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The opinion of the court was delivered by
Harvey, J.:
The plaintiff is a taxpayer and user of water in the city of Leavenworth, and as such brought this action to enjoin the mayor, the commissioners and the city clerk of the city of Leavenworth from entering into a certain contract with an electric power company for electric energy to be used in pumping water for the municipally owned and operated water plant 'of the city. Upon application and hearing a temporary injunction was allowed. Defendants demurred to plaintiff’s petition for the reason, among others, that the plaintiff had no legal capacity to maintain the action. The court overruled the demurrer, defendants elected to stand thereon, a final judgment of permanent injunction was rendered against defendants, and they have appealed.
Much is said in the briefs about the validity of the proposed contract between defendants and the electric power company. We find it unnecessary to go into or to determine that question, for the point raised by defendants, that plaintiff has no legal capacity to maintain this action, is well taken.
Early in the historjr of this state it was determined that “. . . for wrongs against the public, whether actually committed or only apprehended, the remedy, whether civil or criminal, is by a prosecution instituted by the state in its political character. . . .” (Craft v. Jackson Co., 5 Kan. 518, 521; and see Clark v. George, 118 Kan. 667, 669, 236 Pac. 543.) This principle applies not only in injunction, but in mandamus (Bobbett v. State, ex rel. Dresher, 10 Kan. 9; Collingwood v. Schmidt, 125 Kan. 81, 262 Pac. 556) and other forms of action, many examples of which are found in our reports.
By statute (R. S. 60-1121) an individual, or any number of persons, whose property is, or may be, affected by a tax or assessment, or whose burdens as taxpayers may be increased by a threatened unauthorized contract or act, may maintain an action to enjoin the illegal levy of any tax, charge or assessment, or its collection, or to enjoin any public officer, board or body from entering into any contract or doing any act not authorized by law that may result in any public burden or the levy of an illegal tax, charge or assessment. Plaintiff in this action claims the right to maintain the same under and by virtue of this statute. To do so, obviously it was necessary for him to allege that his “burdens as a taxpayer may be increased by the threatened unauthorized contract.”
In Warner v. City of Independence, 121 Kan. 551, 557, 247 Pac. 871, it was said:
“It is only in oases peculiarly affecting the pocketbooks of taxpayers that they are authorized to challenge acts, faults, or departures from statutory formulas, committed by public officials.”
And in Grecian v. Hill City, 123 Kan. 542, 256 Pac. 163, it was held:
“The state, at the instance of the attorney-general, or the county attorney, is the supervisor of the regularity of the proceedings of municipal officers. An individual taxpayer of the municipality cannot question the regularity of such proceedings unless the alleged irregularity results in his financial injury — as to increase his taxes.” (Syl. ¶ 2.)
If there is an actual increase of the tax burden the action may be maintained. (Darby v. Otterman, 122 Kan. 603, 252 Pac. 903.)
The petition in this case is wholly lacking in any allegations of fact from which it would follow that plaintiff’s burdens as a taxpayer would be increased. The waterworks plant is operated under R. S. 13-2401 to 13-2413. The cost of the maintenance and operation of the plant, interest on its bonded debt (R. S. 13-2405), and to create a sinking fund to retire its bonds (R. S. 13-2406), is obtained from water sold — not from taxes levied on the property of taxpayers. Only inferentially is it alleged that the contract contemplated between defendants and the power company would increase the cost of pumping water over the method now used of pumping by steam generated by coal as fuel. But if the petition could be interpreted so as to hold that such allegation were definitely made, it still lacks any allegation that such additional cost of pumping would affect the cost of water to water users, or in any way tend to increase plaintiff’s taxes.
The result is that allegations of plaintiff’s petition do not bring it within the purview of the statute authorizing an individual taxpayer to maintain such an action, and defendants’ demurrer to the petition should have been sustained.
The judgment of the court below will be reversed, with directions to sustain the demurrer to the petition. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one for damages sustained by the driver of an automobile when his car collided with another standing on an improved highway in the nighttime without lights. Plaintiff prevailed and defendant appeals.
The facts are substantially these: Plaintiff, who had been near Carbondale, was returning to Topeka about 1:15 a. m. July 22, 1926, on the Topeka avenue road. As he approached and crossed Twenty-seventh street, driving on the east or right-hand side of the paved slab, he discerned defendant’s automobile some fifty or sixty feet ahead of him. Plaintiff attempted to turn out or go around defendant’s car by applying his brakes and cramping his front wheels to his left or west. The front part of plaintiff’s car passed to the left or west of the rear of the defendant’s car, the right rear part of the plaintiff’s car catching the left rear part of defendant’s car. The plaintiff’s car skidded into the defendant’s. Plaintiff’s car turned over, he being thrown through the windshield and severely injured. The plaintiff’s was a Ford coupé, defendant’s a S'tudebaker.
It appears that at about 11 o’clock on the night of July 21 .the defendant drove to the home of Mrs. Mary Murphy, where he picked up 'Mrs. Murphy, a Miss Chase and a Mr. S'ilverthorne. They drove about the city and a short time before the accident had gone to a place called the Criterion inn to get some sandwiches. Returning; they stopped on the highway where the collision occurred. According to the United States weather bureau reports, it had rained during the afternoon and evening of July 21, .44 of an inch. There is an incline toward the north from a considerable distance south of Twenty-seventh street; the road at Twenty-seventh street was slightly level, but north of Twenty-seventh'street there was a grade or incline toward the north of about 4.8 per cent. The plaintiff testified that the lights on his car were properly burning; that none were burning on defendant’s car; that at Twenty-seventh street his lights projected above the pavement on account of the sharp grade to the north and displayed the top of the Studebaker car first; that the slick condition of the pavement at the point where he first saw it made his wheels slide sideways after he applied his brakes; that the grade to the north hindered him from seeing the defendant’s car, but that if it had had lights on it he would have seen it parked on the highway from the top of the hill near the Rankin dairy, which is about 800 to 1,000 feet south of Twenty-seventh street.
The defendant’s chief contention is that the plaintiff was guilty of contributory negligence; that plaintiff’s own testimony brings him within the rule stated in Fisher v. O’Brien, 99 Kan. 621, 162 Pac. 317. The jury found the facts as follows:
“1. Where was the Studebaker car in which the defendant was riding located upon the highway at the time of the-collision—
“(a) With reference to the center line of the concrete slab? A. All four wheels on slab east of center.
“(6) With reference to the north line of Twenty-seventh street? A. 50 to 60 feet north.
“•2. At the time of the collision were the two right wheels of the Studebaker automobile, occupied by the defendant, on the dirt shoulder east' of the east edge of the concrete slab? A. No.
“3. At what distance. ahead of the plaintiff could the Studebaker car have been first seen by the plaintiff as he approached it from the south? A. 50 to 60 feet.
“4. From the point where the plaintiff first saw the Studebaker car ahead of him on the highway and at the rate of speed the plaintiff was traveling immediately prior to the collision, could he have turned his car to the left and avoided a collision with the defendant’s car? A. No.
“5. From the point where you find plaintiff could by the exercise of due diligence have first seen the defendant’s car standing in the highway and at the rate of speed he was traveling at the time, could the plaintiff have turned to the left and passed the defendant’s car in safety? A. No.
“6. From the point where the plaintiff first saw the Studebaker car ahead of him on the highway and at the rate of speed he was traveling immediately prior to the collision, could he have stopped his car and avoided the collision? A. No.
“7. From the point where you find the plaintiff could by the exercise of due diligence have first seen the defendant’s car standing in the highway and at the rate of speed he was. traveling at the time, could the plaintiff have stopped his car and avoided a collision? A. No.
“8. At what distance in feet was plaintiff from the Studebaker car when he first saw it? A. 50 to 60 feet.
“9. How far south from the Studebaker car could plaintiff have seen the same as he approached it? .A. From 50 to 60 feet.
“10. In what distance could plaintiff have stopped his Ford coupé at the speed he was driving immediately prior to the time of the collision? A. From 60 to 70 feet.
“11. At what' rate of speed was the plaintiff driving his automobile immediately prior to the collision With the defendant’s car? A. 20 to 25 miles per hour.
“12. At what distance could the plaintiff, by the use of the headlights on his car see to distinguish objects ahead of him upon the highway? A. 50 to 60 feet.”
In Fisher v. O’Brien, supra, cited and relied on by defendant, it was said:
“Independently of any statute; it is negligence as a matter of law to drive an automobile along the highway on a dark night at such speed that it' cannot be stopped within the distance that objects can be seen ahead of it.” (Syl. If 1.)
Plaintiff testified:
“Q. . . . How far in front of you did your lights shine, so you could see objects ahead? A. Well, I should say sixty feet'. . . .
“Q. I think you said your lights were good and clear that night? A. Yes.
“Q. Windshield not dirty? A. No, sir.
“Q. And it was wiped off in good shape? A. Yes, sir.
“Q. Well, do you remember when you got down to about that point at Twenty-seventh and Topeka boulevard? A. Yes, sir.
“Q. When you reached that point, how fast were you going? A. Between twenty and twenty-five miles an hour.'
“Q. You had 50 to 60 feet in which to turn your automobile to the west and go around the automobile or object in this case after you saw it, didn’t you? A. Yes.”
In Rhoades v. Atchison, T. & S. F. Rly. Co., 121 Kan. 324, 246 Pac. 994, it was said in the opinion:
“One driving an automobile in the nighttime must so operate the car that he may stop within range of vision of his headlights.” (p. 328.)
In Lauson v. Fond Du Lac, 141 Wis. 57, 25 L. R. A., n. s., 40, 45, cited with approval by this court in Fisher v. O’Brien, supra, and in Giles v. Ternes, 93 Kan. 140, 144, 145, 143 Pac. 491, the supreme court of Wisconsin held that—
“ . . . The driver on a country road knows that bridges and culverts must be rebuilt; that highways must be repaired; that washouts occasionally occur; that live stock roam about the roads unattended; that travelers on foot, on horseback, and in various kinds of vehicles are found using the highways at all seasons of the year, and at all times of the day and night. Such a driver has no right to expect, and does not expect, a free and unobstructed right of way over a well-defined track as does the engineer of a locomotive, or even the motorman of an electric car. ... If his light be such that he can see objects only a distance of ten feet, then he should so regulate his speed as to be able to stop his machine within that distance, and, if he fails to do so; and an accident results from such failure, no recovery can be had. This, it seems to us, is the minimum degree of care that should be required. . . . We do not ground this rule on the fact that we have a statute requiring automobiles to carry reasonably bright lights while being operated during the hours of darkness. Independent of any statute, and considering the character of these machines, we hold it would be negligent operation to run them without sufficient lights to enable the driver to see objects ahead of him in time to avoid them.”
In Ebling v. Nielsen, 109 Wash. 355, it was said in substance—
“That ordinary care and prudence required an automobile driver, driving on a dark night and during a heavy rain, to have his machine under such speed and control as to preclude any reasonable likelihood of skidding when the brakes were applied, and which would permit him safely .to handle his machine without collision after he could, and should, have discovered a truck ahead, independently of the question of the sufficiency of the red light on The rear of the truck, and for his failure he was guilty of contributory negligence, barring recovery, against one with whose truck he collided, on the ground that the truck did not have a sufficient red light as required by statute.”
(See, also, Ott v. Wilson, 216 Mich. 499; Spencer v. Taylor, 219 Mich. 110; West Const. Co. v. White, 130 Tenn. 520.)
The plaintiff argues that the question of contributory negligence, if any, was an issue solely for the jury to determine; that the rule that a motorist must drive within the radius of his lights does not apply to unanticipated obstructions; that the skidding of a motor car is not evidence of negligence which precludes recovery; that when a motorist is confronted with an emergency, his negligence in not making the wisest choice is for the jury, and that all reasonable inferences should be indulged to support the verdict rather than to set it aside. The jury, in our opinion, did determine the facts in accordance with the plaintiff’s testimony. Those facts show that plaintiff did not have such control of his car that he could stop or turn out within the vision of his lights in order to avoid the collision and that he was, therefore, as a matter of law, guilty of such contributory negligence as bars his recovery. The trial court should either have sustained a demurrer to plaintiff’s evidence or should have entered judgment for the defendant on the special findings.
The judgment is reversed and the cause remanded with instructions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one of prohibition to restrain the probate judge of Edwards county from conducting a proceeding to determine the mental competency of a person not within the county. The relief prayed for was granted, and the probate judge appeals.
Gracia Beeler, daughter of H. B. Beeler, filed an information in the probate court of Edwards county, alleging that H. B. Beeler was a resident of Edwards county, and a person of unsound mind, who was incapable of managing his affairs; that he was in an institution in Kansas City, Mo., for treatment of mental diseases, and was there undergoing treatment for his malady; that he was incapable of caring for himself, and that he had real and personal property-in Edwards and Reno counties which ought to be placed in the custody and under the control of a guardian. The court issued a notice to Beeler of a hearing on the information, appointed Gracia Beeler to serve the notice, and the notice was served on Beeler in Missouri. On the day designated for the hearing an attorney for Beeler appeared specially, and challenged jurisdiction of the court. The challenge was overruled, and a jury was called and sworn to inquire respecting Beeler’s sanity. Before the inquiry was concluded, an al ternative writ of prohibition was served on the probate judge. The probate judge answered, a demurrer to thé answer was sustained, and a writ prohibiting the probate judge from proceeding further was issued.
There are two methods of dealing with the insane. One has for its purpose guardianship of person'or property, or both; the other, confinement in a. state hospital, and incidentally appointment of a guardian. In this instance, the purpose of the inquiry was to determine the necessity for appointment of a guardian, and the jurisdiction of the probate court was definitely prescribed by statute:
“When information in writing, verified by affidavit, shall be given to the probate court that any one in its county is insane, a lunatic, an idiot, an imbecile, a distracted person, a feeble-minded person, a drug habitué, or an habitual drunkard, and for any of these reasons is incapable of managing his affairs, and that it is necessary that a guardian be appointed for his person or estate, or both, and praying that an inquiry therein be had, the court, if satisfied that there is good cause for the exercise of its jurisdiction, shall cause the facts to be inquired into by a jury.” (R. S. 39-201.)
The brief for the probate judge discusses the nature of the proceeding, whether civil or criminal, adversary or parental, and the subjects of notice and service of notice. We do not get to any of those matters, because the information disclosed that Beeler was in Missouri, and the probate court had no jurisdiction to entertain it. There is no jurisdiction to make an initial inquiry into the sanity of a person outside the county in a guardianship proceeding, and the same is true of proceedings for institutional restraint.
“When any person is supposed to be insane, any reputable citizen of the town or township in which such person resides or is found may file with the probate judge of said county a statement in writing, under oath, setting forth that the person named is insane and unsafe to be at large, or suffering under mental derangement, and that the welfare of himself or others requires his restraint or commitment to some hospital for the insane; . . .” (R. S. 76-1205.)
“Inquests in lunacy may be in open court, or in chambers, or at the house of the person alleged to be insane, at the discretion of the court; the probate judge shall preside, and the presence of the accused shall be indispensable, and no proceedings can be had in his or her absence.” (R. S. 76-1210.)
Prohibition was the proper remedy. (Foley v. Ham, 102 Kan. 66, 70, 169 Pac. 183.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant was convicted of exposing and keeping lottery tickets for sale, and appeals.
The first matter presented by the defendant concerns the name under which he was prosecuted. There is no question about his identity. He was informed against as J. R. Rutledge. The complaint filed against and the warrant issued on that complaint named him as J. A. Rutledge. He states in his brief that his Christian name is Joseph. He argues that the information was defective because it set out his initials only instead of his full Christian name. None of these matters was called to the attention of the trial court in any way. It is too late now. (16 C. J. 409.)
The defendant questions the sufficiency of the evidence to sustain the verdict and judgment. In his brief he says:
“It is conceded for the purpose of the argument in this case that the appellee proved that, at the time of the arrest of the appellant, that he had policy paraphernalia in his possession.”
There was evidence which tended to prove the defendant with his wife lived at 741 Freeman avenue in Kansas City in Wyandotte county; that the police officers of Kansas City, with a search and seizure warrant, went to that place to raid it; that when the officers went to that place the defendant was not there; that his wife was there; that the officers kicked in the door of the house in order to effect an entrance; that when they entered the house the wife was knocking lottery paraphernalia off the table; that lottery paraphernalia was found scattered over the room; that when the officers got to the place, there was a man and two or three women beside the wife of the defendant present; that three or four minutes after the officers arrived at the house the defendant came into the house; and that the defendant was then arrested and searched and lottery tickets and paraphernalia were found on him. The only reasonable inference that could be drawn from these facts was that the defendant had the tickets, etc., for sale and was selling them.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
In the court’s computation, the sum of $210, agreed on as amount of interest and forming a portion of the payment of $460, was applied on the face of the judgment. All other indubitably allowable payments were so applied. The result was the total payments failed to equal the face of the judgment by $90. Regarding the payment of $210 as satisfying agreed interest at the time the $460 payment was made, the sum remaining due on the principal was, of course, $300, and the judgment of the district court will be for that amount with interest.
The defendant is responsible for the confusion in his account. The best this court could do was to take the statements the parties finally stood on in the district court, correct their obvious errors by resort to evidence not open to dispute, and declare the result.
The petition for rehearing is denied. The answer to the petition for rehearing is treated as a petition for rehearing by appellant, and is denied. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an appeal from a judgment sustaining a demurrer to a petition filed under the seventh subdivision of section 60-3007 of the Revised Statutes, in which James H. Salkeld, the appellant, asked that the judgment in a real-estate mortgage fore closure action be set aside and that he be let in to defend, and alleged in his application that he had been prevented by unavoidable casualty and misfortune from defending before judgment was rendered. The petition of the appellant alleged that neither he nor his wife ever executed, signed, or delivered the note or mortgage sought to be foreclosed by the plaintiff.
The foreclosure action was commenced in June, 1926. Answer day was July 23, 1926. On July 15, 1926, the appellant filed a motion to make the petition more definite and certain, which was overruled, and he was given twenty days in which to answer. On August 13, 1926, he was given another twenty days in which to answer. No answer was filed. On December 6, 1926, judgment of foreclosure-was rendered.- Order for sale was issued February 28, 1927. The land was sold April 4, 1927. The sale was confirmed April 18,1927, and on June 14, 1928, the appellant filed his petition asking that the judgment be set aside and that he be let in to defend. The casualty and misfortune on which the appellant relies to set aside the judgment was substantially as follows: That he employed Hubert Lardner, of Fort Scott, to look after and conduct his defense in the action; that Hubert Lardner agreed so to do; that from time to time he conferred with Hubert Lardner concerning the action and his defense thereto until about the 26th day of October; that for some time prior to the last mentioned date, the appellant was in ill health; that he then removed to Jackson county, Mo., for medical treatment and remained there for a number of months; that shortly before removing to Kansas City he conferred with Hubert Lardner concerning the action and the defenses therein, informed Lardner of his purpose to remove to Kansas City, and gave Lardner his Kansas City post-office address; that Hubert Lardner agreed to keep in touch with the appellant and inform him of the time of trial; that before the time of the trial, and before the rendition of the judgment, Hubert Lardner mailed a letter to the appellant, addressed to him in Kansas City, Mo., informing him that Lardner would withdraw from the case, but the appellant did not receive that letter. The appellant in his application stated that he did not learn that judgment had been rendered against him until long thereafter, but did not state when he first learned that judgment had been so rendered.
There is no question about the application to set aside the judgment stating a defense in the action. Was the appellant prevented by unavoidable casualty or misfortune from presenting his defense before judgment was rendered?
Similar questions have been before the court in Hill v. Williams, 6 Kan. 17, 23, 24, where the following language is found:
“The position is wholly destitute of any averment that the plaintiff was prevented from defending ‘by unavoidable' casualty or misfortune.’ Two facts are alleged which are claimed to be unavoidable casualty or misfortune: First, the absence of the plaintiff’s attorneys; and, second, the sickness of the plaintiff. . . . There is no averment that he had used diligence to prepare for trial, that he had subpoenaed a single witness, or that he had a witness to prov-e anything. ‘No more engagement of a business character will be received as an excuse for nonappearance of counsel.’ (Post v. Wright, 1 Caines, 3.) There is certainly in the petition an entire failure to show that any inevitable casualty or misfortune prevented the appearance of counsel.”
In Welch v. Challen, 31 Kan. 696, this court declared that—
“Where the plaintiff resides in Kansas and the defendants reside in another state, and the defendants employ an attorney in Kansas to file an answer and to attend to the case, but the attorney never files such answer, but before the time for filing the same has expired leaves the state of Kansas and never returns, and no answer is ever filed in the case, and after more than four months have elapsed after the defendants have made default by not filing an answer a judgment is rendered by default, in favor of the plaintiff and against the defendants, in accordance with the prayer of the plaintiff’s .petition, and the defendants have no knowledge of the negligence of their attorney, or of the rendition of such judgment until a long time after both have occurred, and the attorney is insolvent, and the defendants have a good defense to the action, held, that neither the negligence of the attorney nor his insolvency, nor the defendants’ want of knowledge, nor all combined, can be considered such an ‘unavoidable casualty or misfortune preventing the party from prosecuting or defending’ the action that the defendants may have the judgment vacated under section 568 of the civil code, and they be let in to defend.” (Syl.)
A somewhat similar declaration is found in Holderman v. Jones, 52 Kan. 743, 34 Pac. 352, as follows:
“The negligence of the party is no ground for a new trial. The negligence of the attorney is the negligence of the party.” (Syl. If 2.)
In Gooden v. Lewis, 101 Kan. 482, 487, 167 Pac. 1133, the court declared that—
“The rule is settled that a litigant cannot invoke the code provision for relief on the ground of ‘unavoidable casualty or misfortune preventing a defense’ where he has been manifestly negligent, guilty of laches, lacking in diligence, careless, hurried, or mistaken in the preparation of his defense, nor on account of the negligence of his attorney. (Daniel Hill v. Elias Williams, 6 Kan. 17; Winsor v. Goddard, 15 Kan. 118; Mehnert v. Thieme, 15 Kan. 368; Welch v. Challen, 31 Kan. 696, 3 Pac. 314; Weems v. McDavitt, 49 Kan. 260, 30 Pac. 481; Holderman v. Jones, 52 Kan. 743, 34 Pac. 352.)”
In Winsor v. Garrod, 15 Kan. 118, it was said:
“Where the vacation of a judgment is sought on the ground that, through unavoidable casualty and misfortune, the defendant in the judgment was prevented from making his defense; and where the facts are that defendant left Sumner county, the county of his residence, to go to Miami county, to be absent ten or twelve days, leaving at home his wife and eight children (the oldest son twenty-one years old), was detained on the way by sickness for a week, and did not return for a month, and during his absence suit was commenced before a justice, service made at his usual place of residence, judgment taken, but not taken’ until the fifteenth day of his absence, and the time to appeal past; and where it does not appear that any effort was made by his family to postpone or defend the suit, or take an appeal, or communicate to defendant the fact of the suit, nor for what purpose his trip was taken, whether business or pleasure, nor why he was detained so much longer than he intended, other than by the week’s sickness: Held, that there was no unavoidable casualty or misfortune preventing the defendant from making his defense.” (Syl.)
Salkeld’s petition did not show that he was entitled to have the judgment set aside and be let in to defend.
Another question is presented by the appellant, one not presented to the trial court nor embraced within the judgment from which the appeal has been taken. The appellant has filed a motion asking this court to determine the amount that must be paid on the redemption of the land from the sale. This matter has not been presented to the trial court in any way. The appeal is from the order sustaining a demurrer to the defendant’s petition to set aside the judgment. Nothing was said in the judgment on the demurrer about the appellant’s right of redemption from the sale. The appellant has the right to redeem from the sale, but he must pay to the clerk of the district court the amount required by statute. Upon tendering that amount to the clerk and the clerk refusing to issue the redemption certificate, the appellant in a proper proceeding in mandamus in the district court or in this court may compel the clerk to receive the money and issue the certificate. That would necessitate an action against the clerk of the district court, who is not before this court. He is not a party to this proceeding nor in any way connected with it.
This court has often said that as a general rule it will not consider questions not raised and passed upon in the court below. (Sleeper v. Bullen & Dustin et al., 6 Kan. 300; Koshka v. Railroad Co., 114 Kan. 126, 217 Pac. 293.) A number of other Kansas cases might be cited in support of this rule, but it is unnecessary to do so.
In 3 C. J. 689 it is said:
“Subject to a few exceptions which will be noticed hereafter, the rule is of almost universal application that questions, of whatever nature, not raised and properly preserved for review in the trial court, will not be noticed on appeal.”
This matter is not presented to this court in such a way as to enable the court properly to determine the question.
The judgment sustaining the demurrer is affirmed. The motion asking the court to determine the amount to be paid on redemption of the land from the sale is denied, but the period of redemption is extended for thirty days (from the date of filing this opinion. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appellants in this case plainly and succinctly state the nature and character of this appeal, as follows: “There is but one question presented to this court at this time. Under the evidence in the case, is there anything to support the findings of the trial court?” It is purely a question of fact. Appellants claim the right to the note and mortgage being by them sued upon and foreclosed in this action by virtue of an oral agreement with the cashier of the bank made on August 30, 1924, and consummated January 6, 1925, by the actual delivery of the note and mortgage; while the appellees maintain that the assignment and delivery was made on January 6,1925, by virtue of an agreement made that day. The facts in the case are fully set out in the opinion reported in Huston v. Tower, 123 Kan. 94, 254 Pac. 329, when this case was here before. The concluding paragraph of that opinion directed the trial court to make further findings as to the agreement of the bank to .assign these securities to the plaintiffs, in the following language:
“Under the circumstances, the court deems it best to dispose of the appeal as follows: The judgment of the district court is vacated, and the cause is remanded with direction to find from the evidence introduced at the trial the facts relating to time and character of the agreement under which plaintiffs’ claim to the note and mortgage originated, to apply the law as declared in this opinion, and to enter judgment accordingly.” (p. 99.)
In compliance with such mandate the trial court reviewed the evidence, heard, the arguments of counsel, and made the following findings of fact, which are a part of the journal entry:
“Therefore, in obedience to such mandate, the evidence introduced in the trial of this cause was again considered by the court, and after due and careful consideration thereof and hearing the arguments of counsel and being fully advised in the premises, the court finds that on the 25th day of January, 1925, an agreement was made and entered into by and between the plaintiffs and W. C. Child, as cashier of the Belvue State Bank, that plaintiffs should have the securities in controversy herein, upon condition, however, that if more than $5,000 was realized therefrom that the excess would be returned to the Belvue State Bank; this agreement was reduced to writing by the lady clerk, signed by the parties, but became lost and was not offered in evidence; that it was by virtue of this agreement that the securities in controversy were turned over to plaintiffs, and thereupon the two accounts upon the books of the bank, showing a credit of $2,500 to each of the plaintiffs, were closed and balanced;
“That the note and mortgage herein mentioned was át all the times stated owned and held by the said the Belvue State Bank, Belvue, Kansas, and in its possession until said 25th day of January, 1925; that on said 25th day of January, 1925, and for several months prior thereto, the said the Belvue State Bank, of Belvue, Kansas, was insolvent, which fact was known to the plaintiffs herein when they accepted and received said securities.”
The evidence all shows the date in January was either the 5th or 6th instead of the 25th, but no point is made of that difference. Was there any evidence to support this finding? The plaintiffs, Hooper and Huston, were respectively president and vice president of the Belvue State Bank, which was shown to have been insolvent since about December 1, 1924, and closed its doors in February, 1925. These two officers, in order to help the bank, on August 30, 1924, gave their notes to a neighboring bank for $2,500 each, for which credit was given to the Belvue bank. The latter bank gave these two officers credit on the books of the bank for the fund so raised by them, and it stood that way until January 6, 1925, when these two accounts were canceled, apparently by checks. The securities in question were then taken out of the bank and given to them. The following are extracts of some of the evidence bearing on the subject on which the findings were made. The cashier, W. C. Child, said:
“I made the indorsement on January 6, 1925. That was the time it was completed. . . . The note was carried in the assets of the bank until January 6, 1925. ... I do not remember that the note and mortgage were ever put up as collateral security prior to January 6, 1925. On January 6, I delivered the note and mortgage to J. M. Huston. ... On January 5 or 6 I turned them over to Mr. Huston. At that time I charged off the special accounts and put the difference to undivided profits. . . . Up to that time they were in the pocketbook among the live assets of the bank and the accounts were on the ledger. . . . Miss Weeks wrote a contract on the typewriter as I dictated it. It was in the assets of the bank when it closed. The contract was that they would take these securities, and if they collected more than $5,000 they would return the balance to the bank.”
H. E. McMillan, assistant receiver, said:
“The records of the bank show that the note and mortgage in controversy was among the assets of the bank until January 6, 1925. It shows the Tower note taken out at that time. . . . The books show the bank got the money and some one took it up. It is marked as ‘Loans Paid.’ . . . The two special accounts of $2,500 each appear to have been deposited in the bank. They were taken up and paid January 5, 1925. The records show these checks were charged to F. G. Hooper, $2,500, and to Huston, $2,500, and they turned over $2,000 here and $3,000 here, making $5,000, which went out of the bank at that time.”
Cora Weeks said:
“I was bookkeeper. Yes, I saw these securities, the Tower mortgage and the Eggers assignment, in the bank and heard them discussed there. I had access to the assets of the bank. I saw them among the assets. The records show they went out January 5 or 6, 1925. I recall the fact. They were given to F. G. Hooper and J. M. Huston by Childs. They were among the assets before that. I heard these securities discussed that morning between those parties. ... It arose from the $2,500 deposit to each of these men. They wished security for that, the special account. They said they felt they borrowed the money and entitled to security for it, and had put up their personal notes for the benefit of the bank. ... I can’t remember what Childs said, but know it was decided, but know they were to take these two securities, the Tower mortgage and the Eggers assignment. . . . After this conversation Mr. Childs dictated an agreement which I wrote on the typewriter. I cannot remember just what it was. It was made with copies. The substance of it was that these two securities, the Tower mortgage and the Eggers assignment, made over $5,000, and it was agreed that if over this sum was collected it should be. returned to the bank. Since the bank has closed we have been unable to find the agreement. It was signed by all three -rf them.”
She later said in an affidavit:
“I do not want it understood from my testimony that I claim no contract existed as testified to by F. G. Hooper, J. M. Huston and W. C. Childs, as testified to by them at the time the loan was made, but want it understood that I was not present and did not hear it, and knew nothing about the contract until I wrote it up, as testified to by me in January, 1925.”
The evidence of both plaintiffs and the cashier, Child, tended to show the making of an oral agreement August 30, 1924, when the plaintiffs borrowed the money for the benefit of the bank, to the effect that they should have the security offered by the cashier to the other bank, which included this note and mortgage. The trial court may not have considered this of great weight because of the interest of the witnesses, or may have regarded this earlier plan as being abandoned by them in order to avoid injury to the reputation and standing of the bank by thus reducing or disposing of its assets.
It is not expected or required in order to support the findings that there be no evidence to the contrary, but that there be some substantial evidence to sustain and justify the findings. We think the evidence above quoted fully supports the findings of the trial court.
“The rule again, followed that findings of fact, when sustained by evidence, are conclusive on appeal, although there was evidence on which a contrary finding could have been made.” (Randall v. Bird, 118 Kan. 341, syl., 235 Pac. 103.)
“Record examined and held to show that the trial court’s determination of a controverted fact was sustained by evidence which is conclusive on appeal.” (Baldwin v. Soldiers’ Compensation Board, 117 Kan. 129, syl., 230 Pac. 82.)
“Where there is ample evidence to support the findings and judgment, the evidence to the contrary has little significance in an appellate court.” (Putnam v. Putnam, 104 Kan. 47, syl. ¶ 6, 177 Pac. 838.)
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from the verdict of a jury and judgment fixing the value of real property taken under condemnation proceedings by the state for the forestry, fish and game commission.
Our legislature (by ch. 221, Laws 1927) declared it to be the policy of this state to protect and propagate fish, bird life (other than predatory and destructive birds), game and fur-bearing animals of the state, and to establish refuges and preserves therefor. It created and prescribed the duties of a state commission, to be known as the forestry, fish and game commission, and among other things provided:
“That for the purpose of acquiring the necessary lands, water and water rights for the carrying out of the provisions of this act, and the purposes for which said commission is created, the said commission, in the name of the state of Kansas, shall have and exercise, and there is hereby conferred upon it, the same rights of eminent domain as are conferred by law upon cities in the acquisition of land or water for waterworks; and upon request of said commission, the attorney-general shall proceed by proper action to acquire by condemnation all lands or rights therein or thereon, and all water and/or water rights required by said commission.” (§ 7.)
The procedure for acquiring property by condemnation referred to in the section just quoted is found in R. S. 26-201 to 26-210. Following this procedure, the forestry, fish and game commission, through its attorney, filed with the judge of the district court of the county in which the real property sought to be taken is situated, a written application describing the real property, setting forth the purpose for which it was sought to be taken, and praying that commissioners be appointed to make an appraisement and assessment of the damages therefor. The commissioners made their appraisement and assessment of damages and filed in court their written report. Within ten days thereafter the attorney for the commission filed in court a notice that the commission deemed the appraisement made by the commissioners excessive and high, and for that reason abandoned and dismissed the condemnation proceedings. Thereafter, and within thirty days from the filing of the report of the commissioners, other attorneys, on behalf of the forestry, fish and game commission, filed in court a motion for permission to withdraw from the files of the case the notice previously filed by the attorney for the commission, and notice of this motion was served promptly on the property owners and their attorneys. This motion was pre sented to the court, argued by respective counsel, and after due consideration was sustained.
On receipt of the notice of the motion last mentioned the owners of the property sought to be taken, through their attorneys, appealed from the appraisement and assessment of damages made by the commissioners to the district court, as provided by R. S. 26-205. This appeal came on regularly for trial and was tried to the court and jury. The only question to be determined on such appeal was the amount of compensation to be allowed. (R. S. 26-205.) The jury found the amount of compensation to be allowed, which sum was approved by the court, and the same has been paid, as provided by statute. The property owners have not accepted the amount so allowed and paid and have appealed to this court.
On the motion for a new trial only two questions were presented, and they are argued here. It is contended that the court erred in excluding evidence. One of the property owners, while testifying regarding the value of the property taken, stated that a few months before the condemnation proceeding he had been offered a certain price for the property, more than had been allowed him by the commissioners. Counsel for the commission moved to strike out this statement as not being a proper measure of the fair and reasonable value of the property. The court sustained the motion. Appellants complain of that ruling. A mere offer of a sum of money for property is not much evidence of its fair and reasonable value, unless the court were to take time to try out all the elements which went into the offer to purchase and the motive which prompted it. It may bave been influenced by considerations other than the fair and reasonable value of the property. No effort was made to show these circumstances. There was no error in this ruling. In Saint Joseph & D. C. R. R. Co. v. Orr, 8 Kan. 419, it was held:
“Evidence of an offer made for land is inadmissible to prove its value. Such testimony is easily manufactured. It is warranted neither on principle nor on authority, and is too dangerous to be tolerated.” (Syl. ¶ 9.)
This case was cited and followed on this point in Chicago, Milwaukee, etc., R. Co. v. Alexander, 47 Wash. 131, in T. R. G. E. Co. v. Durham, 38 Nev. 311, and in Sharp v. United States, 191 U. S. 341, 48 L. Ed. 211, where similar evidence was rejected and the ruling upheld, and the reasons for its exclusion discussed, citing a number of cases. See, also, 22 C. J. 179; 10 A. & E. Encyc. of L. (2d ed.) 1154.
Appellants complain of certain language used by the attorney for the commission in his closing argument to the jury. Objection was made to the specific language at the time. The court ruled that the statement by the attorney for the commission was fair argument in view of the argument made to the jury by the property owners. What was said in that argument has not been preserved in the record and is not before us. It is very likely the ruling of the court was correct. Certainly we are not in position to say that the ruling was erroneous.
Appellants present a question here which was not presented to the court below on motion for a new trial. Ordinarily that of itself would be sufficient to justify, or even to require, this court not to consider it. (K. P. Rly. Co. v. Mihlman, 17 Kan. 224; Bank v. Grisham, 105 Kan. 460, 179 Pac. 328.) But counsel for appellants contends that the question goes to the jurisdiction of the court of the subject matter of the action and argues that such a question may be considered even though not specifically raised in the court below. In view of this contention, without taking the time to analyze carefully whether the question goes to the jurisdiction of the subject matter, we shall consider the question presented. The question grows out of the fact that the attorney for the forestry, fish and game commission, within ten days after the commissioners appointed by the court had made their appraisement and assessment of damages and filed their report thereof in court, filed the notice previously mentioned to the effect that the commission deemed the appraisement and assessment of damages to be excessive and high, and for that reason abandoned the condemnation proceeding. The statute relating to this point reads:
“That if the governing body of any city [the forestry, fish and game commission in this case] shall deem such city [commission] aggrieved by any appraisement, assessment of damages or award by said commissioners made to any owner or claimant of land sought to be appropriated it may, by resolution adopted within ten days after the filing of such report, abandon the condemnation of any lot or tract of land. . . .” (R. S. 26-206.)
Appellants argue that the notice previously mentioned, filed by the attorney for the commission, was an abandonment of the condemnation proceedings within the meaning of this statute, and that all steps taken by any of the parties in the proceedings subsequent thereto are void and of no effect, for the reason that by the filing of such notice the condemnation proceedings terminated, and that the court thereafter had no jurisdiction of the subject matter. (Citing and relying on Isley v. City of Attica, 59 Ind. App. 694; Mabon v. Halsted, Director, &c., 39 N. J. L. 640; State v. City of Minneapolis, 40 Minn. 483, and allied cases.) The point is not well taken. By the application to the judge of the court for the appointment of commissioners to make an appraisement and assessment of damages for the land sought to be taken, and by the action of the commissioners in making such appraisement and assessment and filing their report with the court, certain rights, liabilities and duties had been established. For example, if no other steps were taken the property owners were entitled to the amount awarded by the commissioners and might have maintained an action against the forestry, fish and game commission therefor. On the other hand, the commission was entitled to the property on the payment of the amount awarded by the commissioners. Outside of an agreement between the parties to abandon the condemnation proceedings— and it is not contended there was any such agreement in this case— the only way the forestry, fish and game commission could abandon the condemnation proceedings was by the method provided by the statute, and that is by resolution adopted by the commission within ten days after the filing of the report of the appraisers. The record in this case does not disclose that any such resolution ever was adopted by the forestry, fish and game commission, and it is not even contended in the brief of appellants that such 'resolution was adopted. It is said in the oral argument that no such resolution was in fact adopted; that the attorney for the commission, on his own behalf, or perhaps after conferring with one of the commission, filed the notice mentioned. The statutes of the several states provide various methods by which the public body, seeking to condemn real property, may abandon the condemnation proceedings. It is not necessary to analyze all these statutes and the decisions of the courts construing them. It is sufficient to point out that our statute, here in question, provides that the abandonment of the condemnation be by resolution adopted by the commission. No such resolution was adopted. The trial court correctly held that there had been no abandonment of condemnation proceedings by the commission.
The judgment of the court below is affirmed.
Johnston, C. J., not sitting. | [
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The opinion of the court was delivered by
Marshall, J.:
This action is brought by certain electors and taxpayers of the school district in which Junction City is located to compel the recounting of the ballots cast at a bond election, and to enjoin the defendant from executing or selling any bonds or pledging the credit of the school district under the authority of that election. Judgment was rendered in favor of the defendant, and the plaintiffs appeal.
It is conceded that the statement of facts set out in the abstract of the appellants is correct. That statement is as follows:
“That the plaintiffs were voters and taxpayers of school district No. 1, Geary county, Kansas, and the defendant, the board of education of the city of Junction City, of the state of Kansas, is in charge of the school affairs of said district. That W. H. Thompson, mayor of Junction City, at the request of the defendant, issued an election proclamation, calling a special election of the voters of said school district for the purpose of voting on the proposition for the issuance of bonds of said district in the sum of $235,000 for the purpose of building and equipping school buildings. That the election proclamation stated that the polls should be open from seven a. m. to seven p. m., that the election was held and that the polls were kept open from seven a. m. until seven p.m. and the proposition to issue sajd bonds was declared carried by a majority of one hundred forty-eight votes. That Junction City is a city of the second class and is under the commission form of government. That there were five polling places for said election. One for each ward of the city and one for the attached territory. That' a large number of voters voted between six p.m. and seven p.m. at said election. That the city of Junction City has no oity ordinance prescribing the hours of voting.”
The plaintiffs in their brief say:
“The question for the court to decide is, which of several conflicting statutes apply to the hours during which the polls should be open for a school-bond election.”
The statutes to which plaintiffs refer are sections 14-206, 14-1203 and 25-106 of the Revised Statutes. Section 14-206, a part of the general law governing cities of the second class, reads:
“The places of holding elections, annual and special, in cities of the second class, shall be designated by the mayor. He shall issue a proclamation for every such election, giving at least ten days’ notice thereof, announcing the offices to be filled or the propositions to be voted upon, and the place in each ward where the same is to be held; and he shall also designate in each ward three electors to act as judges and two electors to act as clerks of such election. The polls shall be opened at nine (9) o’clock a. m. and dosed at six (6) o’clock p. m. Vacanoies in the offices of judge and clerk shall be filled, and all matters not provided for herein, pertaining to the manner of conducting such elections, shall be as provided by the general election laws of the state.”
Section 14-1203, a part of the election laws of cities of the second class under the commission form of government, is as follows:
“At all elections held under this act the polls shall be kept open between the hours of seven a.m. and seven p.m., and no longer.”
Section 25-106, a part of the general election law, provides:
“That the hours of voting at all general elections, primary elections, city elections and special elections shall be from eight o’clock in the morning until six o’clock at night, except in cities of the first and second class in which the hours of voting shall be from six o’clock in the morning until seven o’clock in the evening: Provided, however, That before the hours last herein stated shall be operative in any cities of the second class, the governing body of said cities shall have provided for such hours by ordinance, duly passed and published: Provided, That the hour for the opening of the polls of any precinct lying outside of any incorporated city in this state may be fixed at an hour not earlier than six o’clock in the morning, by order of the county commissioners, upon written application of the township board wherein said precinct is located.”
To determine which of these statutes control, any one of which might be applicable if the others did not exist, would be attended with some difficulty. That labor is unnecessary because this ques tion is controlled by State, ex rel., v. City of Lawrence, 98 Kan. 808, 811, 160 Pac. 217, where this court said:
“The polling places were held open from seven o’clock in the morning until seven o’clock in the evening. The defendants contend-that this vitiated the election; that the polls should have been opened at nine o’clock in the morning and closed at six o’clock in the evening. There is no pretense of fraud or other irregularity. In Russell v. The State, ex rel. Nicholson, 11 Kan. 308, it was said:
“ ‘A mere irregularity in conducting an election, which does not deprive a legal voter of his vote, or admit a disqualified voter to vote, or cast uncertainty on the result, and has not been occasioned by the agency of a party seeking to derive a benefit from it, should be overlooked in a proceeding to try the right to an office depending on such election.’ (Syl. ([ 1.)
“This principle has been followed in Jones v. The State of Kansas, ex rel. Atherby and Kingsbury, 1 Kan. 273, 279; Gilleland v. Schuyler, 9 Kan. 569; Morris v. Vanlaningham, 11 Kan. 269; and Jones v. Caldwell, 21 Kan. 186. If the defendants are correct in their contention that this election was not conducted as directed by the statute, it was a mere irregularity, and such a one as does not render the election invalid. The polls were open during the entire time required by the law. Unless a wrong result was produced, the election must be upheld. No such result has been shown.”
There is no contention that the election at Junction City was invalid for any reason other than that the election proclamation declared the polls would be kept open from seven o’clock a. m. until seven p. m. on election day, and that the polls were kept open between those hours. At most, that was an irregularity which did not vitiate the election.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages arising from a collision of automobiles on a public highway.
The accident occurred on a paved road leading into Iola from the east. About a mile east of that city and some 300 yards to the south is located St. John’s hospital, and leading from that institution is a 30-foot roadway known as the Hospital road which connects with the paved road.
On Sunday afternoon, November 16, 1924, plaintiff was walking northward from the hospital towards the paved road when he was overtaken by two women riding in a Ford coupé. They invited him to ride. He stepped on the running board on the right hand side of the car and held on by putting his arm around an upright support. The coupé proceeded northward to the paved road, where the woman driving it turned the coupé towards the west, but before that turn was completed defendant came from the east at high speed, passing on the south side of another car approaching the junction, and then seeing the Ford coupé right in front of him he veered to the north side of the paved road in an unsuccessful effort to avoid hitting it. His car struck the right hand side of the Ford coupé and knocked plaintiff off the running board. Plaintiff fell to the pavement and was badly injured.
This action for damages followed. A verdict and judgment were rendered for plaintiff. Defendant assigns and argues a number of errors, one of which relates to an amendment to plaintiff’s petition which was permitted after 'his evidence had been introduced. The petition had asked for damages in the sum of $18,595, which included items amounting to $1,120 for hospital bills, medicine and medical supplies and doctors’ fees. The belated amendment restated the latter items to correspond to the evidence, and in aggregate were $2,527.87. The allowance of this amendment was within the sound discretion of the trial court, and the record shows nothing to indicate its abuse. It is argued that defendant did not have a chance to verify the items; but ere the motion for a new trial was argued he did have that chance, and it is not now intimated that those items were inaccurate or excessive.
It is next contended that there were no obstructions to plaintiff’s view and that he could have seen defendant’s car coming from the east in time to have warned the driver of the coupé on which he was riding and in time to' have stepped off the running board to safety before the coupé got out on the paved road in front of defendant’s fast-driven automobile. Plaintiff said he did look to the east and did not see defendant’s car, that, he had an impression that he did see another car coming ahead of defendant’s, and that it was slowing down as it came from the east approaching the junction with the hospital road. Mayhap this other car cut off plaintiff’s view of defendant’s car. At all events, no error of law inhering in the judgment is traceable to the matter of obstructions to plaintiff’s view as he rode on the running board of the Ford coupé towards the junction of the two roads.
Defendant also contends that plaintiff’s negligence was established because he was riding on the running board of the Ford coupé, and that the trial court should have treated that fact as negligence as a matter of law. What is there particularly negligent or dangerous about riding on the running board of an automobile? Abstractly nothing at all. In this case it transpired that plaintiff was knocked off that running board, but that was because of the culpable negligence of defendant. Plaintiff could not be said to have been guilty of contributory negligence as a matter of law because he did not anticipate the likelihood of being knocked off that running board by some reckless driver, nor because he did not anticipate that he was more likely to be injured by riding in that position than if he had ridden elsewhere in the automobile. Judged by the usual result of automobile collisions, it is the man who sits behind the steering wheel who is most likely to be injured, and to be most seriously injured; his is the post of greatest danger; but inherently the danger does not lurk in whatever place in an automobile a person rides. The danger is in the disregard of the rules of the road by drivers of automobiles which reach the same place at the same time when one or more of them is in a fearful hurry. Whether or not it was negligence for plaintiff to ride on the running board under the circumstances was properly left to the jury under an appropriate instruction.
Error is also assigned on the trial court’s adverse ruling on defendant’s demurrer to the evidence, but that point is hardly worth discussing. The furious speed at which defendant came from the east, his disregard of the rights of others on the highway, the unhappy consequences of his criminal negligence were altogether too clearly shown to permit this case to be disposed of on a demurrer to the evidence.
Error is predicated on the refusal of the trial court to give certain instructions requested by defendant. If those given fully covered the issues — and we will consider that poinU-the refusal of those requested was not a serious matter. One of those requested was highly improper, and might well have caused the court to speculate on whether defendant really knew what this lawsuit was about. It read:
“8. You are further instructed that the defendant, R. Y. Harrison, had a legal and lawful right to operate his car at a rate of speed of not to exceed forty (40) miles per hour at the place where the injury in this case is alleged to have occurred.”
How much different reads the pertinent provision of the statute:
“That no person shall operate a motor vehicle ... at a rate of speed . . . greater than is reasonable and proper, having regard for the traffic and use of the road and the conditions of the road, nor at a rate of speed such as to endanger the life or limb of any person. . . .” (R. S. 8-122.)
That was the law governing the operation of defendant’s automobile at and near the junction of those two roads that Sunday afternoon. There is, indeed, a provision in the same statute forbidding the operation of an automobile at a speed in excess of 40 miles an hour on a public highway under any circumstances, but that provision had nothing to do with this lawsuit.
Most of the requested instructions were unimportant. The tenth of these hinted at a pertinent rule of law relating to the duty of plaintiff on approaching the paved road to keep a lookout for other cars which were likely to be met at that point; but it was not error to refuse that instruction because of inaccurate statements of law contained in it: However, a careful perusal of the instructions given does not reveal any fair statement of plaintiff’s duty to use care for his own safety. The instructions given contain two brief abstract references to the necessity that plaintiff himself be free of contributory negligence as a prerequisite to his recovery of damages against defendant, but there should have been a concrete statement that it was plaintiff’s duty as he rode towards the junction to look out for approaching cars on the paved road, and to caution the driver of that fact, and that his failure to do so would be contributory negligence which would bar a recovery. (Ferguson v. Lang, post, p. 273.) Requested instruction No. 11 would have told the jury that if plaintiff by the exercise of ordinary care could have stepped off the running board as the car came to the paved road and thus avoided the injury he could not recover. This instruction contained a sound principle of law, but it was quite defective because it assumed that defendant had some right of precedence on the highway', and because it omitted other facts necessary to a correct statement of law.
A more serious error than any yet considered is based upon the trial court’s ruling that the junction or connection of the hospital road with the paved road constituted an intersection of highways as contemplated by the statute. Throughout the trial this view was stated by the trial court and repeated in the court’s instructions to the jury. In the ninth instruction the court quoted the statute governing the speed of automobiles on approaching an intersection of highways and which requires that the speed be reduced “to a rate not exceeding eight miles an hour,” and that such speed shall not be exceeded until the intersection has been passed.
And the tenth instruction begins thus: “It appears that the mishap complained of occurred upon the intersection of a public highway.” This instruction was subjected to timely exception, and this court feels constrained to admit that it was erroneous. The connection of a side road with a main road does not constitute an intersection of highways. There is a quibble here that the hospital road was not a public road at all, but that is no more than a quibble. There was testimony that the hospital road had been laid out and used as a public road for over twenty years. But to constitute an intersection of public roads the roads must cross each other, and the area where they do cross each other and which is common to both roads is the intersection. (Godfrey v. City of New York, 93 N. Y. Supp. 899, 903, 104 App. Div. 357; Atwood v. Connecticut Co., 82 Conn. 539; 33 C. J. 475.) In Sullivan v. Chauvenet, 282 Mo. 649, it was held that where one street leads into another but does not cross it, the connection of the two streets does not constitute an intersection of highways.
Recurring to the ninth and tenth instructions as quoted above, it will be seen that in so far as they characterize the connection of the hospital road with the paved road as an intersection and that it was unlawful under any circumstances for defendant to drive past that connection at a speed greater than eight miles an hour, the instructions were neither pertinent nor correct.
Error is predicated on the admission in evidence of a map which purported to outline the place of accident, the east and west highway, the hospital road and surroundings, to set out by lines the routes traveled by the colliding automobiles, and the routes and distances traveled by each after the collision to the points at which they stopped. This evidence was not only competent but is of a kind which this court very much wishes to encourage; and when such maps are not technically admissible as evidence — as where the draftsman does not vouch for their accuracy under oath — we would encourage within reasonable limits their use as illustrative of the arguments of counsel, at least in presenting a cause on appeal. The danger of our being misled by the inaccuracy of such maps is negligible compared with the needless waste of time required to read endless pages of testimony to learn what a freehand sketch could reveal at a glance. (See Skinner v. Wolf, ante, pp. 158, 160, 266 Pac. 926.)
Another error complained of, and one which to some of the justices of this court is the most serious presented in this appeal, relates to a chiding given to counsel for defendant by the trial court in the presence of the jury. The incident is thus set down in the record:
“During the reading of instructions to the jury, and - at a point after the court has read a portion of instruction No. 9, an objection is made by counsel for the defendant, as follows:
By Counsel for Appellant: “At this time the defendant, R. Y. Harrison, objects to instruction No. 9, for the reason that the law as set out therein was not the law as set out in the statute books at the time of this accident.
By the Court: “Which objection the defendant makes is erroneous, in this, that this law just read to you existed since 1917, and the amendment referred to in 1925 is an amendment that is nowhere quoted herein, and relates only to villages and cities of the second class regulating the rate of speed at 12 miles an hour, and the objection made by the defendant is not in good faith, and the defendant knows of his own knowledge — that is, his attorney does — that such objection is not in good faith, and such amendment as referred to herein has no relation to this case. I am surprised at you making that objection. . . .
By Counsel for Appellant: “Now, I desire to take exception to the remarks of the court and want them to be entered also in the record.
By the Court: “Very well; take all the exceptions you want, but I want the objection, when an objection is made, to apply to some matter related with the case; and the attorney knows that the amendment to which he made his objection has no relation to this lawsuit, and that the statute read by the court has been in existence since 1917, and it is the law of this case, gentlemen of the jury, and you are governed by it.”
The court’s pointed accusation that counsel for defendant was not acting in good faith and its expression of surprise at counsel could hardly fail to have a very prejudicial effect upon defendant’s case before the jury. If the accusation was meritorious — on which point we make no intimation' — it would be worthy of rebuke, of course, but that should have been administered in the absence of the jury.
In Walker v. Coleman, 55 Kan. 381, 40 Pac. 640, the error complained of was more serious than the one at bar, but the analogy is pertinent. This court cited and quoted from a decision of the supreme court of Michigan touching the correct attitude of a trial court towards counsel in the presence of the jury, thus:
“ ‘Judges must take great care to say nothing in the hearing of the jurors, while a case is progressing, which can possibly be construed to the prejudice of either party,’ and the judgment was reversed because of an unfavorable suggestion of the trial judge, the reviewing court saying, ‘It is impossible to tell to what extent the defendant’s rights may have been prejudiced by the remarks.’ ” (p. 584.)
(See, also, Cone v. Citizens Bank, 4 Kan. App. 470, 46 Pac. 414; annotation in 42 L. R. A., n. s., 428-436; 29 Cyc. 771.)
Error is also assigned on the trial court's refusal to submit special questions asked by defendant. This point cannot be sustained. An opportunity had been given to submit such questions, which was not timely accepted. It was only a belated afterthought that prompted such request, and it was made by interrupting plaintiff’s counsel in his argument to the jury and after the court had finished reading his instructions to the jury.
A final error is urged in overruling defendant's motion for a new trial, supported by affidavits of a man and his wife who had been riding in the automobile which defendant passed when speeding towards the point of collision. Their affidavits contained recitals of fact which were largely cumulative; mayhap the court put no credence in what they said, and did not believe their testimony, if given at a new trial, would change the result. Under such circumstances the denial of a new trial was not error.
For the errors discussed above — defining the junction of the hospital road and paved road as an intersection where defendant had to reduce his speed to eight miles an hour, and the instruction that his failure to do so was negligence which would subject him to lia bility; the failure to instruct the jury concerning plaintiff’s duty to exercise due care on his own part as he rode towards the junction; and the accusation in the presence of the jury of counsel of the want of good faith on the part of defendant’s counsel and the court’s expression of surprise thereat — the judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one by a seller to recover money alleged to have been fraudulently withheld by his agents, the defendants, in a land deal. Plaintiff prevailed and defendants appeal.
The case was here before on the pleadings. (Frowe v. McPheeters, 122 Kan. 420, 251 Pac. 1105.) The petition alleging the facts was duly considered. However, at the risk of some repetition, the facts may be stated substantially as follows: Plaintiff, owner of a forty-acre farm in Douglas county, left Kansas in December, 1922, and went to Florida. In September, 1924, while in Kansas on a visit he listed the land through McPheeters with the Mansfield Land- and Loan Company, of Lawrence. Plaintiff and McPheeters had been acquainted several years. There was evidence indicating that the firm consisted of Mr. Mansfield and O. J. Bunn. Others, including defendants,- were employed in the office on a commission basis. On April 14, 1925, the plaintiff in Florida, received what purported to be a telegram signed by McPheeters, stating that he had an offer of $8,500 for the farm. Plaintiff replied accepting the offer on the condition that some changes be made in regard to rental of the property. He was subsequently notified by letter that one H. S. Taylor was the purchaser. On April 17, following, he received a letter from the Mansfield Investment Company, signed by Bunn, stating that contracts were inclosed for signatures of himself and wife, it having already been signed by Taylor, and a deed with grantee in blank.
It appears that the farm had actually been sold on April 13, 1925, to Martin Miller, for a consideration of $10,500. On May 11, 1925, the Mansfield Company sold out to McPheeters and Holke. The plaintiff first learned that defendants had sold the land for a larger price than he received ($8,500) in the latter part of August, 1925. He authorized his attorney to demand the $2,000 difference, payment of which was refused.
On the trial the court sustained a demurrer to the evidence on behalf of the defendants Hilleary and Holke, but overruled it as to McPheeters and McNeill. From this ruling plaintiff has filed a cross appeal.
Plaintiff contends that the defendants used H. S. Taylor in the deal as a straw man, drew up a contract, sent it to plaintiff, representing that the land was being sold to Taylor, asking plaintiff to sign a deed with blank grantee, when in truth and in fact, Martin Miller was the purchaser and Taylor was not. The principal question presented relates to the admissibility of a telegram received in Florida by plaintiff, purporting to have been sent by McPheeters, concerning the offer of $8,500 for the land, which plaintiff believed was the best offer obtainable. The telegram in question reads:
“Lawrence, Kas., 11:20 a. m., April 14, 1925.
“Wm. Frowe, R. F. D. No. 1, Ft. Pierce, Fla.:
“I am offered eight thousand five hundred dollars for your forty acres stop terms three hundred dollars down held in escroe balance all cash june first stop sold subject to this years lease buyer to 'get rent stop my advice to you take this deal wire me at once. L. E. McPheeters.”
130P.
It appears that a considerable part of the trial of the case was consumed in argument as to the admissibility of this telegram. Trial of the case began May 23,1927. The manager of the Western Union Telegraph Company, having been placed on the stand, testified that messages were kept by the company for a period of twelve months, but that the messages sent through the office in April, 1925, had been destroyed. The employees of the telegraph company had no personal recollection of McPheeters having sent the wire. It was, however, shown by the plaintiff that upon receipt of the purported wire from McPheeters, an answer was made; that other correspondence ensued which eventually resulted in the transfer of the land to Miller for the purported price of $8,500. It was also shown that as a matter of fact the land had been sold to Miller for a consideration of $10,500. An analysis of the testimony here would serve no useful purpose. It must have been apparent to the trial court and is perfectly apparent from the record before us that the defendant McPheeters either personally sent the telegram or authorized it to be sent and that the plaintiff sold the land as a result of its contents. The trial court exercised care in the admission of the testimony and in every way preserved the rights of the defendants, and no error was committed in receiving in evidence and considering the telegram in question. The judgment which followed was only the natural result following the establishment of the facts.
On the question of the demurrer, we are of opinion the trial court was overcareful. There was evidence tending to show that Hilleary and Holke were active in the transaction and received their portion of the profits. Undoubtedly they were partners in the transaction and plaintiff was entitled to have his case against them submitted to the jury.
In Boston Foundry Company v. Whiteman, 31 R. I. 88, 22 Ann. Cas. 1334, it was held that the members of a partnership are liable for a fraud committed by one of the partners in the ordinary conduct of the firm’s business, although the others do not participate in and have no knowledge of the fraud.
In the opinion it was said:
“By the great weight of authority it is well settled that all the members of a firm are liable for fraud committed by one of them in the ordinary conduct of the firm’s business, although the others do not participate in the fraud and have no knowledge of it.” (p.94.)
In the opinion when the case was first here, it was said:
“Plaintiff had land which he desired to sell. Defendants were real-estate brokers who desired and invited authority to act for plaintiff in conducting a sale of his land. Representations were made to him concerning the price at which his land could be sold and of a prospective purchaser. Plaintiff knowing nothing as to the truth of the representations accepted their tender of services and authorized them to act for him. They conducted the negotiations, effected a sale and accounted to him by remitting what they said were the proceeds of the sale. Thus it appears that the defendants were authorized to bring about a business relation between the plaintiff and a third person which in a legal sense constitutes a distinctive characteristic of agency.” (Frowe v. McPheeters, 122 Kan. 420, 422, 251 Pac. 1105.)
Numerous alleged trial errors, including the overruling of a motion to make the petition more definite and certain, in overruling a motion to strike, the admission of evidence, overruling a demurrer to plaintiff’s evidence, refusal to withdraw an exhibit, instructions given and instructions changed, denying defendant’s motion for judgment on the special findings, and in denying motions for new trial, have all been considered but cannot be sustained.
The judgment as to McPheeters and McNeill is affirmed. As to Hilleary and Holke, it is reversed and remanded with directions to grant a new trial. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, Frank H. Scott, sued to foreclose a real-estate mortgage given by George Linn. Defendant, the Amsden Lumber Company, admitted the plaintiff’s cause of action for the foreclosure of his mortgage, denied that defendants Roger H. Mur phy, Mrs. Roger H. Murphy, S. A. Moore and Mrs. S. A. Moore had any right or interest in the real property, and set up a mortgage thereon which the lumber company asked be foreclosed subject to the mortgage held by the plaintiff. Defendant S. A. Moore alleged that he was the owner of the real property and that George Linn never owned it, and denied that the plaintiff had any interest therein. Moore asked that his title to the property be quieted. Anna C„ Murphy, Charles R. Murphy, E. Frank Murphy, Anabel Murphy, Dorothy Henderson Jenkins and Calvin Henderson, heirs of Roger H. Murphy, deceased, filed an answer and cross petition.
They alleged that they were the owners of the property, and denied that George Linn ever had any interest in the property, and denied that the plaintiff had any interest therein. They asked that, their title be quieted. The plaintiff, in separate replies, denied the allegations in the answers of S. A. Moore and of the heirs of Roger H. Murphy. Defendants G. R. Hickok and H. W. Stubbs admitted the allegations of the plaintiff’s petition and of the cross petition of' the Amsden Lumber Company, but alleged title to the property in themselves as against S. A. Moore and the heirs of Roger H. Murphy and asked that no judgment be rendered against them except for the-foreclosure of the mortgages held by the plaintiff and the Amsden Lumber Company. G. R. Hickok and H. W. Stubbs pleaded resjudicata as against defendants S. A. Moore and the heirs of Roger-H. Murphy by a judgment rendered in a partition action in the district court of Grant county, in which action Sara E. Brown was-, plaintiff and in which H. E. Ball and a host of others, among which-, were “Roger H. Murphy, if living, Mrs. Roger H. Murphy, his wife,. Christian name unknown, and the unknown heirs, devisees, trustees, executors, administrators and assigns of said Roger H. Murphy, if he-be dead; James D. Rawlings, if living, Mrs. James D. Rawlings, his wife, Christian name unknown, and the unknown heirs, devisees,, trustees, executors, administrators and assigns of said James D.. Rawlings, if he be dead,” were defendants. •
That judgment which, after service by publication notice, was-, rendered April 28,1918, on default on the part of all defendants, decreed that Sara A. Brown was the owner of an undivided one-half of certain real property, a part of which is the property in controversy in the present action, and that Roger H. Murphy and James-. D. Rawlings each owned an undivided one-fourth thereof. That, judgment gave to Sara A. Brown the real property in controversy- in this action, and gave to Roger H. Murphy and James D. Rawlings other property involved in the action for partition but not involved in the present action. G. R. Hickok and H. W. Stubbs claim title derived from Sara A. Brown after the judgment in the partition action. S. A. Moore claims title by virtue of a quitclaim deed from James D. Rawlings, dated May 14, 1924, after the partition judgment had been rendered. The other appellants are the heirs of Roger H. Murphy, deceased, and must claim through him. S. A. Moore and the heirs of Roger H. Murphy demurred to the answer of G. R. Hickok and H. W. Stubbs. That demurrer was overruled. Judgment was rendered foreclosing the mortgage in favor of the plaintiff, foreclosing the mortgage in favor of the Amsden Lumber Company and directing that the proceeds of the sale of the property remaining after paying the amounts owing to the plaintiff, and to the Amsden Lumber Company be paid to G. R. Hickok and H. W. Stubbs. S. A. Moore; Mrs. Anna G. Murphy, wife of Roger H. Murphy, deceased; Charles R. Murphy and E. Frank Murphy, sons of Roger H. Murphy, deceased; Dorothy H. Jenkins, granddaughter of Roger H. Murphy; Calvin Henderson, grandson of Roger H. Murphy, deceased; and Anabel Murphy, minor daughter, but fourteen years of age, of said Roger H. Murphy, deceased, appeal.
The principal questions argued by the appellants grow out of the order overruling their demurrers to the answer of G. R. Hickok and H. W. Stubbs. Those questions turn on the validity of the judgment in the action prosecuted by Sara A. Brown to partition the real property. Title to the property was adjudicated by that judgment. The attack on it is a collateral one, and unless the judgment is void the attack must fail. (Pritchard v. Madren, 31 Kan. 38, 2 Pac. 691; Caldwell v. Bigger, 76 Kan. 49, 90 Pac. 1095; Morris v. Robbins, 83 Kan. 335, 111 Pac. 470; Davis v. Davis, 101 Kan. 395, 166 Pac. 515; Rennolds v. Guthrie, 103 Kan. 829, 177 Pac. 359; 34 C. J. 511.) The attack of the appellants is centered on the sufficiency of the affidavit for service by publication. It was sworn to by the attorney for the plaintiff before the petition was filed. The affidavit for publication was made under section 60-2526 of the Revised Statutes. That section in part reads:
“Before service by publication can be made, an affidavit must be filed, elating the residence, if known, of the defendant or defendants sought to be served, and if not known, stating that the plaintiff has diligently inquired as to the residence of such defendant or defendants and has been unable to learn the' place of such residence and that the plaintiff is unable to procure actual service of summons on such defendant or defendants within this state, and showing that the case is one of those mentioned in the preceding section. ... In actions against unknown heirs, executors, administrators, devisees, trustees and assigns of any deceased person, or in the alternative against a person or his unknown heirs, executors, administrators, devisees, trustees and assigns, or against a corporation or its unknown successors, trustees and assigns, the affidavit shall state that the plaintiff does not know and with diligence is unable to ascertain the names or whereabouts of any such heirs, executors, administrators, devisees, trustees or assigns, or successors, trustees or assigns of a corporation, or with diligence is unable to ascertain whether a person named in the alternative is living or dead, or his whereabouts, and if he be dead is unable to ascertain the names or whereabouts of his heirs, executors, administrators, devisees, trustees or assigns, or is unable to ascertain whether a corporation named in the alternative is legally existing or dissolved, and if not in existence is unable to ascertain the names or whereabouts of its officers, successors, trustees or assigns, if any. ...”
The parts of the affidavit for publication notice necessary to be examined at this time were as follows:
“H. W. Stubbs, of lawful age, being first duly sworn, upon his oath deposes and says that he is the attorney for the above-named plaintiff, and her duly authorized agent to make this affidavit; that said plaintiff is a nonresident of, and is absent from, the county of Grant and the state of Kansas. . . .
“Roger H. Murphy, if living, Mrs. Roger H. Murphy, his wife, Christian name unknown, and the unknown heirs, devisees, trustees, executors, administrators and assigns of said Roger H. Murphy, if he be dead; James D. Rawlings, if living, Mrs. James D. Rawlings, his wife, Christian name unknown, and the unknown heirs, devisees, trustees, executors, administrators and assigns of said James D. Rawlings, if he be dead . ... and each of them, are nonresidents of the state of Kansas, and that plaintiff cannot obtain personal service of summons on said defendants, or either of them, or any of them, within the state of Kansas. That this plaintiff has diligently inquired as to the place of residence of said defendants and of each of them, and has been unable to learn the place of residence of said defendants or of any or either of them.
“That this plaintiff is with diligence unable to ascertain whether the following named defendants, to wit: . . . James D. Rawlings and Mrs. James D. Rawlings, his wife . . . are living or dead; nor the whereabouts of any of them or either of them; and if they or either of them be dead, that this plaintiff is with diligence unable to learn the name or the whereabouts of any of the heirs, devisees, trustees, executors, administrators or assigns of any such deceased defendant or defendants. ...”
The affidavit, in substance, complied with all the requirements of section 60-2526 of the Revised Statutes. There may have been some irregularities in the affidavit that could have been taken ad vantage of in a direct proceeding for that purpose. The present action is not such a proceeding.
In Garrett v. Struble, 57 Kan. 508, 46 Pac. 943, this court said:
“In obtaining service by publication if there is a total failure to state in the notice any material matter required by section 74 of the civil code, the service is void and subject to a collateral attack; but where there is not such an entire omission of a material matter from the notice and it is inferentially or insufficiently set' forth therein, the service is merely voidable and can be successfully attacked only in a direct proceeding.”
(See, also, Carey v. Reeves, 32 Kan. 718, 5 Pac. 22; Caldwell v. Bigger, 76 Kan. 49, 90 Pac. 1095; Doyle v. Hays, 80 Kan. 209, 102 Pac. 496; Neiswanger v. Ord, 81 Kan. 63, 105 Pac. 17; Hungate v. Hetzer, 83 Kan. 265, 111 Pac. 183.)
The judgment in Brown v. Ball et al., the partition action, is a valid judgment; it binds all the defendants therein named and their subsequent successors and assigns, and it cannot be impeached collaterally.
Another contention by the appellants is that the court committed error in not submitting the cause to a jury. This contention cannot be sustained because the judgment recites that trial by- jury was waived and the cause was submitted on the pleadings and the evidence. That evidence consisted largely, if not altogether, of exhibits attached to the pleadings.
The appellants urge that the court committed error in not appointing a guardian ad litem for Dorothy Murphy, a minor. It does not appear from the record that this matter was called to the attention of the court until after judgment had been rendered; and then by the motion of Mrs. Roger H. Murphy, S’. A. Moore and Mrs. S. A. Moore, to set aside the judgment, in which motion it was alleged that Dorothy Murphy, then fourteen years old, was a daughter of Roger H. Murphy; that she had not been made a party to the action; that no guardian ad litem had been appointed for her; that E. Frank Murphy was her guardian; that he had not been made a party to the action; that Roger H. Murphy had died prior to the commencement of the action; that Mrs. Roger H. Murphy, widow of Roger H. Murphy, was the administrator of the estate; that, she had not been made a party to the action in her representative capacity; and that all should be made parties to the action in order to adjudicate properly the rights of Mrs. Roger H. Murphy, S. A. Moore and Mrs. S. A. Moore. The motion was denied. This mat ter should have been presented to the court before judgment was rendered. After judgment it was too late to make additional parties. Mrs. Roger H. Murphy, S. A. Moore and Mrs. S. A. Moore were before the court. The judgment is final, binding and conclusive as to them. They cannot complain of error committed against parties of which the court had no jurisdiction.
Other matters are presented by the appellants. They have been examined. No error has been found in them.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiffs brought this action for damages for ruining a well which furnished the principal supply of water for their farm.
It appears that for some years past plaintiffs have owned a farm of 280 acres in Wilson county. The farm is well improved with farm buildings conveniently located near the well. The usual activities of agriculture, dairying, gardening and poultry raising have hitherto been successfully conducted on the farm. Until its destruction this well contained a never-failing supply of good water, suitable and used for plaintiffs’ household and live stock and to irrigate their garden.
In March, 1924, on an adjacent tract of land, 463 feet distant from plaintiffs’ well, defendants drilled a gas well several hundred feet deep, which contained a considerable vein of salt water. According to the allegations of plaintiffs’ petition defendants neglected to encase their gas well, or plug it when it was abandoned, with the result that the salt water rose to the level of the ground and gradually impregnated the soil thereabout, and eventually polluted the water in plaintiffs’ well to such an extent as to render it permanently unfit for use.
Defendants joined issue by a general denial, and the cause was tried before a jury. The jurors were taken to view the premises, so that they had first-hand information of the location and surroundings of plaintiffs’ well and the location and situation of defendants’ gas well with reference thereto, and the evidence for plaintiffs tended to support the allegations of their petition. Defendants showed that on plaintiffs’ farm at not much greater distances were several other extinct gas wells which likewise contained salt water, any one of which, defendants contended, might have caused the pollution of the water well. These other gas wells were referred to by names and numbers, the nearest being located 665 feet northwest of plaintiffs’ water well and known as Hall No. 4. At still greater distances were others numbered 1, 2, 3 and 5. Defendants’ gas well, to which the damage to plaintiffs’ well was ascribed, located 463 feet south and slightly east of plaintiffs’ water well, is designated in the record as Neal No. 1.
The jury returned a general verdict of $2,500 in favor of plaintiffs and answered special questions, viz.:
“Q. 1. Did you find from the evidence that the plaintiffs used and operated the well known as Hall No. 4 and referred to in the evidence as the Sharpless well, as a gas well before defendant drilled the well in question on the Neal lease and referred to in the evidence as Neal No. 1? A. Yes.
“Q. 2. Do you find from the evidence that during the operation of well designated as Hall No. 4, by the plaintiffs as a gas well that salt water flowed over the top of said well and onto the surface of the land adjacent thereto? A. Yes. . . .
“Q. 4. Before the defendants drilled the well on the Neal lease designated and referred to as Neal No. 1, were there three old abandoned wells on said lease, drilled to the Bartlesville sand at an approximate depth of 900 feet? A. Yes.
“Q. 5. Did the wells designated and referred to as Hall No. 1, Hall No. 2, Hall No. 4 and Hall No. 5 contain salt water? A. Yes.
“Q. 6. In the event your verdict is for the plaintiff, then state how and in what manner the water in the Neal well polluted with salt the water well of plaintiffs. A. By leakage of salt water from Neal well into the fresh water strata of the Hall water well.
“Q. 7. If you find that the damage complained of by plaintiff is permanent, then state upon what fact or condition you base said finding. A. By the presence of salt water, it is presumed to continue indefinitely.”
Judgment was entered for plaintiffs and defendants assign.certain errors, the first of which raises the point that no causal connection between the pollution of the well and defendants’ gas well was shown. It would seem that the cause of the pollution of the well was shown about as convincingly as could be expected in the nature of the case. Prior to the drilling of defendants’ gas well the water in plaintiffs’ well was wholesome. There was a vein of salt water in defendants’ gas well which rose to the surface and saline deposits began to appear on the ground thereabout, the nearby vegetation died, and within a few months the water in plaintiffs’ well became impregnated with salt, and eventually it became too salty for either domestic use or to water the live stock or irrigate the garden. It was also shown that defendants had neglected to comply with the statutes designed to prevent the sort of mischief which happened in this case. These statutes, in part, read:
“If any well or other excavation be put down to or through any vein or strata containing salt water or water containing any minerals in appreciable quantities, it shall be the duty of the owner or operator, driller or person putting down such well or excavation to case or plug such well or excavation in such manner as to exclude all salt water or water containing minerals in appreciable quantities from both upper and lower veins or strata holding water suitable for domestic purposes.” (R. S. 55-118.)
“It shall be unlawful for any person, having possession or control of any well drilled, or being drilled for oil or gas, either as' contractor, owner, lessee, agent or manager, or in any other capacity, to permit salt water, oil or refuse from any such well, to escape upon the ground and flow away from the immediate vicinity of such well, and it shall be the duty of any such person to keep such salt water, oil or refuse safely confined in tanks, pipe lines or ponds, so as to prevent the escape thereof. . . .” (R. S. 55-121.)
It was also shown that the other abandoned gas wells which were suggested as possible sources of the pollution of plaintiffs’ well were at distances of 665 feet, 900 feet, 1,120 feet, and 1,200 feet respectively, and that they had been plugged to prevent the flow of their noxious contents.. (R. S. 55-116; 55-123 et seq.; Maxwell v. Coffeyville Mining & Gas Co., 68 Kan. 821, 75 Pac. 1047.) The gas well known as Hall No. 4 concerning which several special questions were submitted to the jury was located at a distance of 665 feet from the water well — 202 feet further than defendants’ well' — had been cased when it was drilled, and when it was abandoned and the casing removed it was plugged according to directions of the “county plugger.” The fact that salt water stood in these “plugged” wells would not go far to show a possibility that they caused the pollution of the water well. Being plugged, the flow of salt water would be checked in these wells far beneath the level of the water well.
Defendants emphasize the want of evidence regarding the geological formation, the nature, trend and direction of the subsurface strata, which would have established with scientific precision the source of the salt water which ruined the well. However, our concern is whether the evidence which plaintiffs did adduce was sufficient to take the case to the jury, and to this it seems imperative to return an affirmative answer. (Gilmore v. Salt Co., 84 Kan. 729, 115 Pac. 541; Helms v. Oil Co., 102 Kan. 164, 169 Pac. 208.)
