transacting the principal business of the plaintiff. In view of the fact that the checks were issued to Callihan and Derby personally, and that the certificate in question was issued to Callihan and not to the company, the transaction and accompanying circumstances tended to show that the certificate was the property of Callihan. It is true that he placed the certificate with his name indorsed thereon in Derby’s safe, but what was said by him as to his purpose when he placed it there was not shown. It was not taken out of the safe surreptitiously when he obtained and sent it to the bank in payment of the assessment. It was obtained by a written order presented by his brother to Miss Hunt, the private secretary of Derby, asking for' the delivery of the certificate. She raised no question as to his right to it, and delivered it as if it was the property of Callihan and was there for safe-keeping. The deposit in the bank was evidently the money of the plaintiff, but when plaintiff drew a check upon the deposit in favor of Callihan and charged him with the amount, it was an indication that it was the property of Callihan. Derby admitted that he never demanded payment of the amount from Callihan and gave as his reason, “I knew he couldn’t pay it.” It further appears that no claim was made for this certificate until June or July, 1926, more than two years after Callihan had delivered it to the bank.
In view of the circumstances shown, including the entries in the books of the plaintiff, we cannot say that the finding of the trial court is without support. There being no error apparent in the record, the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant was prosecuted for shooting his wife,- Eva Hilbish, with the intent to kill or maim her. He was convicted of assaulting her with a pistol and of shooting at her with intent to kill her. He appeals.
The defendant complains of the admission of evidence. There was evidence introduced which tended to prove that Eva Hilbish had three children by a former husband when she married the defendant; that, after their marriage, there had been disagreements and quarrels between the defendant and his wife, partly at least over those children; that he compelled those children to work hard in the field on the farm; that he whipped them because they did not do more work; and that he' had whipped her. That evidence was objected to. The defendant argues that the admission of it was prejudicial, for the reason that there were only two witnesses who saw the shooting — himself and his wife. She testified positively that he shot her; he testified just as positively that she shot herself. The evidence objected to tended to prove the state of mind of the defendant toward his wife, and .tended to prove that condition of mind which might prompt him to kill her or attempt to do so.
In State v. King, 111 Kan. 140, 144, 206 Pac. 883, it was said that—
“Any pertinent fact which throws light upon the subject under judicial consideration — the accused’s guilt or innocence of the crime for which he is charged and on trial, is admissible; nor is-'such probative fact to be excluded merely because it may also prove or tend to prove that the accused has committed another crime or many crimes.”
See, also, the cases there cited and State v. Smith, 113 Kan. 737, 739, 216 Pac. 302; State v. Bartholomew, 116 Kan. 590, 592, 227 Pac. 366; State v. Wahl, 118 Kan. 771, 774, 236 Pac. 652; State v. Pitsenberger, 119 Kan. 649, 651, 240 Pac. 568; State v. Stanley, 123 Kan. 113, 116, 254 Pac. 314.
It was not prejudicial error to admit the evidence.
The defendant complains of the exclusion of evidence offered by him. A brother of the defendant was on the witness stand. He testified to certain matters. We quote from the abstract of the defendant:
“This witness was then asked questions concerning testimony of Eva Hilbish at the preliminary examination, but it developed later that the witness was being asked questions from a memorandum the witness himself had made in long hand at the preliminary examination, some of which questions and answers were contradictory to the questions and answers given at the trial, and the court sustained an objection, and instructed the jury that they would not consider any of the questions and answers of the witness relative to the matters on the paper which he himself had prepared at the preliminary.”
The memorandum could have been properly used in either one of two ways — it could have been introduced in evidence if it had been competent and its correctness had been established, or it could have been used to refresh the recollection of the witness. (Sanders v. Wakefield, 41 Kan. 11, 20 Pac. 518; McNeeley v. Duff, 50 Kan. 488, 31 Pac. 1061; Wilkes v. Coal Co., 95 Kan. 493, 148 Pac. 768; Rigdon v. Farmers Alliance Ins. Co., 122 Kan. 136, 251 Pac. 631.) Neither of these was done. What was attempted to be done was not proper.
Complaint is made of the manner in which the jury was drawn. C. E. Carroll was the judge of the district court. He was disqualified to sit on the trial of the action. By stipulation, Isaac T. Richardson tried the case. C. E. Carroll made the following order:
“Now on this 10th day of October, 1927, ... it appearing to the court that there are not enough jurors present to form a panel in the case of the State oj Kansas v. Roy Hilbish and the other jury cases for trial at this term of court, and for this reason the court orders that the names of twelve additional persons be drawn from the jury box as provided for the drawing of the regular panel, in the same manner as is provided for drawing regular panel, and that said jurors shall be forthwith summoned to appear in said court for jury service.”