It is also contended that no permanent damage to plaintiffs’ farm was shown. The well was the principal source of water supply for the farm. The farm buildings were located within convenient access thereto. The water supply had been abundant and of wholesome quality, and served the needs of plaintiffs, their live stock and garden; and in times of severe drought, when other wells in that locality gave out, it never failed. The pollution of the well had continued for over three years without change for the better. The defendants’ gas well which caused this mischief, 1,000 feet deep, 4 to 8 inches in diameter, has stood full of salt water and uncased and unplugged, so that there was nothing to prevent the permanent flow of salt water rising therein from continuing its noxious influence on the fresh water stratum which is the source of supply for plaintiffs’ well. As defendants’ well was not on land controlled by plaintiff he had no right of entry to attempt by artificial means to shut off the continuing rise and flow and seepage of salt water. These facts, together with the jury’s view of the premises, tended to establish a case of permanent damage, and there was little or no evidence tending to show that the damage was impermanent or abatable by any practical means available to plaintiffs. The question of permanency of the injury was properly left to the jury.
The jury’s response to special question No. 7 is. subjected to the criticism that the permanent character of the damage was based solely on the presumption that it would continue indefinitely. We are not prepared to say that, even if so, this.finding would not stand. It is a presumption of science and of logic that any status once shown to exist will continue until altered by some external force. Doubtless the finding was induced by the evidence and by the court’s- pertinent instruction which read:
“You' are instructed that a permanent injury to realty as distinguished from a temporary or continuing one, is one of such a character and existing under such circumstances as will be presumed to continue indefinitely.”
Error is assigned on the trial court’s instructions touching the proper measure of damages. The court ruled that if the. jury found that the injury to plaintiffs’ farm caused by the destruction of the well was permanent, the measure of damage would be the difference between the fair market value of the farm before and after the well was destroyed. This was a correct statement of pertinent law. (C. B. U. P. Rld. Co. v. Twine, 23 Kan. 585; Comm’rs of Smith Co. v. Labore, 37 Kan. 480, 15 Pac. 577; C. K. & W. Rld. Co. v. Willits, 45 Kan. 110, 25 Pac. 570; Railway Co. v. Weidenmann, 77 Kan. 300, 94 Pac. 146.) While other measures of ascertaining permanent damage to real property have been approved by this court, as in Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526, and in Barker v. Railway Co., 94 Kan. 61, 145 Pac. 829, it is not suggested how plaintiffs’ permanent damage could have been shown more accurately than by the evidence of value of the farm prior and subsequent to the destruction of its principal water supply.
Error is also assigned on the trial court’s refusal to give an instruction on the plaintiffs’ duty to mitigate their damage, which defendants suggest could have been done by developing greater use of a spring on the farm, or by digging a new well. The, doctrine of an injured party’s duty to mitigate his damages is inapplicable to plaintiffs’ situation. Whatever plaintiffs could do to lessen the damage to their well because of the wrongdoing of defendants was, of course, their duty to do. But to dig a new well — assuming a new well convenient to their farm buildings would not be subject to the same contamination as the old well — would not be a minimizing of the damage or total destruction of the old well; neither would the development of the spring, if indeed it had a never failing and abundant supply of wholesome water — a fact which was not established. Those and other possible sources of a new and adequate supply of water may exist, but they take nothing from defendants’ liability for their wrongdoing in the case presented by this appeal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a taxpayer to enjoin as illegal a special assessment for the construction of a sewer in a sewer district of the city of Wichita. The city, by demurrer and then by answer, asserted the action was not commenced in time. The court decided the case on its merits against plaintiff, and she appeals.
The amount due on each lot subject to assessment for construction of the sewer was ascertained and apportioned by ordinance published on June 4, 1924. The petition was filed on June 28, 1924. The parties defendant were the board of county commissioners, the county clerk, the county treasurer, contractors who constructed the sewer, and a certain newspaper publisher. Service was promptly made on the defendants, except the city. The city was served with summons on August 12, 1924. The statute reads as follows:
“No suit nor action of any kind shall be maintained in any court to set aside or in any way contest or enjoin the levy of any special assessment for constructing or repairing any sidewalk, pavement, sewer or any other public improvement after the expiration of thirty days from the time the amount due on each lot or piece of ground liable for such assessment is ascertained.” (R. S. 13-906.)
The city was not a subdivision of the county, the board of county commissioners was not the agent or the legal representative of the city in any matter connected with the assessment or collection of this tax, the county had no interest in the tax, and the county commissioners were neither necessary nor proper parties to the action. There was no pleading nor proof that the contractors who constructed the sewer had any interest in the tax, and they were improperly joined. There was no pleading nor proof that any notice relating to the tax was about to be published or likely to be published by the newspaper publisher, or that he was in any way interested in the tax. In no event could the validity of the tax be adjudicated in an action against one or all of these parties.
The county clerk and the county treasurer were nominal parties. (Gilmore v. Fox, 10 Kan. 509, 511; Jeffries-BaSom v. Nation, 63 Kan. 247, 65 Pac. 226.) If the term “nominal parties” be inaccurate (Shearer v. Murphy, 63 Kan. 537, 541, 66 Pac. 240), they were mere cogs of the tax-collecting machinery, and validity of the tax could not be adjudicated in an action against them. The city was-the real party in interest, an indispensable party, and unless the city were before the court no judgment respecting the validity or invalidity of the tax could be of operative effect. (See Yount v. Hoover, 95 Kan. 752, 149 Pac. 408, and cases collated in the opinion.)
Since no injunction could be granted at all unless it were granted against the city it was necessary the action be commenced against the city within the period allowed for contesting validity of the tax with the city. The action was commenced against the city August 12, the date the summons served on it was issued. The ordinance was published June 4. The judgment denying the injunction should have been based on the ground the action could not be maintained because not effectively commenced within thirty days after the ordinance was published.
Inasmuch as plaintiff was not entitled to injunctive relief, the judgment denying her such relief is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a common-law action by an employee against his employer for damages for personal injuries alleged to have been caused by the negligence of defendant in failing to furnish plaintiff a safe place in which to work. The jury answered special questions and returned a general verdict for plaintiff. Defendant has appealed.
Defendant is engaged in the business of buying and selling petroleum products, and in the conduct of such business maintains a number of filling stations, one of which is situated at Eighteenth street and Argentine boulevard in Kansas City. Plaintiff was in the employ of defendant in charge of this filling station. His work required him to handle and sell gasoline, oils and other petroleum products, and to grease and oil cars, and do all other work connected with the operation of the service station. He alleged that on the afternoon of May 3, 1926, while he was engaged in carrying ten quarts of oil from the station building to an oil table or rack which stands at the south side of the canopy over the driveway, being a part of the station, an automobile, at a very rapid rate of speed, ran through the driveway, and plaintiff, in an attempt to prevent being run into by the automobile, stepped or jumped out of the way, and in so doing, “because of the slippery condition of the loose gravel on the floor of the driveway of said filling station, which gravel had large ruts or holes in it and had been in a dangerous condition for persons attempting to walk thereon for a long time prior to said date, and which condition was and for a long time had been known to the defendant and which the defendant had promised to repair, and which promise plaintiff had relied on, plaintiff was caused to slip and fall, causing him to be thrown against the oil rack," with resulting injury. It was further alleged that defendant was negligent in failing to furnish plaintiff a safe place to work, and in failing to resurface the driveway, after promising so to do, and in permitting the driveway to remain in a defective and dangerous condition, as previously set forth.
In the answer, defendant denied the allegations of negligence in the petition and plead contributory negligence and assumption of risk.
The filling station was situated on a corner of the lot diagonal with the street, with two roadways, one from each street. The roadway nearest to the building was covered with a canopy. The roadways had been constructed with gravel, or chat, and cars passing through would carry a part of it out into the street. There was loose gravel on top of the roadway, and the cars going through had cut ruts in the loose gravel perhaps two or three inches deep. This condition had existed for about two weeks before the day in question. Oil, for convenience in servicing cars, was kept in quart bottles in two racks holding five bottles each, on a table between the supports of the canopy. Plaintiff, who gave the only evidence as to how his injury occurred, testified that he started out of the filling station with two of these racks, one in each hand, containing ten quarts of oil, and started to walk directly across the driveway to the oil rack; that he looked to see whether any cars were approaching and saw none; that he took two or three steps and then saw a Ford car approaching over the driveway through the station at a high rate of speed. It was about ten feet away when he first saw it. He attempted to get out of the way by going straight ahead; that he got his foot in a rut and fell against the oil table and upset it;, that he struck the lower part of his back and hip. The Ford car went right on through the driveway at a speed of twenty or twenty-five miles an hour. He never learned who was driving it. With reference to the condition of the driveway, he testified that there was loose gravel and ruts in it, and oil had spilled on it. The oil came from the dripping of cars that stood in the driveway to be serviced and from oil which he spilled in servicing the cars. Defendant had in its employ a m^n named Tierney, who went to the filling station each day to check up the amount of products sold and receive the money. Plaintiff spoke to Tierney about the condition of the driveway and .told him, “The driveway was in a bad condition and ought to be fixed, and had to be fixed, because we are going to lose business.” No complaint was made to Tierney, or anyone else, about the driveway being an unsafe place for plaintiff to work. While plaintiff was in full charge of the station and alleged and testified that it was his duty to do all the work in,connection with the operation of the station, he made no effort to sweep any of the gravel or chat back into the ruts, although he had ample time to do so. With reference to just what caused him to fall, he testified that his foot caught in a rut, or slipped in a rut, and perhaps slipped because of the oil on the chat or gravel. He knew the oil was slippery.
With reference to the manner in which the injury was caused, the jury, in answer to special questions, found that plaintiff was in full charge of the filling station; that it was defendant’s duty to keep the driveway free from ruts, depressions, or other defects; that the drive way was in an unsafe condition at the time; that there was no defect in the driveway that plaintiff could not have remedied; that he did not do so because it was not his duty; that plaintiff’s injury was indirectly caused by the fast driving of the Ford automobile through the station, and answered questions 12 and 13 as follows:
“Q. Was plaintiff caused to fall in getting out of the way of the automobile by catching his foot in a rut? A. No.
“Q. Was plaintiff caused to fall in getting out of the way of the automobile by his foot slipping on oil in the driveway? A. Yes.”
Defendant’s demurrer to plaintiff’s evidence, its motion for a directed verdict, and its motion for judgment on the answers to the special questions, were overruled.
Appellant contends there was no negligence on its part to justify the verdict, and that plaintiff, as a matter of law, assumed the risk of thé condition of the driveway which the jury found caused his injury. These contentions must be sustained.
It is difficult to see that this driveway was an unsafe place to work. Plaintiff’s complaint to Tierney concerned the appearance of the driveway. Some of the gravel or chat had. been dragged out on the street by automobiles which had passed'over the driveway, and at places in the driveway there were shallow ruts in the loose gravel. Plaintiff thought this prevented the premises from having a neat appearance and would be detrimental to business; that autoists would not be so likely to stop at an .ill-kept filling station. Plaintiff made no complaint to Tierney, or to anyone, of the driveway as being unsafe, or as being an unsafe place to work. Obviously he did not so regard it. (See Railroad Co. v. Mealman, 78 Kan. 496, 97 Pac. 381, and allied cases.) But we need not dwell on the question whether the loose gravel or ruts in it caused plaintiff’s injury, for the jury has eliminated that question from the case by finding that plaintiff did not catch his foot in a rut, and that he was “caused to fall ... by his foot slipping on oil in the driveway.” Considering the evidence before it, the jury found the cause of plaintiff’s fall to be oil in the driveway, not loose gravel or ruts in it. Neither party to this action took exceptions to this finding; it was approved by the trial court, and it must stand as binding on this court. So the question before us is, Was the oil shown to be on the driveway negligence of defendant which authorized or justified the verdict? Clearly not. Such oil as there was in the drive way got there by two causes: First, the dripping of oil from automobiles serviced at the station. It is a matter of common knowledge, and was apparently so considered in the trial of this case, that many automobiles drip a little oil, whether standing or moving. This is apparent at any filling station, even on the streets and highways. It was a condition not caused by defendant, and could not have been remedied by it. The other method by which oil got in the driveway was oil spilled by plaintiff in servicing cars. If that was negligence of anyone, it was negligence of plaintiff, not of defendant. It is elemental, of course, that negligence of defendant must be established before recovery can be had in a common law action for damages.
It seems clear, also, that such oil as was in the driveway was the usual, natural and perhaps necessary condition of a driveway and filling station. The fact that oil was likely to be in the driveway from the dripping of automobiles was a matter well known to plaintiff, as well as to defendant, and any danger to plaintiff’s safety arising therefrom was an ordinary, natural and necessary incident to the conduct of the business — any one in charge of the filling station would have been subject to the same condition — and hence the risk of it was assumed by plaintiff from the fact of his employment. In 39 C. J. 705, the rule is thus stated:
“In the absence of an agreement to the contrary, a servant by his contract of employment, either expressly or impliedly from the circumstances of the employment, agrees to assume all the risks ordinarily or obviously incident to the discharge of his duties in the particular employment, and accordingly, under the well-settled rule that a master is not liable to his servant for injuries that are attributable to risks or dangers assumed by the servant, for injuries sustained by an employee from such risks the employer is not liable. It will be presumed that the contract was made with reference to such risks. The servant’s assumption of such risks is in the nature of things a part of his employment, and the employer violates no legal duty to the employee in failing to protect him from dangers which cannot be escaped by anyone doing such work.”
This text is supported by many cases from the federal courts and from state courts of last resort, including decisions from our own court, and states the general well-recognized rule.
Appellee cites Phillips v. Commercial Nat’l Bank, 119 Kan. 339, 239 Pac. 984, and allied cases,'holding in effect that before a servant can be, said to have assumed the risk incident to conditions of the place at which he works it must appear that he appreciated the danger of the condition. But this rule has no application here, for from plaintiff’s evidence it is clear that he knew the oil made the driveway slippery and appreciated any danger arising therefrom. He testified: “Oil makes everything slippery, you know.” Knowing and appreciating the condition, and continuing to work without complaint concerning it, he assumed the risk arising therefrom. (Barnes v. Akins, 101 Kan. 359, 166 Pac. 474.)
From what has been said it is clear that defendant’s motion for judgment on the special findings, notwithstanding the general verdict, should have been sustained.
The judgment of the court below will be reversed, with directions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Johnston, C. J.:
These actions were brought by A. L. Barner, trustee in bankruptcy of the bankrupt estate of Sallie A. Lane, to set aside deeds to lands in Sumner county executed by Sallie A. Lane, Irva C. Lane and Alva J. Lane, to another member of the family, Coilla G. Dougherty. The trial court found that the deeds involved were executed for the purpose of hindering, delaying and defrauding creditors, and were without fair and reasonable consideration. Accordingly decree was entered setting them aside. The defendants appeal.
Sallie A. Lane is the widow of W. L. Lane, who died in December, 1913. He left surviving him Sallie A. Lane, his widow, Coilla G. Dougherty, Bessie M. Van Curen, Otto L. Lane, Irva C. Lane and Alva J. Lane. He had acquired large tracts of land, and prior to his death had executed a will in which he gave a life interest in 400 acres of the land involved herein to his wife, Sallie A. Lane. Aside from the interest given to his widow in about 400 acres of the land, she was given a second life estate in portions of it upon which each of the sons and daughters were given a life estate, the remainder to go to the children of each son or daughter, and in the event of no children it was to descend to the remaining children in equal parts. Coilla G. Dougherty was given a life estate in a quarter section of the land devised, the remainder to her children to be equally divided, and in the event of no children it should be divided among the other sons and daughters of the family in equal parts.
In like manner Bessie Van Curen was given a tract of land during the term of her natural life, and upon her death to her children, and if no children it should descend to the heirs of W. L. Lane. A second life estate in a portion of the land bequeathed to Sallie A. Lane was given to Otto L. Lane and his children. Otto L. Lane was given in like manner a life estate in another tract of the land. Irva C. Lane was given a second life estate in property to which his mother had a first life estate, and which was to descend to his children, or in the event he had no children it descended to the other heirs of W. L. Lane. On May 9, 1923, Sallie A. Lane, Irva C. Lane and Alva J. Lane each made deeds for the lands described in the respective tracts of land involved in these actions to Coilla G. Dougherty, the daughter of Sallie A. Lane and the sister of Irva C. and Alva J. Lane. Coilla G. Dougherty lived in Wichita, and the sons lived near Belle Plaine, fifteen miles from Wellington. The consideration expressed in the deed of Sallie A. Lane to her daughter is $200, and in each of the deeds made by Irva C. Lane and Alva J. Lane the consideration expressed is $100. Payments were made to them by Coilla G. Dougherty through checks on a Wichita bank, and were cashed-at a bank in Wellington. All the deeds were filed in the office of the register of deeds of Sumner county on the day of execution. Three days later the Citizens State Bank of Belle Plaine commenced a suit against Irva C. Lane and Alva J. Lane and Sallie A. Lane, upon a note which they had executed for $3,494, and also to recover a further judgment against Alva J. Lane and Sallie A. Lane for $1,456 due upon a note executed by them, and for a judgment against Alva J. Lane in the sum of $285 upon a note which he had executed, and attachments were levied upon the land.
Another action was brought by the Valley State Bank about that time to recover judgment against them of $3,589.42. On September 10, 1923, petitions in bankruptcy were made and filed by Sallie A. Lane, Irva C. Lane and Alva J. Lane, and on the following day they were adjudged bankrupts. A meeting of the creditors held on September 27 resulted in the appointment of A. L. Barner as trustee of the estates of each of the three bankrupts. On October 8, 1923, the trustee obtained leave to bring action for the recovery of property omitted from the schedules, and leave was given. An action was begun against each of them by the trustee, and by agreement the three cases were consolidated in the district court for trial, and judgment having been given in favor of the plaintiff the cases are abstracted and briefed together for this court.
Error is assigned on overruling defendant’s objection to the evidence based on the ground that the allegations of the petition were too general and could be regarded as no more than conclusions. It appears that the sufficiency of the petition was not challenged by motion or otherwise until the issues were closed and evidence was offered. Defendants answered the charges of fraud and lack of consideration with an allegation that the deeds were not executed for the purpose of cheating and defrauding creditors and were not made for an insufficient consideration. In his petition plaintiff alleged that the interest held by the defendants in the land involved had been conveyed for the purpose of hindering, delaying and defrauding their creditors, that the conveyance was made to Coilla G. Dougherty, the daughter of Sallie A. Lane and the sister of the other defendants, and that she paid no consideration for them, and knew at the time that they were made with the intention of concealing the property from their creditors, and further, that they had sought and obtained adjudications in bankruptcy and a discharge as bankrupts. Plaintiff might have alleged more fully and definitely the facts as to the fraud of defendants in the transaction and as to the lack of consideration for the transfers, but, as we have seen, they did not challenge the petition for indefiniteness or other defects. Instead they closed the issues by denying plaintiff's charges as made. They were late in raising a question as to the indefiniteness or of defects in the allegations of the petition. The proper time to have raised the question was before answers were filed. The petition charged fraud in general terms, stating expressly the purpose for which the conveyances were made, and it has been held that where a cause of action is stated in general terms the defendants were in no position to question the sufficiency of the petition by demurrer to evidence. (Elliott v. Hudson, 84 Kan. 7, 113 Pac. 307.) In another case it was ruled that:
“Mere generality in the allegation of essential facts or mere conclusions of facts do not render a petition bad as against a demurrer.” (Gano v. Cunningham, 88 Kan. 300, 128 Pac. 372. See, also, McPherson v. Kingsbaker, 22 Kan. 646.)
It has also been held that where the sufficiency of a petition is not raised by motion or demurrer nor until the stage of receiving evidence is reached, and then by an objection to the introduction of any evidence, the pleading must be liberally construed, and that any cause of action fairly indicated may be proved although neither fully nor formally expressed. (Barker v. Moodie, 92 Kan. 566, 141 Pac. 562. See, also, Gooch v. Gooch, 108 Kan. 416, 195 Pac. 874.) In Insurance Co. v. Whitney, 112 Kan. 145, 210 Pac. 646, the governing rule laid down in Pomeroy on Remedies and Remedial Rights, section 549, is stated and approved:
“The true doctrine to be gathered from all the cases is, that if the substantial facts which constitute a cause of action are stated in a complaint or petition, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete and defective, such insufficiency pertaining, however, to the form rather than to the substance, the proper mode of correction is not by demurrer, nor by excluding evidence at the trial, but by a motion before the trial to make the averments more definite and certain by amendment.” (p. 146.)
We think the substantial facts alleged in the petition, general as they are, taken with the reasonable inferences to be derived from them are enough to overcome a mere objection to the admission of any evidence. Especially should they be so considered where no objection is made until after answer is filed and issues joined by defendants indicating that they understood the cause of action and were ready to try out the alleged charges of fraud. It is obvious from the record that defendants were not misled or prejudiced by any incompleteness in the petition and we are not warranted in reversing the judgment unless prejudicial error has been committed. This view renders immaterial an objection of the defendants to the allowance of an amendment of the petition based on the ground that as no cause of action was stated in the petition the amendment was made too late to avoid the statute of limitations. The averments of the petition are sufficient to overcome that objection.
There is a claim that the plaintiff trustee was not entitled to maintain the action to set aside the conveyances. It appears that he was duly appointed and was given authority to commence this action. As we have seen, it was alleged that there was fraud on the part of the grantors which was participated in by the granfee, and evidence was produced tending to sustain the averments. One gi’ound urged against the right to maintain the action is that the petition did not contain a statement that there were not sufficient assets in the bankrupt estate to meet the obligations of the defendants. It was alleged that the defendants had procured themselves to be adjudicated bankrupts, that the plaintiff had been appointed to act as trustee at a meeting of the creditors, and had been directed by the referee in bankruptcy to bring this action to procure the cancellation of the conveyances so that the property might be applied to the payment of the debts of the defendants. While there was no express allegation that there were not sufficient assets to meet the liabilities, it was fairly inferable from what was stated that there was not. Moreover, there was an agreed statement of facts which plainly showed that the debts far exceeded the assets of the bankrupt. The action of the referee who had charge of the schedules filed in the bankruptcy court in ordering the actions to set aside the conveyances carries the implication that there were insufficient assets to discharge the liabilities. This objection of the defendants cannot be sustained.
Other objections are urged as to the insufficiency of the evidence to show the value of the life estates and to justify the cancellation of the conveyances. We discover no ground for these complaints. There was evidence to support the charges of fraud and that the consideration for the conveyances was grossly inadequate. We see no error in overruling the demurrer filed by defendants to plaintiff’s evidence.
It may be remarked that the defendants failed to file a motion for a new trial and are not in a position to challenge the sufficiency of the evidence to sustain the judgment, but if they had filed such a motion and it had been overruled we would not have been warranted in holding that the evidence was insufficient to uphold the judgment.
A contention is made that error was committed in limiting the extent of the homesteads allowed to Irva C. Lane and Alva J. Lane. The court excepted from its judgment of cancellation the north half of the north half of the northwest quarter of section 36, stating that the tract was the homestead of Irva C. Lane, and therefore did not adjudge a cancellation. As to Alva J. Lane, a like exception was made of another forty-acre tract in the same section. It is urged that additional adjoining lands should have been allotted with the tracts mentioned as the homesteads of these parties. It may be remarked that the homestead exemptions were not mentioned in the pleadings filed by defendants, nor is any evidence found in the record of a claim of exemptions. In offering evidence to rebut the charges of fraud, it was incidentally mentioned that defendant Irva C. Lane, a married man, lived on a part of the land involved, and which he had sold to his sister. A like condition of the record is found as to Alva J. Lane, who was awarded another forty-acre tract. They said nothing as to the kind of possession they held or the character or extent of their occupancy. There was nothing in the evidence as stated of a claim of exemption nor that there was such an occupancy as would entitle the defendants to claim a homestead right in 'the land. As the evidence stood, the plaintiff might have complained that it was insufficient to warrant the court in excluding any of the land from the judgment of cancellation, but as he made no complaint and has not filed a cross appeal the judgment excluding the two tracts from the operation of the judgment must stand. The defendants having been given more than they were entitled to under the evidence have no ground for complaint.
No material error is found in the proceedings and therefore the judgment will be affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
This case was originally brought before a justice of the peace of Doniphan county by the plaintiff in error against the defendant in error, to recover damages for destroying a hedge fence, and also certain growing wheat. On the trial before the justice, the plaintiff recovered judgment for $35 and costs. Thereupon, the defendant in error took the case to the district court on error, and obtained a reversal of the judgment. The alleged errors which the district court was called to pass upon are as follows:
1st. That the court erred in the instructions given to the jury on the trial of the said action, to which the said Mudenger duly excepted.
2d. That the said court erred in refusing to give the instructions which the said Mudenger prayed the court to give.
3d. That the court erred in permitting the counsel of said Holland to read the instructions on the part of said Holland to the jury in his closing argument to the jury, the said instructions not having been before read to them; to which the said Mudenger then and there duly objected and excepted.
4th. That the court erred in ruling out the evidence offered by the said Mudenger on the trial of said action.
5th. The court erred in admitting evidence of Holland to which the said Mudenger objected.^
6th. That the said judgment was given for the said Holland, when it should have been given for the said Mudenger, according to the law,s of Kansas.
7th. That the facts set forth in the bill of particulars of said Holland are not sufficient in law to maintain the aforesaid action against the said Emanuel Mudenger.
There can be no question but that the bill of particulars was amply sufficient, and the only question in the case is, whether the record before the district court authorized the ruling made by that court, and the judgment rendered. No motion had ever been made to set aside the verdict before the justice, or for a new trial; and within the cases of Nesbit v. Hines, 17 Kas. 316; Rice v. Harvey, 19 Kas. 144; and City of Atchison v. Byrnes, ante, p. 65, the district court had no valid right to reverse the judgment of the justice. Its action in that regard was erroneous. Counsel intimate in their briefs that the judgment was in fact reversed, because the justice did not require the defendant to file a sworn answer, so that he might have the case certified to the district court, on the ground that the title to real estate was an issue in the case. No such question was presented to the district court by the petition in error of the defendant, and the want of jurisdiction of the justice is nowhere raised in the record.
Counsel for defendant suggests that the order complained of is not reviewable, for the reason, as he alleges, that there is no judgment or final order in the district court. This suggestion is based upon a misapprehension of the record. The judgment of the justice of the peace was reversed, and judgment rendered against plaintiff for all costs. This judgment is subject of review here.
The judgment of^the district court will be reversed, and the case remanded with directions to the court below to render judgment in favor of the plaintiff in error, Thomas H. Holland, in that court, or to remand the cause to the justice with its order of affirmance.
All the Justices concurring. | [
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Per Curiam:
The judgment of the court below in this case is affirmed, upon the authority of the case of C. B. U. P. Rld. Co. v. J. C. Hotham, ante, p. 41. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action for divorce, and the first question is, whether the testimony which is not contradictory makes out “gross neglect of duty” within the meaning of those terms as used in the divorce statute. The case is thus: On Apr-il 30, 1878, plaintiff, at the suggestion of defendant, left their home in Lawrence, to visit her sister in eastern Massachusetts. The defendant purchased her a ticket and gave her sixty dollars, promising to send her more from time to time. She wrote for money the first time in August, and he replied, again promising money, but sending none. This was repeated several times. And he has since in no manner contributed t'o her support. In fact, when he suggested the visit, he intended a separation, and that she should never return. She remained with her sister until the last of November, when she returned to Lawrence. During her entire absence, her health was poor, and in September and October she was confined to her bed and under the charge of a physician. On her return to Lawrence, being advised that her husband did not wish her to come to his Home, she went to a neighbor’s, where she continued to live until the commencement of this action. Upon an interview with her husband, he declined to permit her to return to his house, and has-continued to so decline. He has means, and is able to support her, while she has no property other than a piano. The testimony is silent as to her present health, or her ability to support herself by her own labor. The action was commenced March 1, 1879.
Upon these facts, did the court err in finding that there had been no gross neglect of duty within the scope of the divorce act? We think not. The expression, “gross neglect of duty,” is indefinite, and it is difficult to lay down any general rule'by which every case can be determined to be within or without its limits. Each case must be examined by itself. And yet an examination' of the whole body of the divorce act will suggest certain things as to the legislative intent in this expression. And first, it is not mere neglect of marital duty. The adjective “gross,”'whatever may be said of it as a mere term of vituperation in other relations, here has legal force as descriptive of the conduct of the party neglecting duty. If it were not so, and any mere neglect of duty were ground for divorce, the aid of the courts might as well be abandoned, and voluntary separation permitted. There must not only be a default, but the default must be attended with circumstances of indignity or aggravation.
Again, the term “gross” cannot be equivalent to the word “total.” It is not the total, the entire neglect of all marital duty, which is intended by this expression. That is covered by another term, “abandonment.” But abandonment, which is a neglect or omission of all marital duty, must continue for a year. That being named as one of the grounds of divorce, and the duration of such abandonment prescribed, nothing less than the time prescribed will suffice. An abandonment for one month or ten, although it involves a total neglect of all marital duty, is not gross neglect of duty within the statute. Something more than mere neglect, although-it is a neglect of all duty, is requisite. If neglect alone is shown, it must’be a total neglect, and continue for a year.
Authorities are few, yet we find these which throw some light upon the question. The statute of Massachusetts authorized a divorce “when the husband, being of sufficient ability, grossly or wantonly and cruelly refuses or neglects to provide suitable maintenance for her.” In the case of Peabody v. Peabody, 104 Mass. 195, it was held that the mere neglect of a husband, with no circumstances of aggravation, to provide maintenance for his wife and children for fifteen years, during which she supported the children from her own earnings, is not such gross or wanton and cruel neglect as will sustain a libel for divorce. In Holt v. Holt, 117 Mass. 202, the evidence was, that the husband left the wife without cause, and remained away for ten months without providing for her; that they afterward lived together until about a year prior to the action, when she shortly before confinement went at his request to her aunt’s house, and he again left her without means of support, or of paying the expenses of her confinement, and never again contributed to her support. He was able to support her, but there was no testimony concerning her ability to support herself. A divorce was refused, and the ruling sustained.
This in many respects resembles the case at bar, though in some features is stronger in favor of divorce, and against the conduct of the husband. See also, Brown v. Brown, 22 Mich. 242. Now the testimony in this case shows abandonment, but abandonment without circumstances of indignity, aggravation or cruelty. The defendant sent his wife ostensibly on a visit to her sister, paid her expenses, and gave her a small sum for temporary support. It would seem to have been an abandonment with as little of indignity or insult as possible. She was not turned out among strangers, or with nothing. No act of cruelty, no word of insult, no circumstance of aggravation. Conceding the wrong in the abandonment, that seems to have been the extent of the wrong. Her subsequent sickness does not appear to have been an anticipated one. She was not sent away in expectation of confinement, or with a babe, or in a condition of present suffering and weakness. For aught that appears, in perfect health, and with mutual ability to labor and support themselves, they parted, he being the party seeking and causing the separation. In- other words, in the matter of abandonment he was the wrong-doer. But that abandonment not having lasted for a year, we cannot hold that the court erred in not calling it .gross neglect of duty.
The other question presented arises out of the refusal of the court to give leave to file a supplemental petition. On May 10, the testimony having been all taken before a referee and reported to the court, application was made for leave to file a supplemental petition, alleging abandonment for one year. The application was refused. Was this error, and such error as compels a reversal? We think not.' We do not understand that a party may commence suit before a cause of action accrues, and then after it accrues, as a matter of right, file a supplemental petition alleging the facts’ showing this. A party may not sue on a note two months before it matures, and then upon maturity, demand, as a right, the filing of a supplemental petition showing the maturity. We do not mean that a court may not allow this, or that it may never be done. But it is not a matter of right. The circumstances must be such as to excuse the premature commencement of the action, and to show that the interests of justice require the change, rather than the dismissal of the present and the commencement of a new action. And in this, much must be left to the discretion of the trial court. Unless some greater wrong is shown than the mere matter of delay and costs, ordinarily the action of the court in refusing leave to file a supplemental petition will not be ground for reversal. Here the action was commenced March 1, and the application for supplemental petition made May 19, not three months thereafter. The defendant entered his appearance without summons, and filed an answer March 3, and the same day, by consent, one case was referred to a referee to take testimony. The testimony is short. So that neither delay nor expense would have been great if the suit had been dismissed, and a new one commenced. Further, it is not entirely clear that the proof makes out the abandonment for one year as alleged. Only nineteen days over a year had elapsed since she left Lawrence, supplied with means for present support. By her own testimony, she did not call for further support till the August following. If he furnished her with support until then, can it be held that he abandoned her earlier than that? It is scarcely necessary, however, to decide this. We only suggest it as one reason which may have influenced the court in refusing the application.
We make one further suggestion in closing this opinion, and that is, that as a rule haste in divorces is not wise. Courts should not be eager to advance or grant them. They should discourage rather than encourage them. Marriage is a contract, and a relation which if possible should endure, and public policy requires that there be no straining of law or facts to end the contract and sever the relation. Time will heal many estrangements, and bring together those whom temporary feeling has alienated. And courts having ever in view the public good may often wisely use their discretion to give time and opportunity for reconciliation.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Upon the trial of this case in the district court, the plaintiff in the court below (the defendant in error here) offered íd evidence, to support the issues in its behalf, the treasurer’s boob of said School District No. 27, kept during the term of Saville as such treasurer, and also a report submitted by him at the annual meeting of the school district in 1874. Upon this evidence it was claimed that the teachers’’ fund account showed a balance due from Saville as such treasurer. Upon the part of the defense, Saville testified that he was not competent to keep the accounts of the district, and therefore hired one Peck to keep his books the first term, and one Patterson to keep them the second term; that he turned over to these parties his vouchers; that they made up his accounts; that his last account was made up by Mr. Patterson. Patterson stated the account at the annual meeting, and said the district owed the treasurer (Saville) $3.28. This settlement witness thought satisfactory to all. Patterson was the clerk of the district. The clerk read the last report at the annual meeting, and the people voted witness should have an order for $3.28 due him. The director and clerk issued an order for that amount. Witness had all his vouchers at the school meeting, and left them on the table in the school house. After the meeting adjourned, some one carried them to the stove to burn them; that he tried to prevent him, but they were burned in spite of him; that he thought Mr. Patterson the clerk and Mr. Woodward the director did this. They said everything was satisfactory and settled, and that the vouchers were good for nothing. Thereupon said Saville was asked this question: “Had you, at the commencement of this action, or have you since then, had any money in your hands belonging to this plaintiff?” The question was objected to, on the ground that the witness could not contradict his books. The court sustained the objection, and refused to permit the witness to answer.
Then the witness was asked: “ When the annual report was submitted, had you or have you since had any money in your possession belonging to the school district?” The court refused to allow the question to be answered, on the ground that the witness could not contradict his own account.
The ruling of the court, that the treasurer could not contradict his books or his accounts kept during his terms of office, was error, and of a character to prejudice his rights before-the jury. Under such ruling, no explanation could be given by witness or others in his behalf of the mistakes or incorrectness of said books or accounts. It is well settled that admissions, though in writing, not having been acted upon by another to his prejudice,'are not generally conclusive against the party making them, but are left at large, to be weighed with other evidence by the jury. Under the circumstances of the manner in which the official books and accounts of the plaintiff in error were kept while he was the treasurer, and the attempted settlement at the annual school meeting of 1874, we think said party had the right to explain and controvert, without any breach of good faith or evasion of public justice, the books and accounts; and that though admissible in evidence, they are not conclusive against him. They are explainable. The law of estoppel has no application here.
No brief or oral argument has been presented on the part of the defendant in error, and we have not thought it necessary, therefore, to examine the record further than to dispose of the main question raised by the counsel for the plaintiff in error.
The judgment of the court below will be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The petition in error and accompanying transcript in this case shows, that at the September term, 1876, of the district court of Chautauqua county, the plaintiff herein (Mouriquand) recovered a judgment for $654 against the defendant Hart, in an action founded upon an alleged tort; that on or about January 10th, 1877, a general execution was issued out of said court to collect said judgment, directed and delivered to the sheriff of said county, who, on the same day, being unable to find goods and chattels of said Hart, and so indorsing on said execution, levied the same upon lyff acres of land situated in said county, and caused the same to be appraised and advertised for sale, to satisfy said judgment and costs; that said defendant Hart, prior to the first day of the term of court at which said judgment was rendered, and from that time until the said levy, was the owner of said land in fee simple absolute; that said l-j-|-„- acres formed a portion of a tract of 112 acres (not within the corporate limits of any town or city), upon which Hart resided with his family during all the period aforesaid — he being the head of a family and entitled to the benefit of the homestead exemption laws of the state; that all of said 112-acre tract of land, except the lxf-o acres so levied upon as aforesaid, was farming land, and used by Hart for farming purposes; that the lyf-§- acres so levied upon were) during all the period aforesaid, exclusively occupied and used as the site of a public grist-mill, such mill and its proper appurtenances being located and in operation thereon; that no farm buildings or other proper farm appurtenances were on said tract so levied upon, nor did Hart with his family actually reside thereon during said period, but they did reside upon another portion of said 112-aere tract.
After such levy, and prior to the day of sale, Hart filed in the district court aforesaid a petition for an injunction against said Mouriquand and said sheriff, claiming said entire tract of 112 acres, and all improvements thereon, as his homestead, and exempt from sale upon execution; that the proceedings aforesaid were creating a cloud upon his title; and asking that such levy and intended sale, and all attempts to subject said land to the payment of said judgment be perpetually enjoined. A temporary injunction was allowed upon this petition, and the proceedings were stayed. Defendants in said cause, by duly-verified answer, set up the foregoing state of facts, to which plaintiff demurred generally. At the March term, 1877, of the district court, said demurrer was sustained, and judgment rendered thereon, making said injunction perpetual, and against defendants for costs; to which Moriquand, defendant below, and plaintiff in this court, duly excepted. This cause is brought here to reverse said last-named order and judgment of the district court.
We think the petition in error must be sustained. We had occasion in the recent case of Ashton v. Ingle, 20 Kas. 670, to examine this question of exemption, in relation to the use put upon and the manner of occupation of premises claimed to be exempt, and any extended discussion of the question will therefore be unnecessary in the present case. Counsel would distinguish this case from that, in the fact that in that case the portion of the premises held not exempt was leased to tenants, and that therefore the owner had no occupation and no right of occupation, having transferred away both, while in this the premises levied upon were in the actual occupation of the owner. Instead of leasing the mill to others, he was running it himself. He therefore, in the language of the constitution, both owned and occupied. There is of course a difference between the cases, as there is a difference in the use to which the disputed premises were put; but this difference is not such as to remove this case out of the rule laid down in that. It was then conceded that there might be a constructive occupancy, and it had previously been held, in Hixon v. George, 18 Kas. 258, that the mere fact that premises are leased does not necessarily destroy the homestead exemption; but the idea, as expressed, was that the use was such as to disconnect that portion of the premises from the homestead. As said in the opinion: “In order that anything shall be a part of the homestead, it must not only be connected therewith as one piece of land is connected with another to which it adjoins, but it must also be used in connection therewith, as a part thereof. In legal phrase, it must be appurtenant thereto.” So in the case at bar, the mill was not used in connection with and as a part of the homestead. If it had stood a mile away from the defendant’s farm and been used exactly as it was used, no one would for a moment think of calling it a part of the homestead. The fact that' it is adjacent, and that the ground covered by it, together with the farm, does- not exceed 160 acres, does not change the character of the use. “Homestead” and “residence” are the words of primary significance in that section of the constitution granting and defining the exemption. Area is subordinate, and a mere limitation. The exemption is not of so much ground upon which is a homestead, but a homestead to such an extent. It may be that a man may reside with his family in his store-building, or his brewery, or mill, and then hold the entire building exempt as his homestead; but this is no such case, and it will be time enough to pass upon such a question when it arises. Here, the defendant had his residence in a separate and independent building away from his mill, and that was his homestead. With it passed, as appurtenant thereto, his farm, but not his mill. The claim in the petition was, that the mill was exempt as a part of the farm, but this clearly cannot be. It was a public grist-mill. The running of it was an independent business, and not a part of the operation and management of the farm. Whether he could, if he had no farm, claim his mill as exempt, need not be decided. It would seem from the leading case cited in counsel's brief, and in the opinion in Ashton v. Ingle, and in that of Greeley v. Soott, 2 Woods, 657, that such would be the decision under the Florida constitution; but there is this difference between the language of the two constitutions: that of Florida (art 9, §1) reads, “a homestead to the extent of 160 acres of laud,” etc.; ours, “a homestead to the extent of 160 acres of farming land,” etc. Whether the word “farming” is to be con-' sidered a limitation to the actual use, so that only that portion of the adjacent 160 acres which is actually used for farming purposes shall be exempt, or as simply descriptive of land outside the limits of a town or city, or as meaning land which is susceptible of cultivation and may be used for farming purposes, and has not already been put to other uses, is a question whose determination may become important in some cases, and would help in the solution of the inquiry just presented. We shall not stop to consider it now. All we now decide is, that the farmer may not hold as exempt his mill in addition to his farm.
The judgment of the district court will be reversed, and the case remanded with instructions to overrule the demurrer.
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The opinion of the court was delivered by
Valentine, J.:
The defendant in this case was tried, ■convicted and sentenced on a charge of committing an assault with intent to kill, in Phillips county, Kansas. He now appeals to this court, and raises several questions for our consideration. He says that the offense was not proved on the trial in the court below, and particularly that it was not proved to have been committed in Phillips county, Kansas; That the court below erred in admitting and excluding evi dence; that it erred in refusing instructions, and also erred' in overruling the defendant’s motion for a new trial.
I. The evidence introduced by the prosecution unquestionably proved that the defendant was guilty of the offense-charged. The evidence of the defendant, of course, made out a different case. But- the question as to whether the-defendant was guilty or not, was one of fact; it was properly submitted to the jury, and submitted to them upon conflicting parol evidence, and sufficient evidence for the jury to find therefrom that the defendant was guilty of the offense charged,, provided they believed the evidence of the prosecution. The-jury found the defendant guilty; the court below approved and sustained the verdict; and therefore we cannot now say that the offense was not sufficiently proved, and for that reason reverse the judgment of the district court and grant a new trial.
II. The prosecuting witness testified that he resided in-Phillips county, Kansas, and that the offense was committed on his premises, and near his residence. There was also other-evidence tending to show that the offense was committed in> Phillips county, Kansas, but we think the foregoing was-alone sufficient. This point, that the evidence did not prove-that the offense was committed in Phillips county, Kansas, is the first point made in defendant’s brief, and therefore from this fact, and from the fact that the defendant makes the point at all, it would seem that the defendant’s counsel has-but little if any confidence in his case.
III. The evidence admitted, of which the defendant complains, could not have prejudiced any of the defendant’s substantial rights. The most of the facts which this evidence-was introduced to prove were otherwise proved, and by the defendant himself, and the rest of them were wholly immaterial. That the defendant and prosecuting witness were-hostile claimants for a certain piece of land (the same land on which said alleged offense was committed), that they had. a contest in the United States land office for the title thereto,, and that out of these hostile claims the final difficulty arose- in which said alleged assault with intent to kill was committed, we think were proper facts to be submitted to the-jury, and these facts were amply proved. But as to who had the better right to said land, either in law or in morals, we think was wholly immaterial. Supposing, for the purposes of the case, that the defendant had the better right to the land, still he would have no right on that account to assault the prosecuting witness with the intention of killing him. Both seem to have been occupying the land — certainly the prosecuting witness was; but as to which had the better right-thereto we cannot tell from the evidence, nor is it material.
IV. We think the court below might have been more liberal in admitting evidence, but still we cannot say that it-erred materially in excluding evidence. Some of it was-properly excluded because it was incompetent, some of it-because it was immaterial, a part of it because it was not proper to be given on cross-examination, and part of it was-afterward introduced by both parties, or rather some of the-facts for which it was offered to prove were afterward amply proved by other evidence introduced by both parties. Evidently the defendant did not think that the court erred materially in excluding said evidence, for he did not ask for anew trial on the ground of error in excluding evidence. The-grounds set forth in the defendant’s motion for a new trial-are as follows:
“1. That the verdict is not sustained by sufficient evidence,
“2. That the verdict is contrary to law.
“ 3. That the court admitted improper testimony to go to the jury.
“4. That the court has misdirected the jury in a material-matter of law.”
The failure of the defendant to set up, in his motion for a new trial, any supposed errors committed by the court during the trial, would be fatal in a civil action. (Nesbit v. Hines, 17 Kas. 316; Fowler v. Young, 19 Kas. 150, 158, 159; Lucas v. Sturr, 21 Kas. 480; Atchison v. Byrnes, ante, p. 65.) As to what the effect of such a failure is in a criminal action, we do not think that it is necessary to express any opinion.
V. We do not think that the court below erred in refusing instructions. There were only two refused, and everything contained in these two that was necessary and proper to bfe given we think was given by the court in other instructions. Those refused would probably have been misleading, under the facts of this case, if the court had given them; and certainly neither of them was necessary in addition to the other instructions actually given by the court. No right or supposed right that either the defendant or the prosecuting witness may have had to said land would have justified the defendant in committing an assault upon, with intent to kill, the prosecuting witness.
VI. We have already sufficiently considered the matters set forth as the first and third grounds for a new trial; and the second and fourth grounds for a new trial are abandoned in this court — that is, the defendant has not mentioned them in his brief. He does not say that the verdict is contrary to law otherwise than as we have already discussed it, and he does not say that the court below gave improper instructions.
We cannot say that the court below committed any substantial error, 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
Horton, C. J.:
This is an action in the nature of quo warranto,, brought originally in this court by the state of Kansas, ex rel. James W. Green, county attorney of Douglas county, as plaintiff, charging C. W. Babcock and his associates with wrongfully assuming to exercise corporate rights as the “Lawrence Bridge Company,” and with claiming and using, without any lawful warrant, grant, or charter, the liberties, privileges and franchises of having and maintaining a bridge over and across the Kansas river at the city of Lawrence, and of asking, demanding and taking certain tolls and duties of and from all persons crossing, passing over, and using the said bridge. The petition also alleges that the bridge is a highway across the said river, at Lawrence, and the only means accessible to the public of crossing the river for many miles on either side of the bridge. The plaintiff asks that the defendants be enjoined perpetually from exercising corporate rights as the “Lawrence Bridge Company;” from demanding or receiving tolls; from obstructing or removing the said bridge or highway, and from all interference therewith. To the petition of plaintiff, the defendants pleaded that, by the act of the late governor and legislative assembly of the territory of Kansas, entitled “An act to incorporate the Lawrence Bridge Company,” approved February 9, 1858, the exclusive right and privilege of building and maintaining a bridge across the Kansas river at the city of Lawrence was granted, for the period of twenty-one years, to defendant C. W. Babcock and others, or their assigns, and such other persons as might be associated with them for that purpose, and that they and their associates, or a majority of them, were authorized to form a company to be known as the “Lawrence Bridge Company,” with capital stock to the amount of $375,000, in shares of $100 each, and power was given by that act to prescribe by-laws for the regulation of said company, receive and collect subscriptions to such capital stock, and establish and collect tolls for crossing said bridge; that under said act and certain amendatory acts thereto, the said C. W. Babcock and his associates duly organized the Lawrence bridge company, and before October 1st, 1863, constructed and completed the said bridge across the Kansas river, at Lawrence, at the cost and expense of $75,000, and have ever since maintained and been in the possession of it; that to continue and perpetuate the existence •of the Lawrence bridge company, with all the privileges and franchises conferred upon it by the provisions of the said .act of incorporation of 1858, and acts amendatory thereto, the corporation on February 8, 1879,'by a vote of its board ■of directors, accepted all the provisions of the act of the legislature of the state entitled “An act concerning private corporations,” approved February 29, 1868, and all acts of the legislature of the state amendatory to that act, applicable to the exclusive right and privilege of building and maintaining .a toll-bridge across the Kansas river at Lawrence, and the collection of tolls, but said corporation did not abandon, by •such acceptance, any privilege or franchise conferred upon it by its acts of incorporation, consistent with the provisions of the general incorporation act of 1868, and that therefore by virtue of § 25 of said general incorporation act of February '29, 1868, (Gen. Stat. 196, 197,) and by the filing of the said certificate of acceptance, the bridge company, from February •8, 1879, has had the exclusive right to carry out its objects, as described in the special acts of its incorporation, without .any limitation as to time, and is still the owner of the bridge, with all its original franchises and privileges, including the franchise of being a corporation and the taking of tolls. •Some other matters are stated in the answer, but it is unnecessary to refer more fully to the defenses. The twenty-one years given by the special act of Feb. 9, 1858, incorporating the Lawrence bridge company, within jvhich it had the right to build and maintain a bridge across the Kansas river at Lawrence, and collect tolls on such bridge, expired before the commencement of this suit. Hence, the first and important question which is presented for our consideration is, whether this company was continued and perpetuated as an incorporation for all time, with all the privileges and fran•chises originally conferred under its special charter of February 9,1858, and the amendments thereto, by. the action of its board of directors accepting, on February 8, 1879, certain •provisions of the general act of 1868 concerning private corporations, and forthwith filing a copy of such acceptance with the secretary of state ? This inquiry leads to an examination-of § 25, ch. 23, Gen. Stat., and necessarily compels us to pass-upon the validity of so much of that section as attempts to-authorize corporations organized under special laws of the territory to continue to enjoy and exercise all their powers,, privileges and franchises originally conferred, for an indefinite-period beyond the limit of their chartered existence.
Before the adoption of the constitution, the practice waste create corporations by special laws. This practice resulted in partial, vicious and dangerous legislation. To correct this-existing evil, and to inaugurate the policy of placing all corporations of .the same kind upon a perfect equality as to all-future grants of power, of making such law applicable to all parts of the state, and thereby receiving the vigilance and attention of its whole representation, and finally, of making all-judicial construction of their powers, or the restrictions imposed upon them, equally applicable to all corporations of the same class (Atkinson v. Railroad Company, 15 Ohio St. 21), it was ordained by §1, art. 12 of the constitution, that, “the legislature shall pass no special act conferring corporate-powers. Corporations may be created under general laws;, but all such laws may be amended or repealed.” These provisions are clear and explicit; they are a limitation upon the legislative power of the state. Any act expressly violativeof these provisions would be void, and the well-recognized rule that what may not be done directly cannot be done indirectly, is as applicable here as elsewhere. Constitutional provisions would be of little value if they could evaded by a mere change of forms. We may look, therefore, to the-substance, purpose and effect of said § 25 in determining its-true character. While the corporation act of ch. 23, Gen. Stat., purports to be a law of a general nature, having a uniform operation thoughout the state, § 25 thereof occupies an. anomalous position. It is sui generis. It is virtually separate and distinct from the other provi- . A 1 , 1 sions of the chapter, and entirely independent-That it attempts to confer corporate powers, is conceded.. If sustained at all, it must be on the basis that it is a general law within the meaning of art. 12 of the constitution. Yet this section, if effective, confers corporate powers which are special to separate corporations, chartered by special acts of the territory of Kansas, and which powers are not granted to any other corporation, and no other corporation can come into its class or obtain its privileges or immunities. No corporation organized under the other provisions of the general incorporation law can obtain the powers and franchises attempted to be granted to territorial corporations by this section. It may be fittingly described as an omnibus act, loaded to overflowing with special charters— some good, others bad, and many vicious; and each of these charters which is sought to be continued by this act confers corporate powers and privileges distinct, exclusive and separate from every other corporation, and these powers and privileges do not belong or attach to all corporations of the same class, nor can all corporations of the same class upon the same terms enjoy like powers and privileges. It is too palpable for argument, that article 12 is a sure and perfect impediment to the adoption by the legislature of a special act conferring corporate powers. If it may obstruct the passage of one such act, is it not equally as effective to resist the passage of a score or more acts of like character, notwithstanding the attempt be made, as by § 25, to give them existence and vitality under the form of a general law? Legislation of the class attempted in § 25 is most harmful. An evasion of so important a provision of the constitution ought not to be favored in any degree. The abuses and corruptions in legislation are mainly the result of private and special laws, and the remedy, and the only remedy which has proved effectual to prevent this, is found in severely depriving the legislature of the power to legislate for any citizen in preference to or at the expense of the whole. Obsta principiis — stop the beginnings, and stop them decisively, is very necessary to such legislation as is attempted by said section 25. If sustained, it fritters away § 1 of art. 12, defeatsdhe object of its provisions, and permits the abuses which it was intended to prevent.' If sustained, corporations can again be created or extended in their existence all over the state, with just such powers and franchises as the territorial legislature may have conferred by special charters at its pleasure or caprice, at a time when its power was unrestricted by any such wholesome constitutional provision as is imposed by §1, art. 12, on the legislative power of the state. If sustained, the legislature can go a step further, and .provide that all corporations created with special powers and privileges by special charters, during the territorial years of Kansas, whether organized or not, and whether in existence or not, may at once be rehabilitated with all their original powers and franchises.
. Under our construction of said § 25, we do not think it can be denominated a general law in the sense in which these words are used in said art. 12. It directs us to special acts and charters, and attempts to continue them in existence. It does not in itself enumerate the powers of the corporations, but these powers are enumerated in the various special acts to which we are directed by it. It is therefore a plain evasion of the provisions of said art. 12, and fails to be a legal ■enactment. Such legislation proves rich in every inducement to deception, injustice and evil. It, being void, had no power to continue the Lawrence bridge company in the enjoyment of. the exclusive rights, privileges and franchises granted by the charter of that company. Said corporation ceased on February 9, 1879. It was then dissolved, with J 7 7 all the consequences,of its dissolution. To prevent any misconception of this opinion, we add that said §25 does not fail to be a general law merely because it does not operate alike upon all citizens or corporations of the state, for many of our laws fail to do that. Take ■ the case of the general laws for the incorporation of cities. By these laws, certain rights, powers and privileges are conferred upon cities of the first class, of which there is but one in the state; certain other and different powers and privi leges are conferred upon cities of the second class, and still different and less upon cities of the third class. Yet in these various laws, every city which is brought within the relations and circumstances provided for, is affected by the law. These acts do not grant to any city powers and .privileges which, upon the same terms, do not equally belong to every other city. Whenever a city comes into any class, it has all the powers and privileges which have been granted by the statute to any other city of that class. Thus, when a city of the second class has more than fifteen thousand inhabitants, it obtains and enjoys all the powers and privileges of a city of the first class; so, when a city of the third class attains a population of more than two thousand, it may possess the powers and privileges of a city of the second class. Again, when a city of the first class.loses its population until it becomes a city of the second class, it takes the powers of a city of that class; so, likewise,-when a city of the second class has only inhabitants sufficient to constitute it a city of the third class, it falls back to a city of the third class. The enforcement of said § 25 would give no like results. The corporate powers which it seeks to confer are special and exclusive. Corporations are not permitted by it to be on an equality nor enjoy powers upon the same terms as belong to other corporations. There is a wide distinction between such an act as § 25 and the act incorporating cities of the first class and other similar acts which have often been held valid by. this court.
In view of the inability of the Lawrence bridge company to prolong its corporate existence by virtue of the unconstitutional provisions of § 25 of the general incorporation act of 1868,-and its legal dissolution on February 9, 1879, by expiration of the time limited for its continuance by the special act under which it was created, it is important for us to determine what became of the bridge when the franchises of the corporation ceased by limitation. The evidence shows it was completed in the fall of 1863, more than fifteen years ago; that neither the corporation, nor any of the corporators, ever owned any fee in any of the lands on which it was built, or ever leased any real estate on which it was constructed and maintained; that the approach to it on the south side was from the end of Massachusetts street across the levee (a plat of ground reserved to the public in laying out the city of Lawrence) to the south end of the bridge, and on the north side from Bridge street across a lot belonging to one Sarcoxie, to the north end of the bridge; that it is an immovable structure or extension of the highway over and across the Kansas river; that it was constructed for the convenience of the public, in the hope of profit to the corporation having the franchise; and that, since 1863, it has been used by the public as a thoroughfare, up to the time of bringing this suit, uninterruptedly and without molestation, except as to the taking of tolls. Under these facts, the bridge is unquestionably a public highway. The corporation lived its time out on February 9, 1879. Its franchise to demand and accept tolls then ceased. Thereafter the free use of such public highway would be in the people. They have now the same right to its use as they have to the use of Massachusetts street, or Bridge street, or any other public highway of Douglas county. We do not rest this decision upon the basis that the Kansas river is a navigable stream, and therefore a common highway, and the bridge a part of such, highway, although a strong argument can be formulated that in this case the river might be treated as navigable, as the charter giving the bridge company life assumed the river to be navigable, and expressly required of that corporation the construction of its bridge over the water in such a manner as not to prevent the navigation of the river by steamboats, and from the additional' fact that, up to 1860, the river was used to some extent for the purposes of navigation. But waiving the question of the navigability of the Kansas river, the Lawrence bridge company, by the manner of constructing the bridge and opening it for use, and having it used for fifteen years as a part of the highway, or as an extension of the highway, over and across the river, on payment of toll, dedicated it to the public as fully and completely as it could have been by a deed of dedication acknowledged and recorded. When the license to take tolls expired, the public took the bridge disburdened of tolls. Craig v. People, 47 Ill. 487; State v. Lake, 8 Nev. 276; Central Bridge Corporation v. Lowell, 15 Gray, 106; Thompson v. Matthews, 2 Edw. (N. Y.) Ch. 212.
There is no hardship in this result.. Toll-roads or turnpikes and plank roads, constructed under public authority for public use by incorporated companies, with provisions in the acts of incorporation for their management, are common highways; and the only difference between them and other common highways is, that instead of being made at the public expense in the first instance, they are authorized and laid out by public authority and made at the expense of individuals or corporations in the first instance, and the cost of construction and maintenance is reimbursed by tolls, levied by public authority for the purpose. (Angelí on Highways, §§ 8, 9 and 14.)
By analogy, considering the manner the bridge in controversy was built, its situation and use, it bears a close relation to toll and plank roads. In this case, the bridge company has received tolls for over fifteen years, and located as the bridge has been at a point of great travel and business interests generally, it is very probable that the tolls have been more than sufficient to repay the cost of its construction and maintenance. At least, we may assume that this was the hope of the corporators in accepting the provisions of the charter, and in constructing the bridge; and we cannot believe they have been the unfortunate victims of a harsh contract. If not, no injustice is sustained by them, that the bridge on the expiration of their franchise or license to take tolls, becomes free to the use of every citizen, as other public highways. If the claim of defendants is valid, that the bridge itself is the private property of the stockholders, to be hereafter managed by them or through their trustees, then the expiration of the charter of the corporation would be beneficial rather than in jurious to them, for it would emancipate the bridge from the control of the law, and convert the limited privileges of the stockholders into a broad, unbounded license. We do not mean that it could not be ultimately taken and condemned for a highway if it were needed, but unless so taken and condemned they could use it, as other people use their own, run it on their own account, charge what tolls they pleased, close it up or open it when they thought proper, and disregard every interest except their own. This claim of counsel overlooks the fact that the bridge was constructed under authority obtained from the public, and that the public have already paid for it by tolls levied by public authority. In this condition of affairs, the public have some rights in the continuance of the bridge or highway in its present position. Under §42, ch. 23, Gen. Stat., the officers or 'managers of the late corporation have full authority to settle the business of the corporation, and divide the moneys and other property among the stockholders; but the bridge being an extension of the highway over the Kansas river and a part of the public highway, is not the property of the stockholders of the 'late corporation, but is a public road which every citizen has the right to use. The period during which it was lawful for the corporation to take tolls has long since expired, and now neither the officers, managers nor stockholders .of said corporation have any further control over the bridge or highway. They cannot obstruct it, or collect tolls, or remove or otherwise interfere with it.
The injunction prayed for in the petition of plaintiff will be granted, and such injunction will be made perpetual. Costs are also adjudged against the defendants. | [
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The opinion of the court was delivered by
Valentine, J.:
A judgment having been rendered in the district court of Leavenworth county in the following entitled case, an undertaking was executed and filed therein, which reads as follows:
{Court, and Title.) “We, the undersigned, Thomas P. Fenlon and Charles W. Dougherty, as principals, and Edward Stillings as surety, do hereby undertake to the said above-mentioned William Porter, Edward G. Peniston, and Benjamin Betts, in the sum of one thousand dollars, that the said Charles W. Dougherty and Thomas P. Fenlon will pay the condemnation-money, and costs, in case the judgment heretofore rendered in the above-entitled action shall be affirmed in whole or in part. . Thomas P. Fenlon.
C. W. Dougherty.
E. Stillings.”
Stillings duly justified as surety according to section 723 of the code (Gen. Stat. 771), and the undertaking was duly approved. Two days thereafter a petition in error was filed in the supreme court by Dougherty and Fenlon, to reverse said judgment, but the judgment was affirmed. (Dougherty v. Porter, 18 Kas. 206.) Afterward the plaintiffs, Porter, Peniston and Betts, commenced this action in the district court of Leavenworth county against Stillings on said undertaking, and recovered a judgment thereon. The defendant Stillings, now as plaintiff in error, brings the case to this court for review.
The defendant (plaintiff in error) claims that said undertaking is void — 1st, because it was executed and filed in the court below two days before any petition in error was filed in the supreme court; 2d, because the undertaking does not show upon its face by whom or by what court it was contemplated that said judgment might be affirmed. The defendant (plaintiff in error) also claims that the court below erred in excluding certain evidence.
We think said undertaking was valid. It is true, that before any proceedings in the district court can be stayed because of any proceedings in error begun or contemplated in the supreme court, both an undertaking and a petition in error must be filed; one alone is not sufficient. The undertaking may be filed first, or the petition in error first. But “ before an undertaking shall operate to stay execution of the judgment or order, a petition in error must be filed in the appellate court.” (Code, § 554; Gen. Stat. 738, 739.) This view of the law we think is in accordance with nearly the universal practice of the bar of the state, and it seems to be in harmony with the practice of the learned plaintiff in error. Said judgment could be affirmed only by the supreme court, and hence said undertaking was certain enough in this respect. There was no issue upon which said evidence could be introduced, and hence the court below did not err in excluding it.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by the Atchison National Bank against Frank Sproul and others, to subject certain land situated in section 15, township 4, range 21, in Doniphan county, Kansas, to the payment of a certain judgment rendered in favor of the bank and against Sproul. The facts of the case are substantially as follows: In 1871, Sproul purchased said land on credit. When he got a deed for it is not shown, nor is it material. Afterward, he created certain debts in favor of others and, against himself, as follows:
1. On April 1, 1872, one to Horatio Tuthill, for $1,000. This debt was created for $1,000 borrowed by Sproul of Tut-hill, with which to partially pay for said land. There is now due on said debt $1,385.
2. On October 16, 1873, one to some person for some-amount, on which debt Rosa Lenker, guardian of Edward Hammill, afterward obtained a judgment for some amount,, on which judgment $209.90 was due at the time of the trial of this case.
3. On January 6, 1874, as surety for Thomas L. Chilton, one to George T. Hoagland for some amount, on which debt judgment was afterward rendered in favor of Hoagland, and against Chilton and Sproul, for $2,800 and costs, on which judgment there is still due $2,262.95, and costs.
4. On May 20,1874, one to James M. Hawley, for $1,200. This debt was also created for money borrowed by Sproul with which to partially pay for said land in section 15. There-is now due on said debt $1,510.
5. On March 20, 1875, one to some person for some-amount, on which debt the Atchison National Bank obtained a judgment against Sproul for $195.85 debt, and $15 attorney’s fees and $8 costs. There is now due on said judgment $277.80.
The debts to Tuthill and Hawley were respectively secured by mortgages executed by Sproul and wife, Virginia F. Sproul, on their homestead situated in section 10 of said township and range. The title to the homestead was in Sproul. Before Mrs. Sproul would sign the Hawley mortgage, her husband had to enter into an agreement with her that he would deed to her the said land in section 15. This agreement was in parol. Afterward, and on May 29, 1875,. Sproul, in fulfillment of his said agreement with his wife, deeded to her the said land in section 15, and on June 12, 1875, the deed was duly recorded. Afterward, and on August 30, 1875, Sproul and wife voluntarily executed a mortgage to Hawley on a portion of said land in section 15, as an additional security for the Hawley debt, and delivered it to Hawley, but upon the express condition and consideration, to which Hawley agreed in writing, that if ever Hawley should be compelled to resort to legal proceedings to collect his claim, he would first exhaust said land in section 15 before proceeding against the homestead of the Sprouls. This second mortgage was recorded, September 4, 1875. On August 31, 1875, Sproul and wife executed a similar mortgage to Tuthill, on another portion of said land in section 15, as additional security for the Tuthill debt, and delivered the mortgage upon a like written agreement from Tuthill, that he would exhaust the land in section 15 before proceeding against Sproubs homestead. _This mortgage was also recorded on September 4, 1875. The said bank judgment was rendered before a justice of the peace on August '30, 1875, and a transcript thereof was filed in the office of the clerk of the district court on September 2, 1875. The Hoagland judgment was rendered in the district court on October 1, 1875. The Lenker judgment was rendered by a justice of the peace on November 8, 1875, and a transcript thereof was filed in the office of the clerk of the district court on November 11, 1875.
This case was tried by the court below without a jury, and the court held, that as against the bank judgment, the Hoagland judgment, and the Lenker judgment, the deed from Sproul to his wife, and the mortgages from Sproul and wife to Tuthill and Hawley (on said land in section 15) were void and of no effect. The questions, therefore, for us now to consider are, whether said deed and said mortgages were and are really void, as they were held to be by the court below. We suppose that a husband may convey real estate directly to his wife, and the conveyance will , , , , n . .it be upheld as valid so tar as it is equitable to up-r u ir hold the same. (Ogden v. Walters, 12 Kas. 290, and cases there cited; Faddis v. Woollomes, 10 Kas. 56, 57; Going v. Orns, 8 Kas. 85, 88, and cases there cited; Sherman v. Hogland, 54 Ind. 578, et seq., and cases there cited. See, also, Tennison v. Tennison, 46 Mo. 77; Wallingsford v. Allen, 10 Pet. 583, 594; Beard v. Dedolph, 29 Wis. 136.) The present question, then, is whether equity will uphold the deed of conveyance from Sproul to his wife, and if so, to wliat extent. At the time that Sproul deeded this land to his wife, the land was free and clear from all incumbrances, and was subject to sale and conveyance, and Sproul deeded it to his wife in fulfillment of a previous agreement that he would do so. But it is urged that the agreement was void because it was in parol; that there was no sufficient consideration for either it or the deed, and therefore that the conveyance was a mere “gift,” and that it (the conveyance) had the effect to hinder, delay and defraud creditors, and was therefore void under the statute relating to “frauds and perjuries.” As the agreement was in parol, it is claimed that it was void under the sixth section of the said act relating to “frauds and perjuries.” (Gen. Stat. 505.) But even if the agreement \yas void when made, still it was afterward fully executed and fulfilled, and therefore the statute would not any longer apply, and cannot now affect its validity, or the validity of the deed founded thereon. Hence, so far as this statute is concerned, the deed must be held valid.
It is also claimed, that as said conveyance was a “gift,” it was void under §2 of said act. (Gen. Stat. 504.) Said conveyance, however, was not a “gift,” and neither was it “made with the intent to hinder, delay or defraud creditors,” as it must have been under that section in order to be void. The conveyance was for a sufficient consideration, and was for a meritorious purpose. It was made as a security for the protection of Mrs. Sproul’s homestead. With reference to the consideration, we would say that any loss to Mrs. Sproul, or any gain to Sproul, or to any one designated by him, would be a sufficient consideration for the agreement and for the conveyance. Now with reference to the loss and gain: Mrs. Sproul incumbered her homestead to the extent of $1,200 (not considering Tuthill’s mortgage) subjecting it, upon a contingency, to be sold away from her, and herself and family to be di’iven from the premises, houseless and homeless. This was certainly a sufficient consideration for said agreement, and for the deed. Besides, Sproul, by means of her signature to the mortgage, got his $1,200 with which to pay one of his debts, and Hawley, the mortgagee, got his mortgage, insuring a repayment of the $1,200, with interest.
With reference to the “intent to hinder, delay or defraud creditors,” there was no such intent. Sproul’s intention was to get money with which to pay one of his creditors; Mrs. Sproul’s intention was to help her husband get the money, and at the same time to protect her homestead; and Hawley’s intention -was to loan his money on interest, and with good seeurity. Mrs. Sproul alleged in her answer, that the consideration for said deed and for the previous agreement was her signatures to the Tuthill and Hawley mortgages, and the whole case tends to show that such was the fact, and that she procured said agreement and deed merely as securities for the protection of her homestead interests. Without her signatures to said mortgages, they would have been void, but with these, they were valid incumbrances upon her homestead. Now, while we think that equity in connection with our statutes, requires that said deed should be held to be a valid instrument in some respects, yet we do not think that equity requires that it should be held to be an absolute and unconditional conveyance of the entire estate in said land from Sproul to his wife. Indeed, we think that all that equity will require in this case is, that the deed shall be held to be a valid security to Mrs. Sproul for the. protection of the homestead against the Hawley mortgage. It was executed in consideration of Mrs. Sproul’s signing said mortgage, and for no other consideration. It might be claimed with some show of reason, however, that said deed should be held to be a valid security to Mrs. Sproul, to protect her homestead against both the Tuthill and the Hawley mortgages. These mortgages were both executed by Sproul and wife for the purpose of procuring money to pay for the land conveyed by Sproul by said deed to his wife, and it would seem that his wife ought to be able to use this land by a sale thereof, or by mortgage, to procure money to pay off both these mortgages on her homestead. It was these mortgages on Mrs. Sproul’s homestead concerning which she had fears; and it was these mortgages against which she afterward attempted to further protect her homestead by executing said second mortgages to Tuthill and Hawley on other land (the said land in section 15 which her husband had previously conveyed to her by the execution of said deed). And these second mortgages we also think are valid. And we think it makes no difference whether Tuthill and Hawley, as well as the Sprouls, had r* <-i ",, . _ , _ .knowledge of Sproul s financial circumstances and condition, or not. There was no intention on the part of any of the parties to defraud creditors. The Sprouls wished to relieve their homestead from the mortgage on it, and Tuthill and Hawley wished to get additional security for their respective claims; and to relieve the homestead by using or incumbering other property is not illegal or fraudulent in Kansas, although the holders of the homestead may at the time be greatly involved in debt. As throwing light upon this proposition, see Monroe v. May, 9 Kas. 466; Hixon v. George, 18 Kas. 253; Colby v. Crocker, 17 Kas. 527; LaRue v. Gilbert, 18 Kas. 220. Under the constitution and statutes of this state, it is not illegal or fraudulent to hold property in a homestead exempt from the claims of general creditors; and the right of the homestead occupants to so hold such property, is paramount to any right of any general creditor. (Const., art. 15, § 9; Gen. Slat. 392, 473.) Equity, therefore, as guided and directed by the constitution and statutes of this state, favors the protection of the homestead from the claims of creditors. And generally, whatever is done in good faith for the protection of the homestead from creditors, is not looked upon as a fraud or as illegal, but is looked upon as a proper and legitimate transaction.
It will be noticed that the Hoagland and Lenker judgments were not rendered until after these second mortgages to Tuthill and Hawley were executed. Hence, even if the deed from Sproul to his wife were void, still Tuthill and Hawley would have mortgage liens on said land in section 15 prior and paramount to the judgment liens of Hoagland and Eenker. If the title to said land in section 15 was not in Mrs. Sproul when said second mortgages were executed, then it was in Sproul; in either case they had the right jointly to mortgage it to protect their joint homestead. Therefore, in either case, said second mortgages were valid as against the Hoagland and Lenker judgments, and prior thereto.
In this connection we have expressed no opinion with reference to the priority or subsequence of the bank judgment. We shall now, however, proceed to state our opinion with reference to the priorities and subsequences of the rights of Ml the parties. This will have .reference, however, only to the land in section 15.
1. Mrs. Sproul has the right to have the Hawley mortgage first satisfied from the proceeds of the entire tract of said land in section 15, for the deed from Sproul to her is valid to that extent. This right dates from June 12, 1875, the •day when said deed was recorded.
2. The bank comes next in priority. Its right dates from ■September 2, 1875, the day when the transcript of its judgment was filed in the office of the clerk of the district court.
3. Tuthill comes next. Her right dates from September ■4, 1875, the day when the second mortgage to her intestate was recorded.
4. Hoagland comes next. His right dates from October 1, 1875, the day when his judgment was rendered in the district court.
5. Lenker comes next and last. Her right dates from November 11, 1875, the day when her judgment was filed in the office of the clerk of the district court.-
The judgment of the court below will be reversed, and ■cause remanded with the order that judgment be rendered in the case in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
We think the description in the chattel mortgage of the property claimed by the plaintiffs in error sufficient, within the rule laid down in Brown v. Holmes, 13 Kas. 482. The description is: “ Two hundred and fifty stock-hogs, owned by the said D. B. Mott, in Franklin county, Kansas.” . . . “And,” the mortgage proceeds, “until default be made as aforesaid, or until such time as the said parties of the second part shall deem themselves insecure as aforesaid, the said party of the first part to continue in the peaceable possession of all the said goods and chattels, all which, in consideration thereof, he engages shall' be kept in as good condition as the same now are, and taken care of at his proper cost and expense.” A fair construction of these provisions is, that the hogs at the execution of the chattel mortgage were owned by D. B. Mott, the mortgagor; that they were then in Franklin county, in this state, and were also in the possession of said Mott, in said county. The case of the Savings Bank v. Sargent, 20 Kas. 576, is unlike this. In that case, the chattel mortgage did not name the county and state where the property was located. The suggestion that Mott may have had 500 or 5,000 hogs of the same description in Franklin county, from aught that appears in the mortgage or in the record, is without particular force, as the canon of construction is to solve the doubts, if any exist, in favor rather than against the validity of a written instrument, and we have no right to imagine facts to exist in the record to invalidate and destroy the chattel mortgage.
The judgment of the district .court must therefore be reversed, and the case remanded with direction to the court below to enter judgment for the plaintiffs in error, and the proceeds of the sale, less the costs of $110, to wit, the sum of $150.25, will be applied to the payment of the balance due Shaffer & Becker, as far as it may go.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action to- foreclose a vendor’s lien, one of that class of liens whose validity was asserted in the case of Stevens v. Chadwick, 10 Kas. 406. The petition sets out a copy of a note executed by defendant and George O. Rock to one Hart, with indorsement to plaintiff; alleges non-payment, etc., making out a full cause of action upon the note. It then alleges that at the time of the execution of the note, said Hart entered into an agreement with said Rock and defendant, a copy of which is attached to and made a part of the petition. This agreement was simply a contract for the sale of a certain tract of land, of which the land in controversy was one-half, from Hart to defendant and Rock jointly; recited the consideration (part cash and part notes), and bound Hart to convey to defendant and Rock upon payment of the notes. It also bound the vendees to pay all the taxes, and in case of default-in any payment, to surrender the possession and forfeit the money paid. The petition then alleges that subsequently said Rock was released from the contract, and the other half of the land was, by all the parties to the contract, conveyed to one Ellen Downs, as trustee. It further alleges that Hart was at the time the owner in fee of said tract, and that he put the v.endees in possession; that at the time of the transfer to plaintiff of the note sued upon, which was the last of the notes specified in the contract, Plart conveyed the land in controversy to plaintiff. It also alleges a default in the payment of taxes by defendant, and a subsequent payment by plaintiff. It closes with a prayer for judgment for the amount due on the note, and for taxes paid; and that the real estate specified in the contract, excepting the one-half conveyed to Ellen Downs, be sold in satisfaction of said amount, and that defendant be thereafter barred and foreclosed of all interest therein. An answer was filed, setting-up several defenses. On the trial before the court without a jury, the defendant objected to the offer of the note in evidence, on the ground that the petition did not state facts sufficient to constitute a cause of action, which objection was overruled. The court thereafter made certain findings of fact, and rendered judgment in favor of the plaintiff for the amount of the note and taxes, and directed a foreclosure of the vendor’s lien and a sale of the land. •
As the testimony is not preserved, the only questions are as to the sufficiency of the petition; and if sufficient, whether upon the pleadings and findings the proper judgment was entered. It is now claimed that “the petition is bad, because not averring tender of a deed, or some excuse for not tendering it, or at least readiness to convey.” Though this is the question now argued by counsel, it does not appear what specific defect in the petition was pointed out at the time. The objection was general to the sufficiency of the petition, and any other matter may have been presented to the trial court, as the supposed defect. However, we shall notice the question as here presented. The petition, it is true, contains no such averment, and counsel for defendant in error conceding that generally in cases like this it would be necessary, claims that the defect is made good by the matters set up in the answer. It becomes necessary, therefore, to examine the latter pleading. This contains a general denial, with a restriction as to matters thereafter admitted, and in addition sets up the sale and purchase of the land substantially as averred in the petition, the entry of possession by the defendant and Rock under the contract, and alleges their joint occupation thereof as a homestead. It admits that Hart conveyed the one-half to Ellen Downs, but says that at the time the land was still occupied by Rock and himself and their families as a homestead, and denies that any conveyance thereof was ever signed by the wife of either. It admits the conveyance of the other half to plaintiff, but alleges that plaintiff had full notice of defendant’s occupation of the same as a homestead. It further denies that defendant made the last payment indorsed on the note; says it was made by Ellen Downs, under some agreement with Rock, and was paid to procure the release of said Rock from the contract; and pleads the bar of the statute of limitations. It contains no offer to rescind the contract, or to give up the possession, but seeks to avoid payment of the note given for the purchase-money, on the ground of a homestead exemption, the statute of limitations, and the breach of the contract on the part of Hart by the conveyance to Ellen Downs.
Do these matters supply what is lacking in the petition, or obviate the necessity of any omitted allegations? If we consider the letter of the contract, it calls for payment of the note before the execution of the deed. The purchaser must pay before he is entitled to a deed, but the vendor need not execute a deed until he has received his money. So that technically a cause of action accrues to the vendor before it does to the purchaser, and the vendor, when the note matures, ought to be able to maintain his action and recover his money before executing any deed. And a petition which states the maturity and non-payment of the note shows the purchaser in default, and states a cause of action irrespective of any action or offer on the part of the vendor. But the courts, having regard to the spirit more than to the letter of the contract, have ruled that a vendor who is not able and willing to perform his part of the contract, should not be permitted to worry and vex the purchaser.
So, also, as there is a mutuality in these contracts, the vendee cannot claim specific performance without a tender of pay ment. In other words, the party who asks performance must himself be ready to perform. So that .if the defendant had simply demurred to the plaintiff’s petition, his demurrer ought to have been sustained. But there is another proposition the reverse of that which we have noticed, and that is, that he who would í’escind a contract must rescind it in toto. He cannot appropriate the benefits and repudiate the burdens. If he would avoid the latter, he must give up the former. Insisting on his right to retain the former is a waiver of all objections to responsibility for the latter. lithe vendor bring his action on the purchase-note, he affirms the contract, and cannot be heard to say that he is under no obligation to convey. If the vendee receive possession under the contract, and insist on maintaining such possession, he will not be permitted to deny his liability on such note. In the case of Harvey v. Morris, 63 Mo. 475, the court says:
“ Where a purchaser of land, by virtue of the contract of purchase, is put in possession of the land purchased, he cannot resist the payment of the purchase-money without offering to restore the possession thus acquired by him to the vendor. He cannot be permitted to occupy, possess and enjoy the profits of the land bought, and at the same time be allowed to withhold the price agreed to be paid.”
To a similar effect is the case of McIndoe v. Morman, 26 Wis. 588. See, also, Brock v. Hidy, 13 Ohio St. 306. That averments in the answer may be resorted to to help out defective allegations in the petition, will not be denied. As to the effect of failing to question the sufficiency of a petition by demurrer or motion, and seeking for the first time to do so by an objection to the introduction of evidence upon the trial, see Barkley v. The State, 15 Kas. 99.
Now in the case at bar, the title to both note and land being shown by the petition to be in the plaintiff, which shows both the right to insist on performance by the defendant, and ability to perform on the part of the plaintiff, the defendant failing to object, that there is no showing of an offer or a willingness to perform on the part of the plaintiff, comes into court, and admitting that he has received possession under the contract, insists on his right to retain possession, and seeks to defeat the plaintiff by certain special defenses to the note. In a certain sense, he passes by the issue which he might have made, and invites the consideration of the plaintiff and the court to certain other issues, and then, when the case is called for trial, seeks to go back and bring up the issue which he has once passed. Where a party is called upon to perform an obligation, and. objects on certain specific grounds, he waives other preliminary objections, which, if made known at the time, could easily have been obviated.
We are aware that the propositions we have stated are general, and subject to many limitations and exceptions, but nevertheless we are constrained to think that the facts of this case do not bring it within any such limitations or exceptions, and that the defendant was not prejudiced in his substantial rights by the ruling of the district court.
As to the findings, particularly that in reference to the taxes, we think the language obscure, and open to two interpretations; but we must give them that construction which supports rather than that which contradicts the decree. .
We notice, also, the certificate to the case-made, which is, that it is “correct so far as it purports to be a history of the case.” Exactly what is intended by this expression, we are unable to determine.
Upon the record as it stands, we think the judgment should be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, brought by John B. Armstrong against George Hoisington, for the recovery of a buggy, horse, and harness. The case was tried. in the court below before the court and a jury. The verdict and judgment were in favor of the plaintiff and against the defendant, and the defendant, as plaintiff in error, brings the •case to this court. But as error must be shown, and cannot be presumed, we hardly think that the judgment of the court can be reversed. The plaintiff in error says in his brief: il Where property is seized under an order of attachment-against a given person, such person cannot replevy the same in the hands of the officer.” This is a correct proposition of law with reference to property not exempt from attachment, but it is wholly immaterial whether it is correct or not so far as this case is concerned. The affidavit for the order of replevin shows as it should do under section 177 of the code (Gen. Stat. 661), that said property was not taken in execution on any order or judgment against the plaintiff below, or for the payment of any tax, fine, or amercement assessed against him, or by virtue of an order of delivery issued in replevin, or any other mesne or final process issued against him; and the petition below is silent with reference to all these things. The plaintiff in error, therefore, among others makes the following points: Second, The affidavit required by statute (Gen. Stat., ch. 80, §177), is no pai’t of the pleadings, and the facts therein set forth form no part of the issues in the case. Third, It wfas necessary for plaintiff to allege in his petition that the property was'not taken in execution on any order or judgment against him. (Gist v. Loring, 60 Mo. 487.) Fourth, The facts required to be stated in the affidavit must exist, and be established, or replevin will not lie. (Westenberger v. Wheaton, 8 Kas. 169.) The second proposition is a correct statement of the law on this subject. The facts set forth in the affidavit form no part of the issues in the case, unless they are again set forth in the pleadings. But it makes no difference, so far as this case is concerned, whether said proposition is correct or not. The third proposition is not good law. All that.a plaintiff in replevin is required to set forth in his petition is, that he is the owner of the property in controversy, describing it, or that he has a special ownership or interest therein, stating the facts in relation thereto; that he is entitled to the immediate possession of the property, and that the defendant wrongfully detains the same from him. The fourth proposition is perhaps true in one sense, but not true in the sense in which the plaintiff in error desires to use it. The facts required to be stated in the affidavit must exist as facts, and in one sense they must all be established; but they are not all required to be established by the plaintiff by evidence. The plaintiff is required to establish by evidence all the facts which he is required to set forth in his petition, and no others. In the absence of evidence tending to prove or disprove the other facts (those facts required to be set forth in his affidavit for ■the order of replevin, and not required to be set forth in his petition), the ordinary legal presumptions in favor of the party who holds the negative of the issue, will establish them for him. To illustrate: The fact that the property was not taken by virtue of any legal process against the plaintiff, unless it was exempt from such process, must exist as a fact, and in one sense must be established; but if the plaintiff files the proper affidavit, stating that the property was not so taken, and the defendant neither sets up nor proves that it was so taken, it will be presumed as a fact that it was. not so taken, and therefore by this means such negative fact is established; for if it was so taken, it devolves upon the defendant to show it affirmatively.
The plaintiff in error also says in his brief:
“Fifth, But even if it devolved upon defendant below to allege, and prove, as a matter of defense, that the property was taken in execution on any order or judgment against plaintiff below, this was sufficiently alleged in the answer, and such allegation, in the absence of replication, stands admitted. (Bailey v. Bayne, 20 Kas. 657.) ”
"We think the plaintiff in error mistakes the matter. Such defense was not sufficiently alleged in the answer. The petition alleges among other things “that all of said property was taken by said defendant under and by virtue of an order of attachment, issued by A. M. Crary, a justice of the peace in and for Grant township, Dickinson county, and state of Kansas, issued October, 1877, and directed to said defendant, as constable of said township of Grant.” This is all that the petition states upon this subject. The answer alleges among other things, as follows: “And now comes the said defendant, by his attorneys H. & P., and for his answer to the petition of the said plaintiff saith that he admits that he took the property mentioned in the plaintiff’s petition,, in an action pending against the plaintiff hereto, in the manner and form as the same is in his petition alleged.” This is all that the answer states upon the subject. Now the answer does not allege that the property was taken in execution on any order, judgment or process against the plaintifft and it does not even allege that any action was ever pending against the plaintiff. It merely admits that the defendant took the property in an action pending against the plaintiff, as the same was and is alleged in the plaintiff’s petition. But the plaintiff’s petition does not allege or even admit that any action was ever pending against the plaintiff. The plaintiff’s petition mentions an order of attachment, issued by A, M. Crary, a justice of the peace, but this order of attachment was issued, as the evidence shows, in an action in which Thomas C. Ayers was the plaintiff, and Thomas Armstrong (not the plaintiff in this action, John B. Armstrong) was the defendant. The answer merely admits a supposed allegation in the petition, but there is no such allegation in the petition. Such an admission cannot be construed into an allegation that needs a reply. When the defendant says he admits a portion of the petition, it cannot be construed that he sets up something affirmatively which will overturn and destroy the efficacy of the petition.
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.:
Counsel claiming a reversal of the judgment of the district court, contends that the execution in the case of Goodin v. Church was wrongfully issued, as the motion for a new trial was pending and undisposed of at the date of its issue, and therefore that the action of Goodin v. Church and his sureties, upon the appeal bonds, was prematurely brought. At common law the motion for a new trial suspended the judgment and all its effects until the motion was disposed of. In this country, this rule of the common law has been very generally supplanted by statutory provisions, and in order to obtain a stay of execution, the proceedings prescribed by statute must be strictly pursued. When a trial by jury has been had in this state in the district court, judgment must be entered by the clerk in conformity to the verdict, unless it is special, or the court order the case to be reserved for future argument or consideration. (§409 of the civil code.) After the judgment is fully recorded, it is valid and has force and effect, notwithstanding the pendency of the motion for a new trial. Where a stay is desired pending the hearing of this motion, an order of the court to that effect should be obtained. The power of courts to temporarily stay the issuing of execution, is exercised in an almost infinite variety of circumstances, in order that the ends of justice may be accomplished, and to prevent hardships. The better practice would be, where a motion for a new trial goes over to the next term, for the court to enter an order staying the issuance of an execution until such motion is disposed of; and generally, on the return of a verdict where notice of a motion for a new trial is given, or where the motion is filed, the case should be reserved for future •consideration, and the entry of judgment on the verdict delayed until a hearing is had upon the motion. If this be •done, the party moving for a new trial will not be compelled to obtain any stay, as no execution can issue until the judgment is entered in full upon the journal. After the judgment has been entered, the party moving for the new trial, or for & vacation or modification of the judgment, must apply to the court to obtain a stay, if such stay is necessary for the protection of his legal rights. In the case of Goodin v. Church, no stay was applied for, and as we do not think the pendency of a motion for a new trial necessarily stays proceedings upon the judgment, we perceive no error in the record before us.(People v. Loucks, 28 Cal. 68.)
■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.:
Two errors are alleged — first, in overruling an application for a continuance; and, second, in instructing the jury that they might allow interest. The continuance or postponement was asked on the ground of the absence of two witnesses, living out of the state, who had promised to attend when required. No attempt had been made to secure their depositions, though months had elapsed since the commencement of the action. They were stockholders in the de fendant corporation, and therefore personally interested in defeating the plaintiff’s claim; and while they lived but a few miles away from the court-house, and only a brief postponement was asked, we cannot say that the court abused its discretion in refusing the postponement. There was no certainty that the witnesses would be present, if the postponement was granted. The court had no power to compel their attendance. No excuse was shown for their failure to fulfill their promise, and be present; and it may well have seemed to the court idle to give them another opportunity to disregard their promise, and still further delay the plaintiff in his effort to'collect his claim.
The action was commenced before a justice of the peace. The bill of particulars contained an account, with items of debit and credit and dates thereof, and showed a balance due plaintiff of $208. Following the account was a statement that the plaintiff claimed judgment for $208 and costs. The summons bore an indorsement that if defendant failed to appear, judgment would be taken for $208 and interest from the return day of the summons. The defendant appeared and filed a bill of particulars. On the return day a trial was had, and judgment rendered in favor of the plaintiff for $208 principal and $8.61 interest. Appeal was taken, and the case tried a second time. The court instructed the jury, if they found for the plaintiff, they should allow interest on the claim from the time it became due. This instruction is said to be erroneous, because no interest was specifically claimed in the bill of particulars, and also because of the indorsement on the summons. With reference to the latter, we may briefly say that such indorsement operates as a limitation on the amount of the judgment only in case the defendant fails to appear. (Gen. Stat., p. 777, § 11.) Here the defendant appeared at the trial, and the rights of the parties rest upon the pleadings, and not upon the summons.
With reference to the bill of particulars, if the same rule obtained as in respect to pleadings in the district court, there could be no question. The time from which interest is claimed must be stated. (Gen. Stat., p. 647, § 87; Green v. Dunn, 5 Kas. 254.) But the justices’ act contains no such provision as in the section cited. The single provision concerning the bill of particulars is, that it “ must state in a plain and direct manner the facts constituting the cause of action or the claim to be set off.” (Gen. Stat., p. 791, § 72.)
No formal prayer is required, and the plaintiff recovers according to the facts stated. Prima fade, upon delivery of goods payment is due, and an account showing the delivery of goods at a stated time, prima fade shows the money due therefor at that time; and upon money due, the creditor is entitled to interest. (Laws 1871, p. 250, §1.)
Upon the account, then, as stated in the bill of particulars, interest was properly recoverable. While the prayer would indicate an intention not to claim interest, yet the court might properly, the parties both being present, have permitted an amendment, by changing the prayer, or striking it out altogether; and as the plaintiff took judgment for interest in the justice’s court, the defendant could not have been misled as to the plaintiff’s intention to demand interest. Hence, though no formal amendment was made* we think that, as plaintiff was entitled to interest, and as the defendant was clearly notified of plaintiff’s intention to claim interest, we may fairly treat the case as though an amendment was in fact made, and hold that no substantial rights of defendant have been prejudiced, (M. V. Rld. Co. v. Caldwell, 8 Kas. 244.)
No other question being presented, the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of mandamus, brought by Neosho Falls township, Woodson county, Kansas, against Enoch Fender, trustee, William Jones, clerk, and Charles Howard, treasurer, of Everett township, in said county and state, to compel said officers to levy certain taxes. The principal facts of the case seem to be as follows: On July 1, 1870, Neosho Falls township voted and issued certain bonds for the construction of a bridge across the Neosho river in said township. On April 21, 1871, a portion of the terrB tory of Neosho Falls township was detached from the township, and out of such detached territory, together with some other territory, a new township was organized, named Everett township. Since that time no tax for the payment of said bonds, or of any part thereof or any interest thereon, has been levied on any of the property detached from said Neosho Falls township. Hence the corporation of Neosho Falls township commenced this action to compel the said officers of Everett-township to levy taxes upon the real estate of said detached territory to aid the said Neosho Falls township in the payment of said bonds and of the interest thereon. The •court below granted a peremptory writ of mandamus to compel said officers to levy said taxes.
Whether the court below erred or not in granting this writ, is the only question now presented to this court. Involved ■in this question, however, are others, the first of which is, whether there is any law authorizing said officers to levy :said taxes. If this question shall be decided in the affirmative, then there will be several other questions to decide, but ■if it shall be decided in the negative, such decision will dispose of the whole case. We think that this question must be decided in the negative. We know of no law giving to ■the township officers of one township authority to levy taxes for another township; and we know of no law that would .give authority to the township officers of Everett township to levy the taxes demanded in the present case. Counsel for the defendant in error (plaintiff below) refer us to §4 of the .■act of 1870, relating to township bonds (Laws 1870, p. 77), ■as giving such authority. That section provides that “ the township officers aforesaid shall levy each year” bridge-bond taxes such as we are now considering; but “the township officers aforesaid,” mentioned in-said §4, are not the township ■officers of a township different from the one for which the taxes are to be levied, but they are the township officers of the township that voted and issued the bonds; of the town■ship that is liable for the payment of the bonds; of the township that must be sued if the bonds are not paid, and of the township for which the taxes are levied and collected to pay the bonds. No other township officers are mentioned in said ■section 4, or in the act of which it forms a part, than those ■of the township which issues the bonds and which is liable for their payment. In the present case, Everett township ■never had anything to ,do with the said bonds of Neosho Falls township, and is not liable thereon. A portion of the real estate of Everett township — that portion which was ■taken from Neosho Falls township — is, along with the real ■estate still remaining in Neosho Falls township, liable for the payment of said bonds and of the interest thereon, but Everett township..itself is not liable-in any manner or degree; hence the levying of said taxes under said section 4 is not an affair in which Everett township, as a corporation, has any interest.
Under §17 of the act of’1872, relating to “bridge and improvement bonds,” the county clerk would levy the taxes.. (Laws of 1872, p. 117, §17.) But that section is 'now repealed. (Laws of 1874, p. 49, § 16.)
Under § 7 of the act of 1874, amendatory of and supplemental to said act of 1872 (Laws of 1874, p. 45., §7), the-officers of Neosho Falls township should levy the tax. That section provides that “it shall be the duty of the proper-officers of any county, city or township, in which bonds have been heretofore voted, for any of the purposes mentioned in the act to which this act is amendatory [this includes bonds-for the construction of bridges], annually, at the time when other taxes are levied, to levy and cause to be collected a-sufficient tax to pay the interest on all such bonds as the same shall become due; and also for the purpose of creating; a sinking fund for the final redemption of such bonds,” etc.
The act of 1873 relating to taxation on the change of boundary lines (Laws of 1873,' p.267), which renders the-said detached territory liable in part for the payment of bonds previously voted and issued, would also seem to indicate that the officers of the old township,.and not the officers-of the township into which the detached territory might be-placed, should levy the taxes. The first section of the act-makes the bonds a lien upon all the real estate situated in the old township or any township at -the time when the-bonds are or were voted and issued. And § 3 of the act provides that all the real estate detached from a township and put into some other or a new township, “shall be subject to-taxation for the payment of such bonds and the interest-thereon, in the same manner as though no suoh change of boundary lines had been'made.” Section 4 of the act relates-wholly to counties, and provides for certifying the levy made- in one county to another county, and has no application to townships which are situated in one and the same county.
If the legislature had ever intended that the officers of the township into which the detached territory might be, placed, should levy the taxes, why did it not at some time say so? and why did it not provide some mode for giving-such officers such information as is necessary to enable them to make the levy intelligently? Under the present laws there is no mode prescribed by law for such officers to know or ascertain what the debts, liabilities, resources, taxable property, or taxes levied, of the old township are. Certainly, under such circumstances, the legislature never intended that the officers' of the township into which the detached territory is placed,- should levy the taxes. The officers of the old township make the levy at a certain rate per cent, on all the taxable property of their own township, and on all the real estate of the detached territory, and then certify this levy to the county clerk, who calculates the amount of the taxes on all the property subject thereto, and places the same on the tax-roll for collection without any further circuity, and without any unnecessary and superfluous action being taken by the officers of the township containing said detached territory.
The judgment of the court below will be reversed, and cause remanded with the order that said peremptory writ of mandamus be refused.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The plaintiff in error insists, first, that the trial court erred in refusing a new trial; and second, in denying his motion for judgment on the findings, and ren dering judgment for the defendant in error. The theory of his counsel is, that as his client had never taken possession and never exercised any ownership over the land, and had repudiated the entire contract, the defendant in error had two remedies. An action at law for damages for the breach of the contract, and the measure of his damages, would be the actual loss in the bargain, which, if he retained the land, would be the difference between the contract price and the value of the land at the time of breach, or when suit was brought, if the land had fallen in value. If, however, the land had not depreciated in value, the damages would be nominal. If the redress afforded in this way was by reason of any peculiar circumstances an inadequate compensation to him for the loss in the bargain, then his only other remedy would be in equity. In such an action he could force a sale of his land, and obtain the price the vendee originally agreed to pay. This theory of counsel, and the numerous authorities cited by him, are scarcely applicable to the particular facts of the case at bar. There is no difficulty in determining the character of the contract, and the intention of the parties at its execution. The covenants to pay the installments of the purchase-money sued for, were all independent of and intended by both parties to precede the actual conveyance of the property described. As a general rule, the intention of the parties when plainly expressed in the contract must govern; and in this case the failure of the plaintiff in error to take possession of the premises, his disowning all claim to them, and his attempted repudiation of the entire contract without the assent of the vendor, did not change the rights of the defendant in error to recover for the installments. The contract being valid, the rights of the plaintiff in error were the same as under any other written contract of sale, where the stipulations of the purchaser are to pay at times before he is to have conveyance.
The reported cases which hold that an action will lie for such installments of purchase-money to be paid in advance of the conveyance, are numerous. In these cases it is no de fense to a suit for the money that the deed has not been made or tendered, or that the plaintiff might have a remedy in another form of action: Bingham on Sale of Real Property, 744; Davis v. Heady, 7 Black, 261; Harrington v. Higgins & Peck, 17 Wend. 376; Paine v. Brown, 37 N. Y. 228; Darling v. Little, 26 Pa. St. 502; Crawford v. Robie, 42 N. H. 162; 4 Greenl. (Me.) 258; Bagley v. Eaton, 5 Cal. 497; Goodpaster v. Porter, 11 Iowa, 161.
This conclusion is also in accordance with the previous decisions of this court, so far at least as any expression has been given to the construction of the contracts between vendor and vendee. (Courtney v. Woodworth, 9 Kas. 443.)
The judgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On July 10th, 1876, plaintiffs in error •filed their petition in the district court of Atchison county, •claiming damages of the defendant in error for unlawfully •digging ditches and erecting and maintaining certain dams and obstructions in a certain channel and natural watercourse, whereby the water was turned off the land of the defendant, and over the lands of the plaintiffs. The plaintiffs asked judgment in the sum of $2,000 for damages caused by acts of defendant, and further prayed an abatement of the nuisance, and an injunction to prevent further damages. The defendant’s answer was a general denial. At the November term of court, 1877, the cause came on for hearing before a jury. After the plaintiffs had introduced their evidence, the •defendant interposed his demurrer thereto. This was sustained, and the jury discharged. The plaintiffs now bring the case here on error for review.
Counsel for defendant claim the demurrer was rightfully ■sustained, for two reasons: First, They allege the evidence wholly failed to establish any natural water-course where the obstructions were erected, and only showed the defendant protected his premises by ditches and dams from surface-water, which they insist he had the right to keep off his own lands. Second, That plaintiffs were not entitled to recover, because they allege the proof established that the plaintiffs ■had no joint interests in the tracts of land named in the petition, or the possession or occupancy thereof, or the emblements thereon.
The testimony upon the question concerning whether there was a natural water-course upon the premises of defendant, was as follows — one witness testifying:
“ I knew of a stream of water flowing from the bluff into "Waddell’s land, and out of the western boundary. The ■source is a mile above the fence. Water don’t flow all seasons through it. At its source it flows all the year, but lower down it does not. It runs all the year, except during August. The course of the water could always be traced. Previous to the dam, the water went down through Waddell’s farm into the old creek-bed; this bed flowed into Palmer’s and back into Waddell’s. There was a regular channel to the old creek when I first knew it, in 1859.”
Another said:
“Have known Waddell’s land sincé 1854. I moved near Oak mills in the fall of 1854. I knew the stream spoken of; it is the natural outlet of the water that flows on about a section of land. It is a little over a mile from its source to where it was dammed up by Mr. Waddell, near Oak mills. There was a ditch running square across Waddell’s field before the dam was made. Before the ditch was made the water ran down to the bottom, and when it got to the bottom it spread, and as it flowed, it went out to the creek-bed and flowed across Waddell’s place. It rah from the creek-bed down the bottom, and then into the Missouri river. I have known it was accustomed to run in this way since 1855 and 1856.”
On cross-examination this witness said:
“Whenever it rained, more water flowed down over Wad-dell’s lands than any other time. The flowing of the water generally occurred in the spring of the year. The water that flows from the upper country and runs down there, is the water that flows during the heavy falls of rain. The ravine drains the upper country. There are some springs up the hollow — three, I believe. The water flows about 100 to 200 yards from these springs — that is, in an ordinary dry time it runs from 100 to 200 yards from the springs; in rainy seasons the water runs three months down to Waddell’s farm.”
Another testified that—
“The obstruction was placed over what is called a branch. I have known it twelve or fifteen years. It is a mile or a mile and a quarter long, and drains 300 or 400 acres. The branch is fed by the rains that fall.”
On cross-examination, this witness said:
“The water flows from above, and the falling of rain. There are some springs. The water only flowed on the Wad-dell land after the falling of rain; it was only surface-water.”
One of the plaintiffs testified as follows:
“The stream runs in an easterly direction. From the dam to the head of it, it was a mile or over. Water had been running there since 1859. The water came down out of the hollow above Oak mills. The stream had banks from a foot up to five feet high; it was five or six feet wide in some places — some places, ten to twelve feet wide. Part of the stream runs the year round, part does not. The stream is fed by springs. Before the erection of the dams, the water ran right across Waddell’s land to the creek-bed, and went round down the creek-bed towards Kickapoo. In 1875, the water came all the way down in the months of March, April and May. In 1876, the water flowed from the first of March until sometime in July. That season was wetter than 1875.”
Other witnesses gave similar testimony.
Upon this evidence the case should have been submitted to the jury. Within the rule adopted in Earl v. De Hort, 1 Beas. (N. J.) 280, the channel to the old creek-bed, from whence the waters flowing therein i t ¶ ..... . . , reached the Missouri river, is a natural watercourse — at least, such an accustomed channel through which the water has flowed from time immemorial may fairly be said to possess the attributes of a natural water-course so far as to forbid the diversion, repulsion, or altered transmission of the water, to the injury and damage of adjacent fields and lands.
In the case, supra, it was held that the question whether an outlet for water is a water-course, does not depend upon the quantity of water it discharges. If the face of the country is such as necessarily collects in one body so large a quantity of water, after heavy rains or melting snows, as to require an outlet to some common reservoir, and if such water is regularly discharged through a well-defined channel which the force of the water has made for itself, and which is the accustomed channel through which it flows and has flowed from time immemorial, such channel is a natural water-course. The evidence in this case clearly tended to show that in times of heavy rains and in the spring seasons of every year, as far as the memory of man runs, the surface of the ground, back a mile and over from the Missouri river, is such as to collect the water falling on a large section of country to such an extent as requires an outlet to the river through the bottom or low lands at the foot of the bluffs, and that the flow of the water had produced a definite or natural channel through the land of defendant and of other persons where such accumulated surplus water had been always accustomed to run. With this view, this water-course could not be obstructed rightfully to the injury of other lands, or the waters running thereon turned upon them to their damage; and the action of Waddell, if it had this effect, was wrongful. The adoption of this rule seems most reasonable, and to be dictated by sound public policy. When Waddell purchased his land, he had knowledge of this channel, and the condition of the surface of the surrounding country which caused the collection of the surface-water to seek an outlet through it. He obtained the land burdened with the servitude of having such waters pass over it in their natural flow, and it would be very unjust to adjacent land proprietors to allow him to transfer such burden of servitude upon them. Again, if Waddell had the right to erect dams a few feet in height across the channel, he could have carried his dams to almost any degree upward he might choose, and thus to improve and reclaim a few acres of land of his own, he would have the power to destroy a much larger acreage of land for ány agricultural or other useful purpose. Such an improvement and amelioration of one’s own property, at the expense or to the detriment of another, is opposed to every maxim of law and every sentiment of justice. (Bellows v. Sackett, 15 Barb. 96.) The question whether any portion of the water flowing through the channel on Waddell’s land is carried down from the several springs located in the ravine above, is not very material.
This branch or channel assimilates very closely to many streams in the state, which, having a definite source, flow their entire length only a very small portion of the year; but at times, supplied by falling rains and melting snow, the volume of water is greatly increased, and its force and fury become almost irresistible. No one will contend that such streams can be obstructed, to the injury of adjacent lands. Neither can this one.
We may remark in passing, that many of the authorities introduced by counsel for defendant have scarcely any application, as they treat solely of mere surface-water, and not of the flow of water from hilly regions and high lands through definite channels in ravines or gorges. The strongest authority presented by them is Hoyt v. The City of Hudson, 27 Wis. 656; and yet the chief justice, in that case, quotes approvingly the observations of the court in Bowlsby v. Speer, 2 Vroom, 351, that the general rule applicable to surface-water does not apply in cases in which in a hilly region, from the natural formation of the surface of the ground, large quantities of water, in times of excessive rains or from the melting of heavy snows, are forced to seek a channel through gorges or narrow valleys.
We do not think the second reason given for sustaining the demurrer a good one, because the testimony shows, and counsel admit in their brief, that the crops injured (at least the wheat) were owned jointly by all the plaintiffs. To a large portion of the property damaged, there is no common or joint interest between the plaintiffs, and for the damages to such Property no recovery can be had. This applies to the lands, and to all such personal property as plaintiffs have no joint or common interest in. They cannot recover in one action pecuniary damages for their separate rights, which the testimony discloses are several and distinct. (Hudson v. Commissioners, 12 Kas. 140; Swenson v. Plow Co., 14 Kas. 387; Schultz v. Winter, 7 Nev. 130.)
Under the third cause of action, however, the court ought to have retained the case. This p'art of the petition is exclusively for equitable relief, and is supplemented ln Pra7er by a demand simply for an injunction to restrain the defendant from committing and maintaining a nuisance, and for its abatement. The common interest which the plaintiffs have in suppressing the nuisance, as shown by the testimony under the petition, warrants the plaintiffs in uniting in the suit. The common in terest of the parties is in the subject-matter of the action, and not merely in the legal questions involved, as in Hudson v. Commissioners, supra.
In the case of Reid v. Gifford, Hopk. 416, where several proprietors of different lands and mills, and of separate parts of the natural water-course at the outlet of a lake, sought to restrain a nuisance, caused by an artificial channel cut by the defendant upon his own land, the effect of which was to draw off the water of the lake, it was decided that as the acts of the defendant complained of were a common injury to all the complainants, there was such a common interest in the subject of the suit as to authorize them to join in one bill. (Blunt v. Hay, 1 Barb. Ch. 59; Blunt v. Hay, 4 Sandf. Ch. 362.)
The code declares, that when the question is one of common or general interest to many persons, or where the parties are numerous and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all. (Code, § 38.) This provision, with the ones immediately preceding, substantially reenacts the old equity rules on the subject of parties, and where one general right is claimed, and where there is one common interest among all the plaintiffs in the subject of the suit, the objection to improper parties cannot be maintained. (11 Barb. 516; Tate v. Railroad, Company, 10 Ind. 174; Pomeroy on Remedies, § 269, p. 317; Peck v. Elder, 3 Sandf. 126; Foot v. Bronson, 4 Lans. 47; Brady v. Weeks, 3 Barb. 157.) See, also, under the statute of the state relating to torts, Bridge Company v. Wyandotte, 10 Kas. 326; Gilmore v. Norton, 10 Kas. 491; Gilmore v. Fox, 10 Kas. 509.
If the main purpose of the plaintiffs is to recover damages for the injuries to their lands, crops and property, it would be better to amend the petition before another trial, and unite as plaintiffs only those who have a joint or common interest in the property damaged. On the other hand, if they rely wholly upon their claim for equitable relief, such portions of the petition as have no connection therewith should be eliminated ; and it would be more satisfactory pleading to state clearly and distinctly the title or interests of each plaintiff in the separate tracts of land. Under the facts disclosed upon the- trial, the petition was badly drawn. Except for the joint ownership of the wheat crop and the claim to restrain and abate an alleged nuisance, common to all, the action of the trial court would have been affirmed.
The judgment of the district court will be reversed, and .a new trial granted.
Brewer, J., concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by the plaintiff in the court below, against the defendants, for the recovery of damages" for the unlawful conversion by defendants of certain goods and chattels of plaintiff, a description of which is set forth in his petition therein.
The second count or defense by the defendants, set up in their answer to plaintiff’s cause of action, is substantially as follows:
“For a second and further defense to said action, defendants say, that on or about the 26th day of September, 1874, the said Hugh M. Spalding and one George W. Craue made an agreement, and reduced the same to the form of a certificate in writing, to enter into and form a limited partnership, which should 'on the first day of October, 1874, commence the business of stationers, printers and binders, and dealers in blank books and legal forms of every description, and that the said limited partnei’ship should terminate on the first day of January, 1880; which said certificate was duly acknowledged by the said Hugh M. Spalding and George W. Crane on the day of the date thereof; and on the 30th day of September, 1874, the said certificate was verified by the said George W. Crane, filed for record in the office of the county clerk of said county of Shawnee, and by said clerk duly recorded ; that by the terms of said contract the said George W. Crane Avas constituted the general partner of said limited partnership, and the said Hugh M. Spalding the limited partner thereof.
“A certified copy of said certificate, Avith the exception therein named, is hereto attached and marked £M,’ and made part of this answer.
“Defendants say that the goods and chattels described in exhibits A, B, C, D, referred to in said certificate, are the same goods and chattels referred to and set forth in exhibit A, made a part of plaintiff’s amended petition. And defendants further say,- that on or about the first day of October, 1874, the said Hugh M. Spalding and George W. Crane, partners in and as such limited partnership, did commence, and until the commission of the supposed grievances set forth in the amended petition, did continue, to carry on said business in the city of Topeka, in said county, in the name of said general partner, George W. Crane; and that on or about the time stated in the amended petition, the defendant S. P. Wade, as sheriff of said county, holding an execution issued out of this court in the case of Joseph Black and Clarence A. Black, partners as Joseph Black & Son, against the said George W. Crane, at the instance and request of the said Joseph Black & Son, levied the same on the said goods and chattels as the property of the said George W. Crane, and thereupon proceeded to sell said goods and chattels, under levy and by virtue of said execution and levy; and that said levy and sale are the seizing, taking, and carrying-away of said goods and chattels complained of in said amended petition.
“ Wherefore, defendants say that the said Hugh M. Spalding cannot maintain this action, and that the said George W. Crane is a necessary party thereto.”
To the said second defense of defendants’ answer, plaintiff filed a general demurrer, that the same did not state facts sufficient to constitute a defense to plaintiff’s cause of action, which demurrer was by the court overruled, to' which action of the court the plaintiff at the time duly excepted, and to reverse which he prosecutes his petition in error herein.
Two questions are presented: First, May Hugh M. Spalding, the special partner, maintain this action ? and second, If he may, is George W. Crane, the - general partner, a necessary party? The first question involves a construction of the statute concerning limited .partnerships. (Gen. Stat., p. 601.) The following are the important provisions of the statute bearing upon this question :
Such a partnership may consist of one or more persons who shall be responsible for all debts of the partnership, who" are called “general partners;” and of one or more persons who shall contribute a specific amount of capital, and shall not be liable for debts beyond the amount contributed, who shall be called “special partners;” (§2.)
The general partners only shall be authorized to transact business,'to sign for the partnership, and to bind the same; (§3.)
The business shall be carried on in the name of the general partners only, without any words of addition; (§ 14.)
A special partner “shall not transact any business on account of the partnership, nor be employed for that purpose as agent, attorney, or otherwise;” (§ 16.)
“Actions respecting the business of such partnership may be prosecuted by and against the general partners only, in the same manner as if there were no special partners;” (§ 19.)
“In all cases not otherwise provided for in this act, the members of limited partnerships shall be subject to all the liabilities and entitled to all the rights of general partners;” (§21.)
The purpose of this statute was to induce capitalists to engage in mercantile business, by securing to them a limited liability, and relieving them from the peril attending all partnerships by the common law, of losing not only all specially invested in the business, but also their entire property. Provision should of course be made in such a statute to furnish due protection to the public dealing with such a partnership, that, so far as possible, no one should be misled in the credit to be given to it. Nothing was specially necessary as between the partners, for the parties to a private contract could always arrange their rights and liabilities inter sese. Protection to the public was sought in two ways — by public advertisement and record, and by excluding the special partner from all apparent connection with the business of the partnership. In this way no one would be misled by appearances; and he who sought actual knowledge would find it in the public records and press. This would seem to furnish adequate protection in all ordinary cases. Pursuing the policy of excluding the special partner from active participation in the management of the partnership affairs, §19 provides that suits by and against the partnership may be in the name of the general partners only. Some argument may be drawn from the use of the word “may” in this, as contra- distinguished from “shall” in the other sections, that exclusion from participation in the ordinary management of the partnership business is positive and obligatory, while the omission of his name in litigation as plaintiff or defendant is permissive and a matter of choice. While a decision of this question is not necessary in this case, and we do not therefore definitely commit ourselves to either side of it, we may say that it seems in harmony with the general policy of the act to exclude the name of the special partner from litigation concerning its business. The business being carried on in the name of the general partners, any relief the firm may seek in the courts may well be sought in the same name, and as relief against the partnership extends, so far as the special partner is concerned, to only his interest in the partnership, it is unnecessary to join him personally as a defendant. A judgment against the partnership reaches to the full extent of his liability. Conceding then, for this case, that when the partnership as a partnership is entitled to relief it must be sought in the name of the general partner, this provision touches no individual rights of either the general or special partner, although such rights grow out of the partnership relation. For any individual wrongs, the injured partner may seek relief by an action in his own name. Thus, a special partner may maintain an action in his own name against the general partner for a dissolution of the partnership and the appointment of a receiver, under the same circumstances and for the same reasons that one general partner could against another. The relief sought is for his individual rights, though those rights spring out of the partnership relation. The limitation of the statute is only to actions respecting the business of the partnership, i. e., actions to enforce claims due the partnership, to recover its property, to defend against claims against it, etc. These are actions respecting its business, and to these alone the provision extends.
Now the case at bar is an action to enforce individual rights. The plaintiff alleges that his property has been un-
lawfully taken from him, and he asks damages therefor. The petition discloses no partnership, asserts individual title, and seeks exclusive damages. True, the answer alleges that the property taken was partnership property. But, if notwithstanding this fact, an individual general partner would have rights which he might assert by separate action, equally so has an individual special partner. And this brings us to the second question — Was the general partner a necessary party? And the question may thus be stated: If an officer, having an execution against one member of an ordinary partnership, levy upon property of the partnership, and sell the whole property instead of the execution debtor’s interest therein, is he liable in an action of trespass brought by the other partners? And the authorities, with great unanimity, say that he is; and that to this action the execution debtor is not a necessary party. Many vexed and unsettled questions cluster around the subjection of a partner’s interest in the partnership, to the payment of his individual debts. May the officer sell the debtor’s moiety of the property, or simply his interest in the partnership? May he take possession of the entire property, and exclude the possession of the other partners? May they have injunction to restrain the sale until an accounting and settlement of partnership affairs? Into a discussion of these questions, it is unnecessary for us to enter. It is clear that the sale works a disso-
lution of the partnership as to the property sold. (Story on Part., §§311, 312.) And where the officer sells the whole, when entitled to sell only the interest of the execution debtor, the other owners may treat him as a trespasser ab initio, and maintain their individual action against him. Such an action is not by the partnership, or respecting the partnership business, but is by the individual partners, and respecting their individual rights. Melville v. Brown, 15 Mass. 82; Waddell v. Cook, 2 Hill (N. Y.) 49; Walker v. Fitts, 24 Pick. 194; Smyth v. Tankersley, 20 Ala. 212; Sheperd v. Shelton, 34 Ala. 652; Bates v. James, 3 Duer, 45; Moulton v. Robinson, 7 Foster, 550; White v. Brooks, 43 N. H. 402; Edgar v. Caldwell, Morris (Iowa), 434; Neary v. Cahill, 20 Ill. 214; White v. Morton, 22 Vt. 15; Frisbee v. Langworthy, 11 Wis.378; Collyer on Part., § 822; Herman on Ex., § 358.
We close the opinion here, not desii'ing that the decision shall go beyond the immediate points noticed, and actually necessary for the disposition of the case.
The judgment will be reversed, and the case remanded with instructions to sustain the de'murrer to said second count of the answer.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question of any importance presented in this case is, whether the petition in the court below sets forth facts sufficient to constitute a cause of action. The question was raised by the defendant in the court below, first, by a demurrer to the petition; and secondly, by objecting to the introduction of any evidence under it. Peter Yount was the plaintiff in the court below, and John Headrick, administrator of the estate of William T. Kirby, deceased, was the defendant. The plaintiff alleged in his said petition the following facts, to wit: John Headrick was the administrator of the estate of William T. Kirby, deceased, and as such administrator and under an order of the probate court, sold to the plaintiff a certain piece of land as the property of said estate, but which land did not in fact belong to the estate — the plaintiff agreeing to pay for the land $600, of which amount he in fact paid $400. The probate court confirmed said sale, and ordered the administrator to execute a deed to the plaintiff for the land, and also ordered him to hold said $400 subject to its further order. Afterward, the administrator executed and delivered to the plaintiff a deed for the premises. The “plaintiff further alleges, that by reason of his placing undue confidence in the proceedings aforesaid, and the solemn judgment of the honorable probate court thereon, he was induced to purchase said land as aforesaid, under a misplaced confidence in the belief that upon the entry thereof as aforesaid by the said administrator [that is, the entry of the land for the heirs at the U. S. land office by the administrator], the same would become part and parcel of said estate.” Afterward, the plaintiff and his wife executed a deed for said land, reconveying the land to the administrator, and then tendered the deed to him, and requested of him a return of said $400, but he refused. The plaintiff prayed in his petition for a judgment for said $400, and for such other and further relief as he might be entitled to in equity.
We think the plaintiff’s petition was insufficient, and therefore that the court below erred in overruling the defendant’s demurrer thereto, and also erred in overruling the defendant’s objection to the introduction of any evidence under it. A person purchasing at an administrator’s sale (in the absence of fraud) purchases at his own risk. The rule of caveat emptor applies in all its rigor. And besides, the mistake made in the presént case was a mistake of law, and not a mistake of fact. The plaintiff shows by his petition that he had full knowledge of all the facts with reference to the title to said land, and yet he purchased it because of a mistaken confidence in the validity of the probate court proceedings ordering it to be sold, and in the effect of the administrator’s entry of the land at the United States land office. No warranty was alleged, and no fraud or deceit was charged or imputed to any one. And the plaintiff not only purchased the land with a full knowledge of all the facts, and paid $400 of the purchase-money, but he then waited until the sale was confirmed, and the deed executed and delivered to him, before he made any objection to the sale, or resorted to any remedy for his unfortunate purchase. Under such circumstances, we think he has no remedy. The plaintiff still owes $200 on said sale. Probably he could defeat an action against him for that amount, on the ground of a total failure of consideration. Perhaps, also, that at any time before the administrator’s deed was finally executed and delivered to the plaintiff, the plaintiff might have had a remedy for the $400 paid by him, by making a motion in the probate court, upon proper notice to the administrator, to set aside said sale on the ground of a total failure of title to the land; for, up to the final execution and delivery of the deed, the sale might be said in one sense not to have been fully completed, and the probate court, up to that time, would have had full power in the premises. Generally, however, where any person pays money, having full knowledge of all the facts which would show that he is not bound to pay the same, or that he receives no consideration therefor, he is presumed to give, and has no action to recover the money back, and this is especially true where he allows the whole transaction to be completed before he takes any steps to recover his money.
With reference to the evidence, we would say, that all the evidence was objected to on the ground that the petition below did not state facts sufficient to constitute a cause of action —on the ground that the petition did not authorize the introduction of any evidence. If, therefore, any evidence not authorized by the petition, nor by any of the allegations thereof, but necessary for the plaintiff to make out a case, was introduced by the plaintiff for the purpose of making out a case, the introduction of such evidence was additional error.
The defendant in error, however, claims that all errors have been waived, and that the plaintiff in error is estopped from setting up any errors, upon the following grounds, to wit: After the judgment was rendered in this case against the administrator, he made a final settlement with the probate court, and was not charged by it with said $400 received of the- plaintiff below, but was allowed to retain the same, and was finally discharged. Considerable confusion has existed in the argument of this case as to whether the action was brought and prosecuted, and the judgment rendered therein against the defendant below, as the administrator of Kirby’s estate, or against him personally. The defendant in error, who raises this question in this court, claims that the judgment was rendered against the defendant below personally, and therefore we shall decide this question upon that theory, without expressing any opinion ourselves as to whether such theory is correct or not. We do not think that any error has been waived or cured by said proceedings in the probate court, or by any other proceedings. The defendant (plaintiff in error) has done nothing in this case, or affecting the case, since the judgment was rendered therein against him, except to bring the case to this court, and to prosecute this petition in error. The proceedings in the probate court did not affect the status of this case, nor was the defendant in error a party to such proceedings. Nothing has transpired between the plaintiff and the defendant by which the defendant has ratified or acquiesced in the judgment. Nor has the'defendant received any benefits under or by virtue of the judgment, for the judgment did not award to him any benefits; and he has not paid, or in any manner complied with, any of the requirements of the judgment. If this judgment was rendered against the defendant in his representative capacity as administrator, we should still hold that no error committed by the district court was cured or waived by the proceedings in the probate court; but then the question would arise, Is this petition in error prosecuted by the right person? Upon this question we need not express any opinion.
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.:
Plaintiffs in error (plaintiffs below) commenced an action of replevin to recover the possession of •certain cattle. Judgment was rendered against them in the •district court for the value of the cattle, and they prosecute ■this proceeding in error to review such judgment.
A preliminary question is raised on the record, and counsel for defendants claim that it is not in such a condition that we •can examine the alleged errors. It appears that the case was tried before a jury, at the April term, 1875, and verdict returned. A motion for a new trial was duly filed, but the hearing thereof was continued until the April term, 1876, at which time it was overruled and time given to make a case. Now it is contended that the exceptions taken to the rulings at the trial must be reduced to writing at the term; that the •continuance of the motion for a new trial does not continue the right to reduce the exceptions to writing; and that no exceptions having been reduced to writing during the term, no subsequent reduction of the exceptions to writing is of any validity. (Kline v. Wynne, 10 Ohio St. 223; Morgan v. Boyd, 13 Ohio St. 271.) Whatever might be true if the case stood upon a bill of exceptions (and unless we departed from the Ohio decisions we should be compelled to hold such a bill of exceptions of no validity), we think our statutes warrant a case-made with exceptions reduced to writing after the close of a term. There is no inherent vice in so reducing exceptions to writing; the legislature can authorize such action, and the question is one of policy only. Until the provisions for a case-made, the statute was clear, and compelled action during the term. The court was not authorized to further extend the time. But the court is authorized generally to extend the time for making a case. No limitation is placed in the statute. Full discretion seems to have been granted. And the case-made is not the mere collection of the pleadings and previously-prepared bills of exceptions — it is itself the statement of the proceedings and evidence, or other matters, or so much thereof as is deemed necessary to present the errors complained of. (Gen. Stat., p. 737, § 547.) It is an original document, and not a compilation. Extending the time to make it, extends the time to make it completely and wholly. It may all be done on the very last day of the extended time. The testimony and exceptions may on that day for the first time be reduced to writing. This would seem logically to follow from the provisions of the general statutes. But, as if to avoid any-doubt, the legislature, in 1870, and again in 1871, amended by providing that “the exceptions stated in a case-made shall have the same effect as if they had been reduced to writing, allowed and signed by the judge at the term they were taken.” (Laws 1870, p. 169, § 2; Laws 1871, p. 274, §1.) This plainly implies that the exceptions are first reduced to writing when the case-made is prepared, and declares that they are to have the same effect as if reduced to writing at the time they were taken; and the time in which they may be so reduced to writing, is as extensive as the time for making the case. So far as the motion for a new trial is concerned, it has already ¿}eci(je(j that may be continued, and that the lapse of a term does not vitiate the motion or forfeit the rights of the moving party. (Brenner v. Bigelow, 8 Kas. 498.) We are forced therefore to an examination of the record, and the principal questions involved in it. A brief statement of the facts is necessary to a clear understanding of those questions. In the fall of 1871, the cattle in controversy belonged to O. P. Faulkner. At that time he executed the following bill of sale:
“Union Stock Yards, Chicago, Nov. 4, 1871.
“Know all men by these presents, That I have this day bargained, sold and delivered to Denny & Bedman, of the Union stock yards, Cook county, Ill., three hundred and seventy-five (375) Texas cattle that are now feeding on my farm in Bichardson county, Nebraska. Cattle are all branded with the letter ‘B.’ O. P. Faulkner.”
This instrument, though in form an absolute bill of sale, was found by the jury to have been intended as only a security. It appears that Faulkner received some money thereon from Denny & Bedman, and shipped some cattle to them. The balance remained in his possession, at his farm in Nebraska, until his death, in May, 1872, and are the cattle in controversy. No filing or record was made of this bill of sale in Illinois, Nebraska or Kansas. May 31, 1872, O. P. Faulkner died, and on June 10th, Hedwig Faulkner, his widow, was appointed administratrix by the probate court of Bichardson county, Nebraska. During the lifetime of O. P. Faulkner, two suits were commenced against him, and a portion of these cattle taken under attachments therein by the sheriff of Bichardson county. June 17th, 1872, this action was commenced, in Brown county, Kansas. The cattle were then in Kansas, being in charge of herders employed by Faulkner in his lifetime, and continuing in the employ of the administratrix after his death. They were feeding on the range in day-time, and herded at night at the farm of one Floyd Crandall, in Brown county. The possession of the herders was the possession of the administratrix, except so far as divested by the levy under the attachment. It would seem probable, though the facts are not explicitly found, that at the time of the seizure under the attachments, the death of O. P. Faulkner, and the appointment of his administratrix, the cattle were on the Kansas side of the state line: in other words, the court proceedings were in Nebraska, and the property probably in Kansas. We say probably; for as the cattle were kept very near to the state line, they may in feeding have ranged on both sides of the line, and actually have been in Nebraska at the time of the levy and the appoint ment of the administratrix. We may not, however, in the absence of any finding, and in the uncertainty of the testimony, assume positively the fact either way. We must treat it as an unsettled question.
Upon this we remark, that the bill of sale, whether its operation and force are to be determined by the laws of Illinois, where it was executed, or those of Nebraska, where the cat-were at ^ time of its execution, or those of Kansas, where they were subsequently found, and where the litigation was had, was valid inter partes. As between Faulkner, the vendor, and Denny & Redman, the vendees, it conveyed the title to the property, as security for the advances. Had the litigation arisen during the lifetime of Faulkner, and been solely between him and Denny & Red-man, the right of possession would have been adjudged in the latter. The difference, judging from the portions of the statutes admitted in evidence, between the laws of Illinois on the one hand, and those of Kansas and Nebraska on the other, in this matter, is, that by the former such a conveyance, unaccompanied by a delivery of possession, or what is deemed an equivalent, registration, would be absolutely void as against creditors and subsequent purchasers, while by the latter, it would be simply prima fade void. (Gross’s Statutes of Illinois, 3d ed., 1869, ch. 20 — “Chattel Mortgages;” Mumford v. Canty, 50 Ill. 370; Revised Statutes of Nebraska, ch. 46—though see the case of Pyle v. Warren, 2 Neb. 241; Gen. Stat. Kansas, ch. 43.)
We remark secondly, that the administratrix has no greater rights than her intestate. She can claim no more against the bill of sale than could he. It is true,'and counsel ca^ our attention to the fact, that the Illinois statute provides that such a conveyance shall be void “as against the rights and interest of any third person or persons.” They say that “ certainly the administratrix is a third person; she is a trustee holding this property for the benefit of the creditors.” We do not so understand that statute. The third person must be one hav ing rights and interest other than those of the vendor, and not one who simply holds the same rights and interest. A purchaser is interested to the extent of the money he has paid, a creditor to the amount of his debt. But a mere donee, heir or legatee, or assignee, executor or administratrix, has neither title nor interest other or different from that of the original vendor. As the vendor cannot repudiate the sale, neither can anyone who simply stands in his place. An administrator does not in this respect represent the creditors. He cannot sue, in the absence of express statutory authority, to recover property fraudulently conveyed away by his intestate. (Crawford’s Adm’r v. Lehr, 20 Kas. 509.) Neither can he defend against a conveyance made by his intestate on the ground that it was void as against creditors. The creditors must protect their own interests. Again, as the laws of a state and the powers and processes of its courts have no extra-territorial force, it follows that the appointment of an administratrix by the probate court, in Nebraska, did not vest in her the property of the decedent, situate in the state of Kansas.
It may not follow that her possession was tortious, but whatever rights she possessed would spring from comity and the laws of this state, and not from the powers given her by the courts of Nebraska. Wherever a decedent leaves property in two states, it is common to have administration in each state — the principal in the state of his domicil, and an ancillary in the other. And a state always has the right to protect home creditors by administration of the decedent’s property within its borders. So that if administration had been taken out in Brown county, Kansas, the administrator so appointed would have had the right to the possession of the cattle in that county, as against the administratrix appointed in Nebraska. In Story on the Conflict of Laws, § 512, it is said:
“In regard to the title of executors and administrators, derived from a grant of administration in the country of the domicil of the deceased, it is to be considered that that title cannot de jure extend as a matter of right beyond the terri tory of the government which grants it and the movable property therein. As to movable property situated in foreign countries, the title, if acknowledged at all, is acknowledged ex comitate; and, of course, it is subject to be controlled or modified as every nation may think proper, with reference to its own institutions and its own policy, and the rights of its own subjects. And here the rule to which reference has been so often made applies with great strength, that no nation is under any obligation to enforce foreign laws prejudicial to its own rights or to those of its own subjects. Persons domiciled and dying in one country are often deeply indebted to foreign creditors, living in other countries, where there are personal assets of the deceased. In such cases it would be a great hardship upon such creditors to allow the original executor or administrator to withdraw those funds from the foreign country without the payment of such debts, and thus to leave the creditors to seek their remedy in the domicil of the original executor or administrator, and perhaps there to meet with obstructions and inequalities in the enforcement of their own rights, from the peculiarities of the local law.”
But no question arises here between two administrations, or between a foreign administrator and a home creditor. The administratrix appointed in the domicil of the decedent had acquired possession of the property, and it is immaterial whether she had first taken possession in Nebraska and afterward moved the property into Kansas, or had in the first instance taken the possession in Kansas. In the absence of any opposing administration, the courts of this state, ex comitate, will recognize the title and pos- .' ' ° A session of personal property in this state in the administrator appointed in the domicil of the decedent. Payment to such an administrator of a debt due to the decedent will be good. (Brown v. Brown, 1 Barb. Ch. 189; Vroom v. Van Horne, 10 Paige’s Ch. 549; Parsons v. Lyman, 20 N. Y. 103.) He may sue or be sued in like manner and under like restrictions as any other non-resident. (Gen. Stat., p. 472, § 203; Cady’s Ex’r v. Bard’s Ex’r, 21 Kas. 667.) The rule is not the same, however, as to the possession of the sheriff. His,service of process and seizure of property within this •state would be absolutely void. The laws of Nebraska could give him no power to act in Kansas, and comity does not require any recognition of his powers beyond their territorial limits. Comity is satisfied when it recognizes the validity •of his acts done within those limits. No state can ask that its officers be permitted to serve process within the limits of .a sister state, and no state can recognize as of any validity the seizure of property within its borders by the officers of another sovereignty acting under process from the courts of that sovereignty. Pointing to her territorial boundaries, '“Thus far shalt thou go, and no farther,” is the voice of each state to the officers of every other state. A sheriff in .seizing property is compelling an unwilling transfer, and the •courts of this state can alone compel such a transfer of property within her borders. The adjustment of rights, the settlement of controversies, the forcible transfers of property, must be by the officers of the state, and in obedience to the laws of the state and decrees of its courts. No foreign tribunal can exercise jurisdiction over persons or property within her borders. This is essential to sovereignty; so that if the cattle in controversy were in Kansas at the time of the seizure by the sheriff, such seizure was void, and no title or right of possession passed to him thereby. On the other hand, if the cattle were in Nebraska at the time of the seizure, then his title thereby, became good, and will not be divested by the fact that they /afterward ranged over the line into Kansas. In other words, whatever title was acquired to the property while in Nebraska, under the laws of Nebraska, will be recognized in this state. The title acquired by a levy will be recognized •equally with that acquired by a bill of sale. Generally, one .state recognizes titles and rights acquired and vested in another state to property in that state. There may be some •conflict and some exceptions to this rule, but so far as the ■case at bar is concerned, it rests upon the clearest obligations of comity. “ "Whenever personal property is taken by arrest, .attachment or execution within a state, the title so acquired under the laws of the state is held valid in every other state.” (Story on Conflict of Laws, § 550.)
It becomes important, therefore, in determining whether creditors have acquired any valid liens which they may assert as against the bill of sale, to know whether the levy under the attachment was actually made in Nebraska or Kansas. If the former, the sheriff’s title must be recognized; if the latter, it is of no validity.
There is another question which may arise in the future disposition of this case, which requires notice. As we have seen, this bill of sale, by the laws of Illinois, Nebraska, and Kansas alike, was good inter partes, but, in the absence of record and a delivery of possession, was by the laws of the former state absolutely void as against creditors and subsequent purchasers; while by the laws of Nebraska and Kansas, it would be only prima facie void, and might be upheld as against them by proof of good faith and sufficient consideration. Now the question may arise as to the laws of which state shall control. It is a general proposition that as to personal contracts and contracts concerning movable property, the lex loci contractus governs. In other words, whatever goes to the form, manner of execution, and all other matters affecting the validity of the instrument as a contract inter partes, is settled by the law of the state where the contract is entered into; and such a contract, if valid where executed, will be enforced in the courts of every other state, provided at least the same is not in conflict with the system of jurisprudence, and does not contravene the policy of such other state. As said by Mr. Justice Porter, in Ohio Insurance Co. v. Edmondson, 5 La. 295: “By the comity of nations a practice has been adopted by which the courts of justice examine into and enforce contracts made in other states, and carry them into effect according to the laws of the place where the transaction took its rise. This practice has become so general in modern times that it may be almost stated to be now a rule of international law, and it is subject only to the exception that the contract to which aid is required should not, either in itself or in the means used to give it effect, work an injury to the inhabitants of the country where it is attempted to be enforced.” And in Scudder v. Union National Bank, 1 Otto, 406, the court said: “Matters bearing upon the execution, the interpretation, and the validity of a contract, are determined by the law of the place where the contract is made. Matters connected with its performance are regulated by the law prevailing at the place of performance. Matters respecting the remedy, such as the bringing of suits, admissibility of evidence, statutes of limitation, depend upon the law of the place where the suit is brought.” And where a contract' is made in one state, and valid by the laws of that state, concerning personal property situated in another state, it may well be that the latter, conceding its validity inter partes, shall uphold any of its own laws concerning the effect of that contract upon the rights of third parties domiciled within such state. In pursuance of this, it was early held in this court (Golden, et al., v. Cockril, 1 Kas. 259), that a chattel mortgage, executed and recorded in Missouri according to the laws thereof, upon property situated in this state, was invalid as against creditors here. At the time of such execution and record there was no law in force in Kansas providing for the registration of chattel mortgages, and by the common-law delivery was essential to the validity of such a conveyance as against third parties. Now our statutes provide that a chattel mortgage executed by a non-resident upon property within the state, shall be filed in the county where the property is situate. (Gen. Stat., p. 584, § 9.) So that the policy of this state in reference to the protection of creditors and subsequent purchasers, is now plainly expressed in its statutes. We are not advised by anything in the record as to the laws of Nebraska in this respect, and shall not therefore express any opinion thereon. It may also be remarked, that if the claimants under this bill of sale rest their claims upon the laws of the state where they reside, and where the instrument was executed, they would take nothing1 as against creditors, and they are not prejudiced if the courts of this state enforce as against them the policy of this state as expressed in its statutes, or the laws of Nebraska, where the property was situate at the time of the execution of the bill of sale.
One further matter we shall notice, and then close this opinion. It appears that the claimants under this bill of sale, after taking possession of the property,' shipped it to Chicago, and sold it.. Now the bill of sale having been found to have been only a security, their interest in the property would in no event exceed their advances with interest and cost. Such is certainly the law of Kansas, and such it is believed is the law generally. (See Herman on Chattel Mortgages.) And in determining the remedies under a contract, the lex fori governs. Hence, if they had proceeded in good faith under the statute to advertise and sell the property, after taking it into their possession, their liability would not have exceeded the surplus of the proceeds of such sale above their debt, interest and costs. Having made other disposition, their liability must be the excess of the value of the cattle at the time and place of seizure above such debt and interest. Perhaps a claim for such liability -could be enforced in this action only by a supplemental answer setting forth the facts of such disposition; but if so, leave should be given to file such answer, that the rights of the parties may be finally adjudicated in this action.
We forbear further remarks upon this case, but because the case was not decided in accordance with the views herein expressed, direct a reversal of the judgment, and a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question demanding our attention in this case is, whether a criminal information is sufficient which charges burglary in a store building, but which does not state or show whether the building is owned or possessed by any person or not. The charge is as follows:
On December 7, 1878, in Osage county, Kansas, the defendant “George Fockler did then and there unlawfully, feloniously, and in the night-time, break and enter a certain store situated on the north end of lot number five, in block number seventeen (17), in Witherell’s addition to the town (now the city) of Osage City, in the county and state aforesaid, in which said store there was, at the time of said breaking and entering, kept and deposited a large amount of goods, wares and merchandise, and other valuable things, with the intent then and there to steal, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Kansas.”
This is all there is of the charge; and from it, who can tell who owned the “ store,” or who owned the “ goods, wares and merchandise, and other valuable things,” deposited there in ? We think the name of the owner of the “store” should have been stated in the information. We think the authorities are uniform in holding, that in burglary the name of the owner of the building must be given in the charge, if known, and if not known, then that fact must be set out. See especially, State v. Morrissey, 22 Iowa, 158. And our statutes have nowhere relieved the prosecution from setting out these things, or made the charge good without them. On the contrary, the statutes expressly recognize the necessity for their being fully set out in the charge. Section 106 of the criminal code provides, that “in an indictment or information for an offense committed in relation to property, it is sufficient to state the name of any one, or names of several or joint owners.” (Gen. Stat. 838.) And §124 of the same code provides, that “when any offense shall be committed upon, or in relation to, any personal property belonging to several partners or owners, the indictment or information for such offense shall be deemed sufficient if it allege such property to belong to any one or more of such partners or owners, without naming all of them.” (Gen. Stat. 840.) In the present case, the offense was committed in relation to real estate, and the name of the owner of such real estate should have been given.
The judgment of the court below will be reversed, and cause remanded with the order that the defendant be delivered over to the jailer of Osage county, Kansas, there to abide the further orders of the district court of said county.
All the Justices concurring. | [
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Per Curiam:
The judgment of the district court is reversed, and the case remanded with instructions to sustain the petition in error, and reverse the judgment of the justice of the peace. This decision is made upon the authority of Larkin v. Taylor, 5 Kas. 444, and Scott v. Lingren, 21 Kas. 184. | [
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The opinion of the court was delivered by
Brewer, J.:
Two questions are presented: Did the court ■err in overruling the demurrer to the petition?. Ought the -motion to set aside the judgment, and for a new trial to have ■been sustained?
The action was to set.aside a deed as executed in fraud of .plaintiffs’ rights as creditors; and the objections made to the petition are, that it fails to allege that plaintiffs were creditors at the time of the execution of the deed, and also that the allegations of fraud are in general terms. Neither objection can be sustained. It is true the petition lacks a spe-cific allegation that the plaintiffs were creditors at the date ■of the deed, and also true that the deed antedates the judgment a little — the one January 5, 1878, and the other March 12, 1878; yet the interval is so slight as to create a strong probability that the plaintiffs were in fact creditors at the ■earlier date. But the allegation is also directly made that the deed was executed for the purpose of hindering, defrauding and delaying plaintiffs, and a conveyance is void even against a subsequent creditor, if made with a specific purpose ■of defrauding him.
Ordinarily, mere generality in the allegations is to be remedied by motion, and not by demurrer; and where all essential facts are stated, although in general terms, a demurrer will not lie. Here we see nothing in this respect to justify sustaining the demurrer. The motion to set aside the judgment and for a new trial was on the ground of accident and .surprise. By reason of the absence of defendant’s attorney, jio answer was filed or defense made. Conceding that the showing is sufficient to excuse the defendant, and to cast the-entire blame upon the attorney,- and still we think the ruling-of the district court must be sustained. With her motion was tendered an answer. This answer was not verified, nor is there in the affidavits filed in support of the motion.any allegation that such answer was true. In her affidavit, defendant swears she believes she has a good defense to the action, but whether it is the defense she tenders in her answer or not,'does not appear. Now, before a party against whom a judgment is rendered by default can have that judgment, set aside and be let in to answer, the court must be advised, of the defense which is to be presented, and assured by affidavit or other testimony that such defense is at least believed-, to be true. Otherwise the defendant might delay and put the plaintiff to costs without any just defense to his claim-And the absence of counsel for defendant at -the time of trial, or any other accident, might be productive .of great benefit to defendant.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
On December 4,1871, plaintiff in error loaned one Edward A. Ege $250, and took his note therefor in the sum of $265, payable to Bichard Probasco or bearer, and secured by mortgage. Long after its maturity, and in 1876, several payments having been made thereon in the meantime, plaintiff in error sold the note for its then face value to defendant in error. At the time of such sale he indorsed it, “ Without recourse. — W. L. Challiss.” McCrum sued on the note. Ege plead usury. The plea was sustained, and McCrum recovered $229.90, less than the face value of the note, for which sum he brought this action. A demurrer to the petition was overruled, and this ruling is now presented for review. Can the action be sustained? Of course no action will lie on the indorsement, for by his written contract Challiss expressly declines to assume the liabilities of an indorser. If sustainable at all, it must be as against him as a vendor, and not as an indorser, and upon the doctrine of an implied warranty. The theory of the defendant in error is, that every vendor of a bill, bond or note impliedly warrants that it is what it purports on its face to be — the legal obligation of the parties whose names appear on the instrument; and that the character of the indorsement or the lack of an indorsement in no manner affects this implied warranty. On the other hand, the counsel for plaintiff in error lays down the broad proposition that “there is no such thing as implied warranty in the sale of chattels;”-and that, in the absence ■of express warranty, the maxim caveat empior is of universal application. It is clear that the character of the indorsement cuts no figure in the question';' as stated, no action will lie on it. But further, the restriction is only as to his liability as indorser, and in no manner affects his relation to the paper as vendor. -An unqualified indorsement is the assumption of a conditional liability. The indorser becomes a new drawer, and- is liable on the default of the drawee. “ Without recourse,” does away with this conditional liability. It leaves the indorsement simply as a transfer of title, and the indorser liable only as vendor; yet ]eayeg }jjm a venc¡orj an(J divests him of none of the liabilities of a vendor. It makes the transaction the equivalent of a delivery of paper payable to bearer, and .transferable by delivery. (Hannum v. Richardson, 48 Vt. 508.) Independent, therefore, of any matter of indorsement, what ■implied warranty is there in the transfer of a promissory note? Two things are clear under the authorities: First, that there is an implied warranty of the genuineness of the ■signatures; and second, that there is no warranty of the solvency of the parties. It is unnecessary to more than refer to a few of the authorities upon these propositions: Byles on Bills, pp. 123, 125, and cases in notes; Jones v. Ryde, 5 Taunt. 488; Gurney v. Womersley, 4 El. & Bl. 132; Gompertz v. Bartlett, 24 Eng. Law & Eq. 156; Terry v. Bissell, 26 Conn. 23; Merriam v. Wolcott, 3 Allen, 259; Aldrich v. Jackson, 5 R. I. 218; Lobdell v. Baker, 3 Metc. 469; 1 Addison on Cont., p. 152; Ellis v. Wild, 6 Mass. 321; Eagle Bank v. Smith, 5 Conn. 71; Shaver v. Ehle, 16 Johns. 201; Dumont v. Williamson, 18 Ohio St. 515; 2 Parsons on Notes and Bills, ch. 2, §2. But in the case at bar, the signature of the maker was genuine. The objection is, that it was never his legal obligation to the full amount for which it purported to be. How far is there any implied warranty in this respect ? A reference to some of the leading cases will throw light upon this question.
In Thrall v. Newell, 19 Vt. 203, it appeared that one of the makers of a note was insane. The vendor made a written assignment, in which was a description of the note, and the-court construed this as an express warranty that the instrument was the legal obligation of the apparent makers, and one being incapable of contracting, gave judgment against' the vendor on account of this breach for the amount received-by him. While the judgment of the court is rested upon the fact of an express warranty, the judge who writes the-opinion expresses his individual conviction that the same-result would follow on a mere transfer without any express warranty, and quotes approvingly an extract from Rand’sedition of Long on.Sales,, that “there is an implied warranty in every sale that the thing sold is that for which it was-sold.”
In Lobdell v. Baker, 3 Metc. 469, it appeared that' the-owner of a note procured the indorsement of a minor, and then put the paper in circulation. He was held liable to a-subsequent holder. Chief Justice Shaw, delivering the opinion of the court, says :
“Whoever takes a negotiable security is understood to ascertain for himself the ability of the contracting parties, but' he has a right to believe, without inquiring, that he has the-legal obligation of the contracting parties appearing on the bill or note. Unexplained, the purchaser of such a note has-a right to believe, upon the faith of the security itself, that it is indorsed by one capable of binding himself by the contract which an indorsement by law imports.”
. In Hannum v. Richardson, 48 Vt. 508, a note was given for liquor sold in violation of law, and was by statute void. Defendant knew its invalidity, transferred it by an indorsement without recourse, and he was held liable to his vendee.
In Delaware Bank v. Jarvis, 20 N. Y. 226, a usurious note was sold, and the vendor was adjudged liable, not merely for the money received by him, but also the costs paid by his vendee in a suit against the makers of the note. In the opinion, Mr. Justice Comstock uses this language:
“The authorities state the doctrine in general terms that the vendor of a chose in action, in the absence of express-stipulation, impliedly warrants its legal soundness and valid ity. In peculiar circumstances and relations, the law may not impute to him an engagement of this sort. But if there are exceptions, they certainly do not exist where the invalidity of the debt.or security sold arises out of the vendor’s own dealing with or relation to it. In this case, the defendant held a promissory note which was void, because he had himself taken it in violation of the statutes of usury. When he sold the note to the plaintiffs and received the cash therefor, by that very act he affirmed in judgment of law that the instrument was nnattainted so far at least as he had been connected with its origin.”
In Young v. Cole, 3 Bingham (N. C.), 724, certain bonds were sold as Guatemala bonds, which turned out afterward to be lacking the requisite seal, and the vendor, though ignorant of the defect and innocent of wrong, was compelled to refund the money. The thing in fact sold was not the thing supposed and intended to be sold.
In Gompertz v. Bartlett, 24 Eng. Law and Eq. 156, the plaintiff discounted for the defendant an unstamped bill, purporting on its face to have been a foreign bill, drawn at Sierra Leone and accepted in London, but which was in fact drawn in London. If actually a foreign bill, it required no stamp, and was valid; but being an inland bill, it required a stamp to make it a valid bill in a court of law. The acceptance was genuine, and the acceptor had previously paid similar bills. But the acceptor becoming bankrupt, the commissioner refused to allow it against his estate because not stamped. Thereupon plaintiff, who had sold the bill, and been compelled to take it up, brought his action to recover the price he had paid for it, and the action was sustained. Lord Campbell, before whom the case had been tried, and who then held adversely to the plaintiff, said:
“I then thought that the rule caveat emptor applied; but after hearing the argument and the authorities cited, I think the action is maintainable, and upon this ground: that the article sold did not answer the description under which it was sold. If it had been a foreign bill, and there had been any secret defect, the risk would have been that of the purchaser; but here it must be taken that the bill was sold as and for that which it purported to be. On the face of the bill it purported to be drawn at Sierra Leone, and it.was sold as answering the description of that which on its face it purported to be. That amounted to a warranty that it really was of that description.”
In Ticonic Bank v. Smiley, 27 Me. 225, an overdue note was transferred with this indorsement, “Indorser not holden;” yet it was decided that the indorser was liable to his vendee for any payment made on the note before the transfer, or any set-off existing against it of which the note gave no indication and the vendor no information.
In Snyder v. Reno, 38 Iowa, 329, it was held that there is an implied warranty that there has been no material alteration in the paper since its execution. The court says: “We have no doubt that there is an implied warranty of the transferrer that there is no defect in the instrument, as well as that the signature of the maker is genuine.” See also, Blethen v. Lovering, 58 Me. 437; Ogden v. Blydenburgh, 1 Hilton, 182; Fake v. Smith, 2 Abb. (N. Y.) App. 76; 2 Parsons on Notes and Bills, ch. 2, § 2, and cases in notes; Terry v. Bissell, 26 Conn. 23; 1 Daniels on Neg. Instruments, § 670.
In this, the author thus states the law: “When the indorsement is without recourse, the indorser specially declines to assume any responsibility as a party to the bill or note; but by the very act of transferring it, he engages that it is what it purports to be — the valid obligation of those whose names are upon it. He is like a drawer who draws without recourse; but who is neverless liable if he draws upon a fictitious party, or one without funds. And, therefore, the holder may recover against the indorser without recourse, (1) if any of the prior signatures were not genuine; or, (2) if the note was invalid between the original parties, because of the want, or illegality of, the consideration; or, (3) if any .prior party was incompetent; or, (4) the indorser was without title.”
These authorities fully sustain the ruling of the district court. The note was not the legal obligation of the maker to the full amount. As to the usurious portion, it was as it were no note. This was a defect in the very inception of the note. It was known to the vendor and arose out of his own dealings in the matter. By all these authorities there is an implied warranty against such a defect, and the vendor is liable for a breach thereof.
The suggestion of counsel that the change in the usury law, by the legislation of 1872, affected the right of recovery upon the note, has been already decided adversely, in the case of Jenness v. Cutler, 12 Kas. 500.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action to recover money claimed-to be due on a contract for the sale of land. That a contract-was entered into, is undisputed; but the defendant denies-that it was its contract — that it ever authorized such a contract in the first instance, or ratified it after it was made.. The contract, which was in writing, purported to sell a certain quarter-section of land to defendant for $7,500, to be paid as follows: $500 cash, $500 in sixty days, $1,500 in six months, $2,500 in eighteen, and $2,500 in thirty months from date. By the terms of the contract, the possession of said premises was given to the defendant; but, in consideration that the defendant should not be required to pay interest on the deferred payments, defendant agreed that one LeRoy D. Stone, the tenant (and son-in-law) of the plaintiff,, should continue to occupy, for farming purposes only, so much of said premises as he then cultivated, until March 1, 1877, the defendant “reserving to itself at all times the right to enter-said land for the purpose of mining the same.” The parties to said contract were named therein as Jeremiah B. Durham-on the one part, and the Carbon Coal and Mining Company on the other part, and the contract closed and was signed in. the following form, to wit:
“ In witness whereof, the said parties to these presents have hereunto set their hands and seals. . Dated the day and year first above written.
J. B. Durham. [Seal.]
Carbon Coal and Mining Company,
By T). F. Blandin, President„
By T. J. Peter.”
This contract was acknowledged before H. C. Williams, a notary public of Shawnee county.
The contention of the defendant is, that the president could not bind the company by a contract of purchase; that if he could, he could not delegate the power to a third party; and that the company never ratified this unauthorized contract.
The case was tried by the court without a jury. No find ings of fact or conclusions of law were asked for or made. There was a general finding and judgment in favor of the defendant. The whole evidence is preserved, and the question is, whether upon such evidence the plaintiff was entitled to a judgment. We need only advert to the oft-repeated ..ruling of this court, that all presumptions are in favor of the judgment, and that all doubtful questions of fact are solved by the decision of the trial court. So that the question is not whether upon the testimony a jury might be warranted in a verdict for the plaintiff, but whether such testimony compels a decision in his favor. In this case the defendant offered no testimony. It rested its case upon the evidence offered by the plaintiff. A part of this evidence was in deposition or other writing, and a part was the oral testimony of defendant’s officers. If a case rested wholly in written evidence, whether document or deposition, it would come before us for examination in about the same attiAide as before the trial court, and questions of fact might be fully and correctly examined and determined by this court. And where testimony is drawn from the lips of a party or his agents, no wrong will ordinarily be done such party if the testimony so given be accepted as true. A party’s admissions are good against him; so is his testimony. And wh'ere a party, like the defendant here, acts only through agents, the testimony of those agents while still in its employ as to acts done by them as agents, especially when they are largely interested as owners or stockholders, partakes something of the nature of personal admission or testimony. And further, when upon the record there appears no conflicting testimony, and it is apparent that it was accepted as true by the trial court, this court may properly act upon the same understanding, and inquire whether the law was by the judgment correctly applied to the facts. (Rumsey v. Schmitz, 14 Kas. 547.) In this case there is very little conflicting testimony. Much of it is in deposition or other writing, and most of it comes from the lips of defendant’s agents and employés. Evidently, about the facts there was little doubt or dispute, and the real question was and is, whether upon those facts the plaintiff was entitled to recover.
Conceding that the mere execution of this instrument did not make a binding contract through want of authority in Peter to bind the defendant, still we think upon all the facts the court should have found that the defendant was liable. The agreement was one which the defendant could unquestionably have enforced against the plaintiff. Even though made on the part of the defendant by an entire stranger, the defendant could at once have accepted the benefit of the contract, and the plaintiff could not then have pleaded the original want of authority in the stranger; and any conduct which as against an individual would establish acceptance, will also as against the corporation. The old idea that a corporation would be bound only by a contract under seal, has long since been done away with. The vast amount of business now being transacted by such organizations, has compelled the application of more liberal rules. And now, no corporation any more than an individual can experiment with a contract, take possession of the property contracted for, test its value, and then repudiate on the ground that no separate agent acting in the premises had full power to bind the corporation by the purchase.