Two of the jurors drawn under that order served on the jury that found the defendant guilty. This question does not appear to have been presented to the court until on the motion for a new trial, when it was called to the attention of the court by the affidavit of the defendant. It was then too late. (State v. Jackson, 27 Kan. 581; State v. Baldwin, 36 Kan. 1, 12 Pac. 318; State v. Wright, 45 Kan. 136, 25 Pac. 631; Hanson v. Kendt, 94 Kan. 310, 146 Pac. 1190; and Burley v. Missouri Pac. Rld. Co., 119 Kan. 95, 237 Pac. 903.) The matter here complained of could not prejudice any substantial right of the defendant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action on a promissory note and to foreclose a real-estate mortgage. The only controverted question in the case is whether defendants should be allowed a claimed credit of $500. The trial court made findings of fact and conclusions of law favorable to the defendants on the controverted issue. Plain tiff has appealed and contends that there was no evidence to support the findings and conclusion of the court on that issue.
The facts are not seriously disputed and are substantially these: One P. M. Haas was a real-estate and loan broker at Holton. Defendants made application to Haas for a loan of $4,000 on land owned by them. The loan was procured from Charles Linley, of Atchison, for a term of five years, and defendants executed the note and mortgage therefor. These instruments are dated March 8,1920.' Interest was payable annually, for which coupons were executed. Charles Linley was named as the payee in the note and coupons and the grantee in the mortgage. The note contained this provision:
“Both principal and interest notes payable at office of P. M. Haas, Holton, Kan. . . . It is agreed that the sum of $100, or any multiple thereof, may be paid on the principal of this note at the maturity of any interest coupon, after one year from date.”
On March 27, 1920, Charles Linley sold and indorsed the note and interest coupons and assigned the mortgage to the plaintiff, Kate E. Baker, of Atchison. She kept the papers at a bank at Atchison, where she did business, and the interest coupons were paid to her through the bank. The assignment from Linley to the plaintiff was recorded April 30, 1925.
On October 22, 1925, defendants paid to Haas certain money to take up interest coupons', and also $1,000 to be applied upon the principal of this note. Neither Haas nor defendants advised plaintiff of that transaction. On February 3, 1926, Haas remitted $500 to the bank at Atchison, which was received by plaintiff and credited upon the note. Later .defendants gave Haas $727.75 for the purpose of paying an interest coupon, and $500 upon the principal. This money was not remitted to plaintiff and she knew nothing of it. Plaintiff brought her action to foreclose the mortgage, giving credit for $500 only paid on the principal. Thereafter defendants’ counsel contended there should be additional credits. A conference was had between plaintiff and defendants’ counsel and defendants, in which it was agreed that defendants should procure from Haas the $727.75 which had been paid to him and pay that money to plaintiff, and that was done. Defendants and their counsel also agreed to procure from Haas the money previously paid to him which he had not remitted to plaintiff and to pay that to plaintiff by a certain date. ■ Defendants were unable to get this money from Haas, and that payment was not made. In the pleadings defendants really ask credit for the $1,000 paid to Haas on October 22, 1925, but it developed at the trial that $500 of that had been paid by Haas some months later to the bank at Atchison and had been received by plaintiff. The contention was then made that defendants should have received credit for $1,000 instead of $500, and this upon the theory that Haas was the agent of plaintiff for the purpose of receiving payments of interest and principal. The court found under the facts as above stated that Haas was such agent for the plaintiff. The evidence does not sustain that finding. Haas was never the payee. The assignment to plaintiff had been recorded nearly six months before the payment of October 22, 1925. That payment was not made at an interest payment date, for the interest was payable March 8 each year; hence defendants had no privilege, by the terms of the mortgage, to pay on the principal at that time. The recital in the note that the principal and interest was payable at the office of P. M. Haas simply designated a place of payment. It did not make anyone agent to receive money for plaintiff. (Bryner v. Reynolds, 117 Kan. 427, 232 Pac. 219; Juniata College v. Warren, 118 Kan. 228, 235 Pac. 98.) Earlier cases are cited in these opinions. Appellee cites and relies on Walmer v. Redinger, 116 Kan. 580, 227 Pac. 329. The case is not in point. There the mortgage was made payable to Pettyjohn & Co. at their office. The assignee of the mortgage had for many years made Pettyjohn & Co. his agent for the investment, collection and reinvestment of funds, not only with respect to the mortgage in question, but with respect to other investments. Prom this, and the course of dealing in the particular mortgage in question, this court concluded that the trial court had evidence on which to base a finding that Pettyjohn & Co. was agent for the assignee of the mortgage in suit for the purpose of receiving payments. There is no such situation in this case. The evidence does not disclose that Linley had any other business transaction with Haas or with defendants, and the evidence clearly shows that the plaintiff had no direct business transaction with Haas at any. time. On the other hand Haas was the agent of defendants not only for the purpose of procuring this loan, but others, and handling other business transactions for defendants, for which they paid him.