In Green’s Brice’s Ultra Vires, 463, will be found the following language:
“It must also be remembered that the tendency of modern judicial interpretation and legislation has been to waive needless formalities, and that consequently at the present many agreements are held binding on corporate bodies, even without, ratification, which a few years since would, from technical reasons, not have been so.”
And on page 379, is this:
“Within certain limits, it would also seem that corporations by acting upon, without expressly ‘ratifying’ a contract — not necessarily relating to a subject essential to their existence — which does not bind them for want of sealing, may so far adopt it as to reader themselves liable to an action either for use and enjoyment or upon the common counts,the nature and extent of their liability being estimated by a reference to the terms of the invalid agreement. It may, perhaps, be considered that the corporation has thereby actually ratified the agreement in question, but it would probably be the simpler and more reasonable explanation to say that the corporation by so acting is estopped from subsequently repudiating and denying the transaction.”
Now it appears in this case that Peter was largely interested as a stockholder in the defendant corporation; that he had been instrumental in securing other lands for the defendant'; that Blandin was president and a director, (the board of directors consisting of five members, two of whom were non-residents of the state, and seldom present); that Peter and Blandin consulted together, and decided that it was advisable for the corporation to purchase this land, and in pursuance thereof Peter sought the plaintiff and persuaded him to enter into the contract; that the negotiations therefor were had in the office of the defendant; that the contract was made in the name of the defendant, and was executed by one assuming to have authority to bind the defendant; that the sum of $500, the cash payment, was at the time made by Peter, by giving his individual check, and that this sum thus advanced was returned to him by the check of the treasurer, also a director, under instructions from the president, and the amount allowed by the board in their settlement with the treasurer; that the defendant took possession of the land, and sent employés thereon to prospect for coal, sinking several prospect-holes therefor; that the vein not proving as thick as was expected, about a month thereafter Peter sent to plaintiff an open letter, by the hands of the president, in which he, admitting the purchase, states that it was made on account of representations as to the coal which had proved untrue, and that therefore the land was not wanted, and urges an arrangement of the matter in a Christian spirit; that after the sending of this letter, the company continued for a short time its work on the farm, and that there never has been any express disaffirmance by the directors of this purchase. It also appears that at the next annual meeting after this controversy, the by-laws of the corporation were amended by adding this provision: “And all purchases and leases of real estate by the officers of this company shall be approved by the board of directors before the same shall be binding upon this company;” and thereupon the board proceeded to formally approve several contracts made by Peter and assigned to the company, and some by whom made does not appear.
In the light of these facts, can it be doubted that the corporation accepted this contract? "We think not. Take the matter of payment: A contract is made in which it is named as a party purchasing a certain tract of land; it is made by its principal stockholder upon consultation j£g executive officer. Upon the face of the paper it is entitled to the deed, and is obligated for the price. In the absence of the officers, the stockholder advances the fh’st payment of $500. The president directs the treasurer to refund this money, and the treasurer does so. Both the president and treasurer are directors, and the two are a majority of the resident directors. The • treasurer reports his action to the board, and his action is approved. What is approved? — a donation of $500 of corporate money, or a first payment on the contract? Can directors give away corporate funds? Would not that be a clear violation of official duty? Otherwise than as a first payment on and acceptance of the contract, this appropriation of $500 to Peter was as clear a wrong upon the corporation as an embezzlement of like amount by the treasurer or other officer. No such imputation of wrong should be made. Again, the appropriation did not purport to be a donation. The president did not direct the treasurer to make a donation to Peter, neither did the treasurer intend a donation. Each knew that Peter had advanced money for the corporation, and each intended a reimbursement of that money. In so reimbursing they ratified the act and the whole act, and when the board approved, they •approved it as a whole. This act of the board was either a gross perversion and misappropriation of corporate funds, or a recognition of the act of Peter as an act of the corporation. It will not do to say that the corporation may accept in part and reject in part. Like any other principal, it accepts or ■rejects in toto. Neither was there anything to indicate an •attempt to accept a part and reject the rest. The appropriation, was not accompanied by any disaffirmance of the act. It may be conceded that a corporation, like an individual, may ■compensate a third party for losses in doing an unauthorized .act, without assuming responsibility for the act. It was within the power of the corporation to pay Peter $500 without ratifying the contract or assuming the liability which he had attempted to incur for it. But it must do something to evince such an intention — it must show that it repudiates his act while it compensates him for his loss. If it simply return to him the money he has assumed to advance for it, it implies an assumption of the act. Here the return was made without •any limitation or qualification, and evidently the first thought was to avoid the contract, not on the ground that it was not the contract of the corporation, but on the ground of the •misrepresentations of the vendor.
Again, take the matter of possession. Delivery of pos•session has been said to be sufficient part performance to take a parol contract for the sale of lands out of the statute of frauds. (Edwards v. Fry, 9 Kas. 423.) And this is upon the •ground that the entry into possessipn is, unless supported by the contract, a trespass subjecting the party entering to an action for damages. In like manner the entry into posses•sion and sinking of prospect-holes is consistent only with an acceptance of the contract. In any other light, it was a flagrant trespass. It implied an intent to commit a gross invasion upon the righ'ts of Durham; an invasion which unless withstood, might ripen into a title by the mere lapse of time. It either entered under the contract or committed a trespass. 'The inference from the act is, that it intended the former Tather than the latter. Just as when a lease is prepared and signed by the lessor, if the lessee with full knowledge thereupon enters and takes possession of the premises, the law implies an acceptance of the lease, and that he is bound by its terms; and the burden is on him to show the contrary,, and that he entered in defiance of the lease and in disregard of the lessor’s rights. Taking possession is prima facie an acceptance of any right to enter which is shown to exist, and when a party may rightfully enter and does enter, the implication will be that the entry was rightful and not wrongful. In the case of London, &c., Rly. Co. v. Winter, 1 Cr. & Ph. 57, the entering into possession of land and constructing-a railroad over it was adjudged an acceptance of a contract for its purchase, and avoided the necessity of any inquiry into the power of the agent to make it. In Shaver v. B. R. & M. Co., 10 Cal. 396, the manager of a mining company purchased in the name of the corporation a house to be used as an office for the corporation and a boarding-house for it& laborers. He took possession, and subsequently several meetings of the trustees were held in the house. At one of these-meetings a resolution was offered and rejected, declaring the contract legal and binding. No other vote or action of the-trustees was shown. In a suit for the balance of the purchase-money, it was held that if the authority of the manager to make the purchase were doubtful, the acts stated amounted to a ratification. The court remarked that “the-entry of the resolution was a very singular mode of repudiating a contract. It would have been more in accordance with correct notions of propriety and justice if a resolution, refusing to accept a contract had been passed, accompanied .by an offer to cancel the deed, which had not been recorded,, and return the property of which they were in possession.” See also, Moss v. Averell, 10 N. Y. 449; Church v. Sterling, 16 Conn. 388; Chicago B. Soc. v. Crowell, 65 Ill. 453; Wilson v. W. H. H., &c., Co., 2 DeG. J. & S. 475; 34 L. J. Ch. 241; Crook v. Corporation of Seaford, L. R. 6 Ch. 551.
Again, take the failure to disaffirm the contract. It was-made in the name of the corporation, and knowledge of its- terms was possessed by a majority of the resident directors, yet there is no disaffirmance of the act of Peter. Indeed, the only thing attempted was rescission, and not disaffirmance; and rescission implies an existing contract to be rescinded. It is the duty of a principal, when aware that one is assuming as agent to contract in his' behalf, to deny the power and disown the act, and a failure to do this will often work an affirmance of the power and a ratification of the act. In Kelsey v. National Bank, 69 Pa. St. 426, upon a robbery of the bank, the cashier, with the concurrence of a minority of the directors, offered a reward. The majority of the directors resided in the city, became aware of what had been done, and took no steps to disavow the act, and it was held that the bank was liable. (Reuter v. Electric Tel. Co., 6 El. & Bl. 341, Q, B.; 26 L. J. Q. B. 46; Bredin v. Dubarry, 14 S. & R. 30; Gordon v. Preston, 1 Watts, 387; Browning v. G. C. M. Co., 5 H. & N. 856; 29 L. J. Ex. 399.)
We might extend this opinion, noticing other matters in the conduct of the corporation, but they would be simply in the same line of thought. We are clearly of the opinion that the testimony shows an acceptance of the contract, and that therefore the district court erred in its findings for the defendant. See further, upon the questions in this case, Howe v. Keeler, 27 Conn. 538; Krider v. Western College, 31 Iowa, 547; Ins. Co. v. De Wolf, 8 Pick. 56; E. Rld. Co. v. Benedict, 5 Gray, 561; Olcott v. Tioga Rld. Co., 27 N. Y. 546; Phosphate of Lime Co. v. Green, L. R. 7 C. P. 43; Moss v. Rossie Lead Co., 5 Hill, 137; Green’s Brice’s Ultra Vires, chapters 3 and 6.
The judgment of the district court will be reversed, and the case remanded with instructions to grant a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
David Smolinsky brought this action against the Federal Reserve Life Insurance Company to recover upon a judgment which had been rendered in his favor against the insurance company by a circuit court of Missouri. The trial in the Kansas court resulted in a judgment for defendant, from which plaintiff appeals, alleging error in the admission of evidence and errors in the findings of fact and conclusions of law.
The plaintiff was a druggist doing business in Kansas City, Mo. A Mr. Hammond and Mr. Rice came to his store on August 9, 1923, and solicited two sons of plaintiff to take out policies of insurance in the defendant company, which they did. Later they interviewed the plaintiff and procured him to contract for insurance with the defendant. He paid part of the first premium in cash and gave his note to the defendant for the balance. The following day a medical examiner of the defendant appeared at plaintiff’s store in Missouri and examined the plaintiff, as well as his two sons, and recommended the acceptance of the risk. A day or so later Hammond and Rice brought and delivered a policy to the plaintiff. Learning that the defendant was not authorized to do business in Missouri, and because of alleged misrepresentations in obtaining the contract, plaintiff brought an action in the circuit court of Jackson county, Missouri, against the defendant to recover back the premium he had paid on the policy. Summons was issued, which was served upon W. H. Gregory, the president of the insurance company and finally a judgment was rendered in favor of the plaintiff against the company for $676.90. In filing his petition the plaintiff attached a duly authenticated copy of the judgment, and that judgment was made the basis of the present action. In this action the defendant contested the Missouri judgment upon the ground that it was a nullity, in that the Missouri court had not acquired jurisdiction over the defendant, that a false return of the summons had been made by the sheriff as to the service upon Gregory, the president of the defendant. It appears that Ira B. Burns, an attorney of the defendant, appeared and moved to quash the service, and later, upon a motion of plaintiff to allow the sheriff to amend his return, he appeared again, but he said that he was then representing the sheriff. The motion to amend was allowed, and the following is the return as amended:
“Executed the within writ February 12, 1925, in Kansas City, Jackson county, Missouri, by delivering a copy of the same, together with a copy of the petition in the cause, to W. H'. Gregory, president of the defendant corporation, which corporation is not incorporated by virtue of the laws of this state, and not authorized to do business in this state by the superintendent of insurance; that said W. H. Gregory has, during the years 1923 and 1924, and is still, soliciting insurance in the state of Missouri on behalf of said corporation, and has made contracts of insurance and collected and received premiums for insurance in the state of Missouri, on behalf of said corporation, and has aided and assisted in said acts, for and on behalf of said corporation.”
No appearance was made in behalf of the defendant when the case was finally tried and the judgment rendered. In this action the court found among other things that the defendant is a Kansas corporation doing a life insurance business; that it had no author ity to do business in Missouri, and had not appointed any agent to represent it in Missouri; that it had appointed W. H. Gregory as state agent for Kansas, and that he had organized the Federal Agency Investment Company, and that all of the solicitation for insurance for the defendant was done by the agency company, and that .the agency company was not authorized to solicit business in Missouri. It was further found that a man named Bantleon, who had been a salesman for a wholesale drug concern and had acquaintances among the druggists, including the plaintiff, became a solicitor for the agency company, and that contrary to instructions he had solicited insurance among his druggist friends in Missouri; but that neither the defendant nor the agency company knew of this action before the transaction in question. That other like poaching was intermittently done in Missouri, but was done without authority of defendant. Bantleon, it was found, was a new man, and for that reason was accompanied by trained solicitors when he was doing business for the company, and at his request medical examiners went to Missouri to examine applicants; that when prospective risks were accepted by the defendant it paid the medical examiner’s fees. It was found that the plaintiff’s risk was accepted in Kansas, and the policy issued there, but that it was delivered in Missouri. There was a finding that after the policy was issued W. H. Gregory was elected president of the defendant company, and that summons was served upon him while he was in Missouri attending his son’s wedding; and further that he had transacted no business in Missouri. Ira B. Burns, attorney for defendant, it was found, had appeared and moved to quash the service of summons, but that this motion was withdrawn, and that on the motion to amend the return his appearance was made in behalf of the sheriff. The conclusions of the court were in effect that the defendant had not done business in Missouri so as to be amenable to service of process there; that the suit not being based upon a contract of insurance, the Missouri court could not acquire jurisdiction of defendant by virtue of a service under section 6312 of the Revised Statutes of Missouri of 1919; that the denial of plaintiff that a valid contract of insurance had been made rendered the service void under the Missouri statute mentioned, and therefore the judgment rendered was void. That the service made on Gregory and the judgment rendered did not constitute due process of law under the federal constitution, and further that the judgment was not entitled to full faith and credit in Kansas.
Plaintiff complains of the ruling of the court in permitting the defendant to contradict the return of the sheriff who made the service on the defendant. The return on its face is regular, and the court of Missouri, after an examination, determined it to be a valid service. In that state the courts have uniformly held that the return of a serving officer, regular on its face, showing the facts and mode of service, is conclusive on the parties and that its truth can only be contraverted in a direct action against the sheriff for a false return. It was said:
“That this rule of law is founded in the necessity of the case, . . . [and that] ‘to permit the parties to an action to contravert the truth of the return of the officer deputed by law to serve the process, would produce great delay and embarrassment in the administration of justice.’ ” (Newcomb v. Railroad, 182 Mo. 687, 704.)
See, also, Realty Co. v. Packing Co., 112 Mo. App. 271, and authorities therein cited.
Again, the Missouri court received evidence upon the motion relating to the service of the summons, and upon these determined that the service was sufficient to vest the court with jurisdiction of the defendant and to give it authority to proceed to judgment. The finding of fact upon testimony is conclusive evidence of the fact and of jurisdiction. (In re Wallace, 75 Kan. 432, 89 Pac. 687; Miller v. Miller, 89 Kan. 151, 130 Pac. 681; Barnes v. Brownlee, 97 Kan. 517, 155 Pac. 962; Smith v. Young, 136 Mo. App. 65.) Recitals in the return of a sheriff as to matters not within the knowledge of the sheriff are not conclusive upon the parties, but it is well settled in this state that recitals within his personal knowledge are not open to contradiction or to be disproved by extrinsic evidence after the rendition of judgment. (Goddard v. Harbour, 56 Kan. 744, 44 Pac. 1055; Orchard v. Peake, 69 Kan. 510, 77 Pac. 281; Ericson v. Charles, 108 Kan. 205, 194 Pac. 652; Duke v. Central State Bank, 120 Kan. 99, 242 Pac. 471.) It will be observed that the return shows personal service on W. H. Gregory by the delivery of a copy of the writ and of the petition in the cause. It is conceded that Gregory was the president of the company when the service was made. Mention was made of the fact that he was in Missouri attending the wedding of his son, but there is no claim that he was inveigled by plaintiff to go to Missouri in order that service upon him might be obtained, and it does not appear that there was any fraud in accomplishing the service. The return showed that service was made in compliance with the statutes of Missouri, and as the return contained the statutory requisites for a valid service it was not open to contradiction. The additional facts stated in the return relating to the solicitation of insurance in Missouri without authority, and which might not be within the personal knowledge of the officer, must be regarded as surplusage. In no way do they qualify the essential recitals showing a legal service. The return, therefore, was not open to contradiction, and was conclusive on the parties in that suit. Its truth, if questioned, can be controverted only by an action against the officer for a false return. It is the duty of our courts to give full faith and credit to judgments rendered by a superior court, and we are required to give the judgment the same effect in all respects as is given it in the state where it was rendered. (Bleakley v. Barclay, 75 Kan. 462, 89 Pac. 906.)
On the facts in the record not open to dispute, it is clear that the Missouri court had jurisdiction to render the judgment involved in this action, and that it was not open to the attack made upon it by the defendant.
It is unnecessary to consider some other questions raised by the plaintiff. The judgment of the district court is reversed and the cause remanded, with directions to enter judgment for the plaintiff. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action against the board of county commissioners of Montgomery county by the owners of a forty-acre tract of land for damages.to their land by reason of a road being constructed through it without their consent, thereby depreciating the value of the land not taken. The demurrer of the defendant-board to this petition was overruled, from which ruling the board appeals.
The petition, after alleging ownership and giving description of the land, alleges in substance that the defendant board has trespassed upon their land, taken possession of it, and built a public highway thereon without the consent of the owners and without following the statute for such purpose, cutting the land into two irregular fields; that in constructing such road and the ditches meandering the same the defendant has interfered with the means of draining such land, so that the land can scarcely be drained at all; that by failing to leave sufficient outlets for surface water, the value of the land has been decreased; and that “as a result of the conduct and doings on the part of the defendant . . . the farm is worth less by $3,000 what it would be if it were not for such road and ditches . . . having been built by the defendant, the board of county commissioners of Montgomery county, Kansas.”
These allegations are trespass, taking possession without consent of owner, building public highway and ditches without following the statute, causing injury to land by cutting it in two irregular pieces, and constructing road and ditches improperly and failing to leave proper outlets, thus interfering with.drainage, all to the damage of the owners and depreciation of the value of the land. These are allegations in tort, consisting of alleged wrongdoing and failure to follow the statute by getting the consent of the owner. The latter is as much a wrong as the former. The failure to do something required is a wrong or tort. If this action is not a tort, what is it? If we eliminate from the petitiqn all the language alleging tort we have insufficient left to constitute a cause of action; so we are compelled to conclude it is an action in tort.
It will be observed that the individual members of the board are not made defendants. The only defendant is the board of county commissioners of Montgomery county. The board of county commissioners is never liable for wrongdoing except as made so by statute.
“Counties are involuntary quasi corporations and are mere auxiliaries to the state government and partake of the state’s immunity from liability. They are in no sense business corporations.
“A county is not liable in damages for the negligent or wrongful acts of its board of county commissioners, unless such liability is expressly imposed by statute or necessarily implied therefrom.” (Silver v. Clay County, 76 Kan. 228, syl., 91 Pac. 55.)
This rule applies to the construction and maintenance of highways. (Anderson v. Cloud County, 90 Kan. 15, 132 Pac. 996; Gratney v. Wyandotte County, 111 Kan. 160, 207 Pac. 209.) In the former case it was held that the petition did not state a cause of action when it asked pecuniary damages for the removal of a bridge, because the law does not impose upon the county an obligation to respond in damages for wrongful acts committed by its governing board.
In Thomas v. Ellis County, 91 Kan. 443, 138 Pac. 409, the statute was not followed, as alleged in this case, which resulted after six years in a decision that the proceedings were irregular and void. Then the landowner filed his claim for damages and instituted proceedings to recover the same, and the court held:
“In the absence of some statutory provision, a county is not liable to a landowner for damages for the use of land attempted to be appropriated for a public highway, the proceedings to establish which are subsequently held to be illegal and void.” (Syl. fl 2.)
We have two Kansas decisions where the damages claimed are as alleged in this case — interfering with drainage. In one of them the county constructed a bridge across a stream in such a manner that the abutments to the bridge obstructed the flow of the water and caused it to overflow adjacent land and damage the crops. It was there held that the county was not liable. (Shawnee County v. Jacobs, 79 Kan. 76, 99 Pac. 817.) The other is a case from Montgomery county where the board cut an artificial embankment in a drainage district and put in it a floodgate. The floodgate was alleged to have been defective or to have failed to accomplish the purpose intended. The court held the county could not be held liable for the injury to adjacent landowners and the destruction of their crops. (Woolis v. Montgomery County, 116 Kan. 96, 226 Pac. 244.)
We conclude that the petition might state a good cause of action in tort against an individual or corporation, but not against a county, which is a quasi corporation, an auxiliary to the state government, unless the liability is expressly imposed by statute or necessarily implied therefrom. No such statute is pointed out and we know of none that covers the complaint herein made.
Appellees refer to the fact that the kind of damages alleged in their petition were allowed and approved in Smith v. Wyandotte County, 113 Kan. 244, 214 Pac. 104, and in In re Sidles, 125 Kan. 1, 262 Pac. 550, but both such cases were appeals from awards in condemnation proceedings. The nature of the action and proceeding is the difficulty here, rather than the elements of damage. The demurrer of the county to the petition should have been sustained.
The ruling on the demurrer to the petition is reversed and the cause remanded with instructions to sustain the demurrer. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action by the lessor against the lessee to recover damages for the abandonment- of the leased premises and refusal to pay the rent for the last two years and more .of a five-year period covered by the lease. The defendant answered, admitting the execution of the lease and the occupancy of the premises thereunder for nearly three years, but alleging that the lease was surrendered by defendant and accepted by plaintiff; that the lease was for a specific purpose prevented by law; that the action was prematurely brought; and that the defendant had a right to credit for an exclusive option. The defendant also counterclaimed for one month’s rent paid by mistake. The demurrer of plaintiff to the answer was sustained, and defendant appeals.
In the first place, it is claimed by appellant that this action is prematurely brought, inasmuch as it was commenced five months before the five-year period covered by the lease expired. The determination of this question, which, with other questions, was raised by demurrer to the petition, will effectually dispose of some of the other questions discussed in the briefs of both parties. Where there is a breach of the terms of the lease and an abandonment of the leased premises, as in this case, the lessor, if he does not accept the surrender of the lease, has several different remedies.
“Where there has been a renunciation of an executory contract by one party, the other party has a right to elect between the following remedies: (1) To rescind the contract and pursue the remedies based on such a rescission. (2) To treat the contract as still binding and wait until the time arrives for its performance, and at such time to bring an action on the contract for breach. (3) To treat the renunciation as an immediate breach and sue at once for any damages, he may have sustained.” (13 C. J. 653.)
The petition in this case set out just what was done by each party, including the notice of renunciation by the defendant, abandonment of the premises, notice by plaintiff that defendant would be held responsible to the end of the term, a copy of the lease, the reletting of the premises to the best advantage possible, and the giving of credit to defendant for such rent to the end of the term, and concluding that plaintiff “has been damaged in the sum of ten hundred eighty dollars, with legal interest,” etc.
The appellant’s contention that the action is prematurely brought depends upon whether the plaintiff’s petition is one to collect the rent under the terms of the lease, which was payable monthly in advance, or one for damages for the breach of a contract. If it is for the collection of rent, of course it is prematurely brought as far as the last five months are concerned; but the allegations of-the petition show plainly that it is to recover damages for breach of contract, even if the damages are measured by the amount of rent due under the lease. If it is for damages, it'is not prematurely brought. Such an action can be commenced immediately upon the breach and abandonment and covers the damages to the end of .the term covered by the lease.
“Where a party bound by an executory contract repudiates his obligation before the time for performance, the promisee has, according to the great weight of authority, an option to treat the contract as ended so far as further performance is concerned, and to maintain an action at once for the damages occasioned by such anticipatory breach. The rule is the same whether the contract is wholly executory or has been partially executed.” (13 C. J. 651.)
Appellant contends that by the reletting of the premises by the lessor after the surrender of the lease by the lessee, as shown by the petition, the surrender of the lease was accepted by the owner and the defendant was thereby relieved from further liability thereunder. Cases are cited where this is the rule, particularly where eviction has been had or some other steps taken to completely exclude the lessee, which are inconsistent with the theory of abandonment. Appellant points only to the fact of reletting. The lessor in this case might have permitted the property to remain unoccupied and claimed the entire amount of rent due under the contract as damages for the breach; but if he does reenter and occupy or relet the property, it is his duty to reduce the damages as much as can reasonably be done. (40 A. L. R. 190, 197.) Under no circumstances does the reletting, in and of itself, amount to a consent to the surrender or an acceptance of the surrender.
“Surrender by a tenant must have the consent of his landlord in order that the tenant may be discharged from liability to pay rent.
“Consent of the landlord is not implied from the mere fact of a reletting, or from failure to notify the tenant of a reletting, and notice to the tenant of a reletting is not essential in order to prevent surrender by operation of law.” (Hoke v. Williamson, 98 Kan. 580, syl. ¶¶ 1, 2, 158 Pac. 1115.)
The case of Engstrom v. Tyler, 46 Kan. 317, 26 Pac. 735, cited by appellant, was a suit for rent unpaid, and the abandonment, surrender, and acceptance are all set up in the answer with such allegations and statements as to imply an acceptance of the surrender in addition to reletting — among other statements, the collecting and retaining the rents without allowing credit or accounting for them. The case at bar has no such elements in it. In this case it is urged that the reletting implied acceptance. We do not think so; neither do we think it was necessary to notify the lessee that the place was being relet. (Brown v. Cairns, 63 Kan. 584, 66 Pac. 639.)
Appellant argues that the lessee is excused from performance in this case because of the enactment of a city ordinance which caused the lessee to discontinue the use of the premises for the purposes intended. The lease itself does not show the intended use, unless inferentially from the following expression: “Together with the exclusive rights for the sale of gasoline and oils on the said lot and location.” The property leased was a small room 19 by 11 feet in the front of a building on lot No. 80 on Seventh street in Salina. From the pleadings we learn that the defendant operated a curb pump in connection with the small room or office. About two years after the making of such lease the board of commissioners of the city of Salina enacted an ordinance prohibiting the use of curb pumps within the fire limits of the city, which included this location, and gave twelve months to remove the same. The defendant surrendered its lease and abandoned the premises shortly before the expiration of such period, and urges that it should not be held liable because of this ordinance, over which it had no control and which compelled an abandonment of the curb-pump business. In this connection it must be stated that no reservation is contained in the lease itself. We cannot concur in this claim that the lessee is excused by the impossibility of performance, notwithstanding the occurrence of the contingency was not within the control of the lessee except by providing against it in the lease. In Drug Supply Co. v. Board of Administration, 106 Kan. 256, 187 Pac. 701, a drug com pany contracted to furnish certain supplies, but discontinued because its creditors put it into the hands of a receiver, who sold the assets under' an order of court. The court held this was not a defense to an action for damages for breach of the contract.
“An action for the breach of an agreement to find a purchaser for a tract of land at a fixed price, within a stated time, cannot be defeated by showing the impossibility of procuring such a purchaser.” (Hurless v. Wiley, 91 Kan. 347, syl. ¶ 2, 137 Pac. 981.)
“The fact that the lands described in the memorandum were Indian lands held in trust for the allottees, who were members of the tribe of Pottawatomie Indians, and that under an act of congress and the terms of the trust patents issued for said lands, any conveyance or contract with reference thereto is declared to be absolutely null and void, will furnish no defense to an action for damages for breach of a contract by the defendant to sell and convey such lands.” (Hampe v. Sage, 87 Kan. 536, syl. ¶ 3, 125 Pac. 53. See, also, Carter v. Wilson, 102 Kan. 200, 169 Pac. 1139; Winfrey v. Automobile Co., 113 Kan. 343, 214 Pac. 781.)
“A tenant is not relieved from liability to pay rent by the fact that the premises were leased for the transaction of the liquor business exclusively, and after several years of enjoyment the sale of liquor became unlawful.” (22 A. L. R. 819.)
But it is contended that the allegations of the answer show the exclusive and intended use, and the defendant should have been permitted to make such proof as a defense. That does not seem to be the rule in Kansas where the contract itself is clear and not ambiguous. There is nothing in the contract limiting or prescribing the use of the room rented. If the lessee could not use it for one purpose it had a wide field for the use of it otherwise.
“Where a contract is clear and unambiguous in its terms, it is the best evidence of the intention and agreement of the parties, and an allegation in a pleading thereon that the parties by that agreement intended something different from the plain import of its language, may, at least when there is no claim of mistake, fraud, or imposition, be disregarded.” (Bobb v. Bancroft, 13 Kan. 123, syl. ¶ 2. See, also, Drake v. National Bank, 33 Kan. 634, 7 Pac. 219.)
Another point raised is the measure of damages, if any, to which the plaintiff may be entitled. Appellant quotes 35 C. J. 1195 to the effect that the measure is the difference between the rent stipulated in the lease and the actual value for the balance of the term. This same section further adds:
“In some cases it has been held that the lessor is entitled to recover the difference between the rent reserved and the amount for which he is able to relet the premises to a third person.”
This appears to be the rule followed in Kansas.
“The measure of damage is the difference between the contract price for the premises as agreed upon, and the amount the plaintiff was able to realize out of the property after he was notified that the defendant did not intend to take the pasture.” (Post v. Davis, 7 Kan. App. 217, syl. ¶ 2.)
In Lawson v. Brokmann, 116 Kan. 102, 226 Pac. 252, it was held that it was “the duty of the party wronged to do what he reasonably can to mitigate the damages.”
“Where a party seeks redress for the wrong of another, the law requires that he shall do whatever he reasonably can, and improve all reasonable opportunities to avoid the consequences and to lessen the injury.” (Town Co. v. Leonard, 46 Kan. 354, syl. ¶ 2, 26 Pac. 717. See, also, Frick Co. v. Falk, 50 Kan. 644, 32 Pac. 360; Holly v. City of Neodesha, 88 Kan. 102, 127 Pac. 616; Hoke v. Williamson, supra.)
It was held in Atkinson v. Kirkpatrick, 90 Kan. 515, 135 Pac. 579, that—
“It is a general rule of the law of damages, that, notwithstanding the fault of the other party, the one who is injured in person or property will not be permitted to recover damages which he might have averted by reasonable diligence.” (Syl. If 3.)
Such reasonable diligence does not require the one wronged to mitigate the damages to the amount of the full rental value, which, ordinarily, on short notice, might be quite impossible.
The counterclaim of the defendant for one month’s rent paid by mistake would have been recoverable if the appellant’s theory of surrender and acceptance had been adopted by the court, but on the other theory it would have been due plaintiff if it had not been paid; so the appellant is not injured, unless it be in the allowance of rent from the possible reletting, and the petition shows it was not rerented during that first month after abandonment.
The appellant claims to be entitled by way of allowance for the release of the exclusive privilege contained in the lease as applied to the whole lot. In the first place, the answer does not show any such financial benefit or advantage existed, and in the second place, the appellant is not in a position to claim privileges due it under the lease which it voluntarily surrendered because it desired to yield up and abandon those rights or privileges. It could have held to itself those privileges if it considered them valuable, or might possibly have sold or disposed of them to others, but it surrendered and abandoned them and should not now be permitted to claim them as legal rights. They are intangible and very different from the credit from reletting physical property.
The ruling of the trial court on the demurrers to the petition and the answer are affirmed.
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The opinion of the court was delivered by
Dawson, J..:
This was an action to contest the will of the late Ida 5. Barnes, of Oakland, who died on December 24, 1924, leaving as her heirs four married daughters, Laura S. Marr, Hattie Dewey, Ella L. Woods and Ethel Gibbs, and one son, John A. Barnes.
The husband of Ida, William Barnes, died on May 1,1922, having devised all his estate to her. On July 20, 1922, Ida made a will disposing of all her property, as follows:
To Laura......................................................... $1.00
To Hattie......................................................... 1.00
To Hattie, note of Hattie and husband due testatrix................. 500.00
To Ella, Wabaunsee county farm worth $4,000 or.................... 5,000.00
To Ethel, house and three lots in Oakland, worth about............. 2,000.00
To Ethel, piano.
To John, home and two lots in Oakland, worth about............... $2,500.00
To John, house and two lots in Oakland, worth about................ 1,500.00
To John, household furniture.
To- Ella, Ethel and John, residuary estate, share and share alike, worth
about.......................................................... 4,739.70
The husband of Ella was named as executor.
Some months later, on December 20,1922, Ida made another will, which is the one which provoked this lawsuit. By its terms the Wabaunsee county farm was devised to John, and the least valuable of the Oakland properties, worth about $1,500, was devised to Ella. The devises to Laura, Hattie and Ethel, as well as the disposition of the residuary estate, were as outlined above in the will of July 20; and John was named as executor.
The latter will was admitted to probate on December 29,1924, five days after the death of the testatrix-. On July 7, 1925, this action was begun by Laura and Hattie as plaintiffs to set aside the order of the probate court, alleging that the will was brought about by the undue influence of their brother John A. Barnes, and that at the time of its purported execution the testatrix was 73 years old, afflicted with a cancer, sick in body and mind, and incapable of transacting business and managing her affairs. Ella, Ethel and John were made defendants in the action, but Ella and Ethel filed no answer and took no part in the contest except as witnesses testifying in behalf of plaintiffs, their sisters. The defense was borne by John A. Barnes, principal beneficiary. On a belated motion of plaintiffs John was also joined as defendant in his official capacity as executor. The court order to that effect was entered on February 23,1926. On the same day John filed answers in both capacities, pleading a general denial, the regular admission of the will to probate, his own appointment and qualification as executor, and further—
“This defendant alleges that the claimed cause of action of the plaintiffs set out in their amended petition is barred by the one-year statute of limitations provided in chapter 160 of the Session Laws of Kansas, 1925.”
The court called an advisory jury which answered certain special questions:
“1. At the time of the execution of the will in question was Ida S. Barnes of sound mind? A. Yes, she was of sound mind.
“2. Was the execution of the will in question, dated December 20, 1922, procured by the undue influence of the defendant, John A. Barnes? A. Yes, the execution of the will dated December 20, 1922, was procured by the undue influence of John A. Barnes.
“If you answer question 2 that the will dated December 20, 1922, was procured by undue influence of John A. Barnes, then you should answer the following questions:
“3. Was the will of Ida S. Barnes, dated July 20, 1922, procured by undue influence of John A. Barnes? A. No, the will of July 20, 1922, was not procured by the undue influence of John A. Barnes.
“4. Was Ida S. Barnes of sound mind on July 20, 1922? A. Yes, she was of sound mind July 20, 1922.”
Plaintiffs filed a motion to strike out the jury’s answer to question 3 on the ground that it was not within the issues and that the court had no jurisdiction to consider the validity of the will of July 20, 1922, as it had not been'admitted to probate. This motion was sustained; the special finding of the jury in response to question 2 was adopted and approved; and judgment was entered setting aside and holding for naught the will of December 20, 1922, and the order of the probate court pertaining thereto.
John A. Barnes individually and as executor appeals, raising three points against the judgment:
(1) That plaintiffs have no interest in the action.
(2) That the defendant was not brought into the action in his official capacity as executor until too late.
(3) That the evidence did not support the judgment.
Noting these in order, it is argued that because the unprobated will of July 20, 1922, cut off the plaintiffs with a pittance, they have no concern with the validity or invalidity of the later will which is the subject matter of this lawsuit. But the will of July was never probated. Until that is done a will is merely “a scrap of paper,” mayhap of some evidential significance — no more. A will neither confers rights on its named beneficiaries nor deprives heirs of their rights until it has passed the scrutiny of the probate court; and its presentation for probate and some action favorable or unfavorable thereon by that tribunal are prerequisites to a contest over its validity in a court of general jurisdiction. (Evans v. Evans, 109 Kan. 608, 201 Pac. 60.) The will of July, 1922, cannot be the basis of any rights in John nor in prejudice of the rights of his sisters for another excellent reason. John knew of this will and had it under his power and control for over three years. It may also have been within the knowledge, power and control of his sisters as well. It was not offered for probate during that period. Therefore, so far as the will of July, 1922, is concerned, the mother’s estate would have to be regarded as an intestacy and would descend to these quarreling litigants share and share alike. The statute says:
“No lands, tenements or hereditaments shall pass to any devisee in a will who shall know of the existence thereof, and have the same in his power and control for the term of three years, unless within that time he shall cause the same to be offered for or admitted to probate; and by such neglect the estate devised to such devisee shall descend to the heirs of the testator.” (R. S. 22-233.)
We note that the industry of counsel has unearthed cases which apparently hold that an heir who was disinherited by an earlier valid, unprobated will cannot maintain an action to contest a later will or codicil. How an unprobated will could be said to be a valid will and used in litigation as a valid will to the prejudice of an heir who has never had a chance to question its validity calls for a subtlety of reasoning which we would not care to follow.
In Estate of Benton, 131 Cal. 472, it was held that an heir at law of a deceased person may contest a will offered for probate without any other showing of beneficial interest than such heirship, although the will may provide for the contestant a larger share of the estate than would be received by him as an heir at law.
In Murphy, Ex’r, v. Murphy, (Ky. App.) 65 S. W. 165, it was held that an heir was entitled to contest the testator’s will which was probated, though he was also excluded by a previous will which had not been probated, as the previous will might never be offered for probate, and, if so, might also be the subject of contest.
In Borland on Wills and Administration, 210, the rule is stated:
“An heir at law may contest without any other showing of interest than heirship.”
In 3 Alexander’s Commentaries on Wills, ¶ 1325, it is said:
“The statutes sometimes enumerate those who may contest the validity of wills. The general rule, however, whether covered by statute or not, is that these only may contest the validity of a will who would be entitled to share in the estate of the decedent had he died intestate, or should the will be denied probate. This gives the privilege of contest not only to the heir at law, next of kin, or the surviving husband or wife of the decedent who may be entitled to succeed to his estate in the event of intestacy. . . .”
Passing to the next point- urged against the judgment it will be noted that one year, one month, twenty-nine days, elapsed after the will of December 20, 1922, was probated before John was made a defendant in his official capacity as executor. The action itself was timely begun against John as principal beneficiary. Was a cause of action sufficiently stated against him individually or was it prerequisite thereto that he be joined as executor? Cases can readily be conceived where the litigation could proceed to no purpose without the executor’s participation, and doubtless that is the reason the rule is so broadly stated by some of the authorities that he is a necessary party to a suit to set aside a will. (Borland, supra, 209, 210; 40 Cyc. 1262; 28 R. C. L. 392.) If the executor’s duties were more than perfunctory, if a judgment affecting the validity of the will would materially interfere with his sworn duty or hinder him in the execution of some particular trust imposed on him by its terms, he would, of course, be a necessary party. Statute law would or might affect the question whether a conclusive contest over the validity of a will could be maintained without the executor being a party to the action. The decided cases in other jurisdictions are not all to one effect. In McArthur v. Allen, 3 Fed. 313, it was held that in a proceeding to set aside a will governed by the law of Ohio the executor was not a necessary party. In Fox v. Fee, 49 N. Y. Supp. 292, it was held that the executor to whom no land had been devised by a will was not a necessary party to an action to annul it. The opinion in that case explains when and when not an executor is a necessary party. The court said:
“It is asserted in behalf of the plaintiffs that the executrix of Henry Fox was a necessary party in her representative capacity to the action in the supreme court, and McArthur v. Scott, 113 U. S. 340, 5 Sup. Ct. 652, is cited in support of this contention. That case arose over an estate consisting of lands and personal property, which the testator devised to his executors in trust', and directed that the income therefrom be paid to his children and grandchildren until the youngest grandchild, should he live to be 21 years of age, should arrive at that age, and then convey the remainder to his grandchildren in equal shares. The will was admitted to probate, and afterwards an action was brought by one of the children against the other children and all the grandchildren of the testator to annul the probate, and set aside the will, and a decree was entered annulling the will and its probate. The executors were not made parties to the action. Grandchildren were afterwards born, and they brought an action to recover their interests in the estate under the will of their, grandfather, and it was held that the executors and trustees, who held the legal title of the estate, and were charged with the duty of protecting it, were necessary parties, and that the judgment annulling the will was not, for this reason, binding on the after-born grandchildren. The decision was based upon the ground that the title to the entire estate vested in the executors as trustees, and that their title could not be devested without being made parties to the action. This case is so explained in Miller v. Railway Co., 132 U. S. 662-671, 10 Sup. Ct. 206, where the doctrine of virtual representation is expressly sanctioned. The case at bar is quite different. Under neither of the wills of Henry Fox did his executors take any interest in the three lots specifically devised to his eons, nor were they ever given power to sell those three lots, nor was the title to the remaining real estate of the testator, if he had any, devised to the executors under either will. They were simply given power to sell the real estate, if he had any, except said three lots. The executrix, having no title to the real estate involved in the action, was not a necessary party thereto.” (p. 297.)
In this state a testate decedent’s real property passes directly to his devisees; his intestate realty devolves directly on his heirs; and the executor or administrator has no concern therewith unless it is needed to pay the debts of the decedent. In this case there were no debts, or none which materially affected the estate, so the failure to make John A. Barnes as executor a party defendant within the time allowed by the statute was not fatal to the action. This conclusion renders it unnecessary to decide whether the belated making of John as executor a party to this action was governed by Laws 1925, ch. 160, effective May 28, 1925, which amended R. S. 22-223 by cutting down the time from two years to one year in which an action to contest a will might be begun.
Touching the third point urged by appellant, this court can discern no shortage of evidence to prove that defendant John A. Barnes systematically dominated the mind and conduct of his mother to an extent which was altogether undue, and that the purported will of December 20,1924, was not the unconstrained will of Ida S. Barnes, mother of these litigants. The evidence which the parties have chosen to abstract for our perusal has been read and considered with critical appraisement — not for its credence, for that was the prerogative of the trial court, but for its probative value and on the assumption that plaintiffs’ evidence, including the significant and probative circumstances, was true; and so considered this court cannot assent to the contention that it did not support the controlling finding of the trial court and the judgment entered thereon.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in quo warranto, urn der R. S. 60-1609 et seq., to oust J. P. King from the office of mayor of the city of Galena, a city of the second class, with a population of more than 5,000, operating under the mayor and council form of government. There were sixteen specific charges of willful misconduct in office and willful neglect to perform the duties enjoined upon him by the laws of the state. These charges were controverted by an answer. The court appointed Hon. T. E. Railsbaclc, of Kansas City, as commissioner to hear the evidence and to make findings of fact and conclusions of law and report the same to this court. That has been done. The findings of the commissioner are that the defendant did not willfully misconduct himself in office, and that he did not willfully neglect to perform any duties imposed upon him by statute, as specified in the charges against him. The state has taken exception to these findings. The evidence has been abstracted and the case has been briefed and argued. The report of the commissioner is exceptionally thorough and well prepared. The evidence is voluminous. We have carefully examined all of it, and have considered all arguments made by counsel in their briefs. It would serve no useful purpose to set out the specific charges, the evidence pertaining thereto, and the holdings of the commissioner thereon. It is sufficient to say that we are well satisfied with the findings of the commissioner upon the evidence, and we adopt them as the findings of the court. There was a strife, or controversy, with reference to the conduct of the city business between the mayor and some of the members of the council, and some conduct indulged in which is not creditable to the parties; but considering the evidence as a whole there is nothing in it to justify the assertion that the mayor willfully misconducted himself in office, or willfully neglected to perform the duties imposed upon him by law, as those terms have been previously discussed and defined by the decisions of this court. (State, ex rel., v. Foley, 107 Kan. 608, 193 Pac. 361; State, ex rel., v. Wilson, 108 Kan. 641, 196 Pac. 758; State, ex rel., v. Corwine, 113 Kan. 192, 213 Pac. 658; State, ex rel., v. Richardson, 117 Kan. 738, 232 Pac. 875; State, ex rel., v. Darnall, 123 Kan. 643, 256 Pac. 974.)
Judgment will be entered for defendant. It is so ordered. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a landlord to collect, by means of attachment of the tenant’s property, rent to accrue on an unexpired lease. A demurrer to the petition was sustained, and plaintiff appeals.
Plaintiff leased to defendant business buildings in the city of Hutchinson, to be remodeled and used as an automobile salesroom. The term was two years, beginning August 1, 1926. The rent was $200 per month, payable monthly in advance. The petition, which was filed on September 28,1927, pleaded the lease, and continued as follows:
“Plaintiff further alleges that the defendant, I. Feld, intends to remove and is removing and has removed within thirty days prior to the filing of this petition all of his automobiles, parts, repairs and other property from the aforesaid leased premises.
“Plaintiff further alleges that within the next year there will be due ten months’ rent at $200 a month and of the aggregate sum of $2,000. And that by reason of the removal of the property of the defendant from the aforesaid leased premises all of the said ten months’ rent is due and payable.
“Wherefore, plaintiff prays that he have and recover of and from the defendant, I. Feld, the sum of $2,000, together with the costs of this action.”
An affidavit for attachment was filed, showing commencement of the action to collect rent, that rent in the sum of $2,000 would become due within a year, and that defendant was removing property from the leased premises. A writ of attachment was issued, and was levied on defendant’s property. Defendant demurred to the petition on the ground it did not state a cause of action, and moved for dissolution of the attachment. The demurrer and motion were heard together, and both were sustained.
It will be observed the petition did not allege abandonment of the premises by the tenant, or default in payment of rent as it became due, or other breach of the covenants of the lease, or fraud or intent to defraud on the part of the tenant, or insecurity of the ten installments-of rent to become due in the future. The action was predicated on the following provision contained in the act relating to landlords and tenants:.
“When any person who shall be liable to pay rent (whether the same be due or not, if it be due within one year thereafter, and whether the same be payable in money or other things) intends to remove, or is removing, or has within thirty days removed his property, or the crops, or any part thereof, from the leased premises, the person to whom the rent is owing may commence an action in the court having jurisdiction; and upon making an affidavit stating the amount of rent for which such person is liable, and one or more of the above facts, and executing an undertaking as in other cases, an attachment shall issue in the same manner and with the like effect as is provided by law in other actions.” (R. S. 67-527.)
The question involved has not heretofore been considered by this court. The only statute cited to the court which is identical with the Kansas statute is a statute of the state of Oklahoma. In the case of Tootle, Wheeler & Hotter Mercantile Co. v. Floyd, 28 Okla. 308, the Oklahoma statute was construed, and it was held the statute provided a remedy to secure payment of rent on a store building not yet due by the terms of the lease. The decision of the Oklahoma court rests on a literal interpretation of the words “any person who shall be liable to pay rent,” and a literal interpretation of the section leads to absurdity. Filling an order for a carload of goods by a wholesale company which leases its storehouse would perforce require removal of the property from the premises. A merchant desiring to enlarge his leased quarters could not lease an adjoining storeroom from another landlord and move part of his stock to it without incurring liability to pay a year’s unmatured rent to the first landlord. Should a farm tenant paying crop rent take a can of milk to the creamery, he could be made to pay all rent falling due within the next year. A farm tenant paying cash rent quarterly could not sell wheat to pay the September installment without liability to pay the succeeding December, March and June installments. Therefore, the words “removed his property or any part thereof” cannot be given a literal interpretation, and the meaning of the section cannot be discovered by focusing attention upon single phrases.
Article 5 of chapter 67 of the Revised Statutes of 1923, relating to landlords and tenants (R. S. 67-501 to 67-530) is the original landlord and tenant act of 1868 (G. S. 1868, ch. 55). Some of the sections not material here have been amended, and the last section of the original act, relating to taxation of improvements, has been covered by the tax law; but the scheme of the law remains the same. Sections 24, 25, 26, 27 and 28 of the original act, now R. S. 67-524 to 67-528, dealt specifically with rent of farm land. They likewise dealt exclusively, with rent of farm land, unless the words, “any person who shall be liable to pay rent,” contained in section 27, dislocated the natural order of treatment of the subject of farm tenancies, and expanded the section to cover other kinds of tenancies.
R. S. 67-524 gives a lien for rent due on farming land on the crop made or growing on the premises. R. S. 67-525 makes the lessor owner of his proportion of the crop when rent due is payable in a share of the crop, and gives the lessor possessory rights and remedies. R. S. 67-526 authorizes the lessor to recover from a purchaser of the crop. R. S. 67-528 gives a remedy by attachment to enforce the lien given by R. S. 67-524, and so completes the regulation of farm tenancies begun in R. S. 67-524. R. S. 67-524, 67-525. and 67-528 relate, however, to rent due. (Wyandt v. Merrill, 107 Kan. 661, 665, 193 Pac. 366, 1087.) The subject of security for rent to become due was not covered, and the subject of insecurity created by removal of property or crops from the leased premises was not covered. These subjects were dealt with in R. S. 67-527, relating to attachment for rent. If it was intended that the section should depart from the subject under consideration — farm tenancies — the section would normally have followed instead of preceded R. S. 67-528. The expression “removed his property or the crops . . . from the leased premises,” applies specifically to farm tenancies because of use of the word “crops.” The expression does not, by fair implication, apply to other than farm tenancies. It c.an be made to do so only by an interpolation making the section begin thus: “When any person who shall be liable to pay rent, whether for farm land or other premises.” Considering the economic conditions existing in 1868, the inapplicability of the section to present-day commercial conditions, the general scheme of the law, and the peculiar phraseology of the section, the court is of the opinion the legislature would, have expressed its purposes more clearly if it intended the section should apply to other than farm tenancies. The result is, landlords granting leases of buildings for commercial purposes are left to contract security for rent to become due, and to the code remedy by'attachment in case of fraud.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal from a verdict and judgment against the defendant on an accident insurance policy, wherein three points are especially raised on review: First, res adjudicata; second, sufficiency of notice of disability or waiver thereof; and third, whether or not there is any liability under the policy.
The case was here once before. At that time it was on an appeal by the plaintiff from the sustaining-of a demurrer to the petition. The decision of the trial court was affirmed on the ground that the defendant was not liable under its policy for the injury alleged, because the total disability as stated in the petition did not begin for several weeks after the accident.
“Total disability from an accident which does not begin until several weeks after its occurrence is not within the terms of a policy insuring against accident if the injury shall wholly and continuously disable the insured from date of accident.” (Penquite v. General Accident, etc., Corp., 121 Kan. 174, syl., 246 Pac. 498.)
When the mandate reached the trial court the plaintiff, by leave of court, amended his petition by asking for weekly indemnity for total disability for a different period of time than that covered in the original petition, and alleging that the hernia as caused by the accident was a progressive disease. The demurrer to the amended petition was overruled, answer filed, and trial had to a jury, with the result of a verdict and judgment in favor of the plaintiff, from which this appeal is taken.
The plaintiff was a fireman in the city of Wichita, and in answer to an alarm attempted to slide down a pole from the second to the first floor of the fire station-, In doing so he violently and accidentally struck his body against the pole, lost his hold, and fell to the first floor of the fire station. This occurred on December 21, 1921. On May 4, 1922, he discovered that the hernia he had was the result of the accident, and on July 14, 1922, he ceased work, having been at work since the accident. The injury sustained, as described by the physicians who testified, was a double inguinal hernia. Ruptures of this kind are usually progressive unless a truss is worn or an operation performed. The plaintiff stated upon the witness stand that—
“When I hit the floor I felt a severe pain right in the region where the pads on the truss are now. It was a very severe pain, just like a knife sticking in me, and something in there popped at that time, and I felt it. The pain made me sick and dizzy. That severe pain continued about fifteen minutes. I knew at that time that the pain and popping were the result of the accident. After that fifteen minutes I had the pain, and in that same place, but not so severe. The pain was severe enough at all times, but I did not notice it at some times, and other times I would. That pain was always at the same place as it was at the time of the accident. I knew that that pain was caused by the-accident.”
The special findings made by the jury, or the answers made by them to special questions, were as follows:
“1. On what date was the plaintiff Penquite injured? A. December 21, 1921.
“2. Did the plaintiff know the nature of such injury prior to May 4, 1922? A. No.
“3. Did the injury progress from December 21, 1921, to May 4, 1922? A. Yes.
“4. Did the injury progress from May 4, 1922, to July 14, 1922? A. Yes.
“5. When did the plaintiff cease work as a fireman? A. July 14, 1922.
“6. At the time and immediately after the injury which plaintiff received, did the plaintiff know that he had received an injury as a result of the fall mentioned in the evidence? A. Yes.
“7. Did the plaintiff know at all times after the accident and until he quit work that the pain and suffering described by him was the result of the accident? A. Yes.”
The paragraph in the policy which makes the defendant company liable, if at all, is as follows:
“Or, if such injuries do not result in any one of the losses enumerated in part I, but shall independently and • exclusively of all other causes, wholly and continuously disable and prevent the insured from date of accident from performing any and every kind of duty pertaining to his occupation, the corporation will pay the weekly indemnity above specified for the entire period of such total disability.”
As to the claim of the appellant that this is res adjudicata, having been fully and completely determined in the former hearing on the demurrer to the petition, we think any substantial addition to the allegations of a petition, setting forth facts not theretofore contained in the original petition, or inadvertently omitted therefrom, if it is a material and additional allegation to the issues already involved, will require on the hearing of a demurrer to the amended petition a new and different ruling, and on the trial a new and different judgment, and with such amendment the case is not res adjudicata.
“Where the ground of the demurrer is the omission of a material allegation from plaintiff’s pleading, a judgment sustaining the demurrer will not prevent the maintenance of a new suit on the same cause of action, in which the declaration or complaint supplies the missing averment.” (34 C. J. 797, 798. See, also, McLaughlin v. Doane, 40 Kan. 392, 19 Pac. 853; McClung v. Hohl, 10 Kan. App. 93, 61 Pac. 507.)
A progressive disease as alleged in the amendment has been recognized by the courts sufficiently to justify its being considered a substantial addition to the petition.
The second and third points urged by the appellant are naturally coupled with the first, because the very fact that a disease is alleged to have been progressive makes the more severe consequences of it less cognizable at first, and by the development in the process of nature leads to something very often not known or even suspected at first. So it has been held in many cases that the injured person is excused from the giving of notice within the prescribed time because neither he nor his physician had any reason to suspect such serious results at first or know that the illness or disability was in fact the result of or attributable to an injury. The question of notice in this case is readily disposed of by reason of the offer of the agent of the defendant to pay plaintiff á certain sum on account of the accident, which constitutes a waiver.
“A distinct recognition of liability by the insurer, as by an offer to pay all or a part of the loss, amounts to a waiver of formal notice.” (14 R. C. L. 1349. See, also, Despain v. Insurance Co., 81 Kan. 722, 106 Pac. 1027; Ring v. Assurance Co., 100 Kan. 341, 164 Pac. 303.)
In Commercial Travelers v. Barnes, 72 Kan. 293, 80 Pac. 1020, a merchant swallowed a metal pin on July 23, which caused him much distress. He continued to go regularly to his place of business until August 4, when he became wholly disabled. On October 1, a metal pin was discovered in his vomit and was identified with the sudden illness of July 23.
In Erickson v. Commercial Travelers, 103 Kan. 831, 176 Pac. 989, a baseball pitcher suffered an injury on September 13, which gave him little or no trouble until the last days of February following, when the pain became more severe, and about that time he became totally disabled for work. Upon examination he learned for the first time that it was the result of the injury in the preceding September. It was held that—
“The result of the accident did not develop at once, . . . and that the disability was reached within the time that the processes of nature take to effect such a development.” (p. 833.)
In Hawthorne v. Protective Association, 112 Kan. 356, 210 Pac. 1086, the plaintiff accidentally swallowed a fence staple which he had in his mouth at the time he fell, and it lodged in his throat. This was only a surmise or opinion on his part, which he yielded to the judgment of his physicians to the contrary. Later the truth was discovered, by means of an X-ray examination, that the staple had lodged in his throat. It was held that he was excused from the requirement of giving notice, although the X-ray examination did not take place for nearly two years after the accident occurred.
These and other cases use this natural process of development of disease to inform the injured party of the nature and character of the injury, as is alleged in this petition, and excuse him from the requirements of giving notice before he understands the nature and extent of his injury. This progressive feature may also, depending upon the language of the policy, defer the commencement of the total disability, giving the processes of nature reasonable time to develop the disease so that it may become a total disability when at first it was not.
“A disability is immediate, within the meaning of such contracts, when it follows directly from an accidental hurt, within such time as the processes of nature consume in bringing the person affected to a state of total incapacity to prosecute every kind of business pertaining to his occupation.” (Commercial Travelers v. Barnes, supra, syl. ¶ 3.)
“An injury develops at once and is continuous within the meaning of an accident insurance policy when it follows directly from the accidental hurt within such time as the processes of nature consume in bringing the person affected to a state of incapacity to prosecute his occupation.” (Rabin v. Business Men’s Association, 116 Kan. 280, syl. ¶ 3, 226 Pac. 764.)
In the case last cited the injured party, in going to the telephone in the night, struck his great toe against the furniture with such force as to drive the nail back into the flesh, requiring the nail to be removed. After about ten days pyrogenic infection developed, which disabled him totally for some time.
While, as stated above, these cases cited have most to do with the question of delay in giving the notice within the required time or within a reasonable time thereafter, yet in some of the cases the disability was not total for some time after the injury, and a construction has in those cases been put upon the term “immediately,’' as used in the policies of some of the cases cited. But the term “immediately” is not used in the policy in this case. Instead thereof, the defendant is liable for total disability from the date of the accident. This difference in language used takes this case out of the class of cases giving an interpretation to the word “immediately.” No interpretation is needed for the words “from date of accident.” Unless there is a total disability from the date of the accident there is no liability, even if the disease was progressive. As was said in the opinion of this case when here before, the plaintiff gave his assent to these conditions when he accepted the policy, and possibly the rate of premium was in accordance with the risk assumed.
The answers of the jury show it was a progressive disease or in jury, but to what effect under such provision limiting liability when the jury further find that plaintiff did not cease work until July 14, nearly seven months after the accident, and further show, quite unlike the cases above cited and discussed, that plaintiff at the time of and immediately after the injury knew he had received an injury as a result of the fall, and at all times after the accident until he quit work knew that the pain and suffering he had was the result of the accident? There is no room under these answers and the language of the policy for the application of the progressive feature of this case, and the plaintiff cannot recover.
The judgment is reversed and the cause remanded with instructions to render judgment for defendant for costs. | [
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The opinion of the court was delivered by
Burch, J.:
Defendant was convicted of stealing an automobile, and appeals.
The automobile belonged to E. C. Hitch, and was stolen by defendant and an accomplice, Carl Wood, from the home of Hitch’s father-in-law, E. T. Hill, who lived six miles west of Dodge City. The thieves drove the automobile to Oklahoma, where defendant lived, and sold it to George Heglin. Heglin traded the automobile to some one who lived at Springfield, Colo., where it was recovered. When it was returned to Ford county the engine number was different from the number it bore when it was taken away. Wood testified the number was changed after the automobile was sold to Heglin, and he was not sure the change was made in defendant’s presence. The testimony regarding change of number related to identity of the car, and was properly admitted.
Defendant confessed to King, the sheriff of Ford county. A contention that the confession related to a car other than the. one he was convicted of stealing is refuted by the record.
Defendant contends the evidence shows the confession was not voluntary. Defendant was arrested in Oklahoma, by Bishop, who was an officer of that state. The following is all the abstract shows concerning the confession:
“Witness testified that he had a conversation with Sheriff King in which he admitted taking the car; that he had talked with Mr. Bishop, the arresting officer, at some time prior to this date, and that he, Bishop, told him that if he would own up to it he would turn him out.”
There is no hint here that defendant was induced to confess to King by anything Bishop told the defendant. The counter abstract shows defendant testified his talk with Bishop occurred at the Dodge City jail in May, and within ten days after defendant was arrested. Defendant was placed in the Dodge City jail on May 12, immediately after his arrest. Sheriff King testified Bishop was not in Dodge City until June 17. The court submitted the evidence relating to defendant’s confession to the jury, under proper instructions, which defendant admits covered the subject.
The counter, abstract discloses defendant’s reason for selecting Bishop as the officer to be accused of promising leniency. Bishop had been active in breaking up a gang of automobile and harness thieves, and was murdered before trial of some of them was to have taken place in federal court, and before defendant’s trial occurred. Hence there was no one to deny the promise.
An objection to the competency of a juror who had an opinion the automobile was stolen, but who was otherwise qualified, is without merit. Theft of the car was not disputed. The defense was that defendant was in Oklahoma when the car was stolen, and in stating the defense to the jury defendant’s attorney recognized the fact that the car had been stolen.
The appeal is frivolous, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for a real-estate commission. It was tried to a jury, which failed to agree. At the close of plaintiff’s evidence the defendant interposed a demurrer to the evidence. This was overruled. This appeal is from that ruling. The sole question presented to us is whether that ruling was correct. In the trial of a civil case the statute (R. S. 60-2909, 3d clause) authorizes the filing of a demurrer to evidence, and by R. S. 60-3302 an order which sustains or overrules a demurrer is an appealable order; see White v. Railway Co., 74 Kan. 778, 88 Pac. 54.
When a demurrer is interposed to evidence the rule which governs the trial court in passing upon the demurrer is that if the evidence which has been received in. the case, considered as favorably to the party offering it as can reasonably be done, is' sufficient as a matter of law to support a judgment in his favor, the demurrer should be overruled. If, so considered, it is not sufficient to support a judgment the demurrer should be sustained. (Mayse v. Grieves, 124 Kan. 754, 756, 262 Pac. 541, and cases there cited.)
Plaintiff is a real-estate broker at Wichita and has been active and prominent in that business for many years, confining his business largely to business property. The defendant (and his two sisters, for whom he acted) owned a business property at the corner of Douglas and Emporia avenues in Wichita. In 1919 defendant listed this property with plaintiff for sale at $100,000. Plaintiff made some efforts to sell it at that time, but was not successful, and the matter of the sale of the property appears to have been dropped for some time. In May, 1926, defendant saw plaintiff and told him he was really anxious now to sell the property, and asked plaintiff to find a buyer. They discussed the matter in some detail, especially with reference to rents and taxes. Defendant stated he thought he should get $150,000 for it, and when plaintiff suggested perhaps that was a little high, defendant asked him to try to get an offer. Under that listing plaintiff became active in an effort to sell the property, and talked to perhaps a dozen persons, one of whom was interested, but concluded not to purchase. Soon after this listing Mr. Winston Wheeler, of the Wheeler-Kelly-Hagny Trust Company, made an appointment with plaintiff. This trust company handles almost all classes of business pertaining to real property, including that of a real-estate broker, sometimes acting for the buyer and sometimes for the seller. Mr. Winston Wheeler told plaintiff he had a client, whose name he did not care to disclose, who was interested in some property in down-town Wichita, and wanted to know what plaintiff had. They talked of several properties in the neighborhood of Lawrence and Williams streets, and plaintiff told Mr. Wheeler about defendant's property. Plaintiff reported to defendant that he had a new prospect through the Wheeler-Kelly-Hagny office. A day or two later he saw Mr. Winston Wheeler and asked how he was getting along with defendant’s property. He said his buyer wasn’t much interested, but that he would like to get him all the information as to income, taxes, and all detailed information as to the building, and said he would put it up to him. Plaintiff went to his office and called defendant on the telephone and told him he wanted that information for Mr. Wheeler, and defendant replied that if that was whom he wanted 'it for, they had it all in their loan division files; that he had made a loan on the building through that company a year or so before, and rents, taxes, etc., were about the same as they were then. Plaintiff then went to Mr. Wheeler’s office and told him that information was in his loan files and suggested that he get them out. Mr. Wheeler was too busy at that time, but said he would get out the files and look it over. Plaintiff then went to defendant, and as to the conversation there, plaintiff testified:
“I got in the car and went over to Mr. Lawrence, and told Mr. Lawrence, ‘I don’t know whom I am working with over there, with Wheeler, but I suspicion it is Mr. Wheeler himself, of the Wheeler-Kelly-Hagny Company, that is trying to buy this building, but they refused flatly to tell me who the buyer is, and I want it understood directly with you — I have been frank with you— that you will protect me on any commission with any buyer that comes through the Wheeler-Kelly-Hagny office, or the firm.’ And he said, ‘We don’t care who we sell it to’; he said, ‘You hop to it, and we will see that you get your commission,’ and I said, ‘All right,’ and that’s all there was to that, that we talked of that day.”
Plaintiff then had to go to Tulsa on business, but before going again saw Winston Wheeler and told him he really thought he could sell this property to his man if Mr. Wheeler would tell him who he was. This Mr. Wheeler declined to do, but said:
“You don’t have to sell this man anything. When Dad (referring to his father, H. V. Wheeler, president of the Wheeler-Kelly-Hagny Trust Company) O.K.’s this building, he will buy it. . . . He is the man that has got to O.K. it.”
Plaintiff replied, “All right,” and said he would take it up when he got back from Tulsa. Before going to Tulsa plaintiff had another conversation with defendant, who asked how he was getting along. Plaintiff replied that he was working with Winston Wheeler, “but I can’t tell where I am getting. I will take it up again just as soon as I get back from Tulsa, a week later.”
When plaintiff returned from Tulsa he learned that the property-had been sold. The written contract for the sale showed the Wheeler-Kelly-Hagny Trust Company to be the purchaser and the price to be $133,000.
It will be noted that by this evidence the agreement between plaintiff and defendant was that plaintiff was to be paid a commission if the sale was made to any of the Wheelers, or if it went through the Wheeler-Kelly-Hagny office, and plaintiff’s evidence tended to show that the sale was made to the Wheeler-Kelly-Hagny Trust Company. The point argued by appellant is that the plaintiff did not know who the purchaser was and never at any time brought the purchaser in touch with the defendant. Under the agreement, as testified to by plaintiff, that was not necessary, defendant having agreed to pay the commission if the sale went to any of the Wheelers, or through their office. It necessarily follows that the court correctly overruled the demurrer to the evidence.
On behalf of defendant evidence was offered tending to show that the Wheeler-Kelly-Hagny people had an old listing on this property, and that while the contract for the sale was made by defendant to the Wheeler-Kelly-Hagny Trust Company, that company was really acting for Paul J. Wall, who was the real purchaser and to whom defendant caused a deed to be made some months later. Defendant’s testimony controverted that of plaintiff with reference to the particular contract of listing. At the close of all the evidence defendant moved for a directed verdict in his favor. That was overruled, and an appeal was attempted to be made from that ruling. This is not an appealable order.- It is simply a request for an instruction, and error, if any, in refusing it can be questioned on appeal only after the case itself has reached judgment and a motion for a new trial has been filed and overruled. Perhaps it is not out of the way, however, to say that there was no error in the ruling of the court in this respect, for the evidence on behalf of defendant, above referred to, presented simply a controverted issue to be submitted to the jury.
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
Dawson, J.:
This is an appeal from a judgment in favor of plaintiff in an action in replevin, and the correctness of that judgment depends on whether the relationship of plaintiff and one C. A. Plumb was that of principal and agent or of vendor and vendee.
For some time prior to 1926 Plumb operated a garage and filling station in Goodland. Plaintiff Dannenberg was the agent of the Nourse Oil Company, a concern which supplied Plumb with oils and greases for his trade. Plumb did not pay his bills promptly, and the Nourse Oil Company terminated business dealings with him. Dannenberg’s commission on sales for the Nourse Oil Company was 20 per cent; and rather than lose the commission he had theretofore enjoyed from Plumb’s business he decided to become responsible himself to the Nourse Oil Company and to have their supplies shipped to himself and Plumb at Goodland, to be delivered to Plumb upon an understanding that they were to belong to Dannenberg, and to be sold by Plumb at whatever advance in price he choose to exact over the cost which Dannenberg had to pay to the Nourse Oil Company. Except in this special course of dealing with Plumb, Dannenberg continued to be the regular agent of the Nourse Oil Company, and on all oils and greases supplied to Plumb under this special arrangement the Nourse Oil Company allowed Dannenberg a rebate equal to his regular 20 per cent commission. Plumb retailed the goods and informally accounted to Dannenberg for some months; but eventually he disappeared, leaving certain debts unpaid. One of his creditors, T. A. McCants, brought an action before a justice of the peace and caused an attachment to issue, under which the sheriff seized -barrels and drums of oil and other lubricants which Dannenberg had supplied to Plumb under the arrangement above mentioned.
Dannenberg brought replevin to recover the attached property. Issues were joined and the evidence for both parties was presented to a jury. The controlling evidence was that given by plaintiff Dannenberg himself, and at its conclusion it was agreed by counsel that what he had testified to was true.
[Counsel for Defendant] : “It is all true and undisputed.”
Thereupon an instructed verdict was entered in plaintiff’s behalf, and defendant appeals, contending that the relation of creditor- vendor and debtor-vendee rather than that of principal and agent existed between Dannenberg and Plumb.
The most significant parts of Dannenberg’s voluminous testimony read:
“Direct examination.
“A. I shipped him oil, which I paid for, and he was to sell it and on a -commission basis. . . .
“Q. Was he to get a percentage commission or all that he got over a certain price? A. All he got over a certain price.
“Q. And that was the price fixed by you? A. Yes, sir. . . .
“Q. You bought it yourself? A. Yes, sir. . . .
“Q. Were you to receive the money before the oil was sold? A. No, .-sir. ... A. Well, the arrangements were that when he sold it he was to send me the money, but really when I came in and checked over, then he paid me the money that was due me, when I checked it over and saw how much ■of it was sold. . . .
“Q. Then why didn’t you sell it to him? A. Because I wanted to be sure of either having the goods or the money. . , .
“Q. Was anything said about whose property that was to be during that •time? A. Well, it was to be mine, until it was settled for, always. . . .
“ Cross-examination.
“Q. How were you selling it? A. I bought the goods, and shipped them •to him and he sold them and was to get — was to give me the prices here (in■dicating), and everything that he got above that was his.
“Q. Was he selling them for you on a commission? A. He was selling on a commission as far as that’s concerned. This is the price that I was to .get. , . .
“Q. What commission? A. Whatever he desired to sell them at. . . . .A. I didn’t give him credit. . . .
“Q. Did you expect to get those goods back? A. I expected to either get •the goods back or to get the money for them. ...
“Q. You let him have the goods on time to sell? A. Yes. . . .
“Q. I understood you to say this was a partnership arrangement whereby .you were to furnish the goods and he was to sell them and you were to divide the profit? A. I did not; I never said that. . . .
'“Redirect examination.
“Q. I understood you to say in answer to Mr. Freeze that Plumb was your .agent to sell those goods and collect for you? A. Yes, sir. . . .
“Q. Then these goods were never Plumb’s goods? A. No, sir; they were /not.”
Since it was conceded by defendant that the foregoing testimony was “all true,” it seems that the status of principal and agent more aptly, and indeed more justly, defines the relation of Dannenberg and Plumb than that of vendor and vendee or of creditor and debtor. (Powell v. Wallace, 44 Kan. 656, 25 Pac. 42; Implement Co. v. Parlin & Orendorff Co., 51 Kan. 544, 33 Pac. 360; Renoe v. Milling Co., 53 Kan. 255, 36 Pac. 329; McKinney v. Grant, 76 Kan. 779, 93 Pac. 180; Van Arsdale v. Peacock, 90 Kan. 347, 133 Pac. 703.)
The point is suggested that Dannenberg’s interest in the attached property was not recorded in the office of the register of deeds under R. S. 58-314. That statute, however, is not concerned with the registry of ownership of property, but with vendors’ rights under contracts of conditional sale. Even if the nominal title to the property had been in Plumb, the attachment would have been ineffective to strip Dannenberg of his actual ownership. (Kindig v. Richardson, 108 Kan. 218, 194 Pac. 920.) And see, Turner v. Williams, 114 Kan. 769, 772, 221 Pac. 267.
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The opinion of the court was delivered by
Hutchison, J.:
This is an action to recover from Trego county and W. H. Wagner, former county attorney of that county, the sum of $933 for money had and received from plaintiff, procured from him illegally and by duress, in the way of fines and costs paid by him in order to be relieved from imprisonment in the county jail of Trego county, which fines, costs and imprisonment were imposed by the county court of that county, and which, it is alleged, had no jurisdiction in the premises. The trial court overruled the demurrer of the defendants to the petition, and the defendants appeal from that ruling.
The petition alleges that plaintiff was arrested by the sheriff of Trego county for violation of the prohibitory liquor law on nine counts; that his real name was not contained in the ninth count, nor was the description of the premises to be searched and the day of the month when the complaint and warrant were signed; that after his arrest and the search and seizure, these blanks were filled and seven more counts were added to the complaint and warrant; that two prohibition agents committed assault and battery on him in the presence of the sheriff during the search being made of his premises, using abusive and threatening language; that no warrant was ever issued by any court for his arrest; that no opportunity was given him to furnish bond; that he was never brought before any court; that he was not permitted to read the pretended complaint and warrant; that he was not informed that he was to be put on trial for any offense, and was not put on trial; that he was not before any court; that the judge of the county court was in the office of the county attorney when the sheriff took the plaintiff there, still restraining him of his liberty, and while he was under illegal restraint, duress and intimidation, something was said about pleading .guilty to one count, and he answered “Yes,” at which time there was also something said about adding more counts; that no sentence or judgment was ever imposed upon or against him, nor any fine assessed by the county court; that he never learned of any such judgment until a month or more after his arrest, during which time he had been in the jail of Trego county; that the addition of his name in .count nine and the description of his land were made with pen and ink, as well as the change of the number of the count from nine to sixteen; that he has since learned that he was found guilty by his plea of guilty -to fourteen counts and fined $100 on ■each and costs in the sum of $427, which is a cloud on the title to his land; that he has paid $933 of such fines and costs in order to secure a parole from the district court of Trego county on the xecommendation of the county attorney; that the costs are ex cessive and unreasonable; that the county court had no power or authority to render any judgment or penalty of any kind in excess of $500, or jail sentence of more than one year; that he is a man 47 years of age, not acquainted with court procedure or authority of officers,' and, by reason of his ignorance in such matters and the unjust, illegal and oppressive advantage taken of him by the county officials and the-county court, the pretended judgment is unjust, illegal and void, and he is entitled to a judgment for the return of the money paid by him on the fines and costs and for the removal of the cloud from the title to his land as to the balance of such judgment. These are substantially the allegations of the petition— set out at greater length than perhaps necessary, but enabling us to better consider the full import of it and determine if it states facts sufficient to constitute a cause of action against the county and county attorney.
There are three exhibits attached to the petition: (a) The complaint, consisting of 16 counts sworn to by the sheriff before the ‘judge of the county court; (6) the warrant on the 16 counts, including the search warrant signed by the judge of the county court, and also including the return of the sheriff, showing the arrest of the defendant (plaintiff herein) and that he was produced into court, together with the stills, wash, mash, liquor, coils, jugs, etc., which he procured on the premises described in the warrant; (c) the journal entry of the county court, showing arraignment on 14 of the 16 counts for violation of the liquor law, his plea of guilty to these counts, the finding of guilt, the separate sentence and judgment on each of these 14 counts, and the $100 fine and 30 days in jail on each, except one, where the jail sentence was six months.
The plaintiff has entered a new and novel field of pleading without favoring us with a real precedent or parallel. It is an attempt to review the errors of a criminal case in a civil action. Appellants denominate it as an equitable action, while the appellee says that “the cause of action for the recovery of money is an action on the case for money had and received, and is a legal remedy,” and that “the cause of action to quiet the title ... is a statutory remedy.” Without attempting, however, to determine how the action should be denominated, we prefer, for the purposes of this case, to accept the designation of the appellee, so as to give the fullest force and effect to the petition when attacked by a demurrer.
The petition presents unquestionably a collateral attack upon the judgmént of the county court finding the defendant guilty, assessing fines and costs, and imposing jail sentences. Appellee cites Swehla v. Malone, 114 Kan. 712, 220 Pac. 299, as a case in point. We think it is, except that it was a habeas corpus case. It was there held that—
“The judgment of the police court was open to collateral attack for lack of jurisdiction and when its jurisdiction was challenged the absence of jurisdiction could be shown by extrinsic evidence.” (Syl. ¶[ 3.)
It was further held in the same case that—
“The juvenile court has exclusive jurisdiction to try all children under sixteen years of age for offenses charged to have been committed by them, and a judgment of conviction of the police court of a child under that age is absolutely void.” (Syl. ¶ 1.)
In the case just cited, the police court was wholly without jurisdiction, and a collateral attack could properly be made. But compare this ruling with that in In re Wallace, 75 Kan. 432, 89 Pac. 687, where the same state of facts existed, and observe that the whole matter of collateral attack turns on the question of jurisdiction:
“Where the jurisdiction of the court depends upon a fact which the court is required to ascertain and decide its judgment determining that the fact does exist is conclusive evidence of jurisdiction until set aside or reversed by a direct proceeding.
“No offender under sixteen years of age may be imprisoned in the state industrial reformatory, but where a judgment in the district court recites that the age .of the defendant sentenced to that institution was found and decided to be more than sixteen years the adjudication of that fact, although erroneous, is not open to attack in a habeas corpus proceeding.” (Syl.)