The judgment of the court below will be reversed, with directions to disallow the credit of $500 allowed by the trial court. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a prosecution for the unlawful possession of intoxicating liquor — a misdemeanor. Defendant was convicted. He has appealed, and contends, first, that his motion to discharge should have been sustained; and, second, that his plea in abatement should have been sustained.
The information in this case was filed October 21, 1927, and charged the offense as of the “-day of July, 1926.” The mo tio'n to discharge avers that this defendant, on a complaint and warrant dated August 20, 1926, was charged and arrested as a persistent violator of the intoxicating liquor law; that such arrest was based upon unlawful possession of intoxicating liquor and referred to the same time, circumstances, facts and events relied upon by the state in this case; that upon the preliminary examination held under that complaint and warrant on October 12, 1926, defendant was bound over for trial to the district court; that defendant was ready for trial at the September, 1926, term of the district court, and through .no fault or request of his the case was continued to the January, 1927, term and was passed by the state, without the consent or request of defendant, to the April, 1927, term, and was likewise passed to the September, 1927, term; that in the September, 1927, term, and on October 4, 1927, the case was dismissed on motion of the county attorney, and that thereafter, and on October 21, 1927, the information in the case now on trial was filed, based on the same transaction and facts. It is contended that this constitutes a violation of R. S. 62-1432, which reads as follows:
“If any person under indictment or information for any offense, and held to answer on bail, shall not be brought to trial before the end of the third term of the court in which the cause is pending which shall be held after such indictment found or information filed, he shall be entitled to be discharged, so far as relates to such offense, unless the delay happen on his application or be occasioned by the want of time to try such cause at such third term.”
On the hearing of this motion evidence was offered tending to support the averments of the motion. The trial court overruled the motion on the ground that the statute did not apply when the first case was dismissed. Appellant complains of this ruling. The reason given for the ruling is erroneous. It is argued by the state in its brief that since no motion was made to discharge in the felony case, although the time when such a motion could be made had ripened, the state could dismiss that case and bring a new charge based on the same facts, and that defendant was in no position to complain. It will be noted that- he did complain as soon as action was brought on the new charge. But even passing that consideration, it will be noted that the statute provides “he shall be entitled to be discharged so far as relates to such offense,” when the facts of the case bring him within the terms of the statute. It seems to be the offense itself of which the person is entitled to discharge rather than the proceedings under which he had been previously charged with the offense. Under our statute a discharge amounts to an acquittal of the offense. (In re Edwards, Petitioner, 35 Kan. 99, 104, 10 Pac. 539.) In State v. Dewey, 73 Kan. 735, 85 Pac. 796, 88 Pac. 881, it was held:
“The discharge of a person under indictment when not brought to trial, as provided in section 221 of the code of criminal procedure (Gen. Stat. 1901, § 5666), amounts to an acquittal of the offense charged.”
Naturally where there has been an acquittal of the offense charged there can be no subsequent prosecution for that offense.
An examination of the record before us, however, discloses that neither appellant’s motion nor his evidence in support of it, brought him within the provisions of the statute. It is true that in the brief filed on behalf of the state it is conceded that “more than three terms passed without a trial.” This concession is not sustained by the record. The motion to discharge, and the evidence in support of it, disclosed that the preliminary examination was held on October 12, 1926, and an order made binding the defendant over for trial in the district court. This was at the September term of the district court. But there is no showing in the motion, nor in the evidence in support of it, when the information was filed in the district court in that case, and the statute (R. S. 62-1432) refers to the time when the information was filed (State v. Braden, 78 Kan. 576, 580, 96 Pac. 840), which, so far as the motion and evidence is concerned may have been later than the September, 1926, term of the district court. But passing the consideration of this point, for it may be rather technical, and referring again to the statute, it will be noted that a defendant held on bail shall be entitled to his discharge if he “shall not be brought to trial before the end of the third term of the court in which the cause is pending, which shall be held after such . . . information filed.” Even if the information were filed at some time within the September, 1926, term of court, where bail was given by defendant for his appearance at the next term of the district court, the September, 1926, term should not be counted in computing the number of terms wherein defendant was entitled to discharge, for at least a part of it had passed before the information was filed, and it was not one of the terms “held after such . . . information filed.”