Counsel for appellee says the rule is different with reference to the presumption as to jurisdiction where the court is inferior, as a police court or, as in this case, a county court, which is equivalent in criminal matters to the court of a justice of the peace. This distinction is clearly stated in the opinion in the Malone case, supra, on page 714, where it is said that the judgments of inferior courts are not aided by the presumption of verity and validity accorded to judgments of superior courts, but that judgments of superior courts may be impeached collaterally where there is a lack of jurisdiction, citing Ewing v. Mallison, 65 Kan. 484, 70 Pac. 369. Regardless of whether the court rendering the judgment was superior or inferior, the right to attack it collaterally depends wholly upon the jurisdiction of the court.
“A judgment rendered with jurisdiction can never be impeached in a collateral proceeding; but a judgment rendered without jurisdiction may. In fact, a judgment rendered without jurisdiction is no judgment at all.” (Mastin v. Gray, 19 Kan. 458, 466. See, also, State v. Simmons, 39 Kan. 262, 18 Pac. 177.)
Appellee claims the county court was without jurisdiction because all the counts except the last charged felonies, and, even if they were considered as charging misdemeanors, the aggregate of the fines imposed exceeded the |500 limit of the court’s jurisdiction, and the total jail sentences exceeded one year. It has been held otherwise in this state — in one case where there were 20 separate counts. (In re Donnelly, Petitioner, &c., 30 Kan. 424, 1 Pac. 778; In re Macke, Petitioner, 31 Kan. 54, 1 Pac. 785.) As to the counts of the complaint and warrant charging unlawful sales and possession of intoxicating liquor being felonies, we note that R. S. 21-2101 denominates such violations as misdemeanors, unless defendant -has been previously convicted of a violation of the liquor law. (R. S. 21-2146.) There is no charge in the complaint or warrant in this case of a previous conviction of a violation of that law. (State v. Shiffler, 93 Kan. 618, 144 Pac. 845; State v. Briggs, 94 Kan. 92, 145 Pac. 866.)
It is contended that the act authorizing the creation of the county court is unconstitutional, being in violation of the United States constitution and of sections 10, 15 and 18 of the bill of rights. In the absence of citations to help us to this conclusion, we shall for the present consider the law as valid.
Many, if not all, of the remaining allegations of the petition can be classed as errors, irregularities and wrongs which cannot and do not go to the jurisdictional question, and therefore have either been waived by the plea of guilty arid the request for and acceptance of a parol or can be classed as matters of defense, and are not grounds for a collateral attack on the judgment rendered.
“And a plea to the jurisdiction should be overruled where it did not properly challenge the jurisdiction of the court, and where all that was set out in the plea was plainly a matter of defense which could be shown when the cause was tried on the merits.” (16 C. J. 405.)
“The petitioner was arraigned and tried upon a charge of felony in a court of competent jurisdiction, found guilty, and imprisoned in the penitentiary. He now claims that such imprisonment is illegal, for the reason that the act creating the court before which he had his preliminary examination was unconstitutional. This question was not raised by him in the trial court. Held,
that he has waived his right to raise it upon an application for a writ of habeas corpus.” (In re Brown, 62 Kan. 648, syl., 64 Pac. 76.)
“A plea of guilty waives any defect not jurisdictional, and which may be taken advantage of by motion to quash or by plea in abatement.” (16 C. J. 403.)
“On trial by consent by the court without a jury, failure to arraign has been held not to constitute reversible error.” (16 C. J. 388.)
“The personal presence of the defendant during a trial for misdemeanor is not absolutely required.” (State v. Baxter, 41 Kan. 516, syl. ¶ 2, 21 Pac. 650.)
“In a prosecution for a misdemeanor the failure to arraign defendant is not an omission which will entitle him to a new trial or require a reversal.” (State v. Forner, 75 Kan. 423, syl., 89 Pac. 674. See, also, State v. Jennings, 24 Kan. 642, 654; The City of Salina v. Cooper, 45 Kan. 12, 25 Pac. 233.)
We conclude that unless the county court failed to have jurisdiction of the subject matter or of the defendant the judgment rendered by it was not void and therefore cannot be attacked collaterally; and, as the allegations of the petition, if taken as true, do not show a want of jurisdiction, the judgment at most is voidable and cannot be attacked in an action of this kind.
The ruling on the demurrer is reversed and the cause remanded, with instructions to sustain the demurrer to the petition and to dismiss the cause. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in mandamus to compel the public service commission to assume jurisdiction of the application of the Wichita Water Company for authority to issue its first-mortgage five per cent gold bonds, series B, in the amount of $350,000, and to grant the application. The plaintiff is a corporation engaged in the business of supplying water for public and private use, the plant and property of which are situated and operated principally within the city of Wichita, and which plant and property are operated principally for the benefit of such city and its inhabitants. Plaintiff’s application for permission to issue the bonds was duly presented to the public service commission, which, having heard evidence and argument of counsel in support thereof, and being fully advised in the- premises, found that the Wichita Water Company is a public utility situated and operated wholly, or jprincipally, within the city of Wichita, and operated principally for the benefit of that city and its inhabitants, and “that this commission has no jurisdiction or authority over the issuance of the securities of said applicant corporation,” and dismissed the application for want of jurisdiction.
In this proceeding there is no controversy over the facts, and there is but one issue of law, namely, whether the public service commission, under our statute, and specifically under R. S. 66-125, has jurisdiction to entertain the application above mentioned of the water company and authority to issue its certificate provided for in the statute just referred to.
Prior to 1911 the duties of the state regulatory body, then the state,board of railroad commissioners, pertained only to railroads. (See Gen. Stat. 1909, art. 3, ch. 99.) By the cities act (Laws 1903, ch. 122; Laws 1907, ch. 114 [in part revised in R. S. 13-431, 13-432, 13-434]), cities were authorized to grant franchises for all electric light, water, heat, gas or telephone service furnished the inhabitants by any person, firm, or corporation, to prescribe and fix maximum rates and charges the'refor, and to provide punishment for persons who might wrongfully interfere with the same, and this without regard to whether the person, firm, or corporation furnishing the service supplied one or many cities. In 1911 our legislature enacted a comprehensive public utilities act (Laws 1911, ch. 238), creating the public utilities commission, having jurisdiction over public utilities genérally, including railroads, and whose power and authority, as supplemented, amended or modified (see R. S. 66-101 et seq.), has been passed on to the present defendant, the public service commission (Laws 1925, ch. 258). This act provided:
“The term ‘public utility/ as used in this act, shall be construed to mean every corporation, company, individual, association of persons, their trustees, lessees or receivers, that now or hereafter may own, control, operate or manage, except for private use, any equipment, plant, generating machinery, or any part thereof, . . . for the production, transmission, delivery or furnishing of heat, light, water or power: Provided, That this act shall not' refer to or include mutual telephone companies. . . . Nothing in this act shall apply to any public utility in this state owned and operated by any municipality. The power and authority to control and regulate all public utilities and common earners situated and operated wholly or principally within any city or principally operated for the benefit of such city or its people, shall be vested exclusively in such city, subject only to the right to apply for relief to said public utilities commission as hereinafter provided in section 33 of this act.” (R. S. 66-104.)
It will be noted that while this act was comprehensive in its scope, it specifically did not include within its provisions, (1) mutual telephone companies, (2) public utilities owned by municipalities, and (3) subject to the right to apply to the public utilities commission for relief as provided in section 33 of the act, it left or vested the power to regulate such utilities as are situated and operated wholly or principally within any city for the benefit of such city or its people, exclusively in such city. The matters referred to in section 33 of the act relate to the kind and quality of service, rates, the extension of the physical properties of the utility, and to providing penalties, and similar matters; they do not relate to the financing of the utilities nor to stock, bonds or other securities they might issue. Since the power to control and regulate “one-city” utilities is vested exclusively in such city, except as provided in section 33, and since the section 33 refers to matters other than the internal financial affairs of the utility owner, it necessarily follows that the public utilities act gives the defendant commission no jurisdiction over such financial affairs of such “one-city” utilities.
But plaintiff cites, and relies on:
“A public utility or common carrier may issue stocks, certificates, bonds, notes or other evidences of indebtedness, payable at periods of more than twelve months after the date thereof, when necessary for the acquisition of property, for the purpose of carrying out its corporate powers, the construction, completion, extension or improvements of its facilities, or for the improvements or maintenance of its service, or for the discharge or lawful refunding of its obligations, or for such other purposes as may be authorized by law: Provided, And not otherwise, that there shall have been secured from the commission a certificate stating the amount, character, purposes and terms on which such stocks, certificates, bonds, notes or other evidences of indebtedness are proposed to be issued, as set out in the application for such certificate, and that the statements contained in such application have been ascertained to be true, but this provision shall not apply to any lawful issue of stock, the lawful execution and delivery of any mortgage, or to the lawful issue of any bonds thereunder which shall have been duly approved by the board of railroad commissioners prior to the taking effect of this act. . . . Any issue of stocks, certificates, bonds, notes or other evidences of indebtedness not payable within one year, which shall be issued by such public utility or common carrier contrary to the provisions of this act shall be void.” (R. S. 66-125.)
And R. S. 66-126 makes it an offense for any common carrier or public utility “governed by the provisions of this act,” or its officers, agents or directors, to issue any stock, bonds, or other evidence of indebtedness “contrary to the provisions of the act.”
Plaintiff argues that since the term “public utilities” is defined in R. S. 66-104 as including water companies, and since R. S. 66-125, which relates to the issuance of securities, provides that a public utility may issue stock, bonds, etc., only after securing a certificate from defendant, that the term “public utilities,” as used in R. S. 66-125, necessarily includes all public utilities as defined by the act. This construction would require the obtaining of a certificate of authority for issuing stock certificates, bonds, etc., by a mutual telephone company, or a municipally owned utility, as well as by a one-city utility. We regard this interpretation as being untenable'. The more natural interpretation of R. S. 66-125 is to restrict its application to that class of utilities which comes within the provision of the public utilities act. It is difficult to see why the legislature should attempt to regulate the issuing of stock, bonds or other securities of public utilities if it was not by the act attempting to regulate, supervise or control it. Defendant advises us that in the seventeen years since the enactment of the public utilities act it has not been the practice for mutual telephone companies, municipally owned utilities, or one-city utilities to apply to defendant for a certificate of authority to issue stocks, certificates, bonds, or other evidence of indebtedness. It is reasonable to assume that many such issues have been made. The effect of interpreting the statute as plaintiff contends would be to hold all such issues to be void. While this is not necessarily a controlling reason for our conclusion, it is at least persuasive. We regard our conclusion that the public service commission has no jurisdiction over the application for a certificate to issue bonds applied for by the plaintiff in this case as being the correct interpretation of the statute. Certainly the penal provisions of R. S. 66-126 should not be compelled to rest upon a strained interpretation of the statute to include classes of utilities that quite obviously were not included within the provisions of the act.
While the specific question here determined has not been previously decided by this court, our former decisions which bear any relation to the question, in so far as they do relate to it, are regarded as being in harmony with the conclusion here reached. (State, ex rel., v. Gas Co., 88 Kan. 165, 127 Pac. 639; City of Emporia v. Telephone Co., 90 Kan. 118, 133 Pac. 858; State, ex rel., v. Water Co., 92 Kan. 227, 140 Pac. 103; Humphrey v. City of Pratt, 93 Kan. 413, 417, 144 Pac. 197; Street Lighting Co. v. Utilities Commission, 101 Kan. 438, 774, 166 Pac. 514, 169 Pac. 205; City of Parsons v. Water Supply and Power Co., 104 Kan. 294, 178 Pac. 438; City of Great Bend v. Water Co., 106 Kan. 553, 189 Pac. 146; City of Winfield v. Court of Industrial Relations, 111 Kan. 580, 207 Pac. 813; City of Hutchinson v. Hutchinson Gas Co., 125 Kan. 346, 264 Pac. 68.)
Judgment will be entered for defendant. | [
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The opinion of the court was delivered by
Harvey, J.:
The only legal question presented by this appeal is whether a city of the second class has authority to enact an ordinance making drunkenness at any place within the city an offense and providing punishment therefor. We have a state statute (R. S.' 21-2128) which reads:
“If any person shall be drunk in any highway, street, or in .any public place or building, .or if any person shall be drunk in his own house, or any private building or place, disturbing his family or others, he shall be deemed guilty of a misdemeanor.”
Under this statute drunkenness in a private place constitutes an offense only when accompanied by disturbance of the peace, while under the terms of the ordinance in question no disturbance is necessary. Appellant contends that the ordinance which makes it an offense for a person to be drunk in any place in the city is repugnant to the statute, exceeds the police power of the city, and is therefore void. The general rule relating to the question is stated in 43 C. J. 215 et seq., as follows:
“Since a municipal corporation is a creature of the state, continuing its ex-, istence under the sovereign will and pleasure of the state, possessing such' powers and such only as the state confers upon it, subject to addition or diminution of power at the state’s supreme discretion, municipal regulations must not directly or indirectly contravene the general law, nor, can such regulations be repugnant to the policy of the state as declared -in general legislation . . . Ordinances which assume directly or indirectly to permit acts or oe cupations which the state prohibits, or to prohibit acts permitted by the state, are uniformly declared to be null and void. . . . The question as to whether or not a municipal ordinance or regulation is in conflict with the general law is sometimes difficult of solution, and cannot be determined by any fixed rule. Each particular case must be determined as it arises. Broadly speaking, the question whether a conflict exists depends upon whether the state has occupied the whole field of prohibitory legislation with respect to the subject. If such is the case it is held that a conflict exists. In order that there be a conflict between a state enactment and a municipal regulation both must contain either express or implied conditions which are inconsistent and irreconcilable with each other. Mere differences in detail do not render them conflicting. If either is silent where the other speaks, there can be no conflict between them. Where no conflict exists, both laws stand. ... As a general rule, additional regulation to that of the state law does not constitute a conflict therewith.”
Applying the principles above stated to the question before us, it will be seen, that no conflict exists. The state statute simply went so far, by making it an offense for one to be drunk in a public place, or in a private place if he disturbed the peace. It is not a grant of permission to one to be drunk in a private place. It simply does not deal with that question, unless there is a disturbance of the peace. The city ordinance goes further than the state law by making drunkenness at any place in the city an offense. In other words, it covers a field in addition to that covered by the state law, and hence cannot be said to be repugnant to it. That it is not necessary for a city ordinance on drunkenness to conform to the state law was held in Minneola v. Naylor, 84 Kan. 147, 113 Pac. 309. The mere fact that the state, in the exercise of the police power, has made certain regulations, does not prohibit a municipality from exacting additional requirements. (19 R. C. L. 803.) In Kansas City v. Henre, 96 Kan. 794, 797, 153 Pac. 548, it was held:
“An ordinance enacted in the exercise of the police power is not necessarily inconsistent with a state law on the same subject because the city provides for greater restrictions or makes higher standards than are px’ovided or made by statute.”
There, a state law had declared certain standard tests for milk to be sold for food. The city ordinance provided a higher standard for milk to be sold within,the city. The ordinance was upheld. The earlier cases from this court relating to the subject are there cited and construed.
Our statute conferring power upon cities of the second class is as follows:
“The governing body of each city governed by this act shall have the care, management and control of the city and its finances, and shall have power to enact, ordain, alter, modify or repeal any and all ordinances not repugnant to the constitution and laws of this state, and such as it shall deem expedient for the good government of the city, the preservation of the peace and good order, the suppression of vice and immorality, the benefit of trade and commerce, and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be necessary to carry such power into effect.” (R. S. 14-401.)
A fair interpretation of this statute necessarily confers upon the city authority to make it an offense for one to be drunk at any place in the city. Under R. S. 21-2155 certain persons are, under the conditions there stated, given a right of action against the city for damages caused by drunkenness. This is referred to in Kansas City v. Jordan, 99 Kan. 814, 819, 163 Pac. 188, as justifying the city in taking every proper means to prevent such liability.
We conclude the city was not without power and authority to enact the ordinance in question. '
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by Hattie G. Iott, as widow of Walter Iott, deceased, and as guardian of his minor children, to recover compensation for his death. Plaintiff prevailed, and defendants appeal.
The deceased was a mechanic employed to repair cars for defendants. Defendants’ place of business is a room fifty feet wide and sixty-five feet long, situated at 119-121 North Kansas avenue, in the city of Topeka. Automobiles having body rattles are given road tests to locate the offending noises. The deceased was directed by defendants’ shop foreman to make a road test of a car. In the progress of the test deceased took a position on the fender of the car, while the owner drove it at various rates of speed on several streets of the city, affording different road conditions. At a street-intersection seventeen and a half blocks from the shop, a Ford driven at a speed of thirty miles per hour cut in front of the car, a collision occurred, and Iott was fatally injured. The sole question is whether the accident occurred on, in or about defendants’ place of business.
The workmen’s compensation act in force when the accident occurred applied to accidents “on, in or about” specified places where the peculiar hazards incident to the employers’ business might be encountered. The quoted words were words of locality, having a definite legal meaning at the time the act was adopted, and were advisedly inserted in the act as a distinct space limitation. (Bevard v. Coal Co., 101 Kan. 207, 165 Pac. 657.) The new workmen’s compensation act departs from its prototype, the British act of 1897, discards the limitation and, in harmony with later British and American'workmen’s compensation acts, applies to accidents arising out of and in the course of enumerated hazardous employments. (Laws 1927, ch. 232.) The space limitation may not now be excised from the old law by judicial interpretation in cases arising under the old la,w.
The deceased was a mechanic in a repair shop at 119-121 North Kansas avenue, which was a factory. He was not injured at that place or in that part of town. The employer establishes his factory so that it covers as much or as little ground as he may desire. It need not be inclosed by a wall, but it must be confined to a limited area, appropriated in fact to factory uses. The hazards of the business arise within the boundary of that space. The hazards, however, may overflow the factory boundary, and by use of the, term “about,” the space for compensable accident was enlarged to the extent factory danger threatens. The enlargement, however, is still geographical, must be in physical contiguity to the factory area, and cannot extend farther than the danger inhering in the work inside the factory reaches.
In the brief for plaintiff appears the following:
“The employer may adopt as a part of his premises, place or places removed from the immediate factory, and bring them within the ‘zone of danger’ of its operation, and that ‘zone of danger’ may cover such physical contiguity as is reasonably necessary for the ordinary business carried on there.”
The concluding portion of the proposition was suggested by a sentence in the opinion of Lord Justice Collins in the case of Fenn v. Miller, 69 L. J. Q. B., n. s., 439, 441, quoted in the opinion in Bevard v. Coal Co., 101 Kan. 207, 165 Pac. 657:
“To my mind the act does not apply to persons employed about the business of a factory, where such employment does not involve physical contiguity to the factory within such limits as are reasonably necessary for the ordinary business carried on there.” (p. 212.)
The confusion of thought involved in plaintiff’s proposition is revealed by what has just been said. An employer may adopt such space as he needs or desires for his factory. The factory will be surrounded by a danger zone created by the hazards of that factory. If he adopts some other premises for use as a factory, in fact outside the danger zone of the established factory, he cannot by adoption bring it within the danger zone of the established factory, any more than by taking thought he can add a cubit to his stature.
Plaintiff’s proposition further confuses the limits reasonably necessary for the ordinary business carried on “there,” that Is, in the factory, with the employer’s business carried on, not in the factory but outside of it. In the case of Hicks v. Swift & Co., 101 Kan. 760, 168 Pac. 905, the employer’s business included operation of a packing house in Kansas City, Kan., and among other things, delivery of meat from the packing house to customers in Kansas City, Mo. A truck driver was injured while delivering meat several miles from the packing house. He was injured in the course of his employment, but not in the course of his employment in that part of the employer’s business conducted on, in or about the factory. In the case of Carter v. Uhrich, 122 Kan. 408, 252 Pac. 240, the employer operated a door factory and shipped doors. An employee injured while returning to the factory from a railway station to which he had gone with a shipment of doors,was not injured on in or about the factory. In the case of Harrel v. Quiring, 125 Kan. 249, 264 Pac. 46, an employee injured while setting up a monument in a cemetery at Ellinwood, was injured in the course of employment in his employer’s business, but he was not injured on, in or about his employer’s factory in Wichita. In this instance, automobiles were repaired in the employers’ factory. They were given road tests outside the factory and outside the danger zone of the factory, wherever road conditions suitable for making the tests might be found. While engaged in making a road test, the employee was not on, in or about his employers’ place of business, or within such limits as were reasonably necessary for the ordinary business carried on there.
Plaintiff cites the cases of Gadberry v. Egg Case Filler Co., 104 Kan. 72, 177 Pac. 834, and Wise v. Central Dairy Co., 121 Kan. 258, 246 Pac. 501. In the Gadberry case an egg case filler factory and a box board factory were located on adjoining tracts of land. The factories were sixty feet apart, and their docks were connected by a runway across a switch track. Whenever a box car was on the track, bridges were laid on each side of the car and the floor of the car was used as part of the runway. An employee in the egg case filler factory was injured while using the runway in bringing material from the box board factory. The court properly held the entire runway was in such proximity to the egg case filler factory and was so used as a part of its premises that the injury occurred on, in or about the factory. In the Wise case a factory using trucks abutted on a street at the top of a grade. A mechanic was employed to repair the trucks. He, with the help of other employees, pushed a truck needing repair down the grade, to loosen the starter. The starter was loosened, the truck was stopped, and when the employee raised the hood of the truck to ascertain the cause of trouble, a Ford ran into him and injured him. Repair work commenced on the factory premises, when the truck was put in motion, and the court treated the street'as the employer treated it — a virtual extension of the factory to include contiguous space appropriate for the conduct of the business, including repair of trucks.
In the Wise case the factory foreman directed employees to push the truck down the grade. The truck was stopped about 200 feet from the factory. A roving commission to wander at will here and there about an undefined district without particular direction or ultimate destination was not contemplated or given, and such a commission will not give locality to a factory, or to the danger zone contiguous to a factory. In this instance the foreman merely told the employee to ride the car, find out where the rattle was, and bring the car back and fix it. The owner drove the car, and so far as the record discloses chose.his own route. The car was driven south on Kansas avenue to Third street, west on Third street to Topeka boulevard, south on Topeka boulevard to Sixth street, and west on Sixth street to Western avenue, where the accident occurred. Where the car might have been driven if the accident had not occurred is not known. If it had proceeded some miles westward to the heights beyond the city occupied by the Security Benefit Association’s grounds, .had ascended the heights, and the accident had occurred there, those grounds would, according to plaintiff’s theory, have become by adoption part of the premises of an automobile repair shop on North Kansas avenue, -or would have been brought within its danger zone. Comment is unnecessary.
Plaintiff contends the employee was engaged in engineering work when he was injured, under the provision of the statute defining engineering to include erecting, installing, repairing or removing boilers, furnaces, engines and power machinery, including belting and other connections. Waiving the question whether the provision deals with localized work only, there was no testimony that the employee was sent out to detect motor trouble. Herbert Mack testified that an automobile which has an engine rattle can be tested on the floor of the shop, but that an automobile with a body rattle must be given a road test. The shop foreman testified the owner complained the rattle was in the front end of the car, and testified the rattle appeared to be in the hood, front fenders, and splash apron or mud guard. Nobody disputed this testimony, which was all there was on the subject.
Plaintiff’s brief cites and relies on decisions by the courts of California, Ohio, Louisiana. and New York. The decisions were rendered under statutes which do not contain the “on, in or about” limitation, and which are similar to the Kansas statute of 1927.
The judgment of the district court was based on an agreed statement of facts, supplemented by some undisputed testimony. The judgment is reversed, and the cause is remanded with direction to enter judgment for defendants. | [
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The opinion of the court was delivered by
Johnston, C. J.:
James Nutter sued Carl Black before a justice of the peace to recover $149 alleged to be due for work done and performed, upon defendant’s farm under an oral contract. The justice of the peace gave judgment for the plaintiff, and defendant appealed to the district court, where a trial.was had with a jury, which resulted in a verdict and judgment in favor of plaintiff in which he was awarded $149. Defendant again appeals.
The principal point urged as error was the giving of an instruction. After stating the contentions of the parties respecting the contract under which the work was performed, the court stated:
“Gentlemen of the Jury: This is a simple case and ought to be easy for you to decide and do so quickly. The only contention in this case is the question, Was there a contract as claimed by the plaintiff? and if you so find, then you should return a verdict for the plaintiff for the amount sued for, to wit, $149. On the other hand, if you find that the contention of the defendant is correct, and that there was no such contract as claimed by the plaintiff, but one such as was described by the defendant, then your verdict should be for the defendant.”
It is argued that the court was not warranted in charging the jury that if the contract was as claimed by plaintiff they should find for the full amount claimed, or otherwise to return a verdict for the defendant. There was little testimony in the case other than on the question as to the terms of the contract. Plaintiffs testimony was to the effect-that the agreement was made about September 1, 1926, to the effect that he and his wife should go out on the farm and he would be paid $1 a day for the time he was on the farm. Defendant was a single man, and a part of the agreement was that plaintiff’s wife was to cook meals for all, do the housework and care for the butter and eggs for her board. The defendant’s claim was that plaintiff was to take charge of and work on the farm on a fifty-fifty basis, that is, that he would get one-half of all that was produced on the farm after the following March first. lie further said that he agreed to pay plaintiff for husking corn, and that the payment which had been made to him was for the husking of the last year’s crop and not upon the $1 a day basis, as claimed by plaintiff. There was no dispute as to the time he went out on the farm nor when he moved away from it. The defendant made no complaint that he failed to work any of the time he was employed upon defendant’s farm. It appears that $61 was paid by the defendant to plaintiff, and upon plaintiff’s contention there was still due $149. No error was committed in the instruction quoted.
Defendant did not testify that plaintiff had failed to work every day, or that he had in any way neglected his work. There was testimony that plaintiff worked every day, including Sundays. He had the care of cows, horses, hogs and chickens, worked in the repair of buildings and fences and did other farm work. Instead of raising any question as to the kind or extent of plaintiff’s work, defendant testified that plaintiff plowed, fixed roofing, that he did not do everything that was done, but that “he did enough.” The only real issue in the case was the contract made between the parties, the plaintiff contending that he was employed to work for $1 per day while he worked on the farm, and the defendant contending that the contract was that he was to work for a share of the products of the farm. That question was settled by the jury upon abundant evidence. There was a sharp dispute in the testimony, but the jury believed that of the plaintiff and returned a verdict in his favor.
In view of the issues framed and that there was no question as to the time plaintiff was engaged on the farm or that he had worked all of the time that he had been there, no claim that plaintiff had not carried out the contract which the jury found to have been made, no dispute as to the amount that defendant had paid to plaintiff nor as to the amount due under plaintiff’s theory of the contract, he was entitled to $149 if his claim as to the terms of the contract was upheld by the jury. It was therefore not material error for the court to tell the jury that if the contract was as claimed by plaintiff he would be entitled to recover $149, but that if the contract was as claimed by defendant a verdict should be returned in his favor.
There is a further contention that there was error of the court in excluding an offer of- testimony. What the proposed testimony would be was not shown. It was not brought to the attention of the trial court on the motion for a new trial by affidavit or otherwise, and hence the ruling is not reviewable. (Clark v. Morris, 88 Kan. 752, 129 Pac. 1195; Cheek v. Railway Co., 89 Kan. 247, 257, 131 Pac. 617; Watson v. Parker Township, 113 Kan. 130, 134, 213 Pac. 1051.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The state, on the relation of the attorney-general, brought this proceeding to test the validity of the organization of rural high-school district No. 4 in Ford county. It is conceded that the proper preliminary steps were taken to organize the district. There was a majority of the electors in the district voting in favor of the proposition. The officers of the district were elected on November 5, 1927, and since that time the organization has been functioning as a rural high-school district and the officers chosen at the election have since been performing the duties of a school board, but the validity of the organization is challenged because of noncompliance with chapter 241 of the Laws of 1925.
Its validity is assailed upon the ground that there was not the necessary valuation of property within the district to warrant the organization of a high-school district. It is conceded that the aggregate value of property in the district was less than two million dollars. In 1925, two years before the attempted organization, the legislature enacted the following statute:
“An Act declaring the basis for the formation of a high-school district in this state shall be the valuation of the property within the district, and repealing all acts and parts of acts in conflict herewith.
"Be it enacted by the Legislature of the State of Kansas :
“Section 1. That in the formation of all high-school districts within the state of Kansas, the basis for organizing and operating the same shall be the value of the property as determined by the tax assessment within the boundaries of districts so formed, and no consideration shall be given to or used in estimating the expense of so organizing and operating such high-school district other than the actual assessment and taxation value of all the property therein determined and fixed by the proper assessor.
“Sec. 2. That no high-school district shall be organized within the state of Kansas the aggregate value of property of which, as determined by the returns of the tax assessor, shall be less than two millions ($2,000,000.)” (Laws 1925, ch. 241.)
To meet the challenge of invalidity the defendants contend that the statute quoted is unconstitutional and therefore not controlling because it is an amendment of the Laws of 1921, chapter 241, which reads:
“Section 1. That section 1 of chapter 284 of the Session Laws of 1917 is hereby amended to read as follows: Section 1. The legal electors residing in territory containing not less than sixteen square miles shall have authority to form a rural high-school district, whose boundaries shall have been approved by the county superintendent of public instruction and by the board of county commissioners of each county in which any part of such proposed district shall be situated, or by the state superintendent of public instruction in case the county superintendent and boards of county commissioners of two or more counties shall fail to agree on the approval of the boundaries of the proposed district, and to establish, locate and maintain therein a rural high school as hereinafter provided.” (Laws 1921, ch. 241, § 1.)
Defendants’ contention is that the act of 1925 is amendatory of the act of 1921, and that as it did not contain the act or the sections amended it violates section 16 of article 2 of the constitution of the state and is void.
In 1915 an elaborate act was passed for establishing rural high-school districts, and providing that electors residing in a territory containing not less than sixteen square miles, comprising one or more townships or parts thereof, might organize a rural high-school district and maintain therein a rural high school. It contained provisions as to an election for establishing the district, also an election for the choosing of officers, the levy of taxes to maintain schools, the selection and procuring of sites, the supervision of the schools, the course of study and the tuition fees to be paid by nonresident pupils, but nothing was said as to the valuation of property within the district. (Laws 1915, ch. 311.) In 1917 the act of 1915 was amended in a number of particulars, including the authority to issue bonds to pay for a site and the erection of school buildings, but no provision was made as to' the valuation of property necessary to the organization of a district or the maintenance of a rural high school. (Laws 1917, ch. 284.) In 1921 the act was amended in terms already stated, and evidently was for the purpose of providing for a situation where the proposed district is situated in two or more counties, and directing that in case the county superintendent and county commissioners of the several counties fail to agree as to the approval of boundaries, the question was to be settled by the state superintendent. It is said that the act of 1925 changes the basic requirement for organization from area to assessed valuation. Area was mentioned in all the preceding acts relating to rural high-school districts, but no provision was made as to the taxable property upon which levies might be made to maintain rural high schools. Ten years’ experience probably revealed that efficient high schools could not be maintained upon the revenue provided by standard levies on the property within some of the districts. To make provision for adequate maintenance, the legislature passed the act of 1925. It will be observed that the act applies not only to rural high-school districts, but is made applicable to all high-school districts of every kind organized within the state. In its enlarged scope it would seem to be supplemental legislation as to rural high-school districts, and to be an independent act as to other high-school districts. The act itself makes no reference to other statutes and does not purport to amend any existing laws. It, like many other separate acts, restricts to some extent the operation of existing statutes, but such modifications do not require the statutes thus modified to be .included in the modifying act. The constitutional provision invoked does not apply in such cases because they are not within the mischief designed to be remedied by it. At the most the act of 1925 only amends former statutes by implication, and it has been held that the constitutional provision invoked, has no application to amendments by implication. Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781, dealt with the subject of providing for the issuance of'special tax bills against property chargeable with the costs of improvements in cities of a certain class. In earlier acts provision had been made to pay for improvements with bonds, and the language of those earlier acts followed closely parts of the new act. It was held to be well settled that the constitutional provision has no application to amendments by implication, and proceeded to say:
“The act of 1905 in a sense amends various sections of the earlier act, but it does so by implication; it does not cover their entire subject matter, and hence does not supersede them, but merely restricts the field of their operation; it is a complete and in a sense an independent enactment, which requires no reference to any other statute to make its meaning clear.” (p. 724.)
We said in an earlier case that amendments by implication are not within the purview of the constitutional provisions in question and then quoted the purpose of the limitation as follows:
“ ‘The mischief designed to be remedied by the constitutional provision cited was the enactment of amendatory statutes in terms so blind that the legislators themselves were sometimes deceived in regard to their effect; and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws.’ (The People v. Mahaney, 13 Mich. 496.)” {State, ex rel., v. Cross, 38 Kan. 696, 700, 17 Pac. 190.)
Adding that the section under consideration, “clearly expresses its purpose, and it cannot be said to have been enacted blindly, nor so inserted in the statute as to deceive the legislators, or the public.” See, also, State v. Coletti, 102 Kan. 523, 170 Pac. 995; 36 Cyc. 1061, 1062. It might be said of this statute, as in the Cross case, that it is not blind nor deceptive either to legislators or the public. It does not purport nor operate to repeal the provisions of the earlier acts, and we conclude that it does not contravene section 16 of article 2 of the state constitution. It follows that the act is controlling, and as the aggregate value of property within the proposed district is less than that prescribed by the legislature it must be held that the district is not a valid organization.
The judgment will go in accordance with the prayer of plaintiff’s petition. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought to recover a broker’s commission for finding a purchaser for a quarter section of land owned and occupied by Otto Meng and Helena Meng, his wife. A trial resulted in a verdict and judgment in favor of the broker, L. V. Orr, and defendants, alleging errors, bring the case here for review.
It appears that plaintiff found a purchaser for the land able and willing to buy at the stipulated price. She reported her action to the defendants, and then prepared a contract of sale which was signed by the owners, in which, among other things, it was stated that a down payment of $1,000 should be made. Plaintiff then returned to complete the contract with Seifert, the purchaser, who stated that it was not convenient for him to pay more than $500 as an advance payment, but further stated that if defendants objected the plaintiff might draw on him for the remaining $500; and plaintiff, knowing the defendants for whom she was acting had previously mentioned $500 as a sufficient down payment, changed the contract so as to provide for a $500 payment, and Seifert signed the contract, which plaintiff deposited in a bank. She tried to communicate with defendants, living some distance away, respecting the change and signing of the contract, and after some delay in reaching them she got in touch with Mrs. Meng, who said her husband was absent, but she would inform him when he returned, and added that she thought it would be all right. The next morning Mr. Meng appeared at plaintiff’s office and said that he didn’t like the change, and plaintiff replied that the other $500 would be put up immediately.
Seifert had stated that if the Mengs were not satisfied with the $500 that plaintiff might draw on him for the additional sum. Meng then stated that he and his wife had discussed the matter the evening before, and they had decided not to sell the farm. The additional $500 was put up, and the contract, signed by the defendants, was placed in a bank and subsequently placed of record. Considerable testimony was given respecting changes in the contract other than that mentioned, but there was in the testimony sufficient to show that no other substantial changes were made. The defendants refused to carry out the deal and also declined to pay the commission. The jury answered the following special questions that were submitted relating to the transaction:
“3. Did plaintiff procure and cause said George Seifert to become a prospective purchaser of said land to the extent of signing a written contract of purchase therefor? A. Yes.
“4. State what changes, if any, plaintiff made in the written contract signed by defendants on April 5, 1927, at their home. A. Changed SI,000 to S500.
“5. State whether or not plaintiff was authorized to make such changes by either one or both of said defendants. A. No.
“6. If you answer the above question in the negative, state what changes, if any, plaintiff made without the knowledge or consent of said defendants or either of them. A. Changed SI,000 to S500.
“7. Was the said George Seifert on April 5, 1927, and for several days thereafter, ready, willing and able to buy said land at the price and on the terms and conditions prescribed by said defendants at the time they signed said written contract? A. Eleven answers yes, and one answered not until the 6th.
“8. Did the defendants give • said plaintiff a fair and reasonable opportunity to submit to said George Seifert the price, terms and conditions of sale prescribed by said defendants to said plaintiff after she learned that amount of down payment was unsatisfactory? A. No.
“9. Did plaintiff, at the time she made the changes, if any, in said contract after it was signed by said defendants, honestly believe that such changes were consented to and authorized by said defendants? A. No.
“10. Did plaintiff, at the time she secured the signature of George Seifert on or about the 5th day of April, 1927, know, or have reason to believe, or think that the said George Seifert would execute the contract in the form in which it was when the contract was signed by defendants and placed in the hands of plaintiff, if necessary, to purchase the property? A. Yes.
“11. Did plaintiff exercise her best efforts to induce the said George Seifert to execute the contract in the form in which it was when placed in the hands of plaintiff? A. Yes.
“12. Did defendants on or about April 5, 1927, place a certain written contract bearing their signature in the hands of plaintiff for the securing by her of the execution thereof by one George Seifert? A. Yes.
“13. Did the plaintiff change said contract and secure the signature of the said George Seifert to said contract after changing same? A. Yes.
“14. Did the plaintiff change the contract placed in her hands by defendants without the knowledge and consent of defendants and accept the signature of George Seifért thereto after changing same? A. Yes.
“15. If you find that plaintiff changed the contract from the form it was in when delivered to her and accepted the signature of George Seifert after samé was changed, did said defendants after learning of said changes withdraw said property from the market? A. Yes.
“16. Did plaintiff have the full sum of $1,000 paid her by Seifert at the time of the discussion with defendant, Otto Meng, on April 6, 1927? A. No; but had authority to draw draft on Seifert for $500.
“17. If you find that plaintiff at the time had the full sum of $1,000, state whether she then advised the said Otto Meng of said fact. A. Yes; at the close of the second interview with Mr. Meng.
“19. Did plaintiff, upon learning that defendants desired to withdraw said real estate from the market, then seek to place said defendants in such position as to be required to sell and convey said real estate? A. Yes.”
Question No. 7 with its answer was withdrawn and stricken out. On the verdict and answers to the other questions, judgment was rendered for plaintiff in the sum of $237.20.
Defendants first contend that the court erred in refusing the setting aside of the general verdict on the ground that the findings were inconsistent with it. Error is also assigned on the withdrawal of question No. 7 with the answer thereto and the failure to set aside finding No. 11.
They also complain of instructions given to the jury and of the refusal of some that were requested. As to the defendants’ motion for judgment on the special findings, it must be held that the material findings support the judgment. It is conceded that defendants listed their farm with plaintiff and contracted with her that a commission would be paid if she procured a purchaser. The evidence and findings show that she did procure a purchaser ready, able and willing to buy the farm on the terms prescribed by defendants. When she had accomplished that she had earned her commission.
Much is made of the fact that a change was made in the contract of sale between the owners and the purchaser which plaintiff had volunteered to prepare, but that occurred after the purchaser had been procured, who' was ready to take the place on the terms fixed and after the liability of defendants to pay the commission had arisen. True, the purchaser had suggested that it would be inconvenient for him to make an advance payment of more than $500. There was a stipulation in the tentative contract prepared by plaintiff for an advance payment of $1,000. Plaintiff had learned that when the purchaser’s son had looked at the farm, Mr. Meng had said that he would take a down payment of $500, and so plaintiff believing that it would be agreed to, changed the contract and substituted a payment of $500 instead of the $1,000. At once she undertook to phone defendants of the change and the signing of the contract by Seifert. She was unable to get in touch with them for some time, but after several calls did get Mrs. Meng on the phone. She reported to her what had been done and asked if it was agreeable to accept an advance payment of $500. Mrs. Meng replied in substance that she would tell her husband, but that she thought it would be all right. The purchaser had told plaintiff that if defendants were not satisfied with the forfeit payment of $500 he would send the other $500 to her the following morning. The full amount of $1,000 was advanced and placed in escrow in a bank on the following morning. That morning Meng appeared and objected to the change as to the advance payment. He was informed that the purchaser had told her that if he was not willing to accept the smaller sum the full amount would be paid, and that he had made arrangements for the additional amount and the $1,000 was actually put up.
Manifestly the defendants had concluded not to sell the farm, and in order to avoid liability for payment of the commission, made the change in the sale contract the excuse for not consummating the sale and of avoiding the payment of the commission. The making of a sale contract and the execution of a deed were matters to be worked out by the owners and the buyer. When plaintiff had found a purchaser ready, willing and able to buy on defendants’ terms she had fulfilled her part of the broker’s agreement and the defendants could not avoid payment, but Meng declared that they had decided not to sell and that “the land is off the market.”
The objection to the change made in the sale contract appears to be a feigned rather than the real purpose of not consummating the sale to the purchaser. If no sale contract had been prepared and plaintiff had left the owners and purchaser to complete the transaction, as she might have done, there could have been no doubt that her duty had been done towards her employers, and that her commission was earned. She was not required to procure from the purchaser a binding contract of sale. (Beougher v. Clark, 81 Kan. 250, 106 Pac. 39.) The matter of the preparation of the sale contract and the change made in it in an endeavor to aid the contracting parties was magnified at the trial beyond its actual importance. The evidence relating to it was pertinent to the question whether the purchaser produced by the plaintiff was able, ready and willing to buy the land on the terms and the price specified, but the steps taken with respect to the sale contract were not controlling as to the liability of defendants. The fact that there may be offers and counter offers as to terms and price of property placed in the hands of a broker, or that the purchaser did not accept some of the conditions in the first instance, did not operate to relieve the defendants from liability for the commission under the circumstances established by the evidence. (Wells v. Hazlett, 125 Kan. 265, 264 Pac. 19.) See, also, Grimes v. Emery, 94 Kan. 701, 146 Pac. 1135, and cited cases.
The matter of time in producing a purchaser, all occurring within twenty-four hours, is not a good basis for avoiding the payment of a commission actually earned. There was no lack of diligent effort on the part of the plaintiff to find a purchaser, as the negotiations begun by her on the afternoon of April 5 were substantially completed that day, and the forfeit money of $1,000 was actually produced on the next day. The fencing as to the amount of the advance payment and the so-called change of the sale contract occurred on the 6th, but the purchaser had in fact arranged for the $1,000 payment on the 5th and had actually made it on the following day. Besides, under plaintiff’s employment by defendants she was entitled to a reasonable time to produce an able and willing purchaser in accordance with her general agency. This had been effected before the defendants undertook to terminate the agency and take the land off the market. The effort to aid the parties in obtaining the signing of the sale contract cannot be regarded as a special agency, nor anything more than an incident of the general agency vested in plaintiff. The special findings, interpreted in the light of the evidence and the concessions of the parties, cannot be regarded as inconsistent with the general verdict.
Fault is found with the instructions given the jury, in that the court failed to instruct as to fraud and infidelity on the part of the plaintiff in respect to changing the contract of sale and in filing the contract of record after defendants had repudiated the agency. It is clear that there was nothing approaching fraud in the dealings of plaintiff with the defendants and no ' concealment or lack of fidelity to her duties as agent. The evidence reveals nothing but good faith and diligence in her efforts to obtain a purchaser, and it is well shown that she did procure one who was able, ready and willing to take the land on the stipulated terms, and that this was accomplished before defendants announced a termination of the agency and a refusal to sell. What subsequently occurred between them is of little importance so far as the liability for the commission is concerned. Plaintiff did afterwards file the contract for record, which defendants say operated to cloud their title and was done for that purpose, but this occurred after the defendants declared plaintiff no longer their agent and had withdrawn the land from the market. Doubtless the plaintiff then discovered that she would have to fight to recover the commission that she had earned. . If there had been any fraud or lack of good faith in dealing with her principals in procuring a purchaser, an instruction would have been warranted as to its effect upon the right to a commission, but we discover nothing in the evidence to require such an instruction. The charge given fairly presented the issues involved, and the failure to give the requested instructions furnish no ground, we think, for a reversal of the judgment, nor do we find anything material in the complaints of rulings made upon the special findings.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by the Andale State Bank to recover a deposit which it had in the Wichita State Bank, and which the latter had appropriated and applied upon claims held against the former. Several notes about which the controversy arose were first taken and held by the Ranchmen’s State Bank, but on or about May 29, 1922, that bank was sold to the Wichita State Bank, which took over the assets of the Ranchmen’s State Bank and assumed its liabilities, and thereafter the dealings respecting the notes and renewals thereof were had between the plaintiff and the the Wichita State Bank. At the trial of the action without a jury, the court made the following findings of fact and conclusions of law and rendered judgment for plaintiff.
“1. On October 30, 1922, the Andale State Bank had on deposit in the Wichita State Bank the sum of $4,235.97, which deposit was on that date appropriated by the Wichita State Bank in partial satisfaction of a claimed indebtedness due it from the Andale State Bank, growing out of two notes hereinafter referred to.
“2. The Wichita State Bank had theretofore acquired from the Ranchmen’s State Bank of,Wichita, Kansas, two notes; one for $5,000 signed by C. L. Ault as maker, payable to Harry Ven John and indorsed by Harry Ven John by blank indorsement; the other note for $10,000, signed by Adolph Kropf and Harry J. Ven John as makers, and payable to the Ranchmen’s State Bank. The name of the Andale State Bank nowhere appears on either note as maker, payee or indorser thereof. These two notes are renewals of prior notes for like amounts, on none of which did the name of the Andale State Bank appear as maker, payee or indorser.
“3. On or before April 1, 1919, the plaintiff bank opened an account with the Ranchmen’s State Bank, and thereafter the former from time to time rediscounted paper with the latter.
“4. During all of the times material to the issues in this case Harry J. Ven John was cashier of the Andale State Bank and in the active management of said bank.
“5. On July 10, 1919, the Andale State Bank sent to the Ranchmen’s State Bank for credit a note for $10,000, signed by Adolph Kropf as maker, payable to Harry J.- Ven John and indorsed by Harry J. Ven John individually. On the same day there was credited to the account of Harry J. Ven John in the Andale State Bank the sum of $10,000. On July 14, 1919, the Ranchmen’s State Bank credited the Andale State Bank with $9,853 as proceeds of said note. This note was thereafter renewed from time to time by notes payable to the Ranchmen’s State Bank, signed by Adolph Kropf and Harry Ven John, the last of which renewals was the note of May 18, 1922, above described in finding 2.
“6. On May 29, 1920, the Andale State Bank sent to the Ranchmen’s State Bank for credit a note for $5,000, signed by C. L. Ault as maker, payable to Harry J. Ven John and indorsed by Harry J. Ven John individually. On the same day there was credited to the account of Harry J. Ven John in the Andale State Bank the sum of $4,925.15. On June 1, 1920, the Ranchmen’s State Bank credited the Andale State Bank with $4,925.15, as proceeds of said note. This note was thereafter renewed from time to time by notes payable to Harry J. Ven John, signed by C. L. Ault as maker, the last of which renewals was the note of March 19, 1922, above described in finding 2.
“7. Sometime prior to July 10, 1919, Harry J. Ven John made oral arrangements with Ray F. Foley, cashier of the Ranchmen’s State Bank, whereby the Ranchmen’s State Bank agreed to carry the original Kropf note, it being suggested at the time that the note would be an excess loan for the Andale State Bank, and that it would be an accommodation to the Andale State Bank if the Ranchmen’s State Bank would carry it. At some time prior-to May 29, 1920, similar arrangements were made in regard to the original Ault note.
“8. The original credits by the Ranchmen’s State Bank'to the Andale State Bank of the proceeds of the notes as above referred to were so made at the suggestion of Harry J. Ven John.
“9. On October 21, 1922, Harry J. Ven John paid to the Wichita State Bank $2,040, which was credited on the C. L. Ault note. The records of the Andale State Bank of its transactions on that date and on the two days prior thereto do not show this payment to have been made out of the funds of that bank.
“10. In the statement of the resources and liabilities of the Andale State Bank, made April 24, 1923, upon an examination by the state banking department and signed by W. A. Hecht, who was then cashier of the bank, it having been reorganized some time between October, 1922, and April, 1923, the Andale State Bank did not list as an asset any deposit with the Wichita State Bank.
“11. On September 12,, 1923, in a similar report or statement, the Andale State Bank carried under ‘Other resources’ $4,235.97 as a balance with the Wichita State Bank.
“12. On February 14, 1924, in a similar report, the Andale State Bank carried as ‘Special account, Wichita State Bank,’ the sum of $4,235.97.
“13. On March 8, 1924, the Andale State Bank was ordered by the state banking department to remove said amount from its books. Thereafter said amount did not appear on such statements until after December 11, 1924, at which time the Andale State Bank was given permission by the banking department to reinstate the account and to carry it as ‘other resources.’
“14. In a conversation between Harry J. Ven John and an officer of the Wichita State Bank, had shortly after the deposit had been applied as heretofore found, the evidence shows that Harry J. Ven John stated in reference thereto, that, ‘it was all right, but he wished he hadn’t done it. He was short of money and his reserve was down.’
“15. The evidence does not show any authority given by the board of directors of the Andale State Bank to Harry J. Ven John to obligate the bank for the proceeds of the notes in question, nor does the evidence prove the Andale State Bank received the benefits of the transaction.”
Conclusions of Law.
“1. Its names not appearing on the notes, the plaintiff could not be held liable in an action based thereon.
“2. The evidence does not show an agreement on the part of the Andale State Bank to repay the Ranchmen’s State Bank the money advanced by it in connection with the notes in controversy, nor can an agreement so to do be implied from the transactions between the parties as set out in the findings of fact.
“3. The money having been advanced by the Ranchmen’s State Bank on what on its face appears to be the individual responsibility of Harry J. Ven John and the makers of the notes, it devolved upon the defendant to show-express authority in Harry J. Ven John to make the Andale State Bank responsible therefor.
“4. The evidence being insufficient to prove that the plaintiff was indebted to the defendant at the time the deposit was appropriated, the plaintiff should recover judgment for $4,235.97, with interest at 8 per cent per annum from October 30, 1922.”
The Wichita State Bank appeals.
The turning point in the case is whether the Wichita State Bank had authority to apply the deposit of the Andale State Bank to the indebtedness of that bank. The facts show that the Andale bank opened a deposit account with the Ranchmen’s bank upon an agreement that the reciprocal balance should be maintained between them, and which under banking rules should not be less than twenty per cent of the amount carried. The notes in question were sent by the Andale bank to the Ranchmen’s bank for rediscount and credit. They were not transmitted for collection nor for an individual charge or credit to Ven John, but were sent to be discounted and credited to the Andale bank. On the Kropf note for $10,000, the Ranchmen’s bank credited the Andale bank with the proceeds, to wit, $9,853, and on the Ault note for $5,000 there was a credit given the Andale State Bank, after the discount was taken out of $4,925.15. No complaint was made of this disposition of the paper or of the credits given. On the contrary, the court has found that the credits so given were made at the suggestion of the cashier, of the Andale bank. To this authority for the action taken the evidence shows that the credits given to the Andale bank were checked out and .used by the Andale bank. The bank operated under the agreement. mentioned for several years, and while so operating there were almost daily transactions where there were transfers and discounting of commercial paper. The notes were in the hands of the Andale bank, and were transferred, as we have seen, by its cashier to the other bank. The transfer was made by Ven John, not as a personal matter, but by him as cashier, to be charged to the' account and to the credit of the Andale bank. It is true that Ven John entered a charge against himself in the books of the Andale bank, but the Ranchmen’s bank had nothing to do with this device and is not bound by the entries that he chose to make in the books of his own bank. The transfers'by him as cashier, and the discounting of the notes and having.the proceeds placed to the credit of his bank, were done in the ordinary course of business of a bank. It appears that the business of the bank was intrusted to him as cashier and as its active financial manager. The bank is spoken of as a one-man bank, and for a long period the cashier had carried on, transferring exchange, making the deposits in the Ranchmen’s bank .and making withdrawals therefrom.
The trial court appears to have placed its decision mainly on the ground that there was no evidence of authority given the cashier to obligate the bank for the proceeds of the notes, and that as the name of the Andale bank did not appear on the notes it could not be held liable thereon. The action was not brought on the notes, but was brought under the agreement for the placing and withdrawal of deposits. The transaction was one which a cashier may ordinarily do, since that officer has authority to buy and sell commercial paper and to make transfers of such paper. He had authority to make an arrangement or an agreement with the Ranchmen’s bank as to the transfer of such paper and the placing of the proceeds to the credit of the Andale bank. (Bank v. Bank, 98 Kan. 563, 159 Pac. 403; Trust Co. v. Trust Co., 188 N. C. 766.) The directors of the bank had authority to make such an arrangement; and, having intrusted all the business of the bank to its cashier, is not in a position to repudiate his acts. It availed itself of the funds derived from the proceeds of the discounted notes and had withdrawn them. It acquiesced in the transfer of the notes arid the placing of the proceeds to its credit in that, after the deposit had been applied to the indebtedness of the Andale bank and its cashier was informed that the amount had been charged off to the account and had appropriated the deposits to the indebtedness of the bank, the cashier ratified the application by saying in effect that it was all right, that he was sorry they had done it, that he was short of money' as his reserve was low at that time. It may be noted that subsequently when a report was made to the state banking department of its resources and liabilities, the deposit was not listed as an asset of the Wichita State Bank, although in a later report it did state that it had a deposit of $4,325.97 in the Wichita State Bank and still later an order was made by the bank commissioner to remove that amount from its statement. It appears the bank was reorganized about January 1, 1923, and in reconciling statements between the banks made in June, July, August and September, 1924, the new cashier of the Andale bank made no claim to the deposits which had been made in the other bank and which had previously been checked out. The circumstances of the transaction at the time of the deposit and subsequent ones all tend to show that it was a bank transaction and not an individual one with Mr. Ven John personally. The deposit as made in the ordinary course of business was sufficient, we think, and, besides, his authority has since been recognized and ratified by the bank in checking out and using the credits transferred and deposited by the cashier. It is not questioned that a bank in which a deposit is made has the right to apply the same or a part of it to any matured indebtedness of the depositor to the bank. Upon the record it is clear that the plaintiff is not entitled to recover the deposit, and therefore the judgment of the district court is reversed, with directions to enter judgment in favor of the defendant. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a purchaser of land to recover possession from a tenant under a lease providing for surrender in case of sale. Judgment was rendered for defendant, and plaintiff appeals.
The lease was for a term of five years, beginning August 1, 1925, and contained the following provision:
“This lease is made subject to the sale of the premises, and in case of a sale, the purchaser desiring possession, the lessor or purchaser will be entitled to possession on these terms: Where the land is rented for a money rental, by returning to the lessee a sum in proportion to the whole as shall equal the unexpired time of the term; and where land is rented for grain rent, the amount to be paid for possession will be estimated by three men, one to be chosen by the lessor, one by the lessee, and the third by these two.”
The lessor sold to plaintiff on November 3, 1926, and plaintiff received his deed on December 18, 1926. At the time of sale plaintiff took an assignment of the lease. Defendant learned of the sale some thirty days later. In the latter part of February, 1927, plaintiff gave defendant permission to plant spring corps. On April 16, 1927, plaintiff served written notice on defendant that plaintiff had purchased the land, and desired possession August 1, 1927. The court returned the following finding of fact:
“That on or about June 20, 1927, defendant Starliper called at plaintiff’s residence in Pawnee county, and discussed the matter of arbitrating, as provided by section 8 of the lease. In this discussion they agreed to arbitrate, but did not fix a time or place in such agreement, except that plaintiff requested it to be on that day or the 21st or 22d, the 22d being conditional as to whether or not plaintiff would be in his harvest. The defendant being on his way to St. John, was not agreeable to that day, and on the evening of the same day he caused notice to be sent to plaintiff’s home by telephone that he would be at the farm on the 21st (being Tuesday) and on the 22d (being Wednesday), for the purpose of arbitrating. The plaintiff testified that he did not receive the notice until Wednesday morning, the 22d; and that he took no steps or made no effort to go to defendant’s place until the 19th of July following.”
Plaintiff testified that, in discussing arbitration on June 20, he told defendant harvest was at hand, and arbitration must be had quickly, if it occurred before harvest. Plaintiff testified further that it was impossible for him to go to the farm on Wednesday, because he had commenced harvesting, and had considerable harvesting to do. When plaintiff went to the farm on July 19 to arrange for arbitration, defendant said it was too late. Defendant testified his farming operations were mainly the raising of wheat; that he had some barley, kafir corn, feed, and pasture, but wheat was all he was interested in. In renting land for wheat, arrangements are usually made about the first of June. It will be recalled that notice was given in April. Wheat harvest was over on July 19, and plaintiff named August 1 as the date for surrender. The lease indicates August 1 is the date for beginning of wheat-land leases.
The court based its judgment on two grounds. First, the lease required plaintiff to express his desire for possession within a rea sonable time after purchase, and he did not do so; second, there was no binding agreement to arbitrate. Assuming but not deciding that plaintiff should have exercised his privilege to acquire possession earlier, defendant made no objection whatever to the time when the privilege was exercised, acquiesced in the terms of the notice of April 16 and, pursuant to the notice, called at plaintiff’s residence and agreed to arbitrate. No new agreement to arbitrate was necessary. The lease provided for arbitration, and the provision was not nullified because the parties failed to bring about arbitration in June. All that was essential was. that the arbitration and the award be performed by August 1.
The proceedings in the district court consisted of an appealed action of forcible detention and an action of injunction in aid of the possessory action. The two actions were tried together, and together they presented everything essential to an equitable suit for recovery of land and for ancillary relief. In his pleading plaintiff offered to perform all the conditions of the lease on his part. Arbitration having failed, the court should have determined the amount plaintiff should pay, or should have provided for such determination, and should have rendered judgment for delivery of possession on payment of the amount.
The judgment of the district court is reversed, and the cause is remanded for further proceedings in accordance with the views which have been expressed. | [
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The opinion of the court was delivered by
Hopkins, J.:
These are statutory actions against the directors of the Farmers State Bank of Mulvane to recover the amounts of deposits made by the plaintiffs while the bank was alleged to be insolvent. Plaintiffs prevailed and defendants appeal.
The facts are substantially these: The bank’s business had been conducted for several years by J. R. Rosecrants, its cashier. The defendants had been directors for many years. The defendant Muller, who was past eighty years of age, died March 19, following the closing of the bank, February 8, 1926. He had been in failing health for two years, and was confined to his house for six months preceding the failure; had not been to the bank during that time'. On his death, C. F. Hough was appointed executor of his estate. The defendant Howard was vice president and director, lived near Mulvane, had been a director for fifteen years, and during the same time had been township trustee and assessor of the township, which included a large part of the city of Mulvane. He was engaged, also, in stock raising and farming. Defendant Hatter was engaged in operating a meat market in Mulvane, and had been so engaged for several years. The defendant Schaper was engaged in farming, and in his younger days had for several years been a school-teacher. Each testified substantially to the same effect as to their procedure in examining the affairs of the bank. Meetings of the board were held quarterly before the tenth of the month, ordinarily in the afternoon. At these examinations the cashier, Rosecrants, would bring the minute book and read the minutes of the last meeting. Various books were brought for examination, such as the cash journal, the deposit journal and the note case. The directors would look at the daily cash journal to see the statement of the bank; would take the notes from the note case one by one and discuss the ability of the maker to pay. The cashier would fill out the statement to be sent to the banking department for their signature. The directors made no examination of the register of certificates of deposit or of the other books of the bank. It appears that they very largely took the word of the cashier that the statements were correct. They did not examine the vault to ascertain if customers had left bonds for safekeeping. The bank was closed following an examination by the state banking department. There was evidence tending to show that at the time the bank closed $129,000 of certificates of deposit were found which were not on the register of certificates of deposit, and that notes were outstanding which were not in the note case, totaling $185,000. It was claimed that some of these were forgeries. At the time of an examination of the bank in 1923, the loans amounted to $55,000 more than the deposits. The bank examiner who made the examination at that time testified that the reserve was short and that approximately $15,000 of paper was found which was three months overdue. The defendant Schaper had certificates of deposit totaling $4,000 on which he was paid seven per cent interest, through an arrangement between him and the cashier, Rosecrants. These certificates did not appear upon the register of certificates of deposit. Charles Hillbrecht and his wife owned certificates of deposit totaling $1,700. Hillbrecht was the father-in-law of the defendant Hatter. These certificates were not shown on the register of certificates of deposit. The evidence disclosed that if at any time or at any of the meetings of the board of directors examination had been made of the register of certificates of deposit the directors could have ascertained that such certificates were outstanding as a liability and not shown on the books of the bank.
The jury answered special questions in the three cases to the effect that it was reasonably possible for each of the defendants to have examined into the affairs of the bank and to have ascertained and known its condition. In the Rich case they found that the directors at the four regular meetings each year did not make a thorough examination; that defendants failed to perform their duties as required by law in not examining into the affairs of the bank as thoroughly as was reasonably possible at all times subsequent to requirements made by the bank examiners on their examination in 1923; that defendants first had knowledge of the insolvency of the bank after the bank examiner had made his requirements on the examination of O&tober 29, 1923.
It is contended by defendants that there was an honest effort on their part to perform their duties as directors; that the statute does not fix any definite standard by which the performance of their duties as directors could be measured; that R. S. 9-163 and 9-164 are unconstitutional; that their provisions create a conclusive presumption of knowledge from failure to examine and because a presumption is based upon a presumption.
It is contended that evidence of insolvency was improperly admitted in that a witness (Barnes) was permitted to testify that unregistered certificates of deposit to the amount of $129,000 bore the signatures of J. R. Rosecrants, cashier, and Alma E. Thompson, assistant cashier, and that the same witness was permitted to testify as to the reasonable cash value of notes in the bank at the time they were delivered to him. We cannot sustain the contention. A certificate of deposit, so far as the issuing bank is concerned, is in the nature of a promissory note to pay a certain amount of money at a certain time at a certain rate of interest, and when these certificates were introduced in evidence, the signatures of the bank’s officials proven, together with the dates of issuance and date when they were due, they constituted at least prima facie valid obligations and liabilities of the bank. It is contended by the defendants that these certificates had not been allowed by the banking department, but it appears that no evidence of that fact was introduced. The defendants made an offer to prove they had not been allowed. The offer was refused, but was not followed up on consideration of the motion for new trial. No error can, therefore, be predicated for refusal of the court to receive it. Nor can the contention that the witness Barnes was not competent to testify be sustained. Without reciting in detail the evidence showing his qualification to express an opinion, we think it was sufficient.
In support of the contention that the statute is unconstitutional, the defendants say:
“Considering first section (R. S. 9-163), which as we contend creates a conclusive presumption of knowledge from the failure to-examine, it will be noted that the statute makes only such directors liable as assent to the reception of the deposits with knowledge of the insolvency of the bank. That being true, the plaintiff in such a case is required to prove knowledge of insolvency and assent to the reception of deposits; and want of knowledge and want of assent would, therefore, be complete defenses to such an action. We contend that the legislature cannot say that a bank officer is conclusively presumed to have had such knowledge by reason of his failure to examine the bank. The natural inference to be drawn from the fact that a person has made no investigation of a particular subject is that he knows nothing about the subject. In this instance the statute seeks to reverse the natural order of things by creating a conclusive presumption that an officer who makes no examination of the bank knows that it is insolvent, if such be the case. The statute gives the officer no opportunity to show that he had no reasonable opportunity to make an investigation, and this court, in construing the statute, held that when no examination is made, it is immaterial that such examination if made would have been futile.”
The question was considered adversely to defendant’s contention in Ramsey Petroleum Co. v. Adams, 119 Kan. 844, 241 Pac. 117, and 122 Kan. 675, 253 Pac. 416. The later case was taken to the supreme court of the United States, where on its consideration that court, among other things, said:
“. . . It is said that [R. S. 9-1 163, denies due process of law by creating a conclusive presumption of knowledge from ignorance and by implying that the director knowingly assented to a deposit that he should not have received, of which in fact he knew nothing. As to [R. S. 9-] 164, it is said that facts are made prima facie evidence of other facts that they have no rational tendency to prove. The law as construed by the supreme court of Kansas meets its severest test in the cases against the executor of Kramer, because Kramer, although not so ignorant or incapable of knowledge as thought by the court of first instance, was seriously ill at the time of the deposits and seemed to have much to be said in his behalf, if the actual state of his knowledge had any relevancy as an excuse.
“It is said that the liability is founded by the statute upon the director’s assent to the deposit, and that when this is the ground the assent cannot be proved by artificial presumptions that have no warrant from experience. But the short answer is that the statute might have made the directors personally liable to depositors in every case, if it had been so minded, and that if it had purported to do so, whoever accepted the office would assume the risk. The statute in short imposed a liability that was less than might have been imposed, and that being so the thing to be considered is the result reached, not the possibly inartificial or clumsy way of reaching it. If, without any mention of assent or presumptions or prima facie evidence, the statute had said: Every director of a bank shall be personally liable to depositors for every deposit accepted by the bank after it has become insolvent, all objections would be met by the answer, You took the office on those terms. The statute would be none the worse if it allowed a defense in the single case of the defendants’ having made an honest examination and having been led to believe that the bank was solvent. The mention of assent and evidence of knowledge cannot be pressed to conclusions that the statute manifestly does not allow. The conclusions that as construed by the state court it does impose, it imposes, however much it may cut down, the significance of the assent or knowledge to which it refers. As a matter of law, there is nothing new in charging a party with knowledge of what it is his duty to know, in this case the insolvency of the bank, or with assent to deposits that he must expect while the bank’s doors remain open. But the essential thing is that whether in a roundabout or a perfectly natural way the statute has said, if you take the office, you must take the consequences of knowledge, whether you have it or not. In most contracts men take the risk of events over which they have imperfect or no control. The acceptance of a directorship is as voluntary an act as a contract.” (Ferry v. Ramsey, [U. S.] 72 L. Ed. 560.)
While other questions presented have been considered, we feel that further discussion would serve no useful purpose.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
Laura Etta McKay, the mother of Jack I. Phillips, a Kansas soldier of the world war, made application to the Kansas soldiers’ compensation board for the compensation due him on the ground that he was dead. The claim was disapproved by the compensation board. Laura Etta McKay appealed to the district court, which ordered the board to pay to her compensation for the time Jack I. Phillips served in the United States army during the world war. The compensation board appeals.
The facts disclosed by the evidence-were as follows: Jack I. Phillips, in the early part of 1918, ran away from his home in Cherokee county and enlisted in the army at Joplin, Mo. He was then about eighteen years old. When his term .expired, he again enlisted in the army. His father afterward died. Jack I. Phillips then procured his discharge from the army. By occupation he was a miner. He returned to his home in Cherokee county and went to work. He was unable to earn enough to support his mother. He went to Lead, in South Dakota, in the early part of 1921 to work. He was employed there for a short time and sent part of his wages to his mother. On July 6,1921, he left Lead, S. Dak., and has not been heard from since. His mother has made diligent inquiry to ascertain his whereabouts, but has been unable to learn anything about him since that time. She has written to all the boy’s relatives located in various parts of the West and to all other persons and places where there was any probability of receiving any information concerning him, but no information has been received. No reason for his leaving Lead, S. Dak., appears, except that he was discharged from his employment at that place. The action was tried in the district court on September 26, 1927, more than six years after he was last heard from. He has not filed any claim for compensation with the board.
The board contends that the evidence was not sufficient to show that Jack I. Phillips was dead when the action was tried.
In Ryan v. Tudor, 31 Kan. 366, 369, 2 Pac. 797, the following language is found:
“It is doubtless true that a jury is justified in inferring death within less than seven years, where besides unexplained absence there are other matters tending to show death. In 2 Wharton’s Evidence, § 1277, the author says:
“ ‘It has been incidentally observed that, independent of the general presumption of death arising from unexplained absence abroad for seven years, certain facts have been noticed by the courts as affording grounds on which inferences of death, more or less strong, may rest. Among these facts may be noticed: Presence on board a ship known to have been lost at sea, the inference of death increasing with the length of time elapsing since the shipwreck; exposure to peculiar perils, to which death will be imputed if the party has not been subsequently heard from; ignorance as to such person, after due inquiry, of all persons likely to know of him if he were alive; cessation in writing letters, and of communication with relatives, in which case the presumption rises and falls with the domestic attachments of the party. Thus, death may be inferred by a jury from the mere fact that a party who is domestic, attentive to his duties, and with a home to which he is attached, suddenly, finally, and without explanation, disappears.’
“See, also, 1 Greenleaf, §41, supra; Tisdale v. Insurance Co., 26 Ia. 170; same case, 28 Ia. 12.
“In the case from 26 Iowa the court held that—
“ ‘The death of an absent person may be presumed in less than seven years from the date of the last intelligence from him, from facts and circumstances other than those showing his exposure to -danger which probably resulted in his death.’
“And also, that—
“ 'Evidence of character, habits, domestic relations, and the like, making the abandonment of home and family improbable, and showing a want of all those motives which can be supposed to influence men to such acts, may be sufficient to raise the presumption of death, or from which the death of one absent and unheard from, may be inferred, without regard to.the duration of such absence.’ ”
This does not conflict with Modern Woodmen v. Gerdom, 72 Kan. 391, 82 Pac. 1100, where this court said:
“In order that the presumption that a person once shown to have been alive continues to live may be overcome by the presumption of death arising from seven years’ unexplained absence from home or place of residence, there must be a lack of information concerning the absentee on the part of those likely to hear from him, after diligent inquiry.
“The inquiry should extend to all those places where information is likely to be obtained, and to all those persons who in the ordinary course of events would be likely to receive tidings if the party were alive, whether members of his family or not; and in general the inquiry should exhaust all patent sources of information, and all others which the circumstances of the case suggest.” (Syl. HU 1, 2.)
The court heard the evidence, found that Jack I. Phillips was dead, and rendered judgment accordingly. That finding is conclusive.
The court allowed to the attorneys for the plaintiff, an attorney’s fee of twenty per cent, not to exceed $100, of the amount of the compensation to be paid by the compensation board. It is conceded that that part of the judgment is erroneous.
The judgment allowing compensation to the plaintiff is affirmed, but that part of the judgment allowing an attorney’s fee is reversed. | [
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The opinion of the court was delivered by
Burci-i, J.:
These actions were commenced by the gas companies of Wichita, Hutchinson and Newton to enjoin enforcement of sched ules of rates for the sale of gas in those cities, and to enjoin the public service commission from preventing the gas company from putting into effect a rate scheme known as the three-part rate. The issues were referred to a referee, and the cases were heard together. The referee made findings of fact and conclusions.of law; the report of the referee was approved by the district court, and the relief prayed for by the gas companies was granted. The public service commission appeals.
The commission promulgated an order fixing rates to become effective September 1, 1926. These rates were to supersede existing schedules of rates which were put into effect in August, 1920. The commission and the gas companies agreed the 1920 schedules were unsound. The referee found they were confiscatory, and they were enjoined. After the gas companies prevailed in the district court, the commission took no step to stay the judgments, and the gas companies were at liberty to put into effect schedules of reasonable rates. Instead of adopting the three-part rate, they put into effect another schedule. While that schedule was designated as temporary, it will stand until lawfully superseded, and the three-part rate is no longer in controversy.
The Wichita case will be considered first. The first question to be determined was, What amount of property did the gas company devote to public service, on which it was entitled to earn a fair return? The company purchased the plant in July, 1925, of the Kansas Gas and Electric Company, for $2,690,000, and made subsequent additions and betterments, so that the total cost was $2,892,-594. The commission’s rate base was $2,450,000. In the district court it accepted the rate base proposed by its engineer, Fletcher, which was $2,533,642. The company’s engineer, Strickler, put in evidence a table which he prepared showing the reproduction cost new of the physical property, and reproduction cost depreciated. The commission does not choose to print the table in its abstract. Fletcher’s tables are printed in full. Fletcher found the reproduction cost new to be $3,030,316. He then found the historical cost to be $2,426,931, added historical cost to reproduction cost, and divided by 2. The quotient was $2,728,623, which he said was fair value new. This value was depreciated to find the rate base. The books of the company did not provide data for computation of historical-cost, and there was no other evidence of historical value. Historical value is a fact, and historical value ascertained as Fletcher ascertained it, by guesswork suavely called “estimate,” is a misnomer. In his dissenting opinion in the case of McCardle v. Indianapolis Co., 272 U. S. 400, Mr. Justice Brandeis said:
“The process of determining facts will inevitably be misleading unless each step bears a close relation to the realities of life.” (p. 424.)
The two engineers differed with respect to method of determining depreciation. What was the value of the 355 miles of distribution mains, which Fletcher estimated would cost $1,562,848 to reproduce? Strickler dug hundreds of holes in the ground, and looked at the pipe. Fletcher looked in his books, and determined the matter “scientifically,” without the trouble of physical inspection. He used tables, which he said are to the engineer what mortality tables are to a life insurance company. The cost of reproducing the entire plant, item by item, was estimated. The life years of each item, ranging from 50 years to 5 years, was estimated. The average was 41 -†- years. The dollars invested yearly were estimated in part according to the historical method which has been adverted to, and the average age of the dollars in fixed capital accounts was found to be 9 +• Therefore, the present condition of the Wichita gas utility had to be = 78 4- per cent, and the reproduction cost of the gas mains was depreciated by that formula, without regard to their actual condition. The court understands the primary requirement of the scientific method is to get the facts by observation, when they are ascertainable by observation. Life tables are useful. They show averages based oh wide experience. But when a life insurance company insures a person 21 years old, whose life expectancy is 41.53 years, it does not rely on the tables. It requires him to undergo a physical examination, to determine if he has cancer, or tuberculosis, or something which will reduce his expectancy below the average. Fletcher said, however, that inspection of pipe in the ground will disclose just two things: first, that it was laid so recently as to be new; second, that you can kick a hole in it. Strickler said soil conditions have much to do with the deterioration of pipe, and the inspection method is more dependable than application of life tables. The supreme court of the United States approves Strickler’s method. In the Indianapolis case, supra, involving a water plant, the city engineer used Fletcher’s method, and deducted approximately 25 per cent of estimated cost new, to cover depreciation. The court said:
“The deduction was not based on an inspection of the property. It was the result of a ‘straight line’ calculation based on age and the estimated or assumed useful life of perishable elements. . . . Mr. Hagenah made an estimate of existing depreciation based on actual inspection and a consideration of the probable future life as indicated by the conditions found. He deducted less than six per cent. . . . The testimony of competent valuation engineers who examined the property and made estimates in respect of its condition is to be preferred to mere calculations based on averages and assumed probabilities. The deduction made in the city’s estimate cannot be approved.” (p. 416.)
In the commission’s brief it is said:.
“The referee, in his report, did not recognize the method used by the commission’s engineer in arriving at a ‘fair value’ of the property, did not consider the figures submitted by the commission’s engineer on the question of estimated book investment, nor the estimated condition of the fixed capital accounts.”
The only basis for' this statement is that the referee did not see fit to adopt Fletcher’s method and figures, and the statement illustrates the public service commission’s method of presenting its case. In his report the referee said:
“The engineer for the plaintiffs based his testimony as to depreciation upon a careful examination of the properties. Several hundred openings in the ground were made to enable him to examine the condition of the pipes. The engineer for the commission based his estimates of depreciation upon such historical data as was obtainable as to age of the properties, and then applied tabulations calculated upon the average life of similar property. . . . Taking all the evidence into consideration, it is therefore my judgment that the depreciation is in fact greater than that conceded by the plaintiffs’ engineer, and less than that calculated by the engineer for the commission.”
There is no contention in the commission’s brief that material findings are not sustained by any substantial evidence. There is simply a persistent intolerance of evidence which conflicts with evidence produced by the commission, and this court is asked to accept as conclusive evidence produced by the' commission which the referee did not consider was conclusive. The presumption of validity which in the beginning attended the commission’s order no longer obtains. The presumption here is the judgment of the district court is correct. This court was not empowered by the constitution to try the case de novo, and findings of fact sustained by evidence are as conclusive upon this court as like findings returned in other cases.
Adding to the value of the physical property going-concern value and working capital, Fletcher proposed a rate base of $2,533,642. The referee reported as follows:
“The value of the property is a question of fact rather than of law, and it is to be determined by the court after giving due weight and consideration to all the evidence in the case. In arriving at the valuation of these several properties as hereinafter set out in the findings, I have attempted to give due weight and consideration to all of the evidence throwing light upon those elements of value that have been mentioned by the supreme court of the United States as proper for consideration in such cases as this.”
As a result of this method of dealing with the evidence, the referee found the proper rate base to be $2,740,937.04, a sum smaller than S'trickler’s rate base and larger than Fletcher’s rate base. The district court approved the referee’s finding, and the finding is conclusive here. However, the commission admits the difference between the referee’s rate base and Fletcher’s rate base is not great ehough to be material.
Expenditures made in operating the plant for the year' ending July 31, 1926', were found by the referee to be:
Operating and maintenance .................................... $236,078.92
General overhead ..:............................................ 238,162.76
$474,241.68
The items were shown in detail by the books of the company, and were not disputed. The summary does not include gas purchased, and includes an item of $27,018.05 paid to Henry L. Doherty & Company of New York, for financial advisory and supervisory services rendered. The referee found the services were valuable, and stated findings to include and exclude the item. The material portion of the referee’s finding No. 7 reads as follows:
“The existing rates at Wichita have been in effect since August' 17, 1920. . . . The existing rates in Wichita, Hutchinson and Newton consist of a customer’s charge of seventy-five cents per month, and a flat charge for gas metered and used at Wichita of fifty-eight cents per thousand cubic feet, and at Hutchinson and Newton of sixty cents per thousand cubic feet. The evidence showed that upon a valuation of the Wichita property, as herein found, operations of the plaintiff company for the year ending July 31, 1926, were as follows:
Gas purchased, maintenance and operation, including taxes...... $1,648,567.49
Gross earnings from operation.................................. 1,513,034.21
Net deficit................................................. $35,533.28
Necessary for depreciation, 3 per cent of $2,415,262.93........... 72,547.00
Necessary for fair return, 8 per cent on $2,740,937.04............. 219,274.00
Total net loss $327,264.28”
Operating expenses are reasonable, normal expenses necessary to efficient and economical conduct of the business; and to show that rates were unjust the gas company was required to prove the expenditures for operating expenses were of the character described. The gas company produced the necessary evidence. There was other evidence, and the commission challenged particularly an item of $66,000 designated as “new business expense.” The evidence was, the company was faced with an alarming decrease in consumption of gas. The witnesses for the company and for the commission agreed financial success of the company depended on increasing consumption of gas. The new business expense-was incurred in putting into effect a plan for increasing gas consumption which was devised by Doherty years ago, and which has since been adopted by many public utilities. Fletcher thought the expenditure should be spread over a period of ten years. The commission now suggests a shorter period. The referee found the situation fairly indicated the expense would be a normal expense each year for several years. The commission is not the company’s business manager. The company has a business manager of its own, who must be allowed good-faith exercise of judgment, discretion, and initiative. Fletcher testified as follows:
“Q. Do you have in mind, Mr. Fletcher, any item of expenses which you say is unreasonable in the actual experience of the company during the past year? A. I haven’t analyzed it enough to state whether.any item was an unreasonable expenditure.
“Q. You wouldn’t question that the company has used its best judgment in the creation of these expenses, would you? A. I would not question that, no.
“Q. You may doubt its wisdom in some matters, but you think it has acted honestly in creating these expenses? A. I think so. I don’t think a corporation spends money when they don’t have to.”
The referee’s allowance of three per cent for depreciation is challenged. The allowance was sustained by competent testimony. In the order fixing rates the commission allowed 2.817 per cent, the amount which the company had already entered on its books for retirement expense (depreciation). Fletcher computed 2.4395 per cent as the proper allowance for annual retirement reserve. He made no inspection of the property, and consequently used a theoretical yardstick, as applied to the Wichita company’s gas plant. Strickler used the factual method. The referee was not obliged to accept Fletcher’s testimony to the effect that inspection of the property could reveal nothing of consequence in determining its condition and how long it will probably last. The referee was authorized to give Strickler’s testimony such weight as he deemed it deserved. The argument made here that the depreciation allowance is too high in comparison with the present condition of the property found by the referee, was doubtless made to the referee. If not, it should have been. This court has no knowledge of its own concerning what allowance should be made for annual depreciation of a natural gas distributing system. The question ‘is one of fact, to be determined by the trier of the fact. It is not the province of this court on appeal to weigh the evidence, or the arguments based on conflicting evidence. Something like this has been said before in some Kansas case, and it applies with peculiar forcé to a case of this kind, which involves numerous vague means lying somewhere between extremes, which must be employed with the verisimilitude of exactness.
The observations just made apply to the allowance of 8 per cent as necessary for a fair return. The gas company dedicates its investment to the public service of furnishing, by means of proper instrumentalities, a desirable form of fuel. The company does not produce the commodity it sells. It must depend on interstate commerce for its supply. That supply depends on discovery, extension, development, and control of natural gas fields, and the hazards of natural gas production and transportation. The commission concedes the investment may become valueless for failure of supply. What should be the rate of return on that form of investment?
The law sets up certain standards for the general guidance of a fact-finding tribunal. The proposed question is one of fact, to be determined according to those standards by consideration of evidence duly produced at the trial of the issue. The evidence will include estimates and opinion evidence, and will involve an element of prophecy; but the finding of the court in a rate-review case, based on the evidence, of fair compensation for public utility service, is a finding of fact. To the extent a rate does not fairly compensate the utility for its service it is unjust, unreasonable, and unlawful, within the meaning of the public utilities act. A rate may also be confiscatory, and hence unlawful, on constitutional grounds. But a rate may be enjoined as unjust and unreasonable which is not so low as to be confiscatory of property. (Railroad, Co. v. Utilities Commission, 95 Kan. 604, 148 Pac. 667.) The finding of the referee was that 8 per cent was not merely a fair return, but was necessary for a fair return.
There was no dispute about the rate in the district court. The testimony for the gas company warranted the inference that 8 per cent was a fair rate, was usually allowed, and was necessary for a fair return. Fletcher gave figures showing 8 per cent was a fair return; in all the pertinent tables introduced in evidence by the commission in the three cases 8 per cent was allowed, and there was no evidence showing or tending to show that 8 per cent was not necessary to a fair, just, reasonable and lawful return. The commission now says this fair return must be determined in the light of present rates for money, and in its brief tells about commercial paper rates, time loan rates, yield of representative bond issues, and the selling price of public utilities bonds. The referee was not given the benefit of this information at the trial. In the case of McCardle v. Indianapolis Co., 272 U. S. 400, the court said:
“It is obvious that rates of yield on investments in bonds plus brokerage are substantially less than the rate of return required to constitute just compensation for the use of properties in the public service.” (p. 419.)
As indicated, at the trial nobody manifested any notion that less than 8 per cent would be a just and reasonable rate. The finding that 8 per cent was necessary for a fair return merely responded to the undisputed evidence, and the subject may not be relitigated here.
Without debating the subject further, the district court’s judgment that the existing rate was confiscatory is approved.
To show that the commission’s rate was just, fair, and reasonable, the commission applied that rate to the company’s business in the following remarkable document known as defendant’s exhibit 88:
Revenue.
Domestic gas sold — 2,864,737 M cu. ft., at §0.5176081............ $1,482,811.00
Industrial gas sold — 2,386,156 M cu. ft., at §0.1997297............ 476,586.00
Total gas-sale revenue...-................................... $1,959,397.00
Income from penalties......................................... 15,308.00
Other operating income........................................ 2,014.00
Gross revenue ............................................. $1,976,719.00'
Dess bad debts and allowances................................. 9,943.00
Gross earnings from operation.............................. $1,966,776.00
Expenses.
Domestic gas purchased — 2,864,737 M cu. ft., at $0.20........... $572,947.00
Unaccounted for domestic gas purchased — 38,224 M cu. ft., at $0.20 ...................................................... 7,645.00
Industrial gas purchased — 2,386,156 M cu. ft., at $0.14........... 334,062.00
Unaccounted for industrial gas purchased — 31,835 M cu. ft, at $0.14 ...................................................... 4,457.00
Operation and maintenance expense............................ 389,129.00
Retirement expense .......................................... 66,551.00
Total expense ............................................. $1,374,791.00
Net return ................................................... $591,985.00
8 per cent of $2,527,763........................................ 202,221,00
Surplus ................................................... $389,764.00
This exhibit is an impeachment of the integrity of the commission’s order fixing the rates. It makes the rates yield to the company the enormous surplus, after paying all expenses and a dividend of 8 per cent, of $389,764, a net return on the investment of more than 23' per cent. Of course the commission did not wittingly impose that burden on the consumers of gas in Wichita, and doubt of the integrity of the exhibit arises. There was evidence which the referee regarded as reliable that the retirement expense item was too small, the operating and maintenance item was too small, and the increase in revenue from sale of domestic gas could not be attained. The exhibit gives the price of domestic gas purchased as 20 cents per thousand cubic feet. There was no evidence that gas could be purchased for less than 40 cents. The tables prepared by the gas company showing its application of the commission’s rate, are not printed in the abstract. The abstract does state that, under the company’s evidence, application of the commission’s rates would result in a net annual loss of $492,697.
The Wichita Gas Company buys its gas of the Empire Natural Gas Company, which owns the pipe line bringing the gas from the state of Oklahoma to Kansas. The Wichita company pays the Empire company 40 cents per thousand cubic feet at the city gate. At one time this court was of the opinion the price was subject to regulation by the public service commission. (State, ex rel., v. Gas Co., 111 Kan. 809, 208 Pac. 622.) This view was corrected by the supreme court of the United States. (Kansas Natural Gas Co. v. The State, ex rel., sub nom. Missouri v. Kansas Gas Co., 265 U. S. 298.)
The pipe-line company and the distributing company have an ultimate connection with what are spoken of as the Doherty interests. The shares of the gas company are owned by a nominee of the Gas Service Company. The shares of the Gas Service Company are owned by the Cities Service Company. The Cities Service Company is a holding company, owning the shares of public utility corporations of various kinds throughout the United States. They are all under the supervision of Henry L. Doherty & Company, 60 Wall street, New York City.
Henry L. Doherty & Company maintain a corps of experts in engineering, research work, and other activities, who render valuable services to gas companies by way of engineering advice, legal advice, accounting and auditing service, and assistance in matters of finance. One and three-fourths per cent of the gross revenue of the gas company is paid to Henry L. Doherty & Company for this service. There was no testimony that the compensation was either improper or extravagant, and it was admitted that it was paid in good faith. As indicated above, the referee did not specifically state that he approved or disapproved this item of expense of the gas company, but he used it in his calculation of fair return, and then showed omission of the item would not affect the result.
Doherty companies in Kansas and nearby states are managed from a regional general office. Other groups of Doherty companies are similarly managed. The offices of the general manager, the chief engineer, and the legal department, for this region, are maintained at Kansas City, Mo. The general ledgers of the Kansas gas companies are kept there. All general office expense, executive salaries, general clerical salaries, legal expense, and general traveling expense, are borne by the Kansas City office, and the proper sum is charged to each gas company. The referee found on abundant evidence that the sums paid by the three Kansas companies were reasonable and proper, and allowed them.
The precise relation of the pipe-line company to what, for lack of knowledge of the facts, may be called the Doherty organization, was not disclosed at the trial. It may be assumed that it is a subsidiary corporation, in the same sense that the gas companies are subsidiaries. In the recent case of State, ex rel., v. Hutchinson Gas Co., 125 Kan. 337, 264 Pac. 44, the court considered the relation of the Hutchinson Gas Company to the Cities Service Company. In the opinion it was said:
“The statement by the [district] court that the Hutchinson Gas Company was created for the use and benefit of the Cities Service Company, and that there were never any bona fide incorporators of the Hutchinson Gas Company, made as a reason for the appointment of a receiver, was without foundation in law. Subsidiary corporations are organized every day for the purpose of enabling parent corporations to carry on their business properly. Such corporations are not prohibited by law and are necessary under modern industrial conditions.” (p. 338.)
In the case of Berkey v. Third Avenue Railway Co., 244 N. Y. 84, Judge Cardozo, now chief judge, speaking for the New York court of appeals, said:
“The whole problem of the relation between parent and subsidiary corporations is one that is still enveloped in the mists of metaphor. Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it. We say at times that the corporate entity will be ignored when the parent corporation operates a'business through a subsidiary which is characterized as ‘alias’ or a ‘dummy.’ All this is well enough if the picturesqueness of the epithets does not lead us to forget that the essential term to be defined is the act of operation. Dominion may be so complete, interference so obtrusive, that by the general rules of agency the parent will be a principal and the subsidiary an agent. Where control is less than this, we are remitted to the tests of honesty and justice. (Ballantine, Parent and Subsidiary Corporations, 14 Calif. Law Review, 12, 18, 19, 20.) The logical consistency of a juridical conception will indeed be sacrificed at times when the sacrifice is essential to the end that some accepted public policy may be defended or upheld. ... At such times unity is ascribed to parts which, at least for many purposes, retain an independent life, for the reason that only thus can be overcome a perversion of the privilege to do business in a corporate form. We find in the case at hand neither agency on the one hand, nor on the other abuse to be corrected by the implication of a merger. ... In such circumstances, we thwart the public policy of the state instead of defending or upholding it, when we ignore the separation between subsidiary and parent, and treat the two as one.” (pp. 94, 95.)
It is impossible to declare, on the meager record in this case, either agency or abuse of corporate privilege, in the relation between the Kansas gas companies and the parent organization. The result is, the sale of gas by the pipe-line company to the gas company must be regarded as an instance of ordinary bargain between seller and buyer. All of the evidence, and there was much evidence on the subject, was that no gas was available to the gas companies at a price less than 40 cents per thousand cubic feet.
The commission offered in evidence an ordinance of the city of Wellington showing the rate the distributing company at Wellington charged, not the price it paid. It was admitted the Wellington com pany and the Wichita company were served by the same pipe-line company. The referee was advised the offer was made to prove the Wichita company could sell gas at a cheaper rate. The commission also offered in evidence the franchise granted by the city of Sterling to the Rice County Gas Company. The Rice county company was supplied by the Larutan Pipe Line Company with gas from Oklahoma, and Sterling was farther from source of supply than Wichita. The referee was advised the offer was made to show gas could be piped farther and sold for less. In the brief these offers, which were rejected, take on the following redoubtable aspect:
“Evidence was offered to prove that the reasonable cost of gas at the city gates at Wichita was not as high as that charged by the pipe-line company to the local distributing company. There was offered in evidence testimony showing that gas in sufficient quantities could be secured in the state of Oklahoma and transported to Wichita, Hutchinson and Newton at a cost much below 40 cents.”
The commission asserted the gas company was not trying to get gas as cheaply as possible. The abstract shows the following pertaining to the subject:
“T. J. Striekler, for the plaintiff, testified as follows:
“That he was vice president and consulting engineer of the Wichita Gas Company. [His qualifications as engineer were admitted.] He served in such position since the formation of the company. That the Wichita Gas Company was employed only in distributing gas. That it had no gas offered to it except its present supply, which came from the Empire Natural Gas Company, and that no other rate except the rate of the Empire Natural Gas Company of 40 cents a M at the city gates, was ever offered to it. [It was then admitted in evidence that T. W. Sears, vice president and general manager of the Larutan Pipe Line Company, was asked if he knew any company in the field about Wichita that offered, or at that time was willing to supply gas to Wichita for domestic purposes at a price less than they were now paying, and his reply was ‘No. sir.’]”
This court has no information respecting the provisions of the Sterling franchise. In view of what the vice president and general manager of the Larutan company said, it does not seem important. But aside from that, the offers of evidence which were refused were not accompanied by any offer to prove the conditions or circumstances governing the acquisition and distribution of gas at Wellington and Sterling, and the offers had no tendency to prove that the Wichita company could buy an adequate and dependable supply of gas from anybody for a price less than that paid to the Empire company.
C. L. Bullock, vice president and general manager of the Wichison Industrial Gas Company, was produced as a witness for the commission. The commission offered to show by him that in July, 1924, he was in a position to supply the Kansas Gas and Electric Company with gas for domestic and industrial purposes, and a contract to do so at a price of 30 cents per thousand cubic feet was signed. A period of sixty days was allowed, before the contract was to take effect, for investigation of Bullock’s ability to fulfill such a contract, and on the day before expiration of the sixty-day period, he received a telegram that the contract was canceled. The next day the papers said the Kansas Gas and Electric Company’s properties in Kansas had been purchased by the Doherty interests.
The following was what Bullock was called to prove, as stated to the referee by the commission’s attorney:
“The purpose of this whole thing is to show that this offer was made, was able to be fulfilled, and that it was necessary for these Doherty people to secure these properties in order to hold up the price of gas in Wichita, Hutchinson, and Newton. I make that offer.”
The offer was rejected. What the referee desired to know was whether the Wichita Gas Company was neglecting opportunity to buy cheaper gas; and it would have borne more directly on the issues in the case if the attorney for the commission had asked Bullock if he or any person or corporation known to him was in a position to furnish the Wichita company with an adequate supply of domestic gas for less than 40 cents, at any time from July, 1925, to the time he was called to testify.
On the face of this record the Wichita Gas Company had no alternative to purchase of gas from the pipe-line company at 40 cents per thousand cubic feet. The public service commission could not improve the situation by requiring the gas company to purchase gas at 20 cents which it could not obtain, or to sell 40-cent gas at an unremunerative rate. Under the evidence the commission’s rate was clearly confiscatory.
The judgments in the Hutchinson and Newton cases are challenged in precisely the same manner and on precisely the same grounds as the judgment in the Wichita case, and nothing would be gained by reviewing the evidence in those cases. The argument is that if a lower rate base were found, if a smaller sum for expenditures were approved, if 2 per cent were allowed for depreciation instead of 3 per cent, if less than 8 per cent were allowed for return, etc., etc., all as the commission contended should be done, the rates would yield a sufficient return. The trouble is, the gas companies supported their contention that the rates were noncompensatory by evidence, and this court cannot retry the cases. Its function is precisely what it was in the Wichita case, and enough has been said on that subject.
General criticisms of the judgments, as, for example, that findings made respecting the existing rate and the commission’s rate were influenced by the referee’s views respecting the three-part rate, have been considered. They are all without substantial merit. No useful purpose would be subserved by extending this opinion further.
The judgment of the district court in each case, enjoining enforcement of the existing rate and the commission’s rate, is affirmed.
Harvey, J., concurs in the result in the Wichita and Newton cases, and dissents in the result in the Hutchinson case.
Hopkins, J., dissenting. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to enjoin the levy of an execution issued out of the county court on a judgment previously rendered in that court, in favor of J. O. Ward and wife, defendants in this action, and against J. L. Tilton, plaintiff herein. After a hearing on the merits the trial court rendered judgment for defendants, and plaintiff has appealed.
The record discloses that in May, 1925, J. O. Ward and wife sued J. L. Tilton and another, in the county court of Trego county (organized under R. S. '20-801 et seq.) for the conversion of wheat and damages resulting therefrom in the sum of $113.10. Summons in proper form was duly issued and served on defendants. On the return day defendants appeared in court, without counsel, and without being sworn made statements to the court concerning the matters alleged in plaintiffs’ bill of particulars. They filed no pleading. The court, on consideration of plaintiffs’ bill of particulars and the statements of defendants, rendered judgment for plaintiffs, as prayed, which judgment was duly entered on the records of the court. No appeal was taken from this judgment. Nearly two years thereafter an execution was issued' on this judgment, and under it a levy was made on property of J. L. Tilton, who then brought this action.
In this action plaintiff alleges that the judgment of the county court was void, but he sets forth no facts justifying such an allegation. The case was one proper to be brought in the county court; it was properly brought by the filing of a bill of particulars and the issuance and service of summons; and on the return day defendants were personally present in court and plaintiffs were represented by counsel. Plaintiff appears to argue that the judgment was void because no witness was sworn who testified. This contention has no merit. A valid default judgment might have been rendered if defendants had not appeared. But they did appear and made statements, and on these, in part, the court rendered judgment for plaintiff. That one may bind himself by statements made in open court, whether made in person or by counsel, is too well settled to require citation of authorities.
Appellant says this action is based on the statute (R. S. 20-301) giving district courts power to correct errors and abuses of inferior courts. Ordinarily it is by appeal to the district court that it corrects errors and abuses of inferior courts. It is only when the inferior court lacks power or jurisdiction of the matter before it that the extraordinary remedies of injunction or prohibition may be invoked.
Frankly, this case had no merit from the start. It is to be regretted that it ever consumed the time and encumbered the records either of the trial court or of this court.
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 to recover alimony. An award was made, and the only contention made on this appeal is that the award is so inadequate as to indicate an abuse of discretion.
Edna M. Flautt'brought the action April 20,1925, against her husband, Charles E. Flautt, alleging that he had abandoned her, had re fused to contribute towards her support and that she was in necessitous circumstances. She alleged that her husband was strong and able-bodied and was earning a salary of $125 per month, but that he had refused to provide for her maintenance. He answered denying generally plaintiff’s averments, added that his wife had abandoned-him without excuse and had been guilty of extreme cruelty towards him. She replied with a denial of his allegations, and further stated that on June 19, 1924, he had brought an action against her to obtain a divorce upon the grounds of abandonment and extreme cruelty, and that in a trial of that action the court had found and adjudged that his allegations were untrue and refused to grant a divorce. Upon the trial of the present action the court found the issues in favor of the plaintiff. Among other things, it was found that the parties were married on July 30, 1914; that they had lived with the wife’s parents in Niotaze until 1921, when they moved to Caney, where the defendant had employment, and lived there in furnished rooms until 1923; that the defendant then requested her to live for a time with her parents in Niotaze, which she did, and from that time until April, 1924, he returned and spent week ends with her. Then on June 19, 1924, he brought the action for divorce that has been mentioned, which was determined against him. After the rendition of that judgment the wife in a letter offered to overlook the past and to live with the defendant as his wife, and also stated that if he declined to do so she would expect him to provide for her support. This offer was ignored and shortly afterwards the present action was .brought by her. It was found that she was living with her parents, that her father was 84 years of age and her mother 79, and that their only means of support was a pension received by her father from the United States government; that at the commencement of the' action the court had ordered the husband to pay temporary alimony in monthly installments of $25, but that he had defaulted in these payments. The court further found that the plaintiff owned five shares of bank stock of the value of about $500, and that she had about $400 which she had saved from previous earnings. As to defendant’s situation, the court found that he was 44 years old, in good health, able-bodied and was then earning $100 per month, -and a small additional compensation for services to the Caney fire department. It was further found that since the litigation was commenced defendant had inherited from his mother approximately $3,000. The court found the plaintiff to be without fault and that the defendant had abandoned her and refused to live with or support her. The judgment of the court was that plaintiff be granted $400 as permanent alimony, and in addition $312.50 which he had been ordered to pay as temporary alimony and had not paid. It was further decreed that defendant pay the costs of the action, including $90 suit money and an attorney’s fee for plaintiff of $150; and further, that he set over to plaintiff an amount of the interest he had. received from his mother’s estate sufficient to meet the alimony awarded to plaintiff or secure the payment of the award by a good and sufficient bond. The plaintiff appeals and insists that the alimony awarded is so inequitable and inadequate as to be an abuse of the discretion vested in the court.
Defendant does not contest the findings of the court that he had abandoned his wife in April, 1924, and had refused to live with her or to contribute towards her support, or that she had been living with her parents who were in straitened circumstances. Neither does he question the finding that the plaintiff was a good housewife and was not guilty of the charges that he had made against her to the effect that she had abandoned him and was guilty of gross neglect of duty. It was expressly found that she was without fault in her marital duties.
Under the circumstances the allowance of $400 as permanent alimony appears to be plainly inequitable and inadequate. She had the bank stock mentioned of the value of $500, and about $400 in money, the result of her savings, but these small amounts were her own separate property in which the defendant had no right. The amount he was required to pay beyond the $400 as permanent alimony, was the $312.50 which was arrears of temporary alimony which he had been ordered to pay for plaintiff’s maintenance during the pendency of the action, together with counsel fees of $150 and $90 as suit money. These items of allowance were for the immediate needs of the wife and really added nothing to the permanent alimony awarded. They were charges made necessary by the misconduct and wrong of defendant in the abandonment of his wife and refusal to perform his bounden duty to provide for her support. On the other hand, defendant had $3,000, was a healthy, able-bodied man in middle life, and was then earning $100 per month. The allowance of $400 to the wife out of the $3,000 and his earnings appears to be inequitable. It would appear to be inadequate even if the arrears in the temporary alimony allowed, was treated as permanent alimony. When he pays all the allowances for arrears of temporary alimony, suit money and counsel fees amounting to $552.50, and adding thereto the $400 awarded as permanent alimony, he will have paid only $952.50 out of his estate of $3,000 in money, to say nothing of his earnings of $100 per month. There is no fixed rule for determining what proportion of a husband’s estate should be allowed to the wif.e as alimony, but there are many cases in which one-half of the estate was deemed a proper allowance. (19 C. J. 265.) It has been held by this court that an allowance in excess of the husband’s estate may be made, and the allowance made a charge on his future earnings. (Nixon v. Nixon, 106 Kan. 510, 188 Pac. 227.) The ground for the allowance is the duty which the law imposes upon the husband to provide for the support of his wife. In determining the amount the court may, among other things, take into consideration the conduct of the parties, their financial situation, the needs of the wife and the earning capacity of the husband, and make such an award as will be just and reasonable. It is true that the amount of the allowance rests, largely in the discretion of the trial court, but this discretion is judicial and not arbitrary. It is subject to review and the allowance may be revised and corrected if it appears to be unjust to either party or unreasonable and oppressive. In Imhoff v. Imhoff, 112 Kan. 727, 212 Pac. 886, it was held that an allowance made was so disproportionate and inadequate as to require a review and a modification.
In view of the conduct of the defendant, his financial condition and earning capacity, we conclude that the allowance made as permanent alimony was plainly inadequate. It appears to the court that anything less than $900 would be inadequate, that is, plaintiff should have been awarded at least $500 in addition to the $400 awarded as permanent alimony. The allowance made must therefore be set aside. A new trial is directed unless the defendant consents that a judgment be entered awarding plaintiff $900 as permanent alimony, and if so modified the judgment may stand as affirmed.
Hutchison, J., dissenting. | [
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The opinion of the court was delivered by
Hopkins, J.:
This controversy involves a construction of section 7 of chapter 245 of the Laws of 1927, relating to persons engaged in or desiring to engage in the occupation of cosmetologist. The state sought to enjoin the defendant from practicing such occupation. It was defeated and appeals.
The facts are substantially these: The defendant, Emma Gillen, is a resident of Fort Scott and the operator of a beauty parlor in a drug store owned by the defendant, John Synott. From July, 1924, until about October 1, 1926, she practiced her occupation at Fort Scott! From October 1,1926, until March 1, 1927, she practiced in Joplin, Mo., returning to Fort Scott shortly after the first of March, and was there practicing June 1, 1927. After the latter date, the state board of cosmetologists gave notice to the defendant and held an examination which she declined to take, whereupon the board refused to issue her a license on the grounds that she had not practiced the occupation of cosmetologist continuously for a period of six months prior to the first day of June, 1927, within the state of Kansas and that she did not take the examination as required by the act.
The defendant contends that the act under consideration nowhere provides that the applicant for registration must have practiced within the state of Kansas nor for six months immediately prior to its taking effect. We think the contention sound.
The statute in question provides that:
“Every person, now engaged in the occupation of cosmetologist, as herein defined, and who has practiced his occupation for a period of six months continuously and prior to the taking effect of this act and desiring to pursue such occupation in this state, shall file with the secretary of the board of registration an affidavit, . . . that no examination shall be required of such applicant if he is so established and is so practicing such occupation of coémetologist in good faith and complies with the provisions of this act as to character and physical condition, otherwise such applicant shall be subject to the requirements of section 8 herein.” (Laws 1927, ch. 245, § 7.)
The question presented is whether or not the legislature intended that a person must -have practiced the occupation of cosmetologist continuously and next prior to the taking effect of the act in the state of Kansas in order to procure a certificate without examination, or whether the section means that one who has 'practiced 'the occupation of cosmetologist continuously for six months either in Kansas or any other state shall be entitled to such certificate without examination.
Nowhere in the act is it stated that the applicant must have practiced within the state of Kansas or that the applicant shall have practiced for six months immediately prior to its taking effect.
It is conceded that the defendant was a resident of the state of Kansas and had practiced the occupation of cosmetology for approximately three years in Fort Scott, except for a period of some five months, when she was temporarily out of the city of Fort Scott and practicing in Joplin, Mo.; that she was a resident of Fort Scott at the time of the taking effect of the act and engaged in the occupation of cosmetology as required therein. It was agreed that she made application and tendered her fees and did everything necessary to be registered as provided in the act, and that the only reason for not issuing her a certificate was that she had not practiced within the state of Kansas for a period of six months immediately prior to the taking effect of the act. In our opinion the interpretation contended for is not correct.
“Where the statute not only effects a change in the common law but is also in derogation of common rights, it must be construed with especial strictness. Examples of such statute are those which operate in restraint' of personal liberty or civil rights ... or which restrain freedom of contract, the exercise of any trade or occupation, or the conduct of business. The rule to be applied in the construction of all such statutes, is that they must not be deemed to extinguish or restrain private rights, unless it appears by express words or plain implication that it was the intention of the legislature to do so.” (36 Cyc. 1179, 11800
This rule was recognized in Gray v. Stewart, 70 Kan. 429, 78 Pac. 852, where it was said in the opinion:
“Being in derogation of the natural rights of persons to hold and manage their own property, the sections must be striotly construed, and their provisions extend no farther than the clear import of their terms required. In this, they are analogous to the case where a spendthrift is deprived by statutory proceedings of his natural right to manage his own property.” (p. 432.)
In 25 R. C. L. 1057 it is said:
“In case of statutes penal in their character, or in derogation of common right, a strict construction is required.”
In Crayton v. Larrabee, 220 N. Y. 493, 116 N. E. 355, L. R. A. 1918E, 432, in referring to the state board of health, the court said:
“Among all the objects to be secured by governmental laws, none is more important than the preservation of the public health. As a potent aid to its achievement the state creates or authorizes the creation of local boards of health or health officers. The character or nature of such boards is administrative. In determining whether or npt powers derogatory of common-law rights are conferred upon them by statutory enactment, the rule of strict construction must be applied and the bestowal must clearly appear.” (p. 501.)
In 36 Cyc. it is said:
“A ‘strict construction’ of a statute is a close adhei'ence to the literal or textual interpretation, and a case is excluded from its operation unless the language of the statute includes it, while a statute ‘liberally construed’ may be extended to include cases clearly within the mischief intended to be remedied, unless such construction does violence to the language used.” (p. 1172. See, also, 25 R. C. L. 1024.)
We are of opinion it was the intention of the legislature that any person who was at the time of the taking effect of the act a resident of Kansas, and who had practiced the occupation of cosmetology for a period of six months, should be exempted from taking the examination required; that it was not the intention to discriminate between the practice of such occupation in this state and such practice in another. The requirement exacted was that the applicant for registration be a resident of this state at the time of the taking effect of the act and to have practiced continuously for six months.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Missouri-Kansas-Texas Railroad Company obtained a judgment permanently enjoining Winifred Ball, administratrix, from prosecuting an action against the railroad company in Jasper county, Missouri. The defendant appeals.
David N. Ball, a fireman on the plaintiff’s passenger train, was killed near Erie, where the train was derailed. His wife was ap pointed administratrix of his estate, and she brought an action under the federal employer’s liability act, in Jasper county, Missouri, to recover damages for the death of her husband, which occurred, as it was alleged, through the negligence of the railroad company. Shortly after that suit was brought in Missouri, the present action was commenced to enjoin the prosecution of the action in Missouri. It is alleged that the plaintiff is a Missouri corporation, and that its principal place of business is at Parsons, with agents at other points in the state of Kansas. .The suit instituted in Missouri, it is alleged, was an attempt to vex and annoy the railroad company and secure an undue advantage of it, and gave the administratrix an inequitable advantage. It is further stated that the procedure and practice in Missouri differs materially from that of Kansas, in that the laws of Missouri permit a verdict by jury less than the whole panel, that no special questions can be submitted to the jury, and that the bringing of the action at Joplin in Missouri prevents a view by the jury of the situation at the scene of the accident. Joplin, where the court sits, it is alleged, is about sixty miles from Parsons, and that many of the witnesses reside in Parsgns, and others reside near the place' of the accident, about ninety miles from Joplin. It is further alleged that a trial in Missouri would have to be largely by deposition, and that the taking of depositions would make vexatious and unjust expense and render it impractical to obtain records and surveys which are kept at Parsons. Plaintiff alleged that it has no adequate remedy at law and is entitled to equitable relief against the further prosecution of the action in Missouri. Mrs. Ball'answered by denying that the suit was an attempt to vex or harass the plaintiff, and is not more vexatious in a trial at Joplin than it would be in Kansas. She further denies the averment that appellee cannot have a fair trial in Missouri, specially denies that suit was brought to avoid the effect of any law of the state of Kansas or to avoid the force and effect of the practice and procedure in Kansas. The defendant further stated that the action could have been brought in any county in Kansas in the state where service could be obtained upon the agents, at places much farther from the scene of the accident than in Joplin, Mo.
Two witnesses of the railroad company were produced at the trial for an injunction, and one of them, its claim agent, testified to the effect that the scene of the accident was at the crossing of a stream two miles north of St. Paul; that prior to that time there had been a flood; that it was necessary to obtain information as to the watershed area of the stream over a territory ten miles wide from east to west, and to ascertain the conditions of the rainfall in order to determine the cause of the accident. That in order to properly present to the jury the history of the rainfall over that watershed it would be necessary to call as many as twenty-five or thirty witnesses -outside of the employees of the company, nearly all of whom live in Neosho county, Kansas, and as many as fifteen or twenty employees of the company at Parsons, Kan., would necessarily be called in order to properly present the case. Another witness, also a claim agent of the plaintiff, gave similar testimony. No other testimony was produced in behalf of the railroad company. The parties stipulated that the Missouri court was one of general jurisdiction, which had jurisdiction of the subject matter of the action and of the parties, and also that a certain statute of Missouri pleaded by the defendant provided in substance that suits against, railway corporations shall be brought either in the county where the cause of action accrued or in any one of several counties through which the railroad runs, or in a county where the company keeps an office or agent for the transaction of its usual business. No testimony was offered by the defendant, and upon the evidence of plaintiff the court made the following findings of fact:
“That the said David N.- Ball met his death in Kansas while engaged in the discharge of his duties as such employee, approximately ninety miles distant from Joplin; that his death was caused from unusual flood waters in the basin or watershed of Flat Rock creek; that the evidence of the manner and conditions under which said David N. Ball met his death, including the weather, the rainfall, the basin of Flat Rock creek, and its flood history, the circumstances and surroundings, all material issues in the case, must be obtained largely, almost entirely from the evidence of residents in the vicinity of the place of his death; that the testimony of many material witnesses will necessarily be had from that vicinity, and also many material witnesses from Parsons,'including employees of plaintiff railroad company; that it would be greatly to the advantage of the parties to the suit that the witnesses appear in person before the court and jury; that their personal attendance cannot be compelled in the Missouri court by legal process; that the taking of testimony by depositions would be expensive and'unsatisfactory; that to try said cause pending in the Missouri court, would subject plaintiff herein, defendant in said Missouri court, to great, unusual and unnecessary expense and inconvenience, and vexatiously harass and annoy plaintiff, and would secure to defendant or defendants herein an undue, unfair, inequitable and unconscionable advantage, and plaintiff has no adequate remedy at law. The court further finds that the action by defendant, Winifred Ball, administratrix of the estate of David N. Ball, deceased, as plaintiff in the circuit court of Jasper county, Missouri, sitting at Joplin, was brought by said plaintiff in said Missouri court to obtain an inequitable and unjust and unfair advantage of Missouri-Kansas-Texas Railroad Company, plaintiff herein, defendant in said Missouri court, and to vexatiously harass and annoy plaintiff herein, defendant in said Missouri court.”
On the evidence stated and upon the findings, the court gave judgment for plaintiff permanently enjoining the defendant from the further prosecution of the case in the Missouri court. It will be observed that the suit sought to be enjoined was brought under the federal employer's liability act, under which state courts have concurrent jurisdiction with the federal courts, and necessarily the substantive law is the. same in every court in every state having jurisdiction of the cause. It is conceded that the action is transitory in its nature and could be brought in any state where the railroad company could be served with process. The action had been brought in Missouri and was pending in a county and was triable in a city through which the railway company was operating its railroad, and it is not questioned that proper service was had upon the company. It will be noted that there was no finding of fraud or oppression on the part of the defendant in the bringing of the action in Missouri; nor indeed could such a finding have been made under the evidence in the case. The only ground brought out in the testimony of plaintiff was that a great number of witnesses would be required to properly try the case, and that they resided considerable distances from Joplin, Mo., where the case was to be tried. Nothing was shown about the motive of the administratrix in bringing the action in Missouri, and no attempt was made to prove that she was actuated by fraud or a purpose to oppress or to gain an inequitable advantage of the railroad company, or to harass or annoy that company. The only inference to be drawn from the testimony was that it would cause inconvenience and expense to the company.
An action may of course be instituted to enjoin parties from prosecuting actions in our own or a foreign state, where the purpose of a party is to do an inequitable thing, something contrary to good conscience, and to enjoin them from doing acts which will oppress or work wrong and injury to others. In Cole v. Young, 24 Kan. 435, the court ruled that injunction might be granted to thwart such a purpose and to prevent such a wrong, but it was held that it could not be allowed to compel a party to carry on his litigation at home rather than in the court of a foreign state having competent juris diction. It was further stated that it could not be granted on a basis of distrust of the courts of a sister state.
In another case it was held that a party might be enjoined from prosecuting a garnishment proceeding in a foreign state brought to subject the personal earnings of a debtor where the earnings were exempt and were necessary for the support of his family, and where it was alleged that the suit had been brought to evade the laws of Kansas. (Zimmerman v. Franke, 34 Kan. 650, 9 Pac. 747.)
In still another case, Gordon v. Munn, 81 Kan. 537, 106 Pac. 286, an injunction was upheld against the maintenance of an action where a suit had already been brought in Kansas on a certain cause of action, and the party enjoined had brought another action in Colorado on the same cause. It was stated in the affidavit for the injunction that the adverse parties were able and had threatened to spend large sums of money for the purpose of oppressing, annoying and intimidating the plaintiff to abandon her rights and surrender her property to them. In that situation it was held injunction was within the equity powers of the court. In Mason v. Harlow, 84 Kan. 277, 114 Pac. 218, it was held that equity has power to restrain, a party within its jurisdiction from prosecuting a suit in the courts of another state in a proper case, as where an action has been brought maliciously in order to vex and harass another citizen or to interfere or prevent the.free administration of justice it will not hesitate to exercise the power; but it was expressly said that “courts will not enjoin a suit in another state merely on the ground of the convenience of parties,” etc.
In the late case of Bank Savings Life Ins. Co. v. Wood, 122 Kan. 831, 253 Pac. 431, a suit which had been brought to enjoin the defendant from prosecuting an action in Missouri upon a policy of life insurance, and where the Kansas court was asked to grant an injunction upon the alleged ground that the case had been brought for the purpose of vexing and harassing the plaintiff and causing it the additional expense of defending in a foreign state, it was held that the foreign court having obtained jurisdiction of the parties in the suit begun there, a later action brought in Kansas to enjoin the further prosecution of the action in the foreign state could not be maintained for any of the reasons stated, that the convenience of the parties is not a sufficient reason for an injunction, and that “this is doubly true when the action in the foreign state is the one first to be commenced.” (p. 834.)
Although several grounds of alleged inequity were set forth in plaintiff’s petition, it appears that nothing but mere inconvenience to plaintiff was shown in the evidence, and hence the Wood case is a controlling authority that injunction does not lie to restrain the defendant from prosecuting her action in Missouri. In the answer of defendant it was specifically denied that she was attempting to vex, annoy or harass the plaintiff in bringing her action in Missouri, or that it was done to obtain an inequitable or unfair advantage of the plaintiff, and, as we have seen, no evidence was produced to show that defendant was actuated by a purpose to harass or oppress the plaintiff in the bringing of the action. In the answer reference was made to the plaintiff’s allegation as to the difference in the procedure in the courts of Kansas and Missouri in respect to submitting special questions to the jury, something not provided for in Missouri, and that under the procedure in Missouri a verdict may be given by three-fourths concurrence of the members of the jury. The defendant alleges that these are mere matters of procedure; that the action being brought under the federal employer’s liability act, the substantive law governing actions under the act is of the same application, force and effect as in other jurisdictions, and further, there can be no advantage to the defendant in the practice and procedure since it applies alike to both parties, and that before a verdict can be given against the company in Missouri it must be found guilty of the negligence alleged in her petition, under proper instructions of the court given at the request of both parties, and that the findings made under the practice of Missouri are of equal advantage to plaintiff and* defendant, and cannot be inequitable or unjust to either.
Much was made by plaintiff, it is said, as to the distance of Joplin, Mo., from the place of the accident, about eighty miles, and as to that point defendant stated that under the laws of Kansas the suit could have been brought in any county of Kansas on the line of the railroad, at points much more distant from the scene of the accident, and'no objection could have been made as to the inconven-, ience and expense of obtaining witnesses at the trial; and defendant added that the suit was not brought in Missouri for any other purpose than for a fair and impartial trial of the issues in the case. In this kind of action it may be instituted in any competent court wherever service on the defendant may be made. If the matter of inconvenience was a ground for consideration, a defendant might in sist that the action must be brought where the defendant resided or at the place of the accident. In the present action the defendant could not have complained if defendant had brought the action in Geary county; Kansas, which is about three times farther away than Joplin, Mo., is from the scene of the accident, or it might have been brought in any one of a number of counties in Kansas much farther away from Parsons than is Joplin, Mo. In any event the inconvenience of taking witnesses to Joplin or of procuring their testimony by deposition cannot be regarded as a fraud upon or oppression of plaintiff, or that it is such an inequity as would justify injunction.
Besides our own decisions cited, reference is made to Chicago, M. & St. P. R. Co. v. McGinley, 175 Wis. 565, where similar questions were raised and determined. An action was brought in Wisconsin to enjoin an employee of the railroad company from prosecuting an action in Minnesota for personal injuries sustained in Wisconsin. That action, as in this case, was brought under the federal employer’s liability act. Among the points urged as a ground for injunction was that in Minnesota a verdict may be rendered by ten concurring jurors, while a unanimous verdict of twelve jurors is required in Wisconsin, and it was contended there as here that the deprivation of a unanimous verdict was a ground for injunction. The court, however, held that the venue being in a state where a unanimous verdict is not required it cannot be said that the bringing of the action in another state would work a hardship, oppression or fraud against the plaintiff, as the provision operates with equal force and effect upon both parties. It was added that the same reason applies to the contention that the trial in the sister state deprives the plaintiff of the right to have the jury view the premises where the accident occurred. There was a further holding that:
“A court of equity is not warranted in enjoining a citizen of this state from prosecuting in a sister state an action for personal injuries sustained in Wisconsin on the ground that a large number of the witnesses reside in this state, making necessary the taking of their depositions instead of oral testimony.” (Syl. IT 7.)
The right of recovery in a transitory action like the one in question depends on the laws applicable where the injury was sustained, but the rules of procedure and the methods of trial to be used are those of the court in which the action was brought. It must be assumed, too, that the court of the sister state will give the plaintiff
as well as the defendant a fair trial and administer the substantive law applicable as it would if the case were tried in Kansas, and that it will judicially and justly determine the issues in the case. See, also, Lancaster v. Dunn, 153 La. 15; Illinois Life Ins. Co. v. Prentiss, 277 Ill. 383; Edgell v. Clarke, 45 N. Y. Supp. 979; Gibson v. Bellingham & W. Ry. Co., 213 Fed. 488; American Express Co. v. Fox, 135 Tenn. 489; Wade v. Crump, (Tex. Civ. App.) 173 S. W. 538.
Following our own authorities and the supporting ones cited,“it must be held that on the evidence in the record an injunction could not be properly granted.
The judgment will be reversed and the cause remanded, with directions to enter judgment for the defendant. | [
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'The opinion of the court was delivered by
Dawson, J.:
The plaintiff school district sued to collect an account of $405.40 as tuition fees for the education of certain pupils who reside in the defendant district and who attended school in the plaintiff district during the school year 1924-1925.
The defendant answered with a general denial and filed a cross petition alleging that by mistake it had paid tuition fees to the plaintiff for the education of some of its resident pupils, in the sum of $345 for the school year 1923-1924 and $475.20 for the school year 1925-1926, for the return of which sums with interest it prayed judgment.
Plaintiff’s demurrer to defendant’s answer and cross petition was overruled, and this appeal is to determine the propriety of that ruling.
The pleadings of the litigants developed all the pertinent facts. At the town of Page, in Logan county, for some years past the plaintiff school district has conducted a high school. The Barnes law (Laws 1905, ch. 397) with its amendment (R. S. 72-3001) has been adopted in Logan county and the plaintiff school district maintained its high school at the standard required by that act at all times concerned in this lawsuit.
Defendant is a community high school comprised of the whole territory of Thomas county. It came into existence as successor of the former Thomas County high school by virtue of the Laws of 1923, ch. 187 (R. S. 72-2501 et seq.).
Plaintiff collected tuition from defendant for the two school years 1923-1924 and 1925-1926, and founds its present action for tuition for the year 1924-1925 upon R. S. 72-2505, which, so far as pertinent, reads:
“. . . If any pupil, living within the boundary of said community high-school district, shall, with the approval of the county superintendent, attend any other high school, either approved or accredited outside the boundaries of said community high school, the board of trustees of said community high school shall pay or cause to be paid into the treasury of the said high school which such pupil attends a tuition fee of two dollars per week for the time such pupil is in actual attendance at said high school: . . . Provided farther, That the provisions of this section relating to tuition shall apply also to pupils attending high schools in adjoining counties. [L. 1923, ch. 187, § 5;. March 20.]”
Defendant partly bases its cross action (as well as its defense) on the theory that the statute governing the controversy is R. S. 72-3014, which reads:
"That tuition shall be free in all high schools established pursuant to Laws 1905, chapter 397 [Barnes law], as amended by later enactments, to pupils residing in the county where such high-school law is in force: Provided, That such pupils shall present to the high-school authorities an entrance certificate, signed by the county superintendent of public instruction, certifying that such pupil has completed the course of study prescribed by the state board of education for the pupil below the high school, or who shall pass such entrance examination as the high-school authorities may require: Provided farther,
That when pupils reside in an adjacent county that does not operate under the provisions of such high-school law established pursuant to Laws 1905, chapter 397, as amended by later enactments, the board of county commissioners of such adjacent county in which the pupils reside, shall, upon recommendation of the county superintendent of public instruction having jurisdiction over the high school where said pupils attend, pay the tuition of $2 per week or fraction thereof, for such pupils to the district in which the high school is located: Provided further, That this act shall apply to all high-school pupils residing in any adjacent county that attend high school established under Laws 1905, chapter 397, as amended by later enactments: Provided further, That the said county commissioners shall pay such tuition from the general fund of the county where such pupil or pupils reside. [L. 1923, ch. 191, § 1; March 24.]”
It requires only a casual examination of the two statutes just quoted to see that both cannot apply to the matters in controversy between these litigants. And so far as they may be in conflict with each other the latest enactment is' controlling. (Arkansas City v. Turner, State Auditor, 116 Kan. 407, 226 Pac. 1009; Board of Education v. Turner, Auditor, 116 Kan. 735, 229 Pac. 74.) Under this rule of statutory interpretation, R. S. 72-3014 is the governing statute because it took effect four days later than R. S. 72-2505. Andy indeed, it would be the governing statute for another reason equally good. There is a field of operation for both these statutes. So far as we are presently concerned, R. S. 72-3014 deals with the method by which a Barnes high-school district is to be reimbursed for the tuition of pupils who reside in an adjacent county which does not operate under the Barnes act — a situation which fits Thomas county pupils attending the plaintiff’s Barnes high school like a glove. R. S. 72-2505 governs a more general situation of affairs. If Thomas county pupils should attend any high school outside of Thomas county, at Goodland, Hoxie, or Oberlin, for example (assuming the high schools in those cities are not Barnes high schools and that the other conditions of such attendance were met), the Thomas county community high-school district would be bound to pay the tuition prescribed under R. S. 72-2505, for such a state of affairs would fall precisely within the terms of that statute.
Another point is urged in support of the demurrer to the defendant’s cross petition. There is a rule that money paid by mistake of law cannot be recovered although money paid by mistake of fact can be recovered. This rule is less potent nowadays than it was in bygone times; and although it may still be effective in civil actions between private litigants it seems that it does not govern in actions to recover public funds erroneously or wrongfully expended; and in such actions the question whether such unauthorized expenditure was made through mistake of law or mistake of fact is not ordinarily important. In a recent case, which was vigorously and repeatedly contested before this court, where a school board without statutory authority had expended public funds to. purchase motor busses for the transportation of pupils, which expenditure was concededly a matter of good business judgment and more economical than to pay for such transportation as the statute permitted, it was held that it was the bounden duty of the school board to exhaust every legal resource to recover the money thus unlawfully disbursed. (State, ex rel., v. Bradbury, 123 Kan. 495, 256 Pac. 149.)
This interesting question is exhaustively treated in County of Wayne v. Reynolds, 126 Mich. 231, 86 A. S. R. 541, where it was held that the county could recover from its ex-county clerk certain moneys which without statutory authority it had paid to him for extra services. To the same effect was Board of Commissioners of Huntington Co. v. Heaston, 144 Ind. 583, reported and annotated in 55 A. S. R. 192, 203, et seq. In Ada County v. Gess, 4 Ida. 611, the action was to recover public money paid to a public officer. One of the defenses invoked was the rule barring recovery of money paid by mistake of law. The court said:
“We are told, however, that money paid through a mistake of law is a voluntary payment, and cannot be recovered back. . . . Some of the authorities cited, however, seem to sustain the contention of the appellant, and some authorities go so far as to hold that payments of the money of the public by its authorized agent to an officer on account of a mistake of law cannot be recovered back. The doctrine is so repugnant to every principle of justice and common honesty that the latter cases do not, by their reasoning, commend themselves to this court. We cannot consent to carry the doctrine beyond settlements between private individuals.”
See, also, 30 Cyc. 1301, 1314, 1315.
In the cross petition under present consideration defendant alleged that at the times it had paid to plaintiff the sums sought to be recovered—
“It was not aware and did not know that the plaintiff high-school district was operating under and by virtue of what is commonly known as the ‘Barnes high-school law’ hereinbefore referred to, and such fact was not' brought to the attention of the officers of defendant high-school district, or any of them, until the month of February, 1927.”
That allegation pleaded a mistake of fact, which, if established, would furnish a basis for recovery, but of course such an allegation might be traversed and the result would or might be inconclusive, and it would serve no purpose to refrain from applying the rule governing the right and duty of public boards and officials to recover moneys erroneously paid out whether so paid by mistake of fact or mistake of law. Where no intervening equities appear — and none is suggested herein — the rule invoked by appellant does not apply.
As we regard the matters presented for our appellate review, we are not asked to pass on the sufficiency of plaintiff’s petition — in view of Byers Rural High School v. Stafford County Comm’rs, 121 Kan. 287, 246 Pac. 681; id. 121 Kan. 832, 250 Pac. 313; and School District v. Kingman County Comm’rs, 122 Kan. 213, 251 Pac. 631.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The parties to this action were interested in the estates of their deceased parents. Matilda A. Snyder, their mother, died on May 2, 1922, and H. Snyder, their father, died on June 2, 1923. The probate court appointed J. H. Tharp administrator of both estates, who administered them under the direction of the probate court, making reports from time to time, which were approved by the probate court, and after a final report was discharged. For convenience Ray W. Snyder will be referred to as defendant.
On April 2,1925, Ray W. Snyder, one of the five children, brought an action against the others to partition the estate of H. Snyder, deceased. On May 2, 1925, all the heirs entered into a contract for settlement and partition of the property of the estate, in which among other things it was stipulated that Ray W. Snyder should dismiss his action in partition upon compliance with the provisions of the contract. The present action was brought by the heirs other than Ray W. Snyder against him to require the specific performance of the contract, including the conveying of real estate, in accordance with its terms and the payment of certain obligations named in the contract, in order to equalize the shares of the heirs; and they also asked to have the title quieted to the real estate allotted to each of them.
In addition to a general denial the defendant admitted the execution of the contract and the administration of the estate by J. H. Tharp under the direction arid orders of the probate court. Defendant further alleged that Tharp had expended large sums of money in repairs and improvements of the real estate without authority of law, and that one-fifth of these expenditures, which were estimated at $10,000, belonged to him and should be accounted for to him by the plaintiffs. He also alleged that he is ready and willing to execute conveyances to the plaintiffs of their shares in the real estate upon the execution of conveyances to him of the share of property which rightfully belongs to him. The defendant prayed for an accounting of the property of the estate involved, that a balance be struck in his favor, and that he be given credit upon any obligations due by him to the other heirs. When the issues were joined A. Coleman was appointed referee, who made findings of fact and law, which included an elaborate accounting as to the interests of the several heirs, which was approved by the court and judgment was rendered in favor of the plaintiffs. The defendant appeals, and assigns as error the finding and adjudging that Ray W. Snyder was indebted to the plaintiffs in the sum of $6,384.72, also in allowing interest on the judgment, in ordering that the real estate set apart to defendants be sold without right of redemption, and in holding Ray W. Snyder liable for charges to the estate in the sum of $2,861.12 for repairs and improvements made upon the estate by the administrator.
In the contract there was a recital of an estimate that the estate would yield to each of the five heirs at least $21,500; that certain real estate and personal property belonging to the estate should be set aside to Ray W. Snyder as his share, and if the property so set apart upon appraisal exceeded the sum of $21,500 he should secure the payment of the excess to the other heirs. It was stipulated that the residue of the estate after payment of all indebtedness, including costs and expenses of administration, should be divided among the heirs share and share alike, and that any indebtedness of any of the heirs should be computed as a part of his share. A part of the property of the estate was a mill and lumber plant, and it was agreed that it should be leased to Ray W. Snyder for a year on conditions and at a rental which were stated, and also that he should have the privilege and option to renew the lease for a longer time upon specified conditions. It was further agreed that the administration of the estate should be closed, if possible, within two- years and final settlement and partition made, and also a provision for securing equality among the heirs in the shares received. There was a stipulation that, upon the request of any party before final settlement, a complete audit of the property of the estate, including the mill and lumber plant, should be made. The contract was submitted to and approved by the probate court. The findings set forth the death of the parties; that they died intestate; the names of the heirs who are the parties herein; the appointment of the administrator; the completion of the administration by him and his final discharge; the purchase by Ray W. Snyder of property of the estate for which he gave to the plaintiffs a note for $3,726.65, which, was still unpaid; that there had been an agreement by all the heirs-that Tharp, the administrator, should run the mill and lumber yard for a period, which was done; that Tharp had paid the taxes upon, the property for .the years 1922, 1923 and 1924, and the first half of the year 1925; schedules of these were stated; that the administrator made repairs and improvements on real estate at considerable expense, which was made a charge on the property of the estate, and that Tharp had collected as rents and profits from the-real estate $5,299.85, which was taken into account in the final accounting by the referee. Accounts were stated between the several heirs and the estate, which are set out at length in the findings. It was found that the realty had been received by the parties in accordance with the agreement, which provided that the heirs should share equally in the estate. There was a finding that Ray W, Snyder had knowledge of the repairs and improvements made on the real estate by the administrator up to March 28, 1925, which amounted to $2,861.12; that there was no showing of his consent or knowledge of repairs made after that time and which amounted to $2,810. It was further found that on March 11, 1926, when the administration of the estate had been closed, it amounted to $99,-959.91, and that each of the heirs was entitled to $19,999.91. Ins the conclusions it was stated that under the agreement each heir was entitled to one-fifth of the proceeds of the estate; that Ray W. Snyder was the owner of specified property and the plaintiffs were the owners of the remainder. It was further concluded that the administrator, as such, had no right to pay taxes on the real estate, but as the taxes were due and the property owned jointly, each heir was liable for its proportionate share, and that no damage to any of the heirs resulted from the payment by the administrator. As to the charge for the half of the taxes in 1925, it was held that this was not a proper charge, but that-the rights of all were protected in that the same had been charged to plaintiffs’ distributive shares.
Another conclusion was that the administrator had no right to the possession of the real estate or to the profits derived from it, but as to that it was concluded that he was accountable to the heirs, and this item was not involved in this action. It was concluded that Ray W. Snyder having knowledge of the repairs and improvements up to a certain date and having made no objections thereto was liable to the extent of $2,861.32, but that he was not estopped as to his claim that $2,810 was wrongfully expended, since it'was not shown that it was done with his knowledge or consent, and one-fifth of the amount was credited to him. There was a further finding that he was indebted to the plaintiffs in the sum of $3,726.65 on a promissory note, and the sum of $2,711.50 on excess payment on the distribution of the estate, making a total of $6,438.22; that from this should be deducted the sum of $471.18, leaving a balance of $5,967.04, for which amount judgment should be given to plaintiffs against Ray W. Snyder, with interest thereon from May 7, 192,6. An order of distribution of this amount among the individual plaintiffs was made.
There is a contention that some claims adjudged against the defendant were not warranted, and some evidence is quoted to sustain the claim. The record does not purport to contain all the evidence pertaining to these claims, and our view of the facts is limited to what is set out in the findings of the court.
One contention is that the court was not justified in adjudging that interest should be paid on the indebtedness of Ray W. Snyder to the plaintiffs from May 7, 1926. Under provisions of the family compromise agreement payments were due when final settlement was made of the Snyder estate. That was the date from which interest was reckoned and allowed. It was defendant’s duty to make payment at that time, but as he failed to make or tender payment no reason is seen why interest should not be adjudged. It is said there was a dispute as to the amount of defendant’s indebtedness and that interest could not be allowed until the dispute was settled. A debtor cannot escape liability for interest upon indebtedness which is due by disputing the amount of it. The claim was not for unliquidated damages but for money due under a contract about the execution of which there is no dispute. The right to interest accrued when the debt became due as provided in the contract, and we think the court rightly held the defendant liable for interest- at the legal rate upon the indebtedness from the time it should have been paid.
It is next contended that error was committed in charging defendant with a proportion of the taxes and improvements made. In the assignment of errors complaint is made of the allowance for repairs and improvements on the real estate, but nothing is said as to the taxes. Assuming that the general specification of error that the defendant was not indebted to the plaintiffs in the amount adjudged, we will examine the finding as to taxes. The taxes for three years on the real estate were paid by the administrator. It was conceded and held by the court that these payments were beyond the authority of the administrator. The administrator, however, was in possession of the property, including the mill and lumber plant, the latter being held by him under a contract with the defendant. The taxes accrued yearly and were paid by the administrator out of .the proceeds of the estate. The property was owned in equal shares by the five heirs jointly, and each was liable for one-fifth of the taxes. While it was an excess of authority on the part of the administrator, all knew that the taxes must be paid, and instead of each heir paying one-fifth of the taxes it was paid by the custodian of the funds of the estate owned jointly by the heirs. It was an equitable adjustment that was made by the court, and the defendant was not charged for more than his proportion of the taxes for which the property was subject.
As to the repairs and improvements made by the administrator upon the real estate without authority, it appears to have been done with the knowledge of the defendant as well as of the other heirs. With knowledge that these expenditures were being made for the benefit of the estate, no objection was made by the defendant. Because it was not sufficiently shown that he consented to or had knowledge of a part of the repairs and improvements made, the court eliminated the expenses of these and charged them to the plaintiffs. By reason of his knowledge and acquiescence in the part charged to him, he was not in a position to deny liability, and we think the court rightly held him liable for his share of the benefits derived from the expenditures. No error was committed in this respect.
There is also a complaint of that part of the decree which pro vides for making the excess a charge upon defendant’s share, and if payment was not made, for a sale of his land without redemption. In partitioning and equalizing the shares of the heirs in the estate, the court found it necessary to require the payment of an excess obtained and held by the defendant. Defendant urges that the partition decree contemplates a sale of real estate, and that the right of redemption extends to all cases where real estate is sold under execution or order of sale, and that he was entitled to an order permitting him to redeem within eighteen months from the date of sale. The action was in the nature of partition. It was based on an agreement-for partition of property of the estate. It provided for equalizing the shares by making the indebtedness of any heir to the estate a part of his share, so that all of them should receive share and share alike, and the decree did no more than to carry out the partition agreement. The partition was properly made in pursuance of the partition statute, R. S. 60-2111. It has been determined that a sale in a partition action is not the equivalent of a forced sale under execution and it was said:
“. . . It is no more than a process for the purpose of dividing and distributing among owners real estate where it is found impossible to have a division in kind.” (Towle v. Towle, 81 Kan. 675, 689, 107 Pac. 228.)
In such an action the statute provides that:
“The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties and to secure their respective interests.” CR.S. 60-2114.)
Under thé' statute the court may make partition of the property upon the broad principles of equity, and may require one who has-been given an allotment in' excess of his share to make payment o‘f the excess, and if immediate payment is not made to charge it as a lien against the excessive allotment. (Sawin v. Osborn, 87 Kan. 828, 126 Pac. 1074.) Within its equity powers the court makes a complete and final partition, and we think a provision for the enforcement of the lien is not within the redemption statute. No error was committed in decreeing that the partition should be made, including the enforcement of the lien without providing for a redemption period.
We discover no error in the proceedings, and therefore the judgment is affirmed. • - | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment granting to the plaintiff a divorce from the defendant and awarding alimony to her. The court made exhaustive findings of fact, twenty-eight in number, and reached five conclusions of law, the effect of all of which was to find that the defendant had been guilty of gross neglect ■ of duty and of extreme cruelty toward the plaintiff.
Among the findings of fact were the following:
“Defendant has an interest in certain real estate under the joint and mutual will of A. Mecke, deceased, and Mary Mecke, who is still living. Said will of A. Mecke, deceased, has been admitted to probate in the probate court of King-man county, Kansas. At the time of his death the said A. Mecke was the owner of the following-described real property, to wit: [Two quarter-sections of land.] Said real estate is of the fair, reasonable, market value of seventy-five dollars ($75) per acre.
“Said Mary Mecke, comaker with A. Mecke of said joint and mutual will, is now the owner of the following-described real property, to wit: [One quarter-section of land.] Said real estate is of reasonable value of fifty dollars ($50) per acre.”
A. Mecke was the father and Mary Mecke is the mother of the defendant.
The twenty-sixth finding of the court was as follows: .
“For a period of about four years defendant has been guilty of extreme cruelty and gross neglect of duty toward plaintiff in the following particulars:
“(a) Defendant has been unkind, dictatorial, domineering, and contemptuous in his speech, conduct and manner'toward plaintiff.
“(b) Although plaintiff was so situated that he was in a position to provide a comfortable and adequate maintenance for plaintiff and their children, nevertheless the defendant has failed, neglected and refused to properly provide for the care, comfort and support of said plaintiff and her minor children.
“(c) Defendant has failed and refused to consider the reasonable and proper requests of plaintiff for medical attention and care on the occasion of the anticipated birth of a child.
“(d) Defendant has ignored and denied the reasonable requests and wishes of plaintiff to attend church and to carry on the religious observance customary for one in her position and condition.
“(e) Defendant has failed and refused to provide plaintiff with a reasonable degree of recreation and relief from the hard routine of her everyday life and duties.
“(/) Defendant has not provided and has denied to plaintiff and deprived her of the opportunity for association with the people of the community in a social way.
“(g) Defendant’s customary manner of address to plaintiff has been to express scorn and contempt for her proper suggestions and wishes.”
The first and second conclusions of law were as follows:
“1. That the defendant has been guilty of gross neglect of duty toward the plaintiff, for which plaintiff is entitled to a decree of divorce from the defendant.
“2. That the defendant has been guilty of extreme cruelty toward plaintiff, for which plaintiff is entitled to a divorce from the defendant.”
In the twenty-sixth finding the court reached conclusions of fact from the evidence found and set out in the previous twenty-five findings.
The defendant contends that “the findings of the trial court are not supported by the evidence,” and that “the evidence taken in its most favorable light is insufficient to support a finding of gross neglect of duty or extreme cruelty, as such terms or phrases have been repeatedly defined by this court.” The defendant filed a motion to set aside all or parts of nineteen of the findings of fact made by the court and all of the five conclusions of law. It is not impossible to set out the evidence which sustains each of the findings made by the court, but on account of the number of objections made to those findings and the extreme length of the discussion of all of them, it is no.t deemed advisable to say anything about any of them, except to say that there was evidence which tended to prove that at the time of the birth of their first child, when the plaintiff asked that a doctor be called, the defendant said to her, “Cows and horses could have their young without a doctor, and why couldn’t she”; that his general treatment of her and conduct to her was along the line of the statement just quoted; that she was often compelled to gather “cow chips” for fuel in the house; that he did not provide her with proper clothing; that he did not provide her with any social life or recreation; that he did not assist her to attend church; that he compelled her to walk to the neighbors from three-fourths of a mile to two miles away whenever she was compelled to go to them for any purpose; and that he would not take her out in his automobile, although he was often out in it himself. After a careful examination of the evidence as disclosed in the abstracts, this court concludes that there was evidence sufficient to support the conclusions of the trial court that the defendant had been guilty of both extreme cruelty and gross neglect of duty.
Another matter urged by the defendant is that “all acts prior to October, 1926 — being the time the parties resumed marital relations — have been condoned and forgiven.” The twenty-seventh finding of fact made by the court was in part as follows:
"That the plaintiff left the defendant for a short time in the fall of 1925, at which time she filed suit for separate maintenance, but shortly thereafter returned to the defendant and dismissed her suit. In October, 1926, she again left the defendant and filed another suit for separate maintenance against him, and again returned to the defendant a short time thereafter.”
The present action was commenced September 21, 1927. The evidence tended to show that the defendant’s cruelty and neglect continued from the time of the birth of their first child to the time of their final separation, and that there was no change in his treatment of her after she returned to him following her first and second separations from him.
We quote from 2 Bishop’s Marriage, Divorce and Separation, §269, as follows:
“Condonation is the remission, by one of the married parties, of an offense which he knows the other has committed against the marriage, on the condition of being continually afterward treated by the other with conjugal kindness— resulting in the rule that while the condition remains unbroken there can be no divorce, but a breach of it revives the original remedy.”
(See, also, 19 C. J. 83, 87; 9 R. C. L. 380, § 172; Entsminger v. Entsminger, 99 Kan. 362, 367, 161 Pac. 607.)
The judgment gave to the plaintiff as alimony an undivided one-half interest in and to the estate, title and interest of the defendant under the joint will of A. Meeke and Mary Meeke; provided for the payment of $100 attorney’s fee; gave to the plaintiff a right to certain clothing and wearing apparel; the custody of the children subject to defendant’s right to visit them two days during each month and forty dollars a month support money; and enjoined both parties from removing the children from the jurisdiction of the court. The defendant contends that “the award of one-half of the prospective inheritance property, which the defendant might anticipate inheriting under the joint will of his parents, is grossly excessive.” There is no definite rule of law by which to measure this contention. It is a matter that addresses itself to the sound discretion of the trial court, and until that discretion appears to have been abused, the supreme court must accept the judgment of the trial court.
This may be said in favor of the judgment: The plaintiff is given one-half interest in 480 acres of land which will come to the defendant under the will of his father and mother. He retains the other one-half interest therein. The defendant met the plaintiff while he was a soldier in France during the World War. He returned to this country at the close of the war and then returned to France, married the plaintiff, brought her to Kansas, and engaged in farming on the 480 acres of land. Three children were born. He- grossly mistreated the plaintiff, and by his conduct compelled her to seek separation and divorce. She becomes a stranger in a strange land with three small children to support. Under these 'circumstances, this court cannot say that the trial court abused its discretion in rendering the judgment. It was eminently fair to the defendant. He has no just cause for complaint.
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 of the district court of Douglas' county, in which plaintiff’s application for a writ of mandamus to compel the county clerk to print plaintiff’s name on the primary election ballot as a candidate for the Republican nomination for sheriff was denied.
The ground of the county clerk’s refusal was that plaintiff’s declaration of intention to become a candidate did not comply with the statutory form prescribed by R. S. 25-206, the particular defect being that the declaration was not made and sworn to by plaintiff himself, but-by one Lee Colman in plaintiff’s behalf.
The primary election statute contemplates two methods by which a person may become a candidate for nomination to a public office by an organized political party — one where friends of the aspirant take the initiative in his behalf by circulating petitions and getting the requisite number of signatures of qualified party voters as prescribed by R. S. 25-205, and another where the aspirant takes the initiative in his own behalf by filing a verified declaration of his candidacy, together with the requisite fee prescribed by R. S. 25-206.
A careful reading of R. S. 25-206 and of the form of declaration set forth therein makes it quite clear that this declaration is to be made by the aspirant himself.. It is his declaration,- his avowal of membership in and adherence to the principles of the political party whose candidate he aspires to be, and his personal affidavit that confers legal authenticity and legal potency upon its contents. In this case it is not the plaintiff, Al E. Smith,'who makes the declaration, but “Lee Colman for Al E. Smith” who makes and verifies it, and it is signed in this fashion: “Al E. Smith, by Lee Colman.”
Some days after the time for filing declarations of candidacy had gone by it was shown to the county clerk, and later to the trial court, that plaintiff had authorized Lee Colman to sign plaintiff’s name to the declaration. However, our view of the matter is that the declaration must be the personally signed and attested act of the declarant, and that it cannot be effectively made by proxy. The court is confirmed in this view of the statute by taking note of R. S. 25-207, where the legislature by a supplemental enactment to the primary law expressly authorized the filing of a declaration of candidacy for a city office by an authorized agent of the aspirant. This is in effect a construction of the statute by a coordinate branch of the government that without R. S. 25-207 a declaration by an agent or proxy would be without legal effect.
The writ of mandamus was properly denied-and the judgment is affirmed. | [
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The opinion of the court was delivered -by
Johnston, C. J.:
This action was brought by the Indiana Limestone Company against J. R. Cuthbert, doing business as the Wichita Cut Stone Company, the Scott Brothers Construction Company, and the Federal Surety Company. The defendants prevailed, and plaintiff appeals.
It appears that the Scott Brothers Construction Company entered into a contract with the board of education of the city of Wichita for the erection of a school building designated as the Alcott school building, they to furnish the material and supply the labor necessary and proper to construct and complete the school building in accordance with plans and specifications which had been prepared. The Scott Brothers executed a bond with the Federal Surety Company as surety, the pertinent parts of which are as follows:
“The conditions of this obligation are such that, whereas, the above bound^n principal, Scott Brothers Construction Company, is the lowest and best bidder for the making of the following work and/or improvement, viz.: the erection and completion of the Alcott school building in the city of Wichita, Kan., and has entered into a certain written contract with the board of education of Wichita, Kan., for the performance and the completion of said work and/or improvement in exact accordance with the bid of said principal, and in accordance with certain plans and specifications heretofore made, adopted and placed on file in the office.of the clerk of the board and Glen Thomas, architect. Now, therefore, after the said Scott Brothers Construction Company, principals, shall well and truly pay for the work of all laborers, subcontractors, teamsters, teams and wagons employed on said work and for all material used therein, then this obligation shall be void.”
The Scott Brothers Construction Company entered into a contract with J. R. Cuthbert, who does business as the Wichita Cut Stone Company, that he would supply the stone called for in the plans, and specifications, cut ready to be placed in the building. Cuthbert had no part in the construction of the huilding, but merely procured and delivered the material in proximity to it. He purchased stone from the plaintiff, which prepared and shipped the stone ready to set in the school building. The building has been completed, but Cuthbert failed to pay the plaintiff for all of the stone used. The stone, it appears, was fabricated in accordance with plans and specifications which were furnished it. It therefore brought the action against Scott Brothers, and also against the Federal Surety Company on the bond heretofore set out. At the trial of the action the plaintiff produced its testimony, and the court upon a demurrer thereto held that the plaintiff did not come within the terms of the bond and was no more than a materialman to a subcontractor. Among other things it-appears that Cuthbert was furnishing stone for a number of other buildings-and purchased the stone upon an open account with the plaintiff. Monthly statements were sent to Cuthbert on all the stone furnished to him by the plaintiff for all the buildings without regard to where the material was to be used. Cuthbert and his company became a bankrupt and failed to pay for the stone sold to him.
On the part of the plaintiff it is contended that it furnished the stone for the value of which this action is brought; that it fabricated the stone in Indiana according to plans and specifications prepared for the building, that the stone was furnished for the purpose and actually did go into the building, and that it had not received payment for the stone, and therefore insisted that it comes within the terms of the bond. It was admitted by the plaintiff on the trial of the case that it would not have been entitled to a lien under the general mechanic’s lien law, but it did claim that the bond was provided for by the legislature to insure the payment of materials furnished, and it makes no difference by whom the materials have been furnished when those materials have been made a part of the school building and payment therefor has not been made. It is said that the statutes providing for security to those who furnish labor and material in construction of public buildings should be given a liberal construction, and a liberal construction would be not to limit its benefits to those only who supply labor or materials direct to the contractor.
What effect should be given to the provision of the bond that the obligees shall pay for all material used in the construction of the building? The bond was given in pursuance of the statute which provides that public officers, before entering into contracts with persons for the making of public improvements or the construction or repair of public buildings, shall take a bond with sufficient security conditioned that the contractors shall pay all indebtedness incurred for labor or material furnished in the construction of the public building or the making of a public improvement. (R. S. 60-1413.1 This statute is a quasi mechanic’s lien law (Wells v. Mehl, 25 Kan. 205), the bond being given in lieu of a mechanic’s lien upon public property, and is for the benefit of the laborers and materialmen. (Freeman v. City of Chanute, 63 Kan. 573, 66 Pac. 647; Griffith v. Stucker, 91 Kan. 47, 136 Pac. 937.) In interpreting the statute, and in determining the rights of parties under it, we look to the mechanic’s lien statutes. (Road Supply &:Metal Co. v. Bechtelheimer, 119 Kan. 560, 240 Pac. 846.) It is conceded by the plaintiff that it would not have been entitled to a lien under the mechanic’s lien law, but it is contended that the statute goes far beyond the mechanic’s lien law. It is urged that the bond in terms provides for payment of all materials used in the building. The stone it is said was obtained for the building, was used in the building, and is now a part of it, and that the plaintiff who sold it to Cuthbert has not received payment for the stone. It is further said that it makes no difference by whom or from whom the material was purchased. It is enough that, it was material used in the building, and it is immaterial whether it was purchased from the contractor or subcontractor, nor how far removed the party furnishing it may be from the owner or the contractor. It cannot be overlooked that the provision for the bond is a substitute for a mechanic’s lien and is itself a quasi mechanic’s lien. It must be read in the light of the purpose of the statute in determining who are contractors, subcontractors and materialmen, and who are within the protection of the statute. In the transaction what was the position of the plaintiff. The Scott Brothers Construction Company was the contractor; it contracted for material from Cuthb'ert, he had no part in the placing of the stone nor in the construction of the building. He was not a subcontractor but was rather a materialman. The contractor had no dealings with plaintiff and had to account to no' one but Cuthbert for the stone which Cuthbert contracted to furnish. As a materialman Cuthbert had a claim for a lien and a right to enforce payment foi^the material furnished under the contract, and it is shown that payment for the stone has been made to him. Will the fact that he has failed to pay the plaintiff, from whom he purchased the stone, give it a claim in the nature of a lien, and if it would how far back might the liability be extended? It is decided in Nixon v. Cydon Lodge, 56 Kan. 298, 43 Pac. 236, that—
“The provisions of the mechanic’s lien law.do not extend to persons so remote as subcontractors of a subcontractor.”
In the course of the opinion the court remarked:
“If it may be extended beyond those who contract with the contractor, it would seem that it might be extended indefinitely to successive subcontractors. This rule would be hazardous to the owner, oppressive to the contractor, and impracticable in its operation. Such an interpretation should not be adopted except where the statute plainly and positively requires it.” (p. 305.)
Much less is there ground for extending liability to one who sold material to a materialman who had nothing to do with the construction of the building. Under the authorities one who takes no part in the construction of a building, but merely furnishes material for use in a building, is not a subcontractor, and if the claimant is employed to furnish material only, whether fabricated or made ready for use or not, cannot be regarded as a subcontractor. (HihnHammond Lumber Co. v. Elsom, 171 Cal. 570; Foster Lumber Co. v. Sigma Chi Chapter House, 49 Ind. App. 528; Merriman v. Jones, 43 Minn. 29; Matzinger v. Lumber Co., 115 Ohio St. 555; Rudolph Hegener Co. v. Frost, 60 Ind. App. 108; Phillips on Mechanics’ Liens, 3d ed., § 51.) Cuthbert was not a contractor or a subcontractor, but only a materialman, and those from whom he purchased material dealt with him as a materialman. The contractor and his sureties are liable for material furnished to a subcontractor, but are not liable to one from whom the materialman purchased material. In a case where a contractor undertook to build a court house, he executed a bond with a surety company as surety under a statute similar to the one under consideration, providing that he should pay for labor and for material used in the construction of the building. The contractor contracted with the Julian S. Nolan Company for steel to be used in the building, and that company procured the steel from the Concrete Steel Company, and as the steel sold by the latter company was not paid for it brought an action on the bond. The supreme court of Nebraska held that—
“A contractor for the construction of a public building who purchases material from a dealer who has no contract for the construction of any part of the building, and pays such dealer therefor in good faith, without notice of any liability of such dealer, will not be liable on his bond under section 3840, Revised Statutes 1913, to the manufacturer or jobber from whom such dealer may have purchased such material.” (Concrete Steel Co. v. Rowles Co., 101 Neb. 400, syl. ¶ 2.)
In the course of the opinion it was said:
“We do not find it necessary under the circumstances in this case to enter upon an exhaustive discussion of the questions involved in this contention.
There must be some limit to such liability. A nail manufacturer sells to a jobber, who in turn sells to a hardware merchant, who subsequently fails, and his stock is sold at public sale by the referee in bankruptcy. A purchaser of a keg of nails at such sale exchanges it with - another hardware merchant for other goods, and the latter sells it to the contractor, and the nails are finally used in the construction of the building, but the manufacturer has not been paid for them. The contention of the plaintiff seems to go so far as to hold the contractor’s sureties liable to the manufacturer for the selling price of the nails. A subcontractor, that is, one who undertakes to construct some definite part of the building, in some sense represents the contractor, and he represents the owner of the building. He is known by all parties interested in the construction of the building, and in contracting with him he can be held to guarantee, if necessaiy, that he will pay for the materials and labor he uses in constructing his part of the building. The cases cited seem to make a distinction between a subcontractor and a materialman, and hold the contractor and his sureties liable for materials and labor furnished to a subcontractor, and not liable to the manufacturer or- dealer from whom a material-man may have purchased his stock. It appears, as already stated, that the contractor purchased this material of the Nolan Company, and understood that payment was to be made to that company. That company had no contract for the construction of any part of the building; it was not a subcontractor within the strict meaning of that term.” (p. 403.)
As stated the court held there was no liability upon the bond to the Concrete Steel Company. Upon plaintiff’s theory the. liability would be extended not only to the plaintiff for the stone sold to the materialman but the contractor might- be liable to those operating the stone quarry where the stone was obtained, and still further, to the owner of the land from which the stone was procured. Such an interpretation of this quasi mechanic’s lien law would leave the owner and contractor in a precarious and perilous position indeed, as they could not well know that the claim of some remote person in the material furnished by the materialman, some manufacturer, wholesale dealer or retail dealer, through whose hand the material had passed, had been paid. That view of the act was not, we think, within the purpose of the legislature, but rather that the provision was enacted according to the principles of the mechanic’s lien law and should be viewed in the light of its relation to that law. The Kansas cases cited by plaintiff have been examined, but we find nothing in them inconsistent with the views expressed, and nothing in other authorities which convinces us that the judgment of the trial court should be reversed.
It is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the seller of a reaper-thresher to recover from the purchaser the price of the machine. Judgment was rendered for' plaintiff on the pleadings; and defendant appeals.
The machine was sold under a contract reserving title, and notes were given as evidence of indebtedness for the price. The contract was dated June 15,1926. The note due July 15, 1926, was not paid, arid the default matured notes given for the remainder of the price. The contract contained a warranty that the machine was capable of doing good work, and plainly stated the following conditions:
“If upon starting, said machinery shall fail in any material respect to fulfill the warranty, the purchaser having followed the printed instructions, rules, and hints of the vendor, written notice by registered letter shall at once and within six .days from the date of its first use, be given by the purchaser to the vendor at its branch office, the address of which is given on the back hereof, stating specifically wherein said machinery fails to fill the warranty. If a remedy cannot be suggested by letter, reasonable time must be allowed the vendor to send one of its representatives to remedy the defect, the purchaser agreeing to provide every facility for favorable operation and to render all friendly assistance necessary to make the machinery a practical success. If such representative shall fail, to make the machinery fulfill the warranty, the purchaser agrees lo give immediate notice by registered letter or prepaid telegram to the vendor at said branch office, stating specifically all complaints, and allow it ample time in which to send an expert to the machinery.
“If any separate machine or attachment cannot thus be made to fulfill the warranty, that which fails shall be returned immediately by the purchaser to the railroad station where it was received, the vendor having the option of replacing said separate machine or attachments with another, or of returning the proportion of money or notes that may have been given for the same, and thereby rescinding the contract pro tanto or in whole as the case may be, and be released from any and all liability. Failure on the part of the purchaser to give vendor notice within six days specifically, as provided for herein, or use of the machinery after the six-day limit without having given notice as specified herein, or failure to return the machinery as stipulated, shall be deemed a fulfillment of said warranty and evidence of full satisfaction by the undersigned, they thereby waiving all claims whatsoever against the vendor. ...
“Any assistance rendered by any local dealer, branch manager, traveling salesman, expert or other employee, after the foregoing warranty has been thus waived or fulfilled, shall not operate as an extension or revival of said warranty.”
The defense was breach of warranty. It was alleged the motor failed to develop sufficient power, and as a consequence the machine did not work properly. The consequences of the defect were discovered within four or five days after defendant commenced, to operate the machine. Noncompliance with the condition requiring notice within six days was admitted by the answer, and the following excuse for failure to give the notice was tendered:
“Further complying, this defendant states that when he gave his order for said machine to the agents of plaintiff, he requested plaintiff’s agents to give this defendant a copy of the order or contract of purchase; that plaintiff’s agents advised that said order or contract of purchase would have to be sent to some office of plaintiff in order to be approved by plaintiff, and that a copy of said contract would be mailed to this defendant; that this defendant has never at any time received a copy of said contract signed by plaintiff; and more than six days after this defendant began the operation of said machine this defendant called at the office of the plaintiff at Hutchinson, Kansas, and requested that he be given his copy of said contract; that plaintiff refused to give him his copy of contract, but gave him a blank form upon which its contents are generally drawn. ...
“That by reason of the defendant not having had a copy of the contract in which this defendant ordered said machine, he did not know that said contract required this defendant to give a notice in writing to the plaintiff by registered mail within six days after he began its operation. . . .”
It was not alleged that the contract was signed in duplicate and defendant’s copy was wrongfully withheld. Authority of plaintiff’s agent to bind the company to furnish a copy of the contract was not pleaded. The representation of plaintiff’s agent that a copy would be mailed had nothing to do with the terms of the contract itself, which contained the following provision:
“It is understood and agreed that no local dealer, branch house manager, traveling salesman, or other employee, has any authority to bind the vendor by any other or different agreement or representation of the goods herein ordered, purchased and sold than such as are contained herein, and that this writing contains all of the warranties and agreements of the parties hereto relative to the subject matter herein. The purchaser hereby acknowledges having read and accepted this contract at the time of signing the same.”
The result is, defendant is not permitted to deny knowledge of the terms of the contract, and the pleaded excuse for failure to give notice was nugatory.
Defendant pleaded that plaintiff waived the registered mail notice to be given within six days by sending experts to work on the machine in response to information given by defendant that it was not properly doing its work. Defendant also pleaded waiver of the registered letter or telegram notice that the experts had failed to remedy the defect in the machine, in that defendant went to plaintiff’s office in Hutchinson and requested plaintiff to put a motor on the machine which would develop sufficient power to operate it properly. The contract notices were not waived. (Advance-Rumley Co. v. Stoops, 125 Kan. 16, 262 Pac. 604, and cases reviewed in the opinion.)
The brief for defendant enlarges upon the answer. It is said the conditions of the contract could not apply because the defect in the machine was not discovered in time to give notice within six days after the machine was started. There is nothing of this in the shifty answer, which suppressed the date the machine was started, the date the defects were discovered, the date plaintiff was informed of the defect, the date the experts worked on the machine, the date defendant requested a new motor, the date a copy of the contract was requested, and the date defendant undertook to rescind.
The brief further enlarged on the answer by calling attention to the fact that the branch office to which registered letters might be sent was not designated on the back of the contract. No defense was predicated on the omission, it was not referred to in the answer, and what the brief has to say about it is pure afterthought.
In deciding the case on the pleadings, the 'reply could not be considered, because under the code it stood as denied. The reply, however, set up two letters written by defendant to plaintiff, dated July 10. In the first letter defendant fixed the date he received the machine as on or about June 18, and refers to July 5 as a date plaintiff sent out mechanics to remedy defects. The letter also notified plaintiff that defendant rescinded the contract of purchase, and on an early date would return the machine. The second letter reads as follows:
“Hutchinson, Kan., July 10, 1926.
"The Massey-Harris Harvester Co'., Branch Office, Hutchinson, Kan.:
“Gentlemen — Please be advised that by worrying along with your machine, I have been able to harvest approximately 500 acres of wheat.
“I want to be absolutely fair in this matter, and I am willing to make a settlement with "you upon a fair basis for the use of the machinery, notwithstanding the loss I have realized by reason of the fact that the machine did not go out and do business in a workmanlike maimer. ’
“Please govern yourselves accordingly.
“Very truly yours, (Signed) J. L. Burnett.”
These letters are not referred to in defendant’s brief. If they' were genuine, the familiar ruse of returning a machine after harvest is over is strongly suggested.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal from the decision of the district court of Wyandotte county, division No. 1, involving the constitutionality of section 4 of chapter 203 of the Laws of 1927, which is as follows:
“Any elector who is otherwise eligible to vote at any general election, but who has not previously voted at a primary election in that precinct and declared his party affiliations for registration as herein provided, shall be required, before being given a ballot for such general election, to declare his party affiliation, a record of which party affiliation shall be made by the election board, and returned to the county clerk with the poll books, and such party affiliation shall be entered on the poll books herein provided for, to be used at subsequent primary elections.”
The action is one for an injunction, brought by the state of Kansas on relation of the attorney-general of Kansas and the county attorney of Wyandotte county to enjoin and restrain the county clerk of that county from enforcing the provisions of chapter 203 in connection with the approaching -general election on November 6, 1928, in Wyandotte county, .because that section is unconstitutional. The petition was duly verified and the answer was a general denial. The trial court heldwith the plaintiff that section 4 was unconstitutional, and issued its order enjoining and restraining the county clerk from furnishing the so-called party affiliation books to the judges and clerks of election, and from furnishing election instructions directing and requiring the judges and clerks to compel any of the voters at the general election to declare their party affiliations before being given ballots. From this ruling, order and judgment the county clerk appeals, maintaining that section 4 is, not unconstitutional nor in violation of any of three provisions of the state constitution urged by the appellee and held by the trial court.
Appellee insists that section 4 is in violation of section 16 of article 2 of the constitution, for the reason that it contains more thaln one subject and matters not clearly expressed in the title, the additional subject matter being that which concerns the general election. The title of the act is as follows:
“An act relating to the primary elections, providing for the declaration, ' enrolling and listing of party affiliation of voters and the manner and means of the change of party affiliations.”
It is admitted that sections 1, 2 and 3 concern the primary election, and a careful reading of section 4 shows that it, too, concerns the primary election and that alone. It states the information to be obtained at the general election is to be used at subsequent primary elections. The fact that it arranges to acquire that information at the general election and by the assistance of the election officers at the general election, does not make the act one concerning the general election. In the recent case of State, ex rel., v. Board of Education, 122 Kan. 701, 253 Pac. 251, it was held an act authorizing the attachment of adjacent territory to cities of the second class for school purposes, which further covers matters of taxation and administrative details, does not contain two unrelated subjects and is not in violation of this section of the constitution. In the case of Swader v. Flour Mills Co., 103 Kan. 378, 176 Pac. 143, it was held:
“The title, ‘An act to provide compensation for workmen injured in certain hazardous industries,’ is broad enough to include compensation for dependents of a workman fatally injured, and the latter topic is germane and pertinent to the main subject covered by the act.” (Syl. If 1.)
In Philpin v. McCarty, 24 Kan. 393, Justice Brewer quoted with approval from an Iowa case concerning this section of the constitution:
“The intent of this provision of the constitution was to prevent the union, in the same act, of incongruous matters, and of objects having no connection, no relation.” (p. 403.)
The rule seems to be that there is no violation of this provision if the subject of the legislation is assimilated to the other provisions of the act and is germane thereto. The getting of further information at the general election for use of succeeding primaries is certainly germane to the subject of the primary. This identical question was decided in State v. Blaisdell, 18 N. D. 55, by the supreme court of North Dakota under similar constitutional requirement, where a section of the primary law provided for settling certain unfinished primary matters and selections at the general election. There the court said:
“In fact what takes place at the general election is merely a continuation of the party caucus or priniary for the purpose of determining the choice of the two candidates receiving the highest vote at the June primary. The fact that it is conducted at the same time and through the same election machinery, as the general election is conducted does not make it a part of the general election. This was done for convenience and to save expense. It is merely the consummation of an incomplete party nomination. It is therefore strictly germane to the subject expressed in the title.” (p. 65. See, also, State v. Scott, 109 Kan. 166, 197 Pac. 1089; City of Wichita v. Sedgwick County, 110 Kan. 471, 204 Pac. 693; State v. Bateman, 110 Kan. 546, 204 Pac. 682.)
It is next contended that section 4 is in violation of section 1 of article 4 of the constitution, which provides that “all elections by the people shall be by ballot,” which implies secrecy of voting and secures to the voter absolute secrecy as to how he voted. It is argued that by being required to divulge his party affiliation before being given a ballot it naturally follows that he intends to vote for the candidates whose names appear on his party ticket and he thus in effect reveals his choice of candidates. This is not a necessary sequence, especially under the present liberal method of what we call scratching tickets. The voter may possibly be embarrassed, confused, and even humiliated by making the announcement of his party affiliation before his close and personal friends of different political persuasion, but this is surely not within the provision affording secrecy. The secrecy required is as to his vote for candidates, not as to political leaning or party affiliation. Again, the secrecy is not as to how he intends to vote or is inclined to vote, but how he has in fact voted. We are not persuaded that the divulgence of party affiliation immediately prior to voting violates the secrecy of the ballot guaranteed by the constitution, and therefore conclude that section 4 is not for this reason unconstitutional.
The appellee contends that section 4 imposes an additional qualification upon electors otherwise qualified to vote at a general election by requiring them to declare their party affiliation before being given ballots at the general election if they have not already made such declaration, and for this reason the section is unconstitutional. The section of the constitution fixing the qualifications of voters is section 1, article 5, and is as follows:
“Every citizen, of the United States of the age of twenty-one years and upwards — who shall have resided in Kansas six months next preceding any election, and in the township or ward in which he or she offers to vote at least thirty days next preceding such election — shall be deemed a qualified elector.”
Appellant maintains that the part of section 4 under consideration is not a requirement or something necessary to be complied with before being given a ballot, but more nearly a request for some information, which the voter may give or not at his pleasure, and receive a ballot regardless of the nature or character of his compliance or declaration. In other words, if he has no party affiliation or is disinclined to give such he shall be given a ballot just the same. We fear this is not giving the words used in the section their usual and ordinary meaning. It states that he “shall be required, before being given a ballot for such general election, to declare his party affiliation.” We think a refusal or declination on his part for any reason would under this language justify the election officers in refusing to give him a ballot; and, indeed, if the act is valid they should not give him a ballot unless he does make the declaration required. It would very much better have covered the ground as explained by the appellant if it had said the election officers before giving him a ballot should request him to make a declaration as to his party affiliation. It is not necessary in this case to determine what kind of a declaration will answer the requirement. Possibly “independent” or the name of a party not known in Kansas politics might suffice, but one thing is certain — that is, he is required to make a declaration as to his party affiliation. A declaration of party affiliation is not one of the qualifications of an elector under the constitution, and any statute that adds to the constitutional requirements of an elector or abridges his eligibility is unconstitutional. There is no question but that section 4 does make an additional requirement of the voter otherwise eligible before he can be given a ballot, which requirement is beyond the power of the legislature, especially where constitutional officers are to be elected, as is usual at all general elections in this state.
“It is not within the power of the legislature to abridge the right of suffrage for an officer created by the constitution when that instrument prescribed that such officer shall be chosen by election.” (State, ex rel., v. Doane, 98 Kan. 435, syl. ¶ 2, 158 Pac. 38.)
“And if said section applies, then this right to vote ... is a constitutional right, which cannot be abridged by the legislature, or by any other power except the entire people of the state by way of amendment to the constitution.” (Wheeler v. Brady, 15 Kan. 26, 32.)
“As the people, with respect to certain offices, have seen fit by express constitutional provisions to restrict their freedom of choice, it is a fair inference that, where the constitution is silent, they intended no restriction.” (Wright v. Noell, 16 Kan. 601, syl. ¶ 2. See, also, State v. Monahan, 72 Kan. 492, 84 Pac. 130.)
In Indiana a statute adding a property qualification to the constitutional qualifications of an elector was held invalid. (Morris et al. v. Powell, 125 Ind. 281.)
“Where the constitution of the state fixes the qualifications of voters in direct, positive terms, these qualifications cannot be added to or changed by legislative enactment.” (20 C. J. 62.)
“They [legislative regulations] must not, directly or indirectly, deny or abridge the constitutional right of the citizen to vote or unnecessarily impede the exercise of that right. If they do they must be declared void.” (9 R. C. L. 982.)
Appellant cites numerous cases from other states showing additions to constitutional qualifications are valid as to eligibility of voters at primary elections. The logic and reasoning in them is convincing, but here the additional qualification is imposed on the voter at the general election, and we are decidedly in accord with the trial court in holding section 4 to be in violation of section 1, article 5 of the constitution, and that such ruling does not affect the validity of the other sections of the act.
The judgment is affirmed.
Harvey and Hopkins, JJ., concur in the order of affirmance. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover on a bond given by a bank to secure the return of certain funds which a school district treasurer had deposited in the bank.
The bank failed, and the bondsmen refuse to pay for several reasons which the trial court deemed sufficient and on which the judgment of this court is now invoked on appeal.
To amplify somewhat, the facts were these: School district No. 93 is a common-school district in Johnson county, and Dean E. Davis is its treasurer. Without authority of law, but with the assent and cooperation of the other members of the school board, Davis deposited certain funds belonging to school district No. 93 in a bank in Wyandotte county known as the Roanoke State Bank. The bank gave a bond in favor of the “board of education of Hudson school district No. 93, in Johnson county, Kansas” in the penal sum of $12,000—
“The condition of this bond being, that whereas, the aforesaid board of education, through its treasurer, Dean E. Davis, has deposited in said Roanoke State Bank the sum of two thousand dollars, and has received credit therefor in the form of a certificate of deposit, . . . now, if said bank shall well and truly pay to said depositor the sum of two thousand dollars, on surrender to it of the certificate for that amount, numbered-, duly indorsed by Dean E. Davis, treasurer of said board of education, . . . then this bond shall be null and void, but if said moneys shall not be paid upon demand under conditions aforesaid, this bond to remain in full'foree and effect until July 31, 1927. “Roanoke State Bank,
“By Gus H. Ehlers, President.
“Gus H. Ehlers,
“C. C. Ehlers,
“M. F. Ehlers,
“W. G. Weaverling.
“Attest: W. G. Weaverling, Secretary.”
The bank failed and the school district’s funds were not forthcoming; two of the sureties on the bond are dead, and neither of their administrators nor any of the other sureties have paid; and to plaintiff’s petition they severally demur on various grounds which may be summarized thus:
1. That school district No. 93, Johnson county, Kansas, had no authority to make the depositary bond contract and has no legal capacity to sue thereon.
2. That the obligee of the bond, “The board of education of Hudson school district No. 93, in Johnson county, Kansas,” has no legal existence.
3. That Dean E. Davis, treasurer of school district No. 93, Johnson county, Kansas, is not a party to the depositary bond contract on which the suit is brought and has no legal right to maintain this action.
4. That the depositary bond contract was made in violation of R. S. 9-216, 9-217, relating to the deposit of public funds in banks operating under the bank guaranty act.
5. That the petition did not state a cause of action.
It is needless to treat of all these technical points seriatim. So far as concerns the point that the obligee of the bond is nonexistent it is not impressive. If school district No. 93 were authorized to choose a depositary for its funds and to exact a bond for their return, this court would be inclined to minimize the discrepancy in the name of the obligee. (Franklin v. Jennings, 125 Kan. 553, 556, 264 Pac. 1041.) Moreover, such obligations may be reformed by the aid of a court of equity and enforced in accordance with their intended terms. (Casten v. Kreipe, 125 Kan. 182, 264 Pac. 55, and citations.)
However, it must be admitted that the school district had no authority to make a contract with the bank for the deposit and return of the funds of the school district. The statute imposes on the treasurer himself the responsibility for safeguarding the district’s funds. He is not authorized to intrust them to anybody, and if he does the risk is personally his own; and he cannot escape that responsibility by getting the school board to assent to or cooperate with him in depositing the district’s funds in a bank. If the school district treasurer cannot provide a safe place for the district funds in his own home or place of business, there is one perfectly safe place for them until they are needed to pay bills for teachers’ salaries and current expenses. He can let them remain in the county treasury, in the custody of a public officer who is equipped to take care of them. The theory of the law relating to school district moneys is that the treasurer’s accountability therefor is unqualified, and if the funds are not instantly forthcoming by him when needed to pay bills, or when his successor in office requires them at his hands, it will be no excuse for him that with the sanction of the school board or by its order he deposited the funds in a bank, and that they have been lost or tied up by its insolvency. (R. S. 72-1016, 72-1020, 72-1021.) This court went carefully into this subject in School District v. Carson, 10 Kan. 238, where a school district treasurer sold some bonds of the district and put the money into a Fort Scott bank which failed. Disregarding intermediate problems arising therefrom, Mr. Justice Valentine said:
“We suppose the sole question intended to be raised in this court is whether the petition below states facts sufficient to constitute a cause of action; and involved in that question is the question: Who shall lose the money deposited with said bankers — the school district or the plaintiff? We know of no law authorizing a school-district treasurer to deposit the funds of the district with any bank or banker, and especially with a bank or banker outside of his district, and outside of his county, as in this cáse. Nor do we know of any law that authorizes the school board to ‘instruct’ or authorize the treasurer so to do. In our opinion the instructions of the board to the treasurer upon this subject were ultra vires, illegal, and void, and the depositing of said .money with said bankers was wholly without any legal authority; and therefore, as the bank and bankers afterwards became insolvent (if they were not at the time insolvent), the plaintiff, and not the school district, must lose said money. The treasurer is the only legal custodian of the funds of the district, and he cannot relieve himself of responsibility for them by depositing them .elsewhere, even with or without the authority of the board.” (p. 245.)
Some years later, the case of Rose v. Douglass Township, 52 Kan. 451, 34 Pac. 1046, came before this court for review. In that case the township treasurer, with the knowledge and consent of the township board, but without any authority of statute, deposited the township funds in his hands in a bank, and the bank became insolvent. The township sued the treasurer and his bondsmen for the recovery of the township funds. A judgment in its favor was upheld. This court said:
“The fact that McNabb [treasurer! kept the township money on deposit in the bank, with the knowledge and consent of the township board, and th'at after the bank suspended the clerk of the township board presented a claim against the bank for the township money, and a dividend was paid the township upon such amount, does not release or discharge sureties for any balance thereafter remaining due. The statute makes no provision for any township depository. McNabb deposited the money in the bank at his peril. (Gen. Stat. of 1889, IK 7120, 7094, 7079.) By accepting the office of township treasurer, McNabb assumed the duty of receiving and safely keeping the money of the township and paying it out according to law. He or his sureties are bound to make good any deficiency which might occur in the funds which came under his charge, whether they were lost in the bank or otherwise.” (p. 453.)
In the late case of School District v. Hand, 124 Kan. 121, 257 Pac. 931, a delinquent school district treasurer sought to excuse his failure to turn over to his successor funds of the district because he had deposited them in certain banks by order of the school board. This court said:
“The treasurer of a school district is the legal custodian of its funds and, as such, liable to the district therefor. He cannot relieve himself from liability by depositing the funds in a bank or other depository, or by turning them over to any other member of the board. Neither can the direction, instruction, order, acquiescence or consent of the other members of the board as to his manner of caring for such funds, in the absence of statute, relieve him from liability. (See School District v. Carson, 10 Kan. 238; Rose v. Douglass Township, 52 Kan. 451, 34 Pac. 1046; Phillips v. Bank, 98 Kan. 383, 158 Pac. 23; 36 L. R. A., n. s., 285; 22 R. C. L. 468; Crane Township v. Scroy, 103 Ohio St. 258, 18 A. L. R. 979, and annotation in 18 A. L. R. 982; 29 Cyc. 1437.)” (p. 123.)
How do the principles discussed in these precedents affect this one at bar? It seems clear that a cause of action cannot be maintained on the depositary bond. The school district has a plain, direct, statutory action on the treasurer’s bond, and it should not waste its time and funds in pursuing secondary and debatable possibilities for their recoupment, although a paper judgment could probably be recovered against the insolvent bank itself. (School District v. Croft State Bank, 121 Kan. 163, 246 Pac. 973.) As treasurer, Dean E. Davis has no justiciable right to maintain this action on this bond. As a private individual he has, of course, his claim as a depositor against the insolvent institution; but, under the .authorities cited and quoted above, the demurrer to the cause of action attempted to be stated in his behalf as well as on behalf of the .other titular plaintiffs was properly sustained.
We have not failed to note the cases cited by appellants. They deal with situations where public funds were deposited in banks by authority of law, and have no bearing on such a case as the one Jhere presented.
We are also reminded by counsel that bonds executed by bank officers, and their friends to secure deposits are valid. Quite true. And if Dean E. Davis, as a private citizen and on his own responsibility, had deposited money — no matter whose money — in this bank and had exacted in his own behalf a bond therefor, he could of course have enforced such bond. We have no such case to consider.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one for specific performance of a real-estate contract; defense that title tendered was not merchant able. The question involved was whether a deed to a previous grantee in the line of conveyance created an estate tail. Plaintiff prevailed, and defendant appeals.
Plaintiff’s title was claimed through Ruth Evelyn McDowell Lisman, who in turn claimed title to the land from her father by a deed, the material part of which is as follows:
“We hereby grant to Ruth Evelyn McDowell Lisman for consideration of labor rendered, to have during her life only upon the following conditions, First, to keep the improvements in repair, pay all taxes in time so there will be no penalty, and to pay Florence McDowell annually on the first of July each year twenty-five cents per acre during her life. The land herein conveyed is described as follows: ... At date of death of the above-named grantee, if she leaves surviving her children of her own blood, then said children shall at once become the owner of the land conveyed by this deed. If no such children be left surviving this grantee, then the land hereby deeded shall revert to the estate of the above named, J. L. McDowell.” •
J. L. McDowell died later, on January 10, 1922, and his widow, on January 1,1925. Afterwards, and on July 9,1925, Ruth Evelyn McDowell Lisman, joined by her husband, conveyed the land by warranty deed to Eugene Hitch; on July 11, 1925, Eugene Hitch and wife reconveyed it to Mrs. Lisman by warranty deed. Thereafter, on April 1,1927, Mrs. Lisman executed an oil and gas lease on 120 acres of the quarter section to her husband, T. D. Lisman. Mrs. Lisman has two minor children under the age of 14 years. On July 24, 1925, Mrs. Lisman as guardian of her two minor children, executed an oil and gas lease to T. D. Lisman, covering the same land. These leases were to her husband, the plaintiff, as lessee.
On June 1,1925, Mrs. Lisman, for the purpose of determining her title to the land and of quieting title thereto for herself and as guardian for her two children, commenced an action in the district court of Greenwood county against the heirs at law of J. L. McDowell, praying that her title to the land be quieted. All of the children and the spouses of the children of J. L. McDowell and all of the grandchildren of J. L. McDowell were made parties defendant. Judgment was rendered August 25, 1925, adjudging Mrs. Lisman owner of the fee simple title to the land, adjudging also that her estate was an estate tail and that the entailment had been barred. Thereafter on July 15, 1927, the plaintiff herein executed an assignment of the oil and gas leases which he had previously obtained from Mrs. Lisman in so far as they covered the land, and on July 15, 1927, plaintiff, joined by his wife, executed a warranty deed conveying the other 40 acres of the same quarter section to the defendant. On June 1, 1926, the heirs 'at law of J. L. McDowell conveyed to Ruth Evelyn McDowell Lisman by quitclaim deed all of their interest in the lands which J. L. McDowell had deeded to her. All of the title so obtained by plaintiff had been tendered to defendant by the assignments of the oil and gas leases and by the warranty conveying the forty acres.
The defendant declined to accept the title tendered, contending that Mrs. Lisman obtained only a life estate in the lands conveyed to her by her father, and that the remainder over was contingent; that the persons who would take upon her death could not be ascertained until the time of her death, and that therefore there was a contingent remainder and no one in being who could convey a good title.
The defendant’s contention cannot be sustained. Nor is an extended discussion of the controlling principles necessary. It is clear that the father, J. L. McDowell, conveyed to his daughter, Ruth Evelyn McDowell Lisman, what has repeatedly been designated in the decisions of this court an estate tail. (Ewing v. Nesbit, 88 Kan. 708, 129 Pac. 1131; Gardner v. Anderson, 116 Kan. 431, 227 Pac. 743; Allen v. Pedder, 119 Kan. 773, 241 Pac. 696; Davis v. Davis, 121 Kan. 312, 246 Pac. 982.)
The words “children of the blood” are equivalent to the words, “issue of the body.” If the conveyance had been to the “children” of Mrs. Lisman, then it might be argued that the word “children” was a word of purchase rather than a word of limitation, but inasmuch as the conveyance was to “children of the blood,” the children designated must be blood children as distinguished from adopted children.
It appears that the grantor was making arrangements for the division of his property. He conveyed to each of his children separate tracts of land. To Mrs. Lisman he conveyed what he believed to be her just and equitable portion of his estate. It is not conceivable that he intended that any portion of this should go back to the other children unless and until there was a failure of issue on the part of Mrs. Lisman.
The proceedings to quiet title were in our opinion not necessary. The warranty deed by Mrs. Lisman and her husband to Eugene Hitch was sufficient to break the entailment. When the land was again conveyed to her, she was in position to and did convey title. The trial court was not in error in holding that plaintiff’s title through her was good and that plaintiff was entitled to enforcement of his contract.
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The opinion of the court was delivered by
Burch, J.:
The action was one of replevin, to obtain possession of a player piano. Defendant’s demurrer to plaintiff’s evidence was overruled, defendant stood on the demurrer, judgment was rendered against her, and she appeals.
Plaintiff sold the piano to George Rentfro. Rentfro gave a note for the price, and secured the note by chattel mortgage on the piano. The mortgage was not recorded. The note was not paid at maturity. Finding the piano in the possession of Rhoda I. Schied, Rentfro’s mother-in-law, plaintiff made demand on her for the piano. The demand was refused, and the replevin action followed.
There was no dispute about the foregoing facts. M. H. Dixon, plaintiff’s agent, made the demand on Mrs. Schied for possession of the piano, and testified to a conversation with her occurring at the time the demand was made. Mrs. Schied said Rentfro had given the piano to her daughter, and her daughter had traded it in on a board bill. She thought she was the owner of the piano, and had been the owner for several months. In the course of the conversation the fact that the mortgage had not been recorded was discussed.
The petition was in the usual form, and the answer was a general denial. The statute provides that unless recorded a chattel mort gage shall be void as against creditors and subsequent purchasers in good faith. (R. S. 58-301.) Defendant contends the evidence shows Mrs. Schied is a third person who claims to be owner. The evidence does not show that. The evidence merely shows what Dixon said Mrs. Schied told him, which bound nobody. Conceding, however, that Mrs. Schied gave Dixon notice of claim of ownership, no evidence was produced at the trial that Mrs. Schied purchased the piano in good faith for a valuable consideration, and no evidence was produced that she did or did not have actual notice of the mortgage. The mortgage was good as between mortgagor and mortgagee. Under the statute it gave the mortgagee legal title and right of possession (R. S. 58-307), and the mortgage was. good as against all claimants of the property except those with respect to whom the statute made it inoperative. Did the burden rest on the mortgagee to prove the mortgage was not void as against the possessor of the property, before he was entitled to judgment?
As indicated, failure to record a mortgage does not warrant any one to deal with the property without regard to the mortgage. Nobody but a creditor or subsequent purchaser in good faith will be protected. The possessor may have naked possession without any right of property. He may be a mere custodian or agent of the mortgagor. He may be a pledgee or bailee or a mortgagee in possession or a purchaser. He always knows what his claim is and what the facts are on which his claim rests, and it tends to make trial of an action to determine right of possession less of a game and more of a proceeding to arrive quickly and surely at the truth, to require the claimant to divulge his claim by way of defense and to present the facts which bring him within the exception of the statute. If he claims as owner, he must show he is a subsequent purchaser in good faith. A good-faith purchase requires payment of a valuable consideration. Logically, good faith should include lack of knowledge of the mortgage, but in view of the fact that the statute does not specifically mention notice, and in view of the interpretation the court has placed on the statute relating to record of instruments affecting real estate, it will be sufficient if the person claiming as owner shows a subsequent purchase for a valuable consideration. The burden then rests on the mortgagee to show notice of the unrecorded mortgage.
In the case of Kruse v. Conklin, 82 Kan. 358, 108 Pac. 856, the syllabus reads:
“An unrecorded conveyance of real estate is good except as against a person who purchases without notice thereof and for a valuable consideration.
“Where, after the execution of a conveyance which is not recorded, the grantor conveys the same property to another, the latter, in order to be protected by the recording act, must assume the burden of proving that he was a purchaser for a valuable consideration. Recitals in the conveyance itself of the payment of consideration are no evidence thereof as against strangers.
“As soon as it appears that a valuable consideration has been paid the presumption arises that the purchaser acted in good faith and without notice of the rights of those who claim under the unrecorded deed. Until there is proof that he paid a valuable consideration there is no presumption of good faith.” (HU 1, 2, 3.)
Consistency requires that the same rule be applied to a subsequent purchaser of mortgaged personal property. In the recent case of Loranz & Co. v. Smith, (Ia.) 53 A. L. R. 662, 214 N. W. 525 (July 1, 1927), the supreme court of Iowa had before it the question of burden of pleading and proof in an action by the holder of an unrecorded chattel mortgage for conversion of the property. The headnote reads:
“In an action brought by the owner of an unrecorded chattel mortgage for the conversion of the mortgaged property by one who had levied upon and sold it under execution, the latter has the burden of alleging and proving that he was a 'subsequent purchaser without notice,’ within a statute invalidating, as against such purchasers, an unrecorded chattel mortgage and thereby creating an exception in their favor.” (53 A. L. R. 662, ¶ 2.)
The following decisions involving unrecorded chattel mortgages are in general accord: Nolen v. Farrow, 154 Ala. 269; Allcock v. Loy, 100 Ill. App. 573, 575; Big Stone County Bank v. Crown Elevator Co., 111 Minn. 399; Commonwealth Finance Corp. v. Schutt, 97 N. J. L. 225, 229; Deseret Nat. Bank v. Kidman, 25 Utah, 379.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an injunction proceeding growing out of the sale of an oil and gas lease by J. C. Wyatt to the defend ants, C. V. Mickey and Daniel E. Mickey, for which the latter gave a check for $2,500, but later stopped payment thereof. When the action was begun a restraining order was issued on the verified petition of plaintiff enj oining the defendants from transferring or assigning any interest in the oil and gas lease, and also from transferring or assigning certain Liberty bonds held by one of the defendants of the value of $5,000. Motions were made by the defendants to set aside the restraining order, which, among other things, contained denials of the averments of the plaintiff's petition. Upon the final hearing on the motions the court refused to set aside the restraining order, and on the motion of plaintiff granted a temporary injunction upon the plaintiff’s executing a bond to the defendants conditioned as provided by law in the sum of $1,000. Defendants appeal and allege that the court erred in refusing to set aside the restraining order; and second, in granting the temporary injunction.
The original petition filed October 11, 1927, set forth the sale of the lease to defendants for the sum of $2,500; that a check for the amount which was given to plaintiff by the defendants in payment thereof was dishonored and payment thereon stopped, for which a recovery was asked; that $1,000 was due to plaintiff for drilling costs and expenses and for fuel furnished; and further, plaintiff asked damages in the sum of $2,500 because he was prevented from selling the lease to another at a profit of that amount. Another cause of action was stated which referred to and made a part of the count, the preceding allegations, and further stated that defendants had no visible property subject to execution other than certain Liberty bonds claimed to be owned and possessed by the defendant, C. V. Mickey, of the value of $5,000 and the oil and gas lease in controversy. Plaintiff further alleged that he had a right to and did believe that C. V. Mickey would negotiate and transfer the Liberty bonds unless restrained by the court, and he therefore asked that the defendant C. V. Mickey be enjoined from assigning or transferring the Liberty bonds, and also from assigning or transferring the oil and gas lease which had been assigned and sold to defendants. An affidavit was attached to the petition, which stated that the allegations therein were true. A restraining order was issued as prayed for when the petition was filed. On November 1, 1927, each of the defendants filed a motion to set aside the restraining order on a number of grounds, among which were that the allegations and statements in the petition did not warrant the issuance of the restraining order, and also that they were untrue, and further that plaintiff had a plain and adequate remedy at law. At the hearing of these motions and the right of plaintiff to a temporary injunction based on the pleadings and papers in the case, and the statements and arguments of counsel, the court on November 8, 1927, overruled the motions to vacate the restraining order and granted the temporary injunction, to be effective upon the giving of a bond.
After these rulings and on February 11,1928, plaintiff, with leave of the court, filed a supplemental petition which elaborated some of the allegations, and stated among other things that when the check for' $2,500 was presented and not paid, C. V. Mickey stated that he had $5,000 in Liberty bonds, and that if he could cash them he could pay the check, but that he was too old to take the chances, and that if plaintiff would loan him $2,500 he would give him a mortgage on the drilling rig and equipment which they held. It was further alleged that plaintiff served notice on defendants that unless the check was paid by October 10, 1927, suit would be brought against them, and on that day C. V. Mickey told the plaintiff he had disposed of his interest in the lease and was out of the oil business, and that his son Dan was the owner of the drilling rig and equipment. Plaintiff alleged that when the suit was brought he did not have authentic information as to the transfer of the lease which had been made to the wife of C. V. Mickey nor of the mortgage and sale of the drilling equipment to another, but that he did subsequently learn more of the details of the illegal transfers; and, because of the statements of the parties and their action, he had a right to believe that there are reasonable grounds for apprehending the transfer of the lease and the Liberty bonds.
No demurrers or answers were filed by the defendants challenging the sufficiency of the petition when the motions were heard and determined. The supplemental petition, as we have seen, was not filed when the orders were made, and hence the additional facts pleaded were not before the trial court when the decision was rendered and cannot be considered upon this review. The court had before it only the original petition and the motions of the defendants, and it is argued that the averments of the petition did not warrant the issuance of the temporary injunction. It is said by plaintiff that statements of facts were made when the motions were argued corresponding to the additional averments in the supplemental petition, but these are not set forth in the abstract of the proceedings. The averments of the original petition, we think, are under the circumstances sufficient to warrant the granting of the order. In general it may be said that in the showing made for an injunction it is sufficient to make a prima facie case, and upon any proof of the facts which the allegations justify the court may in the exercise of its discretion grant a temporary injunction to maintain the status quo until the final trial on the merits. The petition set forth the sale and transfer of the lease for a certain sum, and that a worthless check was given in payment for it, and that defendants had stopped payment of the check. This action which operated as a fraud on plaintiff was plainly pleaded. Added to this averment, plaintiffs alleged that defendants had no visible property subject to execution other than the bonds owned and possessed by C. Y. Mickey and the lease, and that plaintiff believed, and had a right to believe, that defendant would negotiate and transfer the property unless restrained and enjoined from doing so. The allegations, although meager, show the wrong and fraud of defendants in acquiring property with a worthless check, and that the proposed action to dispose of the property which they had would result in defeating a recovery by the ordinary processes of law. The transfer of the- property, if not enjoined, would render ineffectual any judgment obtained against the defendants for the. value of the lease and for the damages sustained by their wrong. It has been said:
“On an application for a preliminary injunction, it is not necessary that a case should be made out that would entitle -complainant to relief at all events on the final hearing. If complainant has made out a prima fade case, or if from the pleadings and conflicting affidavits it appears to the court that a case is presented, proper for its investigation on a final hearing, a preliminary injunction may issue to maintain the status quo.” (32 C. J. 351.)
The order was only a temporary injunction, and the defendants will have a final trial on the merits and upon evidence, where the parties will have a right to examine and cross-examine all witnesses. On the- issue of a preliminary injunction, the rules of evidence are less strictly applied than in the final trial for a permanent injunction; and besides, on an application for a temporary injunction the courtis vested with considerable discretion. In Meade v. Anderson, 40 Kan. 203, 19 Pac. 708, it was said:
“It has often been held by this court that the refusing or granting of a temporary injunction is largely in the discretion of the judge or court, and for that reason close and intricate questions will not be reviewed and the action of the court or judge reversed, unless it shall clearly appear that the judgment or order is erroneous. The reason for this is clear, that while a temporary injunction is granted, yet at the final hearing the court will more closely determine the rights of the parties, and then if it is found that the temporary injunction was improvidently granted, it will be dissolved, or not made perpetual.” (p. 204.)
The petition to which the affidavit was attached in which the affiant swore positively that the allegations therein were true, was properly treated by the court as supporting evidence. We think the petition stated a cause of action sufficient to put the defendants on their defense, and under the allegations relating to the financial condition of the defendants, and that a judgment against them would be ineffectual, any legal remedy would have been inadequate and a resort to equity was justified. We conclude that there was no abuse of judicial discretion in granting the temporary injunction, and that the judgment of the trial court should be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action'on a verified account. The Dalton Adding Machine Sales Company sold to V. B. Crowder an adding machine for $175. About the time the sale was made, on November 1, 1924, Crowder paid $25 thereon, and he made two other payments of $25 each, one on March 26, 1925, and another on October 14, 1925. It appears that on January 13, 1925, the plaintiff exchanged the machine first delivered for another of the same kind, which the defendant accepted. Thereafter and within a year defendant made two payments on the obligation, but no further payments having been made, this action was brought to recover $100 and the accrued interest.'
The defendant answered admitting the purchase made and the payments with which he was credited by plaintiff, and then alleged that plaintiff had asked him for the use of the machine in order to demonstrate the make and character of it to another who had in view the purchase of an adding machine, and that he had permitted the agent to take it and that he was not liable for further payment. When the case was called for trial the plaintiff made an opening statement, reciting the averments of the bill of particulars, the verified account, the exchange of machines and the subsequent partial payments and stating that on proof of these facts he would expect a judgment for $100 and the interest due on the claim. Defendant thereupon asked for judgment on the plaintiff’s bill of particulars and its opening statement. His motion was sustained and judgment rendered in his favor. No reason is seen to support the ruling. It is suggested rather than argued that the amended bill of particulars was a departure which warranted the entry of judgment. The only amendment made was the averment relating to the exchange of machines after the sale was made. This amendment was interlined as explanatory of the claim made by defendant that an exchange had been made. It did not change the form or nature of the action and is. not an approach to a departure. The suit remained an action on the contract of sale which was complete when the sale was made long before the exchange was made. The exchange did not cancel the obligation which arose when the sale was made. Defendant was at liberty to trade his machine with plaintiff or anyone else for another machine, but the fact that an exchange was made did not relieve him from liability under .his contract. He may not have made a good bargain in the exchange, and if he was defrauded in the transaction it might have been set up as a matter of defense, but no such a defense was pleaded. The plaintiff had stated a cause of action and made an opening statement to the effect that it proposed to establish its claim by proof, and it had made no statements which would defeat the action. The fact that defendant may have a defense to the action did not warrant the court in shutting out proof of plaintiff’s account and in ordering judgment for defendant. There is a suggestion that the court has no jurisdiction of the appeal on the ground that the amount involved does not exceed $100, citing R. S. 60-3303. That statute provides that no appeal may be had unless the amount in controversy exceeds $100 exclusive of costs, except in certain kinds of actions not material here. The plaintiff asked for $100 and the interest thereon for a period, and hence the amount involved is greater than the prescribed limit. The judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Burch, J.:
Clyde Pitts was convicted of rape, and appeals. The principal question involved is whether the court erred in admitting evidence of the victim’s statements that defendant was her assailant.
Agnes Crowley was a telephone operator at the Rosedale exchange. On the night of March 30, 1927, while she was walking home after her day’s work, she was seized from behind, carried to a vacant lot, and was ravished. The crime was committed between 9:15 and 9:30 p. m. It was raining. Agnes got up and ran to her home, which was in the next block. Her shoes were muddy, and the slicker she wore was muddy. She had lost her hat, and her hair was muddy. Her sister, Mrs. Maloney, and her brother-in-law were at her home when she arrived. She was crying. She told her sister a man had grabbed her, and went into her bedroom. • A physician was called, who examined her. He found her clothes were wet, her hair was wet and muddy, she had been attacked sexually, and she was bleeding from the vaginal region. The physician fixed the time of his visit at 9:30 to 10 o’clock. The sister testified Agnes arrived home “around 9:30,” and testified the doctor came in about twenty or twenty-five minutes.
The police were notified at the same time the doctor was called. At about 11:30 p. m. an officer, Edward Powers, and Ira Mathias came to the house, and had a conversation with Agnes. Afterward they went to the vacant lot, found Agnes’ hat, and noted conditions at the spot where the crime was committed. Detectives Harry E. Smith and John Mogle were assigned to the case, and they visited Agnes about 10 o’clock the next morning, March 31. They found her in bed. She was sick and nervous, and they did not disturb her. The next day, April 1, Smith and Mogle visited her, and had a conversation with her. Immediately after the conversation Smith arrested defendant and called Agnes to the police station. She was placed in one room and defendant was placed in an adjoining room, in such positions neither could see the other. The door between the two rooms was left slightly open, and an officer engaged defendant in conversation. As soon as Agnes heard defendant’s voice she went into the room where he was, identified him, and accused him of the crime. Defendant’s preliminary examination occurred June 8, 1927.
The trial commenced January 9, 1928. At the trial a witness was called to prove the location of streets, alleys and buildings in' Rose-dale, and Agnes was then placed on the witness stand. In her direct examination she told what occurred from the time she left the telephone building until she reached home, without relating conversations except what was said during the encounter with defendant. On cross-examination defendant brought out the fact that she had made complaint when she reached home, and introduced the subject of her inability to identify defendant as her assailant. On redirect examination the witness told, without objection, of her identification of defendant at the police station, and the following then occurred:
“Q. Did you tell Mogle and Smith who it was made this attack on you? (Objected to by defendant as leading. Objection overruled.) A. Yes, sir.
“The Court: I think the jury would like to know what time she told them that. May I ask this?
“Q. By the Court: Did you name anyone that night as your assailant after it occurred? A. Yes, sir.
“Q. The Court: Had you named this defendant? A. Yes, sir.
“By Mr. Myers [assistant county attorney]: Q. What name did you give? A. I only know him as ‘Big Boy.’ I used to call him ‘Big Boy.’
“Q. Who was ‘Big Boy’? A. Clyde Pitts.
“Q. Who did you tell them that night had attacked you? A. I told them ‘Big Boy’ did.
“Q. You told whom? A. My sister, when I came in the house.
“Q. Who else? A. I told her — my brother, he wasn’t in the room at the time — and Mr. Mathias and Mr. Powers.
“Q. Did you tell Mr. Smith and Mogle, the detectives, when they came to see you next day? A. Yes, sir.”
It will be observed the only objection interposed to this testimony was that the first question, which did not call for the name of the assailant, was leading.
On recross-examination, defendant laid the foundation for impeachment of the witness by confronting her with her testimony given at the preliminary examination, the rec'ord of which was subsequently introduced in evidence. The material portions of the recross-examination follow:
“Q. Yesterday the court asked you a question, if I remember correctly, and you told him when you went into the house you told your sister it was Big Boy. Is that correct? I mean, did you testify that way yesterday? A. Yes.
“Q. Do you remember these questions and these answers made at the preliminary referring to after you went m the house:
“‘What did they say, if you remember? A. She just — I don’t know what they said; they called the doctor and the police, I think that was all.
“‘Q. Did you ask who it was? A. Yes; they asked me who it was.
“ ‘Q. What did you tell them? A. I told them I didn’t know.’
“Q. Were those questions asked you, and did you make those answers? A. I don’t remember.
“Q. Do you recall what you did tell your brother-in-law after you got in the house some time later on, about' whether or not it was the defendant? A. I wasn’t talking to my brother-in-law.
“Q. You weren’t talking to him? A. I don’t believe I was; I don’t remember. I was talking to my sister. I didn’t talk to him, because he called the doctor right away.
“Q. When you told, whoever it was you told in the house, anything about Big Boy, or you thought it was Big Boy — was built like Big Boy? A. I told him it was Big Boy himself.
“Q. Did you tell them it was Big Boy? A. Yes.
“Q. You told them it was Big Boy? A. Yes.
“Q. Do you remember these questions being asked you and you made these answers:
“‘Q. You didn’t think it was Big Boy? A. I didn’t tell him it was; I said it looked like Big Boy. I didn’t get a good look at him.
“ ‘Q. You didn’t tell him it was Big Boy, Miss Crowley? A. No, sir.’
“Q. Were those questions asked you, and did you make those answers? A. I don’t remember.
“Q. Would you say you did not? A. I don’t remember.”
We have then this situation: Agnes testified that defendant committed the crime. She also testified that at the first opportunity, and thereafter until she confronted defendant at the police station, she named him as her assailant. She was impeached by her statements at the preliminary examination that on arriving home she did not say defendant was her assailant, and she did say she did not know who her assailant was. The state met the situation by calling all the persons to whom Agnes had said defendant was her assailant. Mrs. Maloney testified, without objection, as follows:
“When Agnes got home she was crying.
“Q. Did she tell you who had attacked her? A. Not at that time.
“Q. Did she at a later time? A. Yes.
“Q. How much later was it? A. After the doctor came she told me it, was Big Boy.”
When Mathias, Smith, Powers and Mogle were asked whether Agnes told her who her assailant was, objections were interposed on the ground the questions called for hearsay. The objections were overruled, and each witness testified she named “Big Boy.”
Defendant denied he committed the crime, and produced testimony accounting for his presence elsewhere than at the scene of the crime during the period within which the crime was committed.
It may be that in view of the physical and mental condition Agnes was in when she reached home, defendant did not object to her testimony and the testimony of Mrs. Maloney concerning prompt accusation of defendant, because the testimony was regarded as admissible under the res gestee doctrine that the horrible event was speaking through her. However that may be, her statement to her sister that it was “Big Boy” was admitted as proper evidence, the same as her testimony in chief that defendant was her assailant. When she was impeached, it was proper to rehabilitate her as a witness by showing that long before the contradictory statement was made, and for 36 hours immediately following commission of the crime, she consistently made the same accusation to Mathias, Smith, Powers and Mogle.
“It has been seen (ante, i 1122) that, under some circumstances, and with limitations differently accepted in different jurisdictions, a witness whose test! mony has been impeached may be corroborated or rehabilitated by evidence of his similar statements made at other times. This principle has been resorted to for admitting the present sort of evidence. The story of the woman is corroborated by showing that she told the same story at the time of making complaint. . . .
“Since the purpose is to show that she tells the same story as on the stand, the whole of the complaint as made by her, with its terms and details, is to be received, and not the mere fact of the complaint.” (2 Wigmore on Evidence, §§ 1137, 1138.)
The principle involved has been recognized in the decisions of this court in the following cases: State v. Petty, 21 Kan. 54; State v. Hendricks, 32 Kan. 559, 4 Pac. 1050; Cloud County v. Vickers, 62 Kan. 25, 61 Pac. 391; Stirn v. Nelson, 65 Kan. 419, 70 Pac. 355; Cereal Co. v. Alexander, 75 Kan. 537, 89 Pac. 923; Peoples State Bank v. Hill, 125 Kan. 308, 263 Pac. 1045.
None of the limitations on admission of this kind of testimony accepted by this court was transgressed. It is not material that, when the corroborative testimony was admitted, impeachment of the witness had not technically been completed by formal reading into the record of the testimony given at the preliminary examination. Neither is it important that in admitting the testimony as corroborative the court had in mind identification. The material matter is that the testimony was corroborative and was properly admitted.
Defendant was a single man, thirty years old. He was six feet tall, weighed 210 pounds, and from his admissions on cross-examination, was quite worthless. Drinking, gambling, vagrancy, and disturbing the peace had caused his arrest numerous times. The state was unsparing in exposing his delinquencies, and no instruction was given the jury that the evidence concerning them could be ■ considered only as it might affect his credibility. No such instruction was requested. ' An instruction of that kind is not one which is necessary for the information of the jury in giving its verdict. (R. S. 62-1447.) Such an instruction belongs to the cautionary and not to the indispensable class, and omission to give it is not ground for new trial, in the absence of request.
Other complaints regarding the proceedings have been considered, and the court is satisfied nothing occurred which prejudicially affected defendant’s substantial rights.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover for damages to a house owned by the plaintiff, caused by an explosion of gas in the basement. The plaintiff prevailed and defendant appeals. The principal question presented is whether there was sufficient evidence to sustain the verdict and judgment.
The facts are substantially these: Plaintiff’s house, located at 1128 Woodward avenue, was occupied by M. S. Davis and his family. The defendant supplied gas to the house through a service pipe which entered through the basement wall and connected with a meter which was hung just inside, suspended from the service (intake) pipe and the (outlet) pipe connected with the fixtures in the house. Mrs. Davis was engaged in preparing the noon meal on May 10, 1926, on a gas range located in the kitchen. Mr. Davis was doing some work on his automobile outside the house, and needing something that was in a cupboard in the basement, went to the cupboard and struck a match. An explosion resulted which injured him and damaged the house. It was contended by plaintiff that there was a leak in the meter where it joined the pipe; that the meter showed that a soldered joint was defective; that the condition of the soldering and the location of a spot of paint within thé joint between the solder and the pipe showed that there had been a de fective attempt at soldering. The jury answered special questions as follows:
“1. Was the meter defective when installed? A. Yes.
“2. If you answer preceding question in the affirmative, did the defendant know at the time the meter was installed that it was defective? A. No.
“3. If you answer question 1 in the affirmative, was the condition of the meter such at the time it was installed that defendant, by the exercise of ordinary care, should have known that it was unsafe and defective? A. Yes.
“7. If the meter was defective when installed or if it afterwards became so, in what respect was it defective? A. Defective soldered joint on outlet of meter.
“8. If you find that the meter was defective when installed or became so later, was such defect the proximate cause of the explosion? A. Yes.
“9. When was the meter last inspected prior to the explosion? A. September, 1925.”
The defendant contends that there was no evidence to support the findings; that the findings are the result merely of building inference on inference. We think not. After the explosion, employees of the gas company immediately went to the house and found the meter melted from the supporting pipes and lying on the basement floor. They immediately took it from the basement and placed it in a (defendant) company automobile. A controversy arose as to the right of defendant’s employees to remove the meter. This was settled by all parties agreeing that it should be' placed in possession of T. H. Bruce and kept by him in its then condition until released by agreement of the parties. It was an ordinary gas meter about fifteen inches high, ten inches across and six inches deep, made of tin plate and soldered. The joint where the outlet pipe was soldered to the meter was made by the outlet pipe fitting into a metal socket or nipple extending about an inch above the meter and making a complete cylinder about an inch in diameter except for about one-fourth of the circumference, that is to say, the nipple into which the pipe fitted was not a complete cylinder by about one-fourth. The pipe was set into this nipple and that part of the nipple where the metal did not complete the cylinder was soldered across. This strip of soldering was about three-fourths of an inch long. When found on the floor of the basement the paint on the top of the meter was scorched and burned. On the inside of the unmelted solder between the solder and the outlet pipe fitting into the joint was the paint spot above mentioned.
Defendant’s witnesses testified that there could have been no paint in the joint because when tightly soldered up, as should have been done before painting, no paint could run through. The plaintiff argues “that the converse would follow: since paint was there, the joint must not have been tightly soldered . . . that the condition of the soldering and the location of the paint at a place within the joint clearly showed that it was a defective attempt at soldering.” A witness for defendant (Hancock) stated that it was possible for the paint to have run through the joint if it had been defectively soldered. There was evidence that the meter was not new, that is, it had been previously used, and that the defendant repaired, soldered and painted its meters. A reasonable inference is that if the joint had been properly soldered it would have been impossible for any paint to have gotten where this paint spot was found. It was practically conceded that there was gas in the basement and that nothing else caused the explosion. The gas must necessarily have escaped through some leak. We are of opinion the evidence and fair inferences to be drawn therefrom were sufficient to warrant the finding of the jury that the meter was defective in this joint. It follows that if the joint was sufficiently defective to permit paint to run through, it was sufficiently defective to permit gas to leak out.
Complaint that error was committed in overruling a demurrer to plaintiff’s evidence cannot be sustained. If there was a question of the insufficiency of plaintiff’s evidence (which it is not necessary to decide), it was cured by evidence introduced by the defendant. (Hospital Co. v. Odd Fellows, 99 Kan. 488, 162 Pac. 302; Firstenberger v. McBee, 113 Kan. 110, 213 Pac. 813.)
While the facts and circumstances are very close to the border line we are unable to say as a matter of law that there was no evidence to sustain the findings and judgment.
The judgment is affirmed. | [
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The opinion'of the court was delivered by
Hutchison, J.:
The question involved in this case is whether a debtor pays the creditor by giving his check on his account in the collecting bank when such bank is insolvent and unable to pay such check.
The plaintiff grain company, of Wichita, shipped corn in carload lots to the defendant, a grain dealer at Otego, Jewell county, sending the bills of lading, with drafts attached, to the Otego State Bank at Otego with instructions to deliver the same upon payment of the drafts. When the defendant was notified by the bank of the arrival of a bill of lading and draft, the defendant called and gave his check for the required amount on his account in that bank, and the bill of lading was delivered to him by the bank. There are three such transactions stated in the petition as three separate counts, in all of which the attempted payment was made by the defendant in the same way, and at each and all of these times he had a credit with the bank for more than the amount of the checks, but the bank at no time attempted to charge his account with these checks or any of them. The answer of the defendant is a denial in a detailed statement of facts, concluding in general with the claim of a full payment of the drafts by delivering the checks to the collecting bank as agent of the plaintiff and alleging the acceptance of such checks by such agent. The cause was submitted to the court on the statements of facts contained in the petition, answer and reply and a short stipulation concerning the financial affairs of the bank during the time these transactions took place. Judgment was rendered for the plaintiff for the full amount of the drafts for these three carloads of corn, from which judgment the defendant appeals.
The appellant urges strongly two points: First, that the collecting bank was at all times in each of the three transactions the agent of the plaintiff, and that plaintiff is bound by its acts in receiving the checks on itself as payment; and, second, that there was an actual acceptance of such checks as full payment.
On December 3 the first of these transactions took place at the bank, when a draft for $978.21 was received with bill of lading attached. The defendant had a balance to his credit in that bank that day of $5,238.79. The bank had cash on hand that day to the amount of $916.40, and a credit at Kansas City of $1,183.01, or a total of $2,099.41, and had outstanding cashier’s checks and drafts amounting to $3,210.70.
The next transaction took placé December 4. The draft was for $925.58. Defendant’s bank balance was $4,496.56. ■ Cash on hand in the bank was $876.62, and credit at Kansas City $847.30, or total of $1,723.92, with outstanding cashier’s checks and drafts at that time of $3,210.70.
The third transaction took place December 6. The draft was for $785.96, when defendant’s balance was $4,194.39. The cash in the bank was $929, and in Kansas City $814.24, total $1,743.24, with outstanding cashier’s checks and drafts-of $4,580.89.
The record shows the plaintiff 'was holding one of these outstanding checks in the sum of $637.81 for a carload sent a few days earlier than these. The bank officers did not charge any of these three checks given by the defendant to his account nor attempt to transmit by draft or otherwise to the plaintiff, but when the bank closed on December 10 these three checks of defendant were on the counter, and- defendant’s deposit account was not reduced thereby.
It will be seen from the above figures that the bank was unable at any time to cash these checks when they came, in or- pay any of them out of the cash on hand and. the credit it 'had at Kansas City. It is hinted that the last one could have been paid out of the cash on hand, but there were on the counter the two earlier checks not cashed, and it would be unreasonable to cash the last when two earlier ones remained unpaid. In this connection it should be stated that the defendant acted in good faith and had no reason to think he was not paying these drafts out of his deposit as he had regularly been doing. There is no dispute about the collecting bank being the agent for the plaintiff for the purpose of collecting and remitting, but appellee insists that such agency ceases when the agent departs from the instructions given. The distinction can be readily seen in the reference cited by plaintiff to the attempted collection and payment of a car which arrived just a few days earlier. Defendant’s check was received by the bank, his account charged with the amount, and a draft sent to the plaintiff. The agent got his money from the defendant’s account and attempted to remit it, but the bank closed its doors before the draft was paid. In that case the plaintiff can only look to the bank to make good its drafts. In the cases involved in this action the bank did just the same thing as in the former case in receiving from the defendant his check in payment of the draft it delivered to him. But the check was worthless, not because of any fault of the defendant, but because the defendant’s money was not available. It was not there nor at the correspondent bank in Kansas City. It had been used for other purposes. A check is an order or request to pay another from one’s deposit. The bank could not comply. The bank took or received the order but did not comply. In this it was acting for the defendant, one of its depositors, and failed to carry out his directions. There is such a situation as an agent changing from one principal to another, and sometimes an agent may' be acting for both parties at the same time. It has been held that the relation of bankers in the transactions of collecting and remitting frequently changes from that of principal and agent to that of creditor and debtor. (Colorado & S. Rly. Co. v. Docking, 124 Kan. 48, 257 Pac. 743.)
It is strongly urged that the act of the insolvent bank amounted to an acceptance of the check as payment, and the intention of the parties was to make a payment. The intention of the defendant was most certainly to make payment, but the bank and its officers could not possibly have so intended. They may have hoped that something might happen in the near future to make payment possible, but when they took the check it was an absolute impossibility.
Cases cited showing that the neglect or failure to make the bookkeeping entries and charge the items to the account of the depositor does not prevent the act of the bank from being a complete acceptance of the checks, or even of a verbal order, to pay a creditor. On the question of acceptance of checks as payment so as to bind the creditor and relieve the debtor, many cases are cited by appellant, but on examination of them it is found that not only did the depositor have the money to his credit but the bank at that time was solvent and able to pay the check—entirely different from the fact in this case. In this list are the following: Baldwin’s Bank v. Smith, 215 N. Y. 76; Nineteenth Ward B’k v. So. Weymouth B’k, 184 Mass. 49; State Nat. Bank v. First Nat. Bank, 124 Ark. 531; Trust Co. v. Owosso Savings Bank, 223 Mich. 513; The British & American Mortgage Co. v. Tibballs et al., 63 Ia. 468; Alpena Nat. Bank v. Greenbaum, 74 Mich. 157.
Along this same line, with this same distinction, the two cases against the Hanover State Bank (Tire & Rubber Co. v. Bank, 109 Kan. 772, 204 Pac. 992; Kesl v. Bank, 109 Kan. 776, 204 Pac. 994) expressly show in the syllabus of each that not only was the money on deposit but the bank had it and was able to pay it. In both these Kansas cases, and some of those cited from other states, the actions were against the bank for a preference and were not attempts to collect from the original debtor.
Some of the cases cited by appellant refer to the almost universal custom of paying debts by checks and the futility of withdrawing the currency from the bank by check and then passing it back in payment of the debt. But an agent does not bind his principal when he exceeds his specific authority. A check is only a conditional payment, and a debtor does not effect a payment by tendering a worthless check unless one authorized to act for the principal to that extent accepts it as payment.
“With the exception of a few jurisdictions the authorities are unanimous in supporting the rule that the giving of a bank check by a debtor for the amount of his indebtedness to the payee is not, in the absence of an express or implied agreement to that effect, a payment or discharge of the debt, the presumption being that the check is accepted on condition that it shall be paid.” (21 R. C. L. 60.)
“A check of itself does not operate as an assignment of any part-of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check.” (R. S. 52-1706.)
“Unless a special authority to do otherwise is shown, a bank having paper for collection cannot receive in payment therefor anything but money, or that which by common consent is considered and treated as money.” (7 C. J. 614.)
“A mere deposit with a bank of the amount necessary to meet paper sent to the bank for collection is not of itself a payment; but where funds of the debtor on deposit in the bank are applied to payment of his paper, the payment is complete.” (7 C. J. 615.)
The language of Justice Brewer on this subject is found in Mordis v. Kennedy, 23 Kan. 408, 409:
“It is settled that the mere taking of a bank check is not a payment of the debt (Kermeyer v. Newby, 14 Kan. 164), and if the check be not paid, the party may return- it, and sue on the original debt.”
The difficulty, or rather the confusion, in this case is in the fact that the checks were drawn on the collecting bank when that bank was insolvent and unable to pay them. Had they been drawn on another bank that was insolvent the acceptance of the checks by the collecting bank would be nothing more than conditional upon their being paid. But here, because the bank officer knew they were worthless and said nothing but delivered over the bills of lading contrary to instructions, it is contended that he thereby accepted them as full payment,- binding his principal and relieving the debtor. Such a conclusion is contrary to the line of authorities above cited on general principles.
“The counsel for both parties recognize the Milford bank as plaintiff’s agent for the collection of the draft. It is elementary doctrine that 'An agent authorized merely to collect a demand, or to reoeive payment of a debt, cannot bind his principal by any arrangement short of an actual collection and receipt of the money.’
“The most that can be claimed for this transaction is that the defendant, by accepting and delivering the demand draft, directed the Milford bank to pay the same and charge the amount to his account, and that the bank promised to do so. As between them, it was, perhaps, understood that defendant had paid this draft, but it was in law no more than an attempted substitution of the bank for himself as debtor. Had the acceptance, been a check, and the check drawn upon another bank or private person, the effect would have been in law the same. The law requires payment in money, and, as already shown, nothing else answers the purpose, except by agreement with the creditor, or his agent duly authorized to accept something else. As between defendant and his bank, it was clearly the latt'er’s duty to honor his check (for acceptance, which, under their custom, was practically a check) by payment of the draft, but the creditor was no party to that transaction. The bank was plaintiff’s agent to collect the money, not to make an arrangement by which it should assume the debt. A debtor who séeks to pay a debt through his debtor, thereby securing his own claim, acts at his peril, and is not exonerated from his obligation until his debtor performs his part by satisfying the creditor.” (State Bank v. Byrne, 97 Mich. 178, 179, 180.)
In the case at bar the defendant did not part with anything of value. When the receiver took charge of the bank his account was not diminished by any of these checks. The checks were still lying on the counter.
“At the time defendants gave their check, it was worthless, because of the insolvency of the Bridger bank. It could not be paid, and by giving it defendants did not part with anything of value or alter their situation to their prejudice. Giving a worthless check does not' pay a debt.” (U. S. Nat. Bank of Red Lodge v. Shupak, 54 Mont. 542, 548.)
“Where the owner of city warrants forwards them to a local bank for collection, which delivers them to said city and accepts the city’s check therefor drawn on and made payable to said bank, and where said bank is in a failing condition, and only remains open for business during the remainder of that' day and the following day, when it suspends business, and where said bank at no time after receiving said check has sufficient funds to pay the same, and where the owner of said warrants later brings suit thereon against the city, and the only defense pleaded and relied upon is that of payment, held, such defense is not thereby established, and the plaintiff is entitled to recover the full amount sued for.” (City of Sulphur v. Farmers’ Nat. Bank, 101 Okla. 148, ryl.)
“A draft which, on its face, requires payment to be made in cash or its equivalent only, and likewise limits the authority of the collecting bank to collecting and remitting to the drawer, is not paid by the act of the collecting bank in receiving the check of the drawee on the collecting bank for the full amount of the draft, and surrendering the latter, when such check, without any fault on the part of the maker, turns out to be worthless.” (Sanitary Can Co. v. National P. & C. Co., 191 Ia. 1259, syl.)
“The tender to a bank to which a draft with bill of lading attached has been sent for collection, of a check on itself, does not amount to payment, although the maker of the check had sufficient funds on deposit to meet the check, and the check is marked ‘Paid,’ if the draft requires payment in cash or its equivalent, and the bank is insolvent, so that the check is never paid.” (18 A. L. R. 532. See, also, note on p. 537.)
We conclude that when the collecting bank received anything but money or its equivalent in payment of the bills of lading it exceeded its authority and did not thereby bind its principal, and that it was not an acceptance of payment either to bind the principal or relieve the debtor from the obligation to the creditor, which obligation he has never paid in any way or manner. .
The judgment is affirmed.
Harvey, J., dissenting. | [
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The opinion of the court .was delivered by
Harvey, J.:
This was a prosecution for the larceny of domestic fowls in the nighttime, under R. S. 21-533. Defendant was found guilty, and he has appealed. Hq complains, first, of the language used by the court in an address to the jurors summoned to serve at the term of court at which he was tried. His case had been previously assigned for trial on the first day of the term of court, and he was present with his witnesses. The jurors had been summoned and were present. After court had been called, and before talcing up the trial of any case, the court addressed the jury generally concerning their duties. This procedure is not uncommon, and it is conceded that the court might with prudence address the jury personally with respect to their attendance and, generally speaking, their duties as jurors. But it is complained that the court went fur ther than that, and in effect gave instructions that would be applicable to cases to be tried, and that as his case was called immediately after the close of the address, the language used amounted to an instruction in his case. There is room for criticism of the language used by the court. Some of the statements made were inaccurate, and as to some others their accuracy may be seriously questioned. Quite a little was said in opposition to the indeterminate sentence laws which would have been appropriate if addressed to a legislative committee, but which had no place in an address to jurors called to serve at a session of court, for the reason, first, that, in most cases at least, the jury has nothing to do with the question of punishment in criminal cases. Its function is to determine the guilt or innocence of the defendant under the facts disclosed by the evidence considered in accordance with the instructions of the court given in each particular case. And, second, it is the duty, both of the court and the jury, to conform to the law in the discharge of their duties, and an adverse criticism of law by the court in an address to the jury was particularly ill-advised. The address is open to the objection, also, that it tended to be an address of a prosecutor as distinct from that of a jurist. The proper scope of such an address was stated in State v. Miller, 90 Kan. 230, 133 Pac. 878, where it was held:
“The statute prescribes the time and manner of instructing juries, and if at the opening of a term it is thought best to address the panel generally touching their duties, care should be used to avoid suggestions or statements likely to influence their decision when called upon later to sit in a given case.” (Syl. If4.)
(See 16 C. J. 827, and cases there cited; also, Owens v. State, 19 Ala. App. 621; People v. Mahoney, 258 Pac. (Cal.) 607; People v. Brown, 214 N. W. (Mich.) 935; Pate v. State, 15 Okla. Cr. 90; Mercado v. State, 96 Tex. Crim. Rep. 420; Eason v. State, 89 Tex. Crim. Rep. 638; Redwine v. State, 85 Tex. Crim. Rep. 437; Chapman v. State, 42 Tex. Crim. Rep. 135.)
But even if it can be said that the address was objectionable, appellant is not in position to complain of it. No objection was made to it at the time. He made no objection when the jury was called in his case, nor to any juror, nor did he ask for continuance, by reason of the court’s address. Nor does the record disclose that he raised the question in any way until he filed his appeal in this court. It is the general rule, both in civil and criminal cases, that questions not raised in the trial court will not be considered on appeal. (17 C. J. 50.) For .all the record discloses, defendant may at the time have regarded the language of the court as being favorable to him, or at least that it was not so objectionable to him as to cause him to call the attention of the court to it. In the instructions given at the close of the trial, among other things, the jury was told that the case must be determined from the evidence which had been received and by the law as given in the instructions. The record suggests no reason to «think that the jury did not follow these.instructions. There is no error in this respect of which appellant can . complain.
Evidence was offered of facts and circumstances tending to show other offenses similar to that charged in the information and within a few-months of the same time. Appellant complains of this, and raises the question in the opening statement of counsel for the state, when the evidence was offered, and at various stages of the trial. This question has been before the court on a number of occasions. (State v. Robinson, 125 Kan. 365, 263 Pac. 1081; State v. Baker, 122 Kan. 552, 253 Pac. 221; State v. Pitsenberger, 119 Kan. 649, 240 Pac. 568; State v. McReynolds, 118 Kan. 356, 234 Pac. 975; State v. King, 111 Kan. 140, 206 Pac. 883; State v. Ridgway, 108 Kan. 734, 197 Pac. 199; State v. Bowers, 108 Kan. 161, 194 Pac. 652; State v. Kirby, 62 Kan. 436, 63 Pac. 752.)
Such evidence may, in the discretion of the court, be received for the purpose of proving identity of the accused, to show his motive, intent, scienter, lack of mistake, or his plan or system of operation. While the record in this case does not disclose that counsel for the prosecution had very clear ideas of the purpose for which evidence of this character might be received, the court evidently had the correct theory in mind and repeatedly, in his rulings upon defendant’s objection, made it clear that defendant was being tried only for the offense charged in the information, and that evidence with respect to other matters, in so far as it was admitted at all, was received only for some one of the purposes above stated, and as circumstances bearing upon defendant’s guilt or innocence of this particular offense for which he was on trial. And in the court’s instructions to the jury it was made clear that the defendant was being tried only for the offense charged in the information, and that the other evidence received had been admitted only for one of the purposes above men tioned. In view of the way the matter was handled by the court the introduction of this evidence was not seriously objectionable.
At the trial the defendant took the witness stand in his own behalf and was subjected to a lengthy, tedious cross-examination by counsel for the state. Appellant contends that the court abused its discretion in the extent to which it permitted this cross-examination. The examination went largely to the testing of the memory of the witness and as affecting his credibility. The extent to which that may be indulged is a matter which rests largely in the discretion of the trial court, and while the cross-examination here was of great length and in much detail we must remember that this case was tried once before, which trial resulted in a disagreement of the jury. In view of the former trial, there is no reason why the defendant should not have anticipated the nature of the cross-examination and been prepared with facts and data so that he could have answered specifically instead of evasively. By reason of this we cannot say the court abused its discretion in permitting this cross-examination.
Appellant objects to several matters in the instructions of the court. Particular objection is made to the instruction of the court upon the question of reasonable doubt. It is a lengthy instruction, and embodies most of the things which have been given by courts from time to time in definitions of reasonable doubt as to what it is and what it is not. Considered as a whole, there is nothing objectionable to it. Naturally certain sentences can be picked out which, considered alone, are subject to criticism, but when read in connection with the remainder of the instruction they all help to form a part of the definition of the term. It may be questioned whether this lengthy definition clarified the meaning of the term any better than could have been done in a much briefer statement, but the wording of this definition, so long as it is not objectionable, is a matter for the trial court rather than for this court. Other objections made to the instructions have been considered >and found to' be without substantial merit.
Considering the case as a whole, the guilt of defendant seems reasonably clear. Technical objections will not be given consideration to defeat a meritorious result. (R. S. 62-1718.)
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action against the receiver of a failed bank to have two notes which plaintiff had executed to the bank adjudged to have been executed for the accommodation of the bank, and for their return or cancellation. By cross petition the receiver prayed judgment on the notes. The case was tried to the court, findings of fact were made, judgment-was rendered for defendant, both on the petition and cross petition, and plaintiff has appealed.
The facts, as disclosed by the evidence and found by the court, so far as they relate to whether the notes were given for the accommodation of the bank, may be stated briefly as follows: Plaintiff, a man getting well along in years and fairly well-to-do, had kept his account and done his banking business with the Altoona State Bank for several years, and was well acquainted with C. E. Hayhurst, its president, and Charles H. Beaty, its cashier, who were the active managing officers of the bank.. In 1925 the bank was having financial difficulties, being unable to collect some of its notes. The bank commissioner, after an examination of the bank, made a requirement that two certain notes be removed from the assets of the bank. One of these notes was for $382, signed by Guy Smith, and the other was for $1,736.44, signed by J. N. and Nellie Carver. These notes were not collectible at that time, but the makers might be able to pay them in whole or in part later. Mr. Hayhurst explained this situation to plaintiff, and told him it would accommodate the bank if plaintiff would execute his notes to the bank for the amounts of the Smith and Carver notes, the bank to transfer those notes to him and guarantee their payment in writing. Plaintiff consented to this, relying largely on the bank’s guarantee. Plaintiff then executed to the bank two notes, one for $382 and the other for $1,736.44. These were placed among the assets of the bank and the Smith and Carver notes taken out. These appear to have been kept for awhile by Hayhurst, who had the makers renew them, and they were then indorsed without recourse and delivered to plaintiff at his request. The bank then executed to plaintiff its written instrument in the form of a letter to him, which reads as follows (omitting date and caption):
“Dear Sir — For value received, this bank hereby guarantees the full payment of the following-described notes, which are now held by you, and which were indorsed to you without recourse by this bank. Note of J. N. and Nellie Carver, dated October 9, 1925, $1,736.44, maturing April 9, 1926. Note of Guy and Emily Smith, dated September 5, 1925, $382, maturing March 5, 1926. Hereby waiving notice of the acceptance of this guarantee, and meaning and intending to hereby create the same obligations, as if this contract was written on the backs of said notes. Dated this 6th day of November, 1925, at Altoona, Kansas. The Altoona State Bank.
By C. E. Hayhurst, President.
By C. H. Beaty, Cashier.”
The matter remained in that condition, except that plaintiff renewed his notes to the bank, on one or two occasions, until the bank failed and was taken in charge by the bank commissioner in December, 1926, at which time plaintiff’s notes were a part of the assets of the bank.
Plaintiff sued to recover these notes from the receivers on the theory that they had been given for the accommodation of the bank, and constitute accommodation paper as defined by R. S. 52-306. On this point the trial court held against plaintiff. The holding is correct. What plaintiff did was to buy the Smith and Carver notes from the bank, and he paid for them with his own notes. Even if the Smith and Carver notes were of little or no value at that time, the plaintiff had the bank’s guarantee of their ultimate payment, which he regarded then as being good. He did not, therefore, execute his notes to the bank “without receiving value therefor” (R. S. 52-306). Perhaps it was an accommodation to the bank to be able to sell the Smith and Carver notes — just as it may be regarded as an accommodation to any one to find a buyer for a thing he desires very much to sell — but that is not what is meant by an accommodation party in the law of negotiable instruments.
The trial court also held that plaintiff could not recover the notes, for in giving them he had knowingly aided the officials of the bank in a scheme to deceive the bank commissioner as to the assets of the bank, within the rule stated by this court in State Bank v. Olson, 116 Kan. 320, 324, 226 Pac. 995, and allied cases. Perhaps it was not necessary for the trial court to make this finding. There are circumstances, however, not necessary to be here detailed, which give support to this view. Naturally, if that was the purpose of the parties, the plaintiff could not recover in this action. The same result is reached by treating the transaction as a sale of the Smith and Carver notes to plaintiff upon the terms agreed upon by the parties, which view we regard as being more clearly, in accord with the evidence.
It developed in the testimony that the president and cashier of the bank had not been specifically authorized, at any meeting of the board of directors or of the stockholders of the bank, to execute, on behalf of the bank, the instrument of guaranty, and thus make the sale of the Smith and Carver notes to plaintiff upon the terms hereinbefore stated. Because of that the trial court held that the action of the president and cashier in executing the instrument of guaranty was without authority, and the instrument therefore void. In this the trial court erred. It is one of the inherent functions of banks 'to buy and sell ordinary negotiable paper (R. S. 9-101; 7 C. J. 592, 594), and the president and cashier, being the active managers and officers of the bank, are, from the very nature of their official positions', authorized to transact such ordinary business (7 C. J. 552, 558). In selling the Smith and Carver notes they could do so on any business terms agreed upon by the purchaser. They could have indorsed the notes without recourse, which would have relieved the bank of any future liability, except that the instruments were genuine (R. S. 52-606). They could have indorsed them in such a way that the bank would have been liable as an unqualified indorser (R. S. 52-607), and there is certainly nothing illegal or contrary to public policy in transferring the notes upon a guaranty of their ultimate payment. Even if the acts of the officers were ultra vires, the bank, having received the benefit of the transaction, is hardly in position to raise that question. (Saylors v. Bank, 99 Kan. 515, 163 Pac. 154; id. 100 Kan. 64, 163 Pac. 454.) It is true the indorsement placed on the notes and the written instrument of guaranty tend to conflict, but it is clear they should be construed together, and the effect of them is to transfer the title of those notes to plaintiff with a guaranty on the part of the bank for their ultimate payment.
Under this contract for the sale of the notes the plaintiff’s remedy was to collect what he could on the Smith and Carver notes by suit and execution, if necessary, and if the full amount thereof was not collected, to present his claim to the bank for the difference. It develops that since the contract was made the bank has failed, and its guaranty is perhaps not good; but this fact does not prevent the plaintiff from proceeding on the only course really open to him and recovering all he can. It does not have the effect of changing the nature of the original transaction between plaintiff and the bank to one for the accommodation of the bank. The holding of the trial court, that the president and cashier of the bank were without authority to issue the instrument of guaranty, and that the same was void for that reason, is reversed. In all other respects the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This action is brought by a depositor in the Farmers State Bank, of Esbon, against four of its directors, under R. S. 9-163 and R. S. 9-164, to recover judgment for the amount deposited in that bank by him when the bank was insolvent or in failing circumstances. The demurrer to the evidence of the plaintiff was overruled, the cause submitted to the jury, and a verdict rendered for plaintiff for $172.80. After the overruling of their motion for a new trial, defendants appeal, assigning as error the admission of evidence, the giving of certain instructions, and the overruling of the motion for a new trial, and claiming that the verdict is not supported by evidence.
The principal contentions are that the bank was not shown to have been insolvent when the deposits were made, and that the assistant receiver of the bank was not shown to have been competent to give opinion testimony as to the value of the assets. The plaintiff made two deposits on May 31 and one on June 1, the latter being made in the forenoon when the bank president and one of the directors were in the bank. The bank was closed by the directors at noon of that day. The plaintiff had an overdraft at the bank before the deposits of the last two days were made and also had outstanding several checks and a note which fell due a few days after the close of the bank. The deposits made by the plaintiff in these last two days were sufficient to cover the overdraft, the outstanding checks and the note and leave a balance to his credit, as shown on the bank receiver’s report on file with the clerk of the district court, of $172.80. The plaintiff talked with the president of the bank about the two deposits made on May 31. The assistant receiver in charge of the bank as such after it was closed until the time of the trial testified that the books of the bank showed the reserve of the bank for several days prior to its closing was from $1,300 to $1,600, when it should have been about $7,000. He also testified that he had made an examination of the notes and other property of the bank as of June 1, the day on which the bank closed; that he was familiar with the assets and liabilities as of June 1 and could testify approximately as to their value at that time; that the liabilities were about $165,000 or $170,000, and the face value of the assets was about the same. He gave the opinion that they would not pay out one hundred cents-on the dollar.
If this evidence was competent there is sufficient to well support the verdict of the jury. It shows the plaintiff had to his credit on his account with the closed bank from the deposits made the last two days, after paying everything he owed the bank, the sum of $172.80, the amount found by the jury; that the reserve of the bank was only about one-fifth of what it should have been for several days prior to the closing; and that the assets, notes and other property at full face value were only about equal to the liabilities. The assistant receiver gave as his opinion that the assets were not worth one hundred cents on the dollar. If qualification is necessary for testimony of this character we think the assistant receiver fully showed it, even for the purpose of giving opinion evidence. He did not testify that the bank was insolvent or in failing circumstances when it received these deposits. He simply told what the liabilities were and what the assets were at that time. He then gave the opinion that the notes and other property were not worth one hundred cents on the dollar. That would show insolvency.
Was he qualified to give such testimony? He did not say he knew the makers of the notes and their individual holdings, but said he had examined the notes and property of the bank, had the records in his possession since the bank closed, and considered himself familiar with the assets and able to give an opinion. This looks to us as the usual line of qualification in such cases. The value of the assets was, of course, an opinion; but is not a bank receiver engaged in such work regularly as capable as anyone to give such opinion?
“One who was accustomed to handling cars of the kind injured, had bought and sold several of them, and was fairly familiar with their value, is a competent witness to give an opinion as to the value of the injured automobile.” (Barshfield v. Vucklich, 108 Kan. 761, syl. ¶ 4, 197 Pac. 205.)
“Evidence of the cost of a building is not usually evidence of its value at a particular time; but witnesses who are not architects, builders, or contractors may be allowed to state their opinions as to the worth of a building from a general knowledge of it without being able to estimate the value of any of the materials entering into its construction; such inability affecting the weight, but not the competency of the testimony.” (Insurance Co. v. Payne, 57 Kan. 291, syl. ¶ 3, 46 Pac. 315. See, also, Hollinger v. Railway Co., 94 Kan. 316, 146 Pac. 1034; Hindman v. Askew, 9 Kan. App. 98.)
“While witnesses are not required to be expert or skilled in the strict and severe sense of the term in order to give opinions on value, and while there is no inflexible rule defining how much a witness must know in order to be so qualified, it must be made to appear that he has had, and utilized, means superior to those available to the jurors for forming an intelligent opinion.” (22 C. J. 578.)
It is said the assistant receiver testified to the ultimate fact in issue to be determined by the jury. We have failed to find this in the evidence abstracted. His evidence is, for the most part, as to the amount of the liabilities and the value of the assets. The work of the jury is to compare those figures and determine whether the bank was insolvent or not and whether or not it was in failing circumstances. The failure to show the extent of the familiarity of the assistant receiver with the makers of the notes and their ability and disposition to pay affects, as is said in the case of Insurance Co. v. Payne, supra, the weight of such testimony, but not the competency of it.
It is urged that the testimony as to value of assets is all as of the time of the trial instead of the time when the deposits were made, viz., on May 31 and June 1. Of course the dates are not named in every question asked or included in every answer. At the beginning of the examination as'to assets and liabilities counsel for plaintiff asked this question:
“And have you made such examination as of the date of June 1, 1926, the date that the bank closed?”
A little later the court, in overruling an objection, said:
“I suppose he ought to give the value of the assets and the value of the liabilities, if he can, as of June 1.”
This was followed by the following question:
“Can you state approximately the liabilities of the bank at that time?”
While some of the answers are made in the present and some in the future tense, we see nothing to make one think the inquiry concerned any other time than the time when the deposits were made, the last of which was on the day the bank closed.
After a careful examination of the instructions given we find no reversible error in them. The question of excess of verdict is cured by a correction of the journal entry, showing a mere clerical error by reversal of figures and nothing to prejudice any one of the litigants.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action in replevin by a mortgagee of furniture and fixtures of a restaurant. It was tried to the court, who made findings of fact and conclusions of law and rendered judgment for plaintiff. Defendants have appealed.
Paul Perry owned and operated the restaurant. Some of the furniture and fixtures had been purchased on the part-payment plan, the vendors taking a title note or chattel mortgage to secure a part of the purchase price. On June 30, 1923, he executed a note to H. Cullen for $220, due in thirty days, and secured the same by a chattel mortgage in usual form on “all furniture and fixtures and contents” of the restaurant, properly describing it. This chattel mortgage was duly recorded. Cullen indorsed the note and assigned the mortgage to the plaintiff, Millard Kohler. Later the defendant, R. J. O’Brien, claiming an indebtedness against Paul Perry on account, brought an action and attached all the furniture and fixtures of the restaurant, and purchased the same at the attachment sale. Prior to the sale he had actual notice of plaintiff’s mortgage. O’Brien then paid the vendor’s title notes and chattel mortgages and sold the property, or part thereof, to the defendant, Mack Harlow. "Kohler brought this replevin action against Harlow and O’Brien, who gave a redelivery bond. There was judgment for plaintiff for .the possession of the property, or, in lieu thereof, the amount due on the note and mortgage held by him.
Appellants contend that Paul Perry had no title to the' property mortgaged to Cullen because of the vendor’s title notes and chattel mortgages. It does not appear that this question was raised in the court below. In any event it has no merit. Whatever the wording of these instruments may have been — and that was not shown — they were treated, even by defendants, as evidencing liens only. Perry had title to the property subject to such liens. Appellants contend that they had no notice of the mortgage to Cullen. The court'finds otherwise, and there is ample evidence to sustain that finding. It is contended that the plaintiff was estopped from claiming title because he was present at the attachment sale and gave no public notice of his lien thereon. He did give notice to O’Brien, the plaintiff in the attachment action, who bought at the attachment sale with the notice of the claim of this mortgage. That was sufficient. (Gray v. Zellmer, 66 Kan. 514, 72 Pac. 228.) Appellants next contend that they did not have possession of the property at the time the replevin 'action was brought. By giving a redelivery bond they admitted their possession at that time and are not now in position to raise this question. (Nye v. Weiss, 7 Kan. App. 627; Bank v. Martin, 81 Kan. 794, 106 Pac. 1056.) Appellants contend that the description of the property in the mortgage was so vague and indefinite that the mortgage was void. It was sufficient for the parties to identify the property under it, and they did so identify it. (Emick v. Swafford, 107 Kan. 209, 191 Pac. 490.)
There is no error in the record, and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action commenced in 1926 to recover on a policy of insurance issued by the defendant to indemnify the plaintiff against loss by theft of a motor truck owned by him. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
The evidence disclosed that early in 1926 the plaintiff bought a secondhand motor truck from Walter Anderson, who was not a regular dealer engaged in the barter or sale of such vehicles; that he did not give any bill of sale of the motor truck to the plaintiff; that section 8-117 (repealed in 1927) of the Revised Statutes was not complied with in making the sale; that the defendant issued to the plaintiff a policy of theft insurance on the truck thus purchased; that the truck was stolen May 17,1926, after the policy was issued; that the plaintiff made proof of loss; and that the defendant denied liability, tendered to the plaintiff the premium which had been paid, and refused to pay anything under the policy.
This case is controlled by Morris v. Firemen’s Ins. Co., 121 Kan. 482, 247 Pac. 852, where this court declared the law to be that—
“One who buys an automobile from any person other than a regular dealer having an established place of business, without requiring the seller to be identified by two persons of the buyer’s acquaintance and without requiring a bill of sale to be executed by the seller, with his name and address, and giving an accurate and comprehensive description of the car, and particularly its correct engine number, and containing also the signatures and addresses of the identifying witnesses, has no insurable interest in such automobile against its theft.”
To the same effect is Cory v. International Indemnity Co., 124 Kan. 677, 261 Pac. 573.
That decision was based on section 8-117 of the Revised Statutes, which requires that a bill of sale be signed and delivered with certain formalities when one who is not a regular dealer in motor vehicles sells such a vehicle to another person.
The plaintiff seeks to avoid the effect of the statute by arguing that the spirit of the statute was complied with because the defendant’s agent who procured the insurance knew that the plaintiff had purchased the truck from the person who claimed to be its former owner. That did not comply with the statute.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action by five persons who were formerly the directors of the Hopewell Coöperative Equity Exchange against a number of individuals who had been stockholders in the exchange, for contribution and for subrogation to all the rights of the Farmers State Bank of Hopewell, based upon an indemnity contract given by the defendants at the request of the bank. The defendants answered by general denial and by pleading the three- and the five-year statutes of limitations, the solvency of the exchange when the liability accrued, no loss under the contract, and that if loss was sustained it occurred later by reason of mismanagement of the plaintiffs as directors and under circumstances for which the defendants were not liable. The case was tried to the' court without a jury, findings of fact and conclusions of law were made by the trial court, and judgment was rendered in favor of defendants, from which plaintiffs appeal.
At an annual meeting of the stockholders of the exchange on June 8, 1918, the by-laws were amended to authorize the president, vice president, secretary, treasurer, or manager to borrow money to conduct the business of the exchange and to sign notes either for new loans or renewals. At the same meeting the following resolution was unanimously adopted:
“On motion, it was decided for each member to sign up $500 security to bank for money to transact the equity business.”
Under such amended by-laws and resolution the directors borrowed large sunis from the Farmers State Bank of Hopewell, the notes being signed by the manager, and the directors personally obligated themselves, not by indorsement but otherwise, for the prompt payment of all the indebtedness of the exchange to the bank. Subsequently, this obligation was put in the form of what was called a continuing contract. Later, at the request of the bank, the stockholders were asked to sign a written obligation prepared by it, which they did sign. It is referred to in this litigation as exhibit A, and is as follows:
“Exhibit A.
“Know All Men by These Presents: That we, the undersigned, being stockholders or other interested parties in The Hopewell Cooperative Exchange, a corporation duly organized and existing under and by virtue of the laws of the state of Kansas, do hereby request the directors of said the Equity Exchange to bond and pledge themselves individually to the Farmers State Bank of Hopewell, Kan., for the purpose of obtaining credit for the said Equity Exchange in the amount of twenty-five thousand dollars.
“Now, If the directors of said the Equity Exchange will so bond and pledge themselves individually to said bank, we the undersigned stockholders hereby agree that we will reimburse said directors for any loss arising on account of said bond or pledge up to and including the sum of five hundred dollars each; it being our intention that each signer of this instrument shall stand individually liable for any sum up to and including five hundred dollars for the purpose of making said directors safe in signing said pledge, or bond to said bank.
“In case any loss is sustained by said directors on account of said bond or pledge, we hereby agree promptly to reimburse said directors for said loss; it being distinctly understood, however, that no one stockholder shall be called upon to pay more than five hundred dollars.”
After being signed by all the stockholders, including the directors, it was delivered to the directors, and by them in turn delivered to the bank.
The directors, thus bonding and pledging themselves personally, in addition to the corporation notes signed by the manager, borrowed various sums from the Hopewell bank from time to time until May, 1920, when the amount of the loan was $23,500. At that time the bank notified the directors that the loan must be reduced to $6,000 until September, when it could again be increased to as much as $25,000, if desired. The court found, and the evidence plainly shows, that in May, 1920, the exchange was solvent and had assets over liabilities to the amount of $9,149.29. The trial court also found that the exchange had in September, 1920, $16,600 more assets than liabilities. In the month of June, 1920, the directors transferred the account of the exchange from the Hopewell bank to the Macks-ville State Bank, and borrowed from the latter bank sufficient money to liquidate all the obligations of the exchange held by the Hopewell bank.
At the annual meeting of the stockholders in May, 1924, it was decided to close the business of the exchange, and the directors were ordered to sell the property. This was done, and the court found that, after selling and disposing of all the assets of the exchange and applying the proceeds upon the indebtedness, there remained the sum of $13,875 due the Macksville State Bank, which has been paid by the directors. This action was filed November 29,1924. Amended petitions were filed May 2, 1925, December 18, 1925, and April 18, 1927.
The original petition sets out a cause of action for reformation of the contract above referred to as exhibit A, and also pleads for contribution. The first amendment really only separately states and numbers the causes of action contained in the original petition. The next amended petition contained the same general allegations, and concludes by pleading for reformation and subrogation. The last petition was filed after a decision of this court in this case, reported in 122 Kan. 716, 253 Pac. 576, holding adversely to plaintiffs contention on the question of reformation; therefore, specific allegations along that line were eliminated, and the petition concludes with a prayer for contribution and subrogation.
Many errors are assigned by appellants, both as to the findings of fact and the conclusions of law, but we think there is not much ground for difference as to the findings of fact. Of course, all the facts were not included in them, and our attention has not been directed to anything omitted that would be so essential or important as to modify or change the conclusions based thereon.
While the terms “contribution” and “subrogation” each refer to very distinct remedies and relations of parties, yet the facts stated in the petitions must control rather than the terms used, especially in the prayer for recovery and relief. Aside from the question of reformation, with which we now have nothing to do, all the petitions by their allegations assert a claim of right to recover from each of the defendants the sum of $500 under and by virtue of the indemnity contract (exhibit A). Defendant thought there was more than one cause of action in the original petition, and so moved to require that they be separately stated and numbered, and the trial court so ordered. The apparent confusion with the term “contribution” arises from the fact that the plaintiffs do occupy a dual capacity in that they as stockholders signed exhibit A with the defendants, and, if it had not run to them as directors, their claim against the other signers might well have been termed as for contribution.
These preliminary observations are made with the view of harmonizing the allegations and claims of the four petitions after eliminating all references to reformation and to conclude that it seems to have been from the beginning an action to recover upon a contract (exhibit A). The briefs present different views as to the relation of the several parties and their consequent obligations, rights and privileges, especially with reference to principal and surety, and also as to obligations as stockholders. We think the exchange, a corporation doing an active business and needing more money than it had, was the principal when its directors borrowed money for it from the Hopewell bank. The stockholders, as such, were not debtors, even if they did receive dividends from the use of the borrowed money put into the business. Their liability as stockholders is fixed by statute. They cannot be the principals unless they do something themselves to incur additional liabilities, which they did by signing exhibit A. As stockholders, at the annual meeting, they promised “to sign up $500 security.” Suppose- that after so voting some of them had refused to sign up. Could they be made liable to the plaintiffs in this action? Or, suppose some good friends of the exchange, who were not stockholders, wanted to help it and had signed exhibit A. Would they be exempt from liability in an action on this contract because they were not stockholders in the exchange? We think the signing up security makes whatever liability there exists here, regardless of their relation to the exchange, and therefore such signers are not principals in these obligations, but at most are sureties, or rather indemnitors.
It is contended that the directors are only sureties; that they received no benefit from the loans and made themselves personally liable to the bank under a continuing contract before the bank would make the loan to the exchange. This certainly makes them only sureties as between them and the exchange.
It is further contended that the signers of exhibit A, being stockholders and present at the several meetings of the exchange, and having heard the reports there made from time to time as to the financial and other business of the corporation, impliedly consented to the steps taken by the directors in changing its account and business from the Hopewell bank to the Macksville bank, and are bound by their silence and acquiescence. The case of Bank v. Livermore, 90 Kan. 395, 133 Pac. 734, is distinguishable from this case in that the three signers of the note of the corporation, which was renewed and extended without their consent, were directors and principal stockholders, and therefore “not entitled to the same liberality of treatment that the law accords to volunteer sureties.” (Syl. ¶ 3.) The defendants in the case at bar were not directors and, as stockholders, had, by an amended by-law, delegated to the directors and their officers the full authority as to borrowing money. Two cases cited along the same line, Bank v. Prescott, 60 Kan. 490, 57 Pac. 121, and Harrison v. Scott, 77 Kan. 637, 95 Pac. 1045, turn partly upon the old question of double liability of stockholders, and for that reason are not decisive in this case. In the Livermore case, above cited, it is made very plain in the opinion that the fact that the defendants were directors and principal stockholders, and the ones most vitally interested in the loan and the use of the money borrowed, does in no way create or constitute an obligation, but that they were not to be relieved from such admitted obligation as readily as if they had been mere volunteer sureties under the technical rule of granting an extension without the consent of the sureties. The same rule might apply as to a strict or liberal construction of the contract here in question.
The conclusions of law made by the trial court are as follows:
“The defendants, the stockholders, obligated themselves only upon the contract, following which credit was secured and liability incurred at the Hopewell State Bank. Their liability could not be further extended without their consent. Any right of contribution would have arisen on the date of payment of the Hopewell State Bank, to wit, the month of June, 1920. On that date the Hopewell Cooperative Equity Exchange had sufficient assets to pay all indebtedness of the exchange. The directors suffered no loss under the contract. Plaintiffs can not recover herein.”
To whom and for what are the defendants bound by the terms of the contract signed by them? The first paragraph requests the directors of the exchange to bond and pledge themselves individually to the Hopewell bank for the purpose of obtaining credit for the exchange. The second paragraph contains the obligation that if the directors do so pledge themselves to “said bank” the signers agree to reimburse them for any loss arising on account of said pledge up to $500 each, “for the purpose of making said directors safe in signing said pledge or bond to said bank.” The'third paragraph reiterates the promise to the directors to reimburse them to the extent of $500 each in case such loss is sustained by them on account of “said bond or pledge.” The obligation runs to the directors, the plaintiffs herein. It requests them to pledge themselves to the Hopewell bank to obtain credit for the exchange, and binds the makers in case of a loss on account of making such pledge to reimburse them — the directors — to the extent of $500 for each of the makers.
To construe this contract as covering a bond or pledge made to some other bank than the Hopewell bank, to which reference is made three times in the contract, it is necessary to read into the contract something not now there. There is no rule requiring liberal construction as against indemnitors. “It cannot be extended by construction or implication beyond the terms of the contract.” (31 C. J. 427.) It indemnifies the directors, and them only. It does not pretend to indemnify the bank. It is to reimburse the directors, and therefore there is no need of subrogation. The directors have now and always have had all they could have acquired under the contract by subrogation. It did not run to the bank, and it never had anything therein to assign.' It is doubtful if the Hopewell bank could have sued and recovered anything on this contract. At least some circumstance would have to be alleged by the bank that is not now shown in the evidence before the bank could recover directly.
“Subrogation is the substitution of another person in the place of a creditor, so that the person in whose favor it is exercised succeeds to the rights of the creditor in relation to the debt.” (37 Cyc. 363.)
The same principle is applied in many of the cases cited. See Crippen v. Chappel, 35 Kan. 495, 11 Pac. 453; Safe Deposit Co. v. Thomas, 59 Kan. 470, 53 Pac. 472; Olson v. Peterson, 88 Kan. 350, 128 Pac. 191; Breyfogle v. Jackson, 113 Kan. 373, 214 Pac. 779.
“Subrogation or equitable assignment is based on principles of natural justice and essential fairness without regard to form — its object being the prevention of injustice.” (Deposit Co. v. City of Stafford, 93 Kan. 539, syl. 112, 144 Pac. 852.)
But the most decisive feature of the contract is its limited purpose, viz., to reimburse the directors for any loss arising on account of the pledge and to make the directors safe in signing the pledge or bond to the bank. The findings and the evidence show the directors did not suffer any loss in signing the pledge to the bank. The loss they sustained accrued and arose months and years later on account of signing a similar pledge with another bank.
Appellants reason that, because this contract might have protected the directors against a loss sustained by giving their pledge to the Hopewell bank years later if they had continued to borrow there, it is only equitable and fair that the same protection be orded when the loss occurred elsewhere, and cite the case of Canning Co. v. Hensley, 149 Ia. 168, where the syllabus so indicates; but the opinion justifies that conclusion upon two facts — first, that the loan'was actually obtained from a local bank, which, however, procured another bank to carry it, and, second, because the language of the contract of indemnity in a separate blanket clause included all indebtedness of every kind and character. The very reason given for the conclusion thus reached in this Iowa case is most convincing that the loss must have been sustained at a bank which can be included in the language of the contract itself. The cardinal rule for the construction of indemnity contracts is the reasonable construction, neither strict nor liberal. (14 R. C. L. 46.) The exchange was solvent when the indebtedness was paid to the Hopewell bank, and remained so for some time thereafter.
We concur in the conclusion of the trial court that the directors suffered no loss under this contract. This conclusion makes it unnecessary to consider the defense of the statute of limitations.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an original proceeding brought by The Cloud County Farm Bureau, of Cloud county, to compel the board of county commissioners of Cloud county to make an appropriation of not less than $1,200 to the farm bureau as provided in R. S. 2-601, and the following sections relating to county farm bureaus. It appears that the Cloud County Farm Bureau was organized on January 3,1916, and has been operating as a farm bureau ever since that time, and has received appropriations each year from the county up to and including the year 1926, the appropriation for that year being $1,724.37. On August 1, 1927, the plaintiff filed its budget with the county clerk showing the amounts needed for the salaries and expenses of the bureau for the ensuing year. This was done to be used as a basis for an appropriation for that year and the making of a levy on-the taxable property of the county to-provide funds needed for the farm bureau work. At the August meeting of 1927 the board of county commissioners declined to make an appropriation or a levy to provide funds for the maintenance of the bureau upon the ground that the bureau did not have a bona fide membership of 250. Also that it had failed to file and certify that it had $800 on deposit available for the use of the bureau; and further, that the making of the appropriation was a matter within the discretion of the board of county commissioners, and that it had exercised its discretion in refusing to appropriate funds for the maintenance of the bureau; and still further, that the act of the legislature providing for an appropriation was a violation of the state and federal constitutions.
The objections raised by the defendant involve an interpretation as well as the validity of the act providing for the organization and maintenance of farm bureaus. Preliminary to the consideration of the act it is not improper to note that on May 8, 1914, congress passed an act providing for the cooperation of extension work to aid in diffusing among the people of the United States useful and practical information on subjects relating to agriculture and home economics, and making appropriations to be inaugurated and administered by the agricultural colleges of the states as the legislature of each state may direct. (38 Stat. ch. 79; U. S. Code Annotated, Title 7, §§ 341 to 348.) In 1915 the legislature of Kansas passed a cooperating act, the pertinent sections of which provide:
“Aid of bureaus. That whenever there shall be organized in any county in the state of Kansas a county farm bureau having a membership of 25 per cent of the bona fide farmers of the county, or as many as 250 farmers, and having for its purpose the giving of instruction in agriculture and home economics to the people of said county through practical demonstrations and otherwise, and the employment of a county agricultural agent or agents to prosecute this work, the Kansas state agricultural college shall contribute, from federal and .state funds granted for demonstrations in agriculture and home economics, not less than $1,200, as far as such funds are available, towards the salary of such county agricultural agent, or agents. All applications for such funds must be made by farm bureaus to the extension division of the Kansas state agricultural college, on or before June 1 and December 1 of each year.” (R. S. 2-601.)
“Conditions of such aid. Before such appropriation is made the county farm bureau shall present to the board of county commissioners of its county a copy of the constitution and by-laws adopted by the farm bureau, and approved by the Kansas state agricultural college, and a certified statement of deposit in the local bank of the county of not less than $800, which shall be used subject to the order of the county farm bureau for providing the necessary equipment for said bureau.” (R. S. 2-602.)
“County appropriations and, levies for bureau,. When said county farm bureau shall present to the board of county commissioners its list of farm bureau members provided in section 1, and its certificate of deposit as provided in Laws 1915, chapter 166, section 2, the said board of county commissioners shall appropriate a sum of money not less than $1,200 per annum to assist in the payment of the salary of the county agricultural agent and the expenses of the farm bureau. The executive committee of the farm bureau shall be required to prepare and present to the board of county commissioners, on or before the first Monday in August, a budget or budgets showing clearly the amounts needed from year to year, which budgets shall be used as the basis for the appropriation by the county commissioners, and the county commissioners shall be empowered to make a tax levy against the property of the county, real and personal, sufficient to raise the funds needed for the farm bureau work, which levy shall be in addition to all other levies authorized by law. Before and until the income from such tax levy is available the county commissioners may make appropriations necessary for farm bureau work from the general funds of the county, and shall have power to replace such appropriations from the general fund by transferring an equal amount from the farm bureau fund when available.” (R. S. 2-603.)
It is contended by the defendant that the membership of the bureau was insufficient and that the deposit in the bank for the maintenance of the bureau was not shown. In a resolution the board of county commissioners alleged that on August 1, 1927, the list of members contained the names of persons who were not bona fide farmers. It is recited that quite a number of members were added after August 1, and that these were not entitled to be counted because they were not filed in proper time. It appears that the dean of the extension division of the state agricultural college had inspected the equipment of the bureau and had approved the budget presented to the defendant as a basis for an appropriation by the board. It was certified that an appropriation of $3,295 was necessary to carry on the work. As to the membership it was shown that the organization was effected in 1916, and that it had been maintained continuously since that time, in part by appropriations made each year by that board. It was duly organized under the provisions of the statute, and there had been no forfeiture, and it was shown to have carried on uninterruptedly for more than ten years. Being legally organized under the statute, it is a public organization somewhat similar to a school district or other municipality. When duly organized its existence continued and will continue until it is dissolved or its right forfeited at the instance of the county attorney or the attorney-general. If it fails to carry out the purpose for which it was created or to maintain an effective and legal membership, it may be challenged by the named public officers, but its existence cannot be challenged by the board of county commissioners nor by any private party. The board or anyone challenging a misuser of its powers or functions, or states that it fails to fulfill the design and purpose of its organization, is at liberty to make representations and an application to the proper officers to institute a proceeding to dissolve the organization or to correct any misuse or abuse of the powers granted. The purpose as declared in its constitution and by-laws is expressed in these words:
“In harmony with the Smith-Lever act and the Kansas farm bureau law providing for the support of farm bureau work, ‘This organization shall have for its purpose the giving of instructions in agricultural and home economics to the people of the county through practical demonstrations and otherwise, and the employment of a county agent or agents to prosecute this work.’ The efforts of this organization and its employees shall be to promote the most profitable and permanent system of agriculture; the most wholesome and satisfying living conditions; the highest ideals in home and community life; and a genuine interest in the farm bureau business and rural life on the part of young people.”
These bureaus are under the supervision of the dean of the division of extension of the state agricultural college and, as stated, he has approved the work of the bureau and certified to the board that its’ equipment is satisfactory and that it has fulfilled all the requirements of the law. It follows that the board was not competent to' challenge the validity of the organization or its membership. Neither could it refuse to follow the requirements of the statute relating to its maintenance. The objection that it had not been shown that it had $800 on deposit in a bank when the appropriation was requested is not good in this proceeding. That, like the membership, was a requirement for the original organization of the bureau with which there had been compliance, but once that it had been duly-organized the law in that respect has been fulfilled. Under the statute it was not necessary that the bureau should be reorganized each year. After the organization all that was required was that the executive committee should present to the board of county commissioners on the first Monday in August, from year to year, a budget showing clearly the needs of the bureau. As to the appointment of an agent it is provided that he shall be selected by the executive board, that he must have had five years’ experience in practical farm work, that he shall be under the general direction and supervision of the agricultural college, and that the constitution and by-laws as well as all accounts and expenditures of funds shall be subject to the approval of the director of extension of the Kansas state agricultural college. (R. S. 2-607:) As every essential step of the bureau was approved by the director of the college, it became the duty of the board of county commissioners to make the appropriation provided by statute. The claim that the appropriation is a matter within the discretion of the board is not justified under the statute. It requires that when a bureau presents an approved budget the board “shall appropriate.” The only discretion vested in the board is whether a greater amount than $1,200 shall be appropriated. The theory of the statute is that an amount sufficient to aid in the proper maintenance of the bureau shall be appropriated, but that it shall not in any year be less than $1,200. The demand of the plaintiff in this proceeding is that there shall be an allowance of at least the minimum sum. As to the constitutionality of the act, there is little ground for contention. The law has been enacted for a public, educational and laudable purpose. It is general in its character and operates alike upon all organizations of a specified class, and it cannot be said that the classification made is unreasonable, nor is there any ground for contending that it is an unwarranted delegation of legislative power. It is a common and valid exercise of the police power of the state, by which the exercise of discretion and the carrying out of the provisions of' an act of the legislature is vested in various state boards, commissions and public officers. (Ratcliff v. Stock-yards Co., 74 Kan. 1, 86 Pac. 150; Schaake v. Dolley, 85 Kan. 598, 613, 118 Pac. 80; Balch v. Glenn, 85 Kan. 735, 119 Pac. 67; State, ex rel., v. Drainage District, 123 Kan. 191, 254 Pac. 372, and cases cited.)
In so far as the requirement that the burden of the bureau shall be cast upon the county in which it is located and require it to expend money for a public purpose, the act is well within the legislative power. In State, ex rel., v. Comm’rs of Shawnee Co., 28 Kan. 431, it was held to be within the power of the legislature to require' a county to bear the burden and pay the expense of- a state road established by the legislature which ran through the county. It was said:
“It will be borne in mind that the purpose for which this expense is cast upon the county is a purely public purpose — one that is universally and without question recognized as such. It is not like compelling a county to take stock in a railroad corporation, or to aid in the building of a railroad, or to invest its public moneys in any enterprise in which there is something of private interest. A public highway is a matter solely of public interest. The laying out and keeping in order of highways is one of the ordinary duties of counties and cities.” (p. 433.)
See, also, Fair Association v. Myers, 44 Kan. 132, 24 Pac. 71; State v. Atkin, 64 Kan. 174, 67 Pac. 519; State v. Robinson, 35 Neb. 401.
We see no conflict in the act with the federal constitution, nor do we discover any reason for the refusal of the board of county commissioners to make an appropriation to at least the extent of $1,200, and therefore the plaintiff is-entitled to the relief sought. -The peremptory writ of mandamus is allowed. | [
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The opinion of the court was delivered by
Burch, J.:
Page 2 of appellant’s petition for rehearing is devoted to impertinent and scandalous matter, and is. stricken from the court’s files. Thus purged, the petition for rehearing is denied.
Leave to withdraw the answer to the petition for rehearing is granted. . . '
Appeal and Error, 4 C. J. p. 641 n. 96. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one by certain taxpayers of Stafford county to enjoin the board of county commissioners from wrecking and removing the present courthouse preparatory to the building of a new one. The injunction was denied and plaintiffs appeal.
The facts are substantially these: The present courthouse of Stafford county has been in use for more than forty years and is in a very dilapidated condition. In 1925 a petition was circulated and filed, directed to the board of county commissioners, petitioning them to levy an annual tax for the purpose of building a new courthouse. The board acted upon and adopted the petition, and provided for the levying of taxes in accordance therewith, and taxes were collected for this purpose for the years 1925, 1926 and 1927, aggregating $87,073.68. In order to erect a new courthouse on the site occupied by the old one it was necessary to remove the old building. This the defendants were proceeding to do when restrained by the bringing of the present action. On a trial of the issues the court found generally for the defendants and denied the injunction.
The plaintiffs appeal, contending that the present building has a value of more than five hundred dollars, and therefore cannot be sold or disposed of except by a unanimous vote of the commissioners (R. S. 19-211), and that inasmuch as one of the commissioners voted against the resolution to wreck and remove the building the board had no authority to proceed. While various other questions are argued at length in the briefs, we think the general finding of the trial court, which necessarily included a finding of the value of the building, determines the present controversy.
After the passage of the resolution to wreck and demolish the old building the board by a majority vote advertised for bids for that purpose, which were submitted — one for $1,487, another for $2,000, another for $4,250, another for $5,000, and one for $2,650. The plaintiffs say that “the evidence shows that the courthouse building was worth from two to five thousand dollars.” It is true that there was testimony by witnesses for the plaintiff to that effect — one that “the value of the building as it stands for the purposes for which it was constructed is $5,000; that the salvage in case it was wrecked would be $2,089.” This witness, however, testified: “I haven’t figured on what it would cost to tear down the building. It would probably cost $2,089.” That is to say, this witness testified that the salvage in the building would amount to the cost of tearing it down. Another witness testified: “I figured it would be worth somewhere around two thousand dollars. I did not take into consideration the expense of tearing down the building. I couldn’t say what it was worth after paying that expense.” In connection with this testimony the following allegations of the defendant’s answer are to be taken into consideration for the reason that the plaintiffs admitted that every statement of fact set up in the defendant’s answer is true:
“Thirteenth: That the present courthouse is inadequate to accommodate the county officers of Stafford county, Kansas, and the officers required by law to be kept in said courthouse, and the county is and for a long time heretofore has been renting and maintaining offices outside of said courthouse for the accommodation of some of its officers.
“That the present courthouse is constructed of soft brick and the roof thereof is in need of repair, and much of the plaster is loose and in many places has fallen; that the walls are cracked and the floors are badly worn, so that in mopping the floors on the' second story, care is required to prevent the mop water from running through the floor and into the offices below; and the keystones of the main entrances have become loosened and dislodged to the extent that the county commissioners have heretofore been required and did reset the same; that the keystone of the arch of one of the windows on the north side and on the second floor became loose and fell from its position to the sidewalk below where it was broken, and the county commissioners were required to and did replace the same with a new stone; and the keystone on the east main entrance and from the arch of said entrance fell from its position to the step below, and the county commissioners were required to and did reset the same. That said building is leaning and is out of plumb and that there is now a space of-inches between the main building and the vault, which was constructed in 1909, and a crack extends from the bottom of said building to the top thereof, the said crack being wider at the top than at the bottom; that birds have built nests in the crack in the walls of said building. That said building because of its condition and age and the material of which it is constructed is in danger of collapse from strong wind and is in danger of collapse from the weight of crowds which may attend the trial of cases in the court room, thereby endangering the lives of the county officers and the people who may be within said building.
“That said building is not fireproof and is a fire hazard; that the interior of said building is constructed of lumber and wood and plaster, and is old and dilapidated; that the stairway leading from the court room and the offices on the second floor is of wood, and people leaving the second floor of the court room leave it about the center of the building on the first floor, making it dangerous to the occupants of said second floor and to the people who may attend court in said court room, in the event a fire should start in said building, thereby jeopardizing the life and limbs of all said persons. That there is no other exit from the second floor except the said stairway. That the vaults in said present building are inadequate to house the records of said county.”
A further recital of the evidence is not necessary. We are of opinion it was ample to support the finding of the trial court. This conclusion renders unnecessary a discussion of other interesting questions ably presented in the briefs.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Clark, J.:
On October 30, 1889, oneT. D. Frazer was the owner of a stock of goods of the value of about $1,600, and on that day he executed a mortgage thereon to the plaintiff in error to secure the payment of an alleged indebtedness of $1,640, and at the samé time delivered to the mortgagee possession of the mortgaged property. A few days thereafter R. Douglass & Co. and the B. C. Clark Crockery Company commenced their separate actions against T. D. Frazer to recover upon accounts then due them, and caused writs of attachment to be issued and levied upon this stock of goods, which at the time of the levy were in the possession of the mortgagee. On November 9, James G. Frazer filed in each of these actions his motion to discharge the attached property, alleging therein his special ownership and right of possession thereto. T. D. Frazer also filed his motion in each cause to dissolve the attachment, upon the ground that the facts as alleged in the affidavits for attachment were not true. By an agreement between the attaching creditors, the defendant, and James G. Frazer, a hearing w&s had on all these motions on November 16, 1889, on the same evidence, all parties being represented at such hearing by counsel. After hearing the evidence and the arguments of counsel, the court took the matter under advisement until November 23, at which time all the motions were overruled. The defendant and James G. Frazer duly excepted to the rulings of the court, and immediately filed their separate motions to set aside the said decision of the court on their respective motions and to grant a new trial therein. These motions were in like manner overruled, and exceptions were duly saved to such rulings, and, upon the application of the defendant and James G. Frazer, they were each allowed 30 days in which to make and serve a case for the supreme court. James G. Frazer made no further appearance in those actions or took any further steps to secure a reversal of the order of the court refusing to discharge-the attached property; but on December 9, 1889, he commenced this action in replevin against the sheriff to recover possession of this stock of goods. The writ of replevin was duly issued to and served by the coroner, and, for want of a redelivery bond, the property in controversy was delivered' to the plaintiff in this action. On October 28, 1890, judgments were rendered in the attachment suits in favor of'the plaintiffs therein against T. D. Frazer for the amount claimed to be due them, and orders were duly entered that the attached property be sold. The replevin action was tried on June 2, 1891, and, under the directions of the court, the jury found that at the commencement of this action the sheriff was entitled to the possession of the property in controversy, and that its value was $1,617. A motion for a new trial was overruled, and judgment entered in favor of the sheriff for $1,575.81, the same being the value of his interest in the property. The plaintiff has brought the case to this court for review.
The real question involved in this proceeding is as to whether the decision of the court overruling the motion to discharge the attached property was a bar to the subsequent action in replevin for the possession of the same property. The trial court held that the decision on that motion was final and conclusive until reversed upon proper proceedings, and, unless this theory of the law is erroneous, the judgment must be affirmed.
Section 543 of the code reads as follows:
“An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding, or upon 5 a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed as provided in this article.”
James G. Frazer claimed that he was entitled to the possession of the attached property, as against all the world, by virtue of a valid chattel mortgage given to him by T. D. Frazer .to secure the payment of an actual indebtedness equal in amount to the value of the mortgaged property ; that at the time of the levy he was in the actual peaceable possession of the stock of goods, and was holding the same in good faith, to secure the payment of said indebtedness, and in his motion he recited the above facts and asked that the officer be directed to deliver the property to him. He was not a party to either of the actions then pending against T. D. Frazer, and was in no way interested in ■the subject-matter of the controversy between the attaching creditors and T. D. Frazer, nor did he question either the regularity or the validity of the attachment proceedings, or the truth of the allegations in the affidavit upon which the writs were issued. It did not-concern him whether T. D. Frazer was indebted, to the plaintiffs in those actions or whether the attach ments should be sustained or discharged. Plis only interest was in seeing that the property claimed by him under his mortgage was not held for the satisfaction of any judgments which might thereafter be rendered against T. D. Frazer. He elected to litigate in this particular manner the question as to his right to the possession of the property in controversy.' Two days were consumed in this hearing. The validity of the chattel mortgage and the priority of the lien created by it over that of the attachments were involved in that inquiry, and must necessarily have been investigated and determined by the court, and, while no formal pleadings were filed by the parties to that proceeding, the question that was. actually litigated was as to which of these parties, James G. Frazer or the officer, was entitled to the possession of the property. The court had jurisdiction of the parties and of the subject-niatter of the controversy, and the decision was upon the merits. In the opinion of the writer, the order overruling the motion filed by James G. Frazer was one “affecting a substantial right made in a special proceeding,” and, until reversed, was as conclusive, with reference to the rights of the respective parties, as would have been a judgment in favor of the defendant, had Frazer sought, in the first instance, to litigate the same question in the more formal action of replevin. (Hoge v. Norton, 22 Kan. 374; Comm’rs of Wilson Co. v. McIntosh, 30 id. 234; Gamble v. Pitkin, 113 U. S. 545.) The majority of the court, however, is of the opinion that the ruling upon the motion to discharge the property from the attachment was a mere interlocutory order, and, under the authority of Watson v. Jackson, 24 Kan. 442 ; Stapleton v. Orr, 43 id. 170, and National Bank v. Barkalow, 53 id. 68, was not res judicata so as to preclude an inquiry upon the merits sought to be made by the plaintiff in this case. The majority of the court is, therefore, of the opinion that the court below erred in holding that the decision made upon the motion to discharge the attached property was final and conclusive until reversed.
The judgment, therefore,-will be reversed, and the cause remanded, with directions to award a new trial.
Gilkeson, P. J., and Garver, J., concurring.
Clark, J., dissenting. | [
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The opinion of the court was delivered by
Gilkeson, P. J.:
On July 15,1890, William Mahaffy, a boiler-maker, and Charles E. Prince, his helper, were ip. the employ of the plaintiff in error, and on said date were attempting to remove a grate out of the bottom of a fire-box of a locomotive which was standing in a roundhouse of said company. To do so, it was necessary for them to go into the pit over which the locomotive was standing. Having entered the pit, they each took hold of opposite ends of the grate to remove it. Prince at this time was looking up, and, as they were getting it out of the socket, some ashes from above fell into his eyes, causing him to let go of his end of the grate. He gave no warning of his intention to drop the grate, which weighs from 75 to 100 pounds. Mahaffy, not knowing what had .happened to Prince, held fast to his end, and thereby received a sprain of the right wrist. To recover for the injury so sustained this action was brought, under paragraph 1251, General Statutes of 1889. The petition alleges that plaintiff and Charles B. Prince were employees of and working for and under the direction of defendant in its shops, and while so engaged, and as part of their duties therein, they were removing a grate from an engine; and that Prince negligently jerked and twisted said grate and let it fall, without giving any notice to plaintiff, and thereby twisted, wrenched, sprained and severely hurt plaintiff’s wrist, rendering him unable to work and permanently disabling him.
Upon the trial of this cause the jury returned 17 special findings, very few of which have any bearing upon the question raised by the plaintiff in error, viz., that the testimony did not show any negligence on the part of Prince; in other words, that it did not show conclusively that the injury was the result of an unavoidable accident. We think the contention of the plaintiff in error is well founded. There is but little testimony upon the facts as to this injury. But two witnesses knew or could know anything about it — the plaintiff and his coemployee, Prince — and their testimony, when carefully examined, does not conflict. While they have hot expressed themselves in precisely the same terms, nor used similar language to convey their ideas, yet their explanations of this transaction are strikingly similar. The testimony of the plaintiff is:
“I had hold of the grate,'and in order to get it out one end has to be lifted up first, and the other end lowered down below the bar. Prince had hold of the other end. We were in a stooping position. We could not stand up straight and take the grate out, but was bent over. We had just lowered it below the bar when, as he claimed and so told me at the time, some ashes fell into his eyes. Pie gave it a throw, that way, and let it fall out of his hands. I had my end out of the slot on which it runs. We had lowered both ends out — Prince’s end came out first, and mine almost the same time. He gave it a twist and threw it that way, and it fell out of his hands.- Just before it was taken down — before he let it drop — he was looking up; he got some ashes in his eyes ; that is what he said at the time ; that is what he told me. He gave a kind of a jerk at the time, and let it fall. That is the way I understood at the time-as to how it happened. He gave a wrench over, and the grate fell out of 'his hands.”.
Prince testified as follows:
“I am the man that was helping Mahaffy take this grate out of the locomotive. Mr. Mahaffy had one end of the grate and I had the other. We were under the engine and had to work sitting down — sitting on the side of the pan, when we were getting it out of the socket that fits in the bars. I was looking up and dirt fell in my eyes; I gave the bar a kind of let-go and it fell from my hands. I think there was a handful of ashes fell in my eyes, I do not know — it fell light into my eyes — the eye got full; it caused me pain in the eye ; it felt to me as if needles were out in my eyes ; the dirt falling in there was sharp, and cut and ached. It caused me to let go my hold on the grate ; that is the only reason for me letting go. When I let go the grate turned from me. I lost my hold of it. I let go immediately as soon as the ashes fell in my eyes. I cannot say that I threw it; I suppose you might call it shoving away. I did not give Mahaffy any warning. . I had no time to give warning myself. I could not help it. The dirt came into my eyes and made me loose my hold on the grate. I did not know I was going to do it. It occurred so suddenly I did not have time to give any notice or warning.”
This is all the testimony bearing upon this subject.
“An act which involves none of the elements of negligence or intentional wrong is always considered an accident. No person can be held responsible for an unforeseen accident which incidentally occurs while lie is in the rightful and proper exercise of his lawful business.”
The act of Prince in letting go of’ this bar would not have occurred had it not been for the ashes falling in his eyes, and the jury so found; and, under the circumstances, his actions were but the natural and usual act of any person acting under similar circumstances. In judging of the care that he was required to use, allowance should be made for the circumsances of the cáse, and if he acted suddenly he would be excusable for omitting some precaution, or even in making an unwise choice under these influences. Of course he was under obligations not to injure Mahaffy if he coiild avoid it. We are all under such an obligation one to another, but being under such an obligation does not render us liable for accidents which we did not contemplate and which we could not avoid. What duty did Prince fail to perform ? What obligation was he under which he disregarded? W© have failed to discover any. We think he exercised toward the injured employee that degree of care and diligence which a prudent person would ordinarily exercise under like circumstances, and we think the testimony in this case shows conclusively that the falling of the ashes into Prince’s eyes caused him to give an involuntary start and relax his hold on the grate. That what constitutes negligence in a particular case is generally a question for the jury and not for the court, is undoubtedly true; but when there is no conflict in the testimony offered the question'of negligence becomes a question of law, and this is especially true when there can be but one deduction drawn from the testimony. Negligence is not to be found without evidence. 'There is always a presumption against it, and therefore the plaintiff who asserts it must adduce proof that the party charged therewith did not at least use ordinary care. Taking the testimony as a whole, some want of ordinary care must appear, to sustain a recovery. The testimony in this case fails to show any negligence upon the part of the coemployee, but, on the other hand, conclusively shows that the injury is the result of an accident, and that the defendant below is not responsible therefor. The verdict is not sustained by sufficient evidence and is contrary to law.
The judgment, therefore, will be reversed, and the cause remanded for further proceedings in accordance with this opinion.
All the Judges concurring. | [
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The opinion of the court was delivered by
Gilkeson, P. J. :
The information in this case charged the defendant in three counts with the unlawful sale of intoxicating liquors and is verified by C. C. Hedrick. It is admitted by the defendant that the second count charged the sale of intoxicating liquors to one August Leutzow on July 20, 1895, and this is also the theory upon which the court tried the case. The jury rendered averdict of guilty, as follows : “We, the, jury find the defendant, Charles Blunk, guilty upon the second count of the information, and we find him not guilty as to the first and third counts of the information.” He was thereupon sentenced by the court to be imprisoned in the county jail for the period of 30 days and pay a fine of $100 and the costs of this prosecution. From this he appeals and brings the case here for review, alleging as error, that the verdict is not supported by the evidence, or by any evidence, and that, as this information was verified by G. C. Hedrick, a private citizen and not the county attorney, the defendant could not be convicted of any offense except such as the prosecuting witness had notice or knowledge of. It is also contended that at the trial the state elected to rely for a conviction under the second count of the information and upon the sale to August Leutzow on July 20, 1895.
We have examined the record in this casé very closely and fail to' find where the state elected upon any one count of the information, or was required so to do. The only reference to any election which we find at all is on page 5, where there is a statement of something that appears like instructions, as follows :
“7. The state elects to rely for a conviction on the the various counts of this information, as follows: On the first count, for maintaining an unlawful common nuisance; on the second count, upon the sale of beer to August Leutzow on July 20, 1895 ; on the third count; the sale of beer to G-. L. Cook on the-day of June, 1895.”
This, if we could consider it at all, clearly contradicts the statement of appellant’s brief, but it is not included in the bill of exceptions, and as in that way only can instructions become a part of the record, we are not at liberty to consider it. (The State v. Smith, 38 Kan. 194.)
As to the sufficiency of the testimony and the knowledge of the prosecuting witness, we have carefully and closely examined the record, and the contention of the defendant cannot be sustained. Wo think there is ample testimony in this case to sustain the verdict of the jury as to the guilt of the defendant, under the count upon which he was convicted, and undoubted testimony not only as to notice, but also as to knowledge of the prosecuting witness as to this sale; and these questions, having been passed upon by the jury, whose verdict had the approval of the trial court, are no longer open for consideration.
The judgment in this case will therefore be affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Johnson, P. J.
: In 1889 Charles A. Malm .was en-
gaged in business as a druggist in the city of Newton, Harvey county, Kansas, and, being embarrassed financially and unable to pay his creditors when their bills became due, on the 17th day of June, 1889, he made a general assignment of his property to one T. C. Brewer, for the benefit of his creditors. Brewer took possession of the assigned property under the deed of assignment, and thereafter James Ryan and Meyer Bros, commenced suits against Malm in the district court of Harvey county, and obtained writs of attachment against the property of Malm, and the sheriff of said .county seized ■ the assigned property under the attachments, and thereupon Brewer commenced suit in replevin and the goods were taken under the order of replevin, a,nd Meyer Bros, and Ryan gave a redelivery bond therefor. Afterward Brewer resigned as assignee and one C. R. McLain was by the court appointed assignee. The replevin case was tried in the court, and McLa'in recovered judgment as such assignee against James Ryan for the return of certain property or its value. Afterward, on the 31st day of October, 1891, McLain resigned as assignee, and E. L. Parris was by the court appointed assignee, and qualified as required by law, and on the 28th of June, 1893, moved the court, as such assignee, to be substituted as plaintiff in the replevin judgment. The court overruled the motion, on the ground and for the reason that m,ore than one year had elapsed since the resignation of McLain and the appointment of Parris, and no revivor having been made within one year, the judgment had abated.
Parris excepted to the order and judgment! of the court in overruling and denying his motion, and made and filed a case in this court. On the 7th day of June, 1895, after filing the case in this court, Parris died, and C. M. Beachy was appointed assignee in lus place, by the district court of-Harvey county 0 M, Beachy has been substituted in this court for Parris, as plaintiff in error
The defendant m error now moves the court to dismiss the petition m error for the reason that one proceedings in error were not commenced m this court within one year iter the final judgment. In December, 1890, judgment was rendered m favor of. Charles R. McLain, assignee, who was plaintiff at that time, against the defendants in error; in December, 1891, McLain resigned as assignee; Parris was appointed and qualified as his successor in December, 1891; in June, 1893, Parris moved to be substituted as plaintiff in the judgment m the replevin suit, and an order denying the motion to substitute was ¿made December, IS, 3 S93 On December 21, 1893, Parris filed a motion for new trial of his application to be substituted ; on April 7, 1894, the motion of Parris for a new trial was overruled and 60 days were given to make and serve a case for the supreme court; a case made was served June 4, 1894; a petition in error was filed in the court of appeals April 6, 1895.
Section 556 of the code of civil procedure reads:
“No proceeding for reversing, vacating or modifying judgments or final orders shall be commenced unless within oiie year after the rendition of the judgment or making of the final order complained of.”
The final order complained of was not made until dhe 7th day of April, 1894. The motion for a new trial on tlxe application for substitution was overruled, and the petitioxx, being filed April 6, 1894, is within oxxe year after the making of the final order complained of. There is no complaint of the judgment in the replevin suit. The error complained of is in the overruling of the application to be substituted as plaixxtiff ixx the judgment as successor to the former assignee, axxd the order was not final until the motion for a íxew trial was overi’uled. The overruling of the xxlotion for new trial was the final order in that case in the district court, and the case was made, settled and signed within the time allowed by the court, axxd the case made, with the petition in error attached, was filed ixx this court within one year after overruling the motion. In the case of Bates v. Byman, 35 Kan. 634, it was held that
“where a'petxtioxx in error is filed in the supreme coxxrt within one year after the making axx order overruling a motion for a ixew trial, the proceeding is within time for a review of all the rulings of the court made duriixg the trial, axid excepted to at the time, which are referred to ixx such motion.”
The motioxx to dismiss the petition in error for this reason must be overruled.
This brings us to the consideration of the more important question raised by the motion to dismiss the petition in error for the want of jurisdiction in this court to review the order and judgment of the district court. While the application to be substituted as plaintiff in the judgment of the replevin suit does not involve any particular amount or sum of money, yet the judgment to which the plaintiff in error applied to be made a party does involve an amount and value of property. The sum in controversy is the amount, of the judgment in the replevin suit in which plaintiff asks to be substituted. But there is nothing in the record before this court by which we can determine the amount of the judgment. The only reference to the amount is as follows :
" Thereupon judgment was rendered upon such verdict and special findings in favor of the said Charles R. McLain, as assignee of said Charles A. Malm, against the defendant James Ryan, for the return of certain property, and, in case a return could not be had, for the value thereof.”
There is nothing in the record to,' show what the property was or its value — nothing by which this court can determine either the property or its value.
Chapter 96, page 151, Laws of 1895, creating the courts of appeals of this state and defining their jurisdiction, limits the jurisdiction in civil actions to cases where the amount or value m controversy does not exceed $2,000, exclusive of interest and costs.
Section 542a, of the code of civil procedure provides :
"No appeal or proceeding in error shall be had or taken to the supreme court in any civil action unless the amount or value in controversy, exclusive of costs, shall exceed $100, except in cases involving the tax or revenue laws,” etc.
By these provisions the jurisdiction of the courts of appeals is limited to all civil cases where the amount or value in controversy exceeds $100 and does not exceed $2,000. Before this court can entertain a case for review the record must show that the amount or value of the matter in controversy is within the jurisdiction of the court.
The record in this case not showing that the case comes within the jurisdiction of the court, the petition in error must be dismissed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Dennison, J.:
This action was commenced in the district court of Rice county, Kansas, by John M. English against Henry Swartz and John Osthoff, to recover upon a redelivery bond executed and delivered by them in an action in replevin before a justice of the peace in Sterling township, in said county, in which said English was plaintiff and G. M. Dilley, otherwise known as Jim Dilley, and Joseph Hughes were defendants. The bond was taken by the constable and the property in controversy was delivered to the defendants in the replevin action. Judgment was rendered upon said bond against these plaintiffs in error for the sum of $75.75 and interest, as the value of the property and the damage for detention, and $64.24 as the costs of the replevin suit, and they bring the case here for review.
The defendant in error has filed a motion to dismiss this case, for the reason that the record shows on its face that the amount in controversy is less than $100. No argument or proof is produced on the motion; hence we suppose it is abandoned. We will say, however, that the amount in controversy, exclusive ■of the interest and costs in this case, is the amount due on the redelivery bond, which is about $140.
G-. M. Dilley, one of the defendants, filed an appeal bond in the replevin action, and said action was certified to the district court. The plaintiffs in error contend that the redelivery bond is superseded by the appeal bond, and that they are released because the terms of the contract have been changed without their consent. By signing the redelivery bond, Swartz and Osthoff became security to English for the return of the property and damages and costs. No act of English enlarged or varied their liability or changed the terms of their contract. The plaintiffs in error cite several cases to show that any change to his detriment in the condition of a surety, made without his consent, discharges him, among which is the case of Schhitzler v. National Bank, 1 Kan. App. 674. In the cases cited the change was made with the assent of the obligee. In this case the change was made without his assent and probably against his wish. We must therefore hold that the sureties are liable upon the redelivery bond in an action of replevin before a justice of the peace, notwithstanding the fact that an appeal bond has been filed in the case and .the case appealed to the district court.
Plaintiffs in error contend that the court erred in not sustaining the demurrer to the evidence of the plaintiff below. We think this contention is good. The record shows that English obtained a judgment before the justice of the peace, and that an appeal was duly taken to the district court. The appeal vacates the judgment of the justice of the peace, and the evidence of the plaintiff below wholly fails to show that there was a judgment of the district court of Rice county awarding to him a return of the property and damages, or that there had been a breach of the conditions of the redelivery bond. Until this is done surely no cause of action had accrued upon the redelivery bond.
For this error the judgment of the district court is reversed, and the cause remanded for a new trial. ■
All the Judges concurring. | [
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The opinion of the court was delivered by
Dennison, J.:
So for as the defendant Prentice is concerned, there is no contention that he in person signed the guaranty. The firm name of Reiner & Prentice was signed by George E. Reiner. The evidence discloses the fact that Reiner & Prentice were in partnership in the hardware and machine business, and there is no evidence that either one had any authority to bind the partnership by indorsing or guaranteeing notes or to go security for third persons.
“It is no part of the business of a partnership to give a guaranty of or become surety for the payment of the debts of others or to bind its credit to third persons. The holder of a note made or indorsed by one partner without the consent of the firm, therefore, who knows that the signature of the firm was given for the purpose of accommodation or as surety, cannot recover as against the partnership, though the partner who thus uses the firm name is himself bound as though he had given his individual signature.” (17 Am. & Eng. Encyc. of Law, 1021.)
It is contended by the plaintiff that Reiner signed the guaranty upon the notes in fulfillment of the written contract between the plaintiff and defendants. A careful examination of the contract fails to support the contention. It is provided that, if sales are made to parties adjudged by the company to have been doubtful or worthless at time of sale, the notes taken for such sale shall be taken by Reiner & Prentice to apply on their commission. It is also provided that, if the company finds that any note passed upon at settlement was doubtful or worthless at the time of sale, then Reiner & Prentice shall take the note and replace it with cash or notes secured by good and responsible parties acceptable to the company. All that the contract stipulates is that Reiner & Prentice shall take the doubtful or worthless notes for their commission, or, after settlement, take the notes and replace them with cash or acceptable notes. There is no contract to guarantee the notes. If Reiner & Prentice or either of them guaranteed the notes they certainly must have done so in pursuance of some contract other than the written contract of agency. It therefore follows that the signature of the firm executed by Reiner upon the notes did not bind Prentice. Prentice denied the execution of the guaranty under oath, and no error was committed by the court in excluding the introduction of the - note as evidence against Prentice until its execution by him had been proved. The demurrer of Prentice to the evidence of the plaintiff as to him was properly sustained.
As to the transaction between Reiner and Rood, the agent of the company, it appears from the testimony that Rood was present for the purpose of making a settlement with Reiner & Prentice on behalf of the company, and that the company ratified his actions in making the settlement. Rood testified that the contract mentioned in connection with the guaranty, and to which the guaranty was subject, was the written contract of agency. Reiner testifies that it was the oral contract mentioned in the answer of Reiner. The finding of the court settles this in Reiner’s favor. The plaintiff contends that this contradicts the terms of the written contract of agency and is contrary to it, and that Rood, being a traveling salesman, and not a general agent, had no authority to make such deviation from the terms of the written contract. As already stated, the written contract did not provide for the guaranty of notes by Reiner & Prentice. It appears that Rood objected to the notes upon the set dement. It was therefore the duty of Reiner & Prendce to take the notes upon their commission. There was no commission coming to them, but Reiner told Rood that he could get the father of Sailsbery to sign the notes, as that was the agreement when the notes were taken, and Rood said that would be satisfactory. Sailsbery’s father lived in the country, and Reiner testified that he, Reiner, signed the guaranty to the notes so that Rood could send in the complete settlement upon the terms stated in the verbal contract, that the company should return the notes' to Reiner at once so that he could obtain the surety, at which time Reiner & Prentice should be released from the guaranty. The contract of guaranty must be construed with the contract with the company to which the notation referred. They were made at the same time, as parts of one and the same transaction. The notation was sufficient to put the company upon inquiry as to what contract was meant. It has no right to presume it meant the written contract of agency, for the' contract of agency did not provide for a personal guaranty. The finding of the jury, approved by the court, settles the fact that the notation refers to the oral contract. The company failed to carry out its part of said contract, and because of its failure the loss accrued. Having failed to perform its part of the contract it cannot recover.
The judgment of the district court is affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Dennison, J. :
The first error complained of by the plaintiff in error is that the court erred in giving the jury the instructions marked A, B, C, and D. Para graph 1324 of the General Statutes of 1889 provides that no railroad company shall charge or receive a rate in excess of 3 cents per mile for transportation of. a passenger. Paragraph 1325 id., which was in force from February 25, 1886, until its repeal on April 5, 1893, provided that, when a passenger failed or neglected to procure a ticket prior to taking passage on a train, the company might lawfully charge 10 cents excess for a journey of 15 miles or less, etc. Said paragraph also contains a proviso that said act shall not apply to any passenger taking passage on any railroad-train if the company shall fail or neglect to keep its ticket office open for the sale of tickets for at least 30 minutes immediately prior to the starting of such train. A careful examination of the instruction marked “A” convinces us that it clearly lays down the law applicable to keeping open a ticket office, and, as the jury found generally for the plaintiff below, we must consider it as a settled fact that the ticket office at Hillsboro was not open for the sale of tickets at least 30 minutes, or any part thereof, immediately prior to the departure of the train on which Dickerson took passage on August 6, 1890. It therefore follows that the provisions of paragraph 1325 supra did not apply to him, and that the company or its employees had no legal right to demand, charge or receive more than the regular fare of 3 cents per mile, or 31 cents, from him. Did they have the right to expel him from the train for refusing to pay the 10 cents excess? It must be conceded that he was not a trespasser upon the train. He had paid the full legal fare. He was therefore entitled to ride to Marion, and, being entitled to ride to Marion, the company or its employees did not have the right to expei him from the train for refusing to pay the excess. This question will be more fully discussed under the objection to instructions marked “ G ” and “ D.”
The counsel for plaintiff in error object to that portion of instructions ‘^’’and^D” which permits Dickerson-to recover damages as a recompense for the suffering of outraged and humiliated feelings natural to a man who is compelled to submit to such indignity in such a public place. The contention is that this case comes within the rule that, when a conductor, in enforcing a valid regulation, in good faith and without unnecessary force, ejects a passenger from the train, the corpbration is not liable for indignities and insults suffered. The conductor testified that the rule of the company is that if a passenger gets on his train and offers to pay cash fare he must pay the excess, whether he has a chance to buy a ticket or not, and, if he does not pay it, the conductor must remit it himself, or put the passenger off. We are not called upon to decide as to the validity of that part of the rule which requires the conductor to remit the excess himself. We do decide that a rule of a railroad company which requires a passenger either to pay an amount in. excess of the highest amount that can be legally charged for his passage or be expelled from the train is not a valid rule.
It is also contended that Dickerson could have escaped the humiliation and indignity by paying the excess, and then his measure of damages would be 10 cents ; that he had no right to aggravate the cfamages by not complying with the demand of the conductor. We are not partial to a rule that would require a per,son to submit to an extortion for the purpose of relieving the extortioner from the natural consequences of his acts ; but we need not consider that in this case. The jury specially find that Dickerson did not have money enough to pay the 10 cents excess. It was therefore not in his power to avoid being expelled from the train by paying the illegal excess fare demanded.
The instructions, “A,” “B,” “0,” and “D,” given were the law that governs this case, and no error was committed in giving them.
Plaintiff in error complains that the court erred in refusing to give the instructions asked for by it. ' We have carefully examined all the instructions given and those refused, and find that the material instructions asked for which should have been given are included in the instructions of the judge which were given to the jury.
The next error complained of is in the refusal of the court to submit certain special questions to the jury. In the case of Jordan v. Johnson, 1 Kan. App. 656, this court has held that
‘ ‘ either party has a right to prepare and ask the court to submit special questions in writing to the jury, and if they are material and relate to some of the facts which the jury must determine in arriving at their verdict, the court must submit them to the jury and insist upon clear and unevasive answers thereto.”
We have carefully examined the special questions refused, and find that all of them, except 23, 24, 25, 26, and 27, are either immaterial, and the jury need .not pass upon them in determining the amount of their verdict, or the facts which must have been determined by them were uncontradicted and were necessarily included in the general verdict. As to the special question No. 23, the jury by answering No. 22-, must have answered No. 23, which they do by stating that one of the elements of damages included in their verdict is for “physical and men- cal suffering and humiliation.” No. 24 asks the jury to separate the amount they allow for mental pain and suffering from the. amount they allow for physical pain and suffering. The court instructed the jury that they could not allow the plaintiff anything for mental pain and suffering, except such as grows immediately out of or results directly from the physical pain he endured. It could therefore serve no good purpose to require the jury to separate the damages allowed for physical and mental pain and suffering when they cannot allow anything for mental pain and suffering except such as is so closely connected with the physical pain and suffering.
In this case, the plaintiff below must recover, if he recover at all, for the labor and.inconvenience to which he was put, for the physical and mental pain and • suffering endured by lj.im, and for the humiliation to which he was compelled to submit. If requested, the court- should have submitted questions as to how much is allowed for each one of these elements of damage, but we can see no good reason for requiring ■any one of these three elements of damage to be divided up into minor subdivisions.
As to Nos. 25, 26, and 27, the court had instructed the jury, that they could not allow the plaintiff anything for punitive or exemplary damage, and their answer to No. 22 shows that they followed this instruction. We think the court committed no error in refusing to submit the special questions above mentioned.
The plaintiff in error also complains that the attorney for the plaintiff below was guilty of misconduct in his argument to the jury. We have carefully examined the arguments made, and are of the opinion that both sides took considerable latitude in the argument to the jury. Both sides tried to prejudice the jury against the opposite party. • The plaintiff below called attention to the claim that Dickerson had tried to put up a job on the company, and that, if it was not true, they should decide against it because it had slandered him. The attorney for the company frequently called the jury’s attention to the fact that when Dickerson was put off the 'train he was parading around wearing a hundred-dollar diamond pin. There is nothing in the record which authorizes either statement. The plaintiff in error, before objecting to the statements of counsel for the defendant in error, should have repudiated the improper statements of its own counsel. (The State v. Mortimer, 20 Kan. 93.) A verdict of $296.34 for the damages, for labor and inconvenience, physical and mental pain and suffering, and humiliation, upon such a state of facts as is shown in this case, is not excessive.
Perceiving no material error prejudicial to the rights of the plaintiff in error, the judgment of the district court is affirmed.
All the Judges concurring. | [
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The opinion of the court was delivered by
Dennison, J. :
To determine the legal proposition embodied in this case we must decide whether the Kansas Loan and Trust Company or its assignee, the Dartmouth Savings Bank, is entitled to be subrogated to the rights or to be treated' as the equitable assignee of the Lombard Mortgage Company. It is clear that the loan company or its assignee is not entitled to be subrogated to the rights of the Lombard Mortgage Company or entitled to the protection afforded by the lien of its mortgages^. They did not either directly or indirectly pay the Lombard Mortgage Company the amount due upon the mortgages or any part thereof. In fact, the Lombard mortgages had been paid by Hackett and released of record about a month before the loan company had paid out anything upon the loan. Hackett forged a mortgage upon the land, and obtained the money from the loan company by means of a forged order, at a time when the land was unincumbered. For the same reasons the loan company or its assignees cannot be consid ered the equitable assignee of the Lombard Mortgage Company. Hackett tendered a forged note and mortgage and 'a forged order purporting to have been signed by Mr. and Mrs. Mahanes, and the loan company paid him the money upon them.
Whatever may have been the status of the transactions between Hackett and Mahanes, and whatever rights the plaintiff below might have established under proceedings in garnishment or otherwise, it cannot be said that the necessary elements entered into this case to entitle said plaintiff to be subrogated to the rights of the Lombard Mortgage Company. The money of its assignor did not pay the Lombard Mortgage Company. Its assignor had parted with no money until about a month after the Lombard mortgages had been paid and satisfied of record. If the loan company had not paid out the money upon the forged note, mortgage, and order, the status of the Lombard mortgages would not have been changed. In fact the loan company was not instrumental, either directly or indirectly, in procuring the payment or release of the Lombard mortgage or in furnishing the money for that purpose. We are compelled to hold that the third instruction given by the court was erroneous. The plaintiffs in error were entitled to a judgment upon the special findings made by the jury.
The judgment of the district court is reversed, and the case remanded, with instructions to render judgment for the defendants below upon the special findings of the jury.
All the Judges concurring. | [
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The opinion of the court was delivered by
Gahveb,, J. :
The defendant in error, Ed. F. Madden, was the agent for the plaintiff in error for the sale of the ‘ ‘ Hodges ’ ’ steel header in certain territory in this state for the years 1891 and 1892. Written contracts between the Acme Harvester Company, as party of the first part, and Madden, as party of the second part, defined the terms of the agreement, fixed the prices at which the machines should be sold, the commission' to be received by the agent on the sales made by him, and specified the conditions under which sales might be made. Among other things, said contracts contained the following:
“And the said party of the first part hereby agrees to furnish the machines and extras herein named to the said party of the second part as fast as they are ordered, to the extent of their ability to do so; provided, however, if from any cause whatever they are unable to furnish the machines ordered, or any extras thereto, they shall not be liable for any damages whatever. And the party of the first part agrees to pay a commission of 20 per cent, of the list price of machines herein named, at which machines are to be sold. . . . The party of the first part reserves the right to select such notes as they see fit out of the time sales and turn them over to the party of the second part, at time of settlement, or any time before that, as they may elect, for all commissions due the second party on such sales.”
“4. To grant credit to such persons only as are of well-known responsibility and of good reputation as to the payment of their debts, and against whom, af tsr allowing for h'omestead and all lawful exemptions, collection of the amount can be made by judgment and execution ; and all notes to bear truthful property statements showing the party to be worthy of credit given; or to take chattel mortgage on machine, and additional property valued at double the amount of indebtedness.”
“ 7. The party of the second part waiving demand, protest, and -notice of protest, hereby guarantees the payment of all notes which may be taken for Acme Harvester Company’s goods not in accordance with the provisions and conditions of this contract; and if taken not in accordance therewith, as to financial ability, further agrees to sign Acme Harvester Company’s printed form of guaranty on the back of said notes when requested so to do.”
“ 9. The party of the second part agrees to be accountable to the party of the first part for any loss or expense resulting from any deviation from this agreement ; . . . and further agrees, that the acceptance of any note by the party of the first part, under the provisions of this contract, not made in compliance with it, shall not be deemed as a waiver by the party of the first part of any of its rights under this contract.”
During, said years the defendant in error sold certain machines, for which the notes of the several purchasers were taken and transmitted to the company. This action was commenced January 20, 1894, by said company against Madden, to recover, on his guaranty of payment, the amount of certain of said notes, alleging that they had been taken in payment for headers purchased by the makers, respectively, from said Madden; that the makers thereof were not persons of well-known responsibility and good reputation as to the payment of their debts; that they were not persons against whom, after allowing for homestead and all lawful exemptions, collection of said notes could have been made at the time said notes were taken, since; that said notes did not bear truthful property statements showing the respective makers to be worthy of the credit given them. The defendant answered, joining issue upon the allegations of the plaintiffs petition, and also asking affirmative relief by alleging certain matters on which he claimed to be entitled to recover against the plaintiff. One of these matters was, that the plaintiff did not furnish machines ordered by the defendant, to the extent of its ¿ibility to do so, in said years, but failed and refused, without legal excuse, to fill his orders therefor, to his damage in a large amount. On a trial had by a jury, judgment was rendered in favor of the defendant for $134.50.
The main contention on the part of the plaintiff in error is that the verdict of the jury is not sustained by the evidence. Numerous objections-are made to the ruling of the court in admitting and refusing evidence, and in the giving and refusing of instructions to the jury. A proper consideration of some of the questions thus raised requires the careful examination of a typewritten record of over 400 pages. The labor thus involved might have been greatly lessened had the rules of this court been complied with in the preparation of the brief for plaintiff in error. As the instructions and evidence concerning which objections are made have not been briefed as the rule requires, we shall not attempt their full consideration. We have, however, carefully read the evidence contained in the record, and are clearly of the opinion that it does not authorize the judgment rendered. The notes, copies of which were attached to the petition, all purported to contain property statements of their respective makers. The plaintiff claims that these statements were untrue, and that the makers were not persons of the class to which the defendant was authorized to grant credit. No chattel-mortgage security was taken securing any of the notes. The. special findings show that the plaintiff was allowed for four of the notes sued upon; but, as to the others, 'the jury found in favor of the defendant. As to most of the notes the evidence was conflicting, and the verdict of the jury is now conclusive. As to some, however, the testimony of the makers of the notes was the only evidence introduced, and .clearly shows that their property statements were not true.
It is claimed by the defendant in error that the petition presented no issue as to the truthfulness of the property statements; that it at most alleged that no property statement was, in fact, made in connection with any of said notes. The language of the petition is, “Nor did each or any of said notes bear a truthful property statement showing the maker to be worthy of credit so' given by the said defendant.” This, counsel contends, must be construed as a.denial of the fact that said notes bore any property statements whatever, and should not be taken as equivalent to an allegation that property' statements were made which were not true. While we think the position is open to the objection made by counsel, yet it ■ seems to have been treated by the court, and evidence was introduced by both parties, the same as if the allegation had been made that certain property statements had been made but that they were untrue. The record shows that the defendant made a general objection to the introduction of the statements in evidence, but it does not definitely appear that this particular ground of objection was brought to the attention of the trial court. In this particular we think the petition should be amended on a retrial of the case.
Stronger grounds for reversal exist upon the counter-claim of the defendant. There is nothing in the evidence tending to show that the company did not act in entire good faith in the filling of defendant’s orders. On the contrary, the evidence shows that there was, during the years in question, an unusual demand for headers, which exceeded the ability of the company to supply. It was proper, under such circumstances, that the company should treat all its agents with equal fairness, and that unreasonable discriminations should not be made in the filling of their orders. The contract expressly provided that the company was bound to fill orders only ‘ ‘ to the extent of their ability to do so,” and “if from any cause whatever they are unable