A review of the former cases in this court in which the question of defendant’s discharge under this statute was passed upon discloses that all of them are in harmony with the view here expressed. In State v. O’Connor, 6 Kan. App. 770, the information was filed in No vember, 1895, and the January, 1896, term of court was the first term considered on the motion to discharge. In In re Edivards, Petitioner, 35 Kan. 99, 10 Pac. 539, the information was filed one day before the May, 1885, term of the court, which term was the first counted on the motion to discharge. In State v. Campbell, 73 Kan. 688, 85 Pac. 784, an indictment was returned and filed January 25, 1904. The March, 1904, term of court was the first considered on the motion to discharge. In the cases of State v. Dewey, 73 Kan. 735, 85 Pac. 796, 88 Pac. 881, the informations were filed in Cheyenne county December 2, 1903. A change of venue was taken to Norton county, where the informations were filed January 12, 1904. The February term in Norton county was the first term considered on the motions to discharge. In State v. Braden, 78 Kan. 576, 96 Pac. 840, the transcript was filed September 18,1906. The next term of court began in October, but the information was not filed until November 6. In the opinion it was said:
“The state is allowed three terms after the information is filed in which to bring the defendant to trial.” (p. 580.)
And the opinion indicates that the October, 1906, term was not considered in passing upon the motion to discharge. In State v. Morgan, 84 Kan. 625, 114 Pac. 846, the information was filed in May, 1908. The term beginning the next September was the first term considered on the motion to discharge. In this instance, however, the case appears to have been dismissed by the trial court in the exercise of its discretion rather than under the statute. In State v. Lewis, 85 Kan. 586, 118 Pac. 59, the information was filed August 14, 1909, and the September, 1909, term of court was the first considered on the motion to discharge. In State v. Hecht, 90 Kan. 802, 136 Pac. 251, the information was filed August 31, 1911, and the September, 1911, term was the first considered on the motion to discharge. Hence, in determining whether or not defendant in the felony case was entitled to a discharge under this statute, we must disregard the September, 1926, term of court. The case was not brought to trial at the January, nor at the April, 1927, terms of court. The September, 1927, term of court was the third one “held after” the information was filed, and the case might have been tried at any time within that term of court. It was not tried then, but was dismissed. The defendant in that case was not entitled to his discharge under that statute before the end of the September, 1927, term of court; but long before that time the case had been dismissed and a new information filed. Hence the ruling of the court in denying the motion to discharge was proper, although an incorrect reason was given for it.
Appellant contends that the court erred in overruling his plea in abatement. This plea averred that defendant had been once in jeopardy for this offense, having in another case (No. 11,325) been charged and tried on May 19, 1927, for the offense of possession of intoxicating liquor and found not guilty. It is further averred that the evidence in both cases is identical. An answer denied the allegations in the plea. The evidence relating to it disclosed that on May 18,1927, an information was filed in the district court charging Porter Patterson with the offense of the unlawful possession of intoxicating liquor. He was tried on that information on May 19 to a jury, with the result that there was a verdict of not guilty. It is conceded that the evidence offered in that case related to a time, place and the circumstances other than in July, 1926. The trial court denied this plea, and appellant complains of that ruling. In support of his complaint he makes the ingenious and somewhat plausible argument that at the trial of the case in May, 1927, the state could have proved any unlawful possession of intoxicating liquor by defendant at any time within two years prior to the filing of the information in that case, citing State v. Brooks, 33 Kan. 708, 7 Pac. 591, and allied cases; that defendant in that case was compelled to be prepared to meet evidence relating to any claim on behalf of the state that he had unlawful possession of intoxicating liquor at any time within such two years; that in legal contemplation the defendant was tried for any and every offense of the unlawful possession of intoxicating liquor which the state had, or could have, against him within such two years, and that the jury’s verdict of not guilty in that case was a decision upon this question and a finding that the defendant had not had unlawful possession of intoxicating liquor at any time within two years prior to the filing of the information in that case. Some authorities, among them State v. Price, 127 Ia. 301, are cited in support of this view. Many years ago this court had occasion to consider this identical question in State v. Shafer, 20 Kan. 226, and in State v. Kuhuke, 30 Kan. 462, 2 Pac. 689, where the specific question here presented was decided against appellant’s contention. In such a situation it seems the true rule is that in a plea of former acquittal to an offense it must be shown that the prior case related to the same offense charged or relied upon in the case on trial. See further on this point 16 C. J. 267, and cases collected in the note, 45 L. R. A., n. s., 977.
The judgment of the court below is affirmed. | [
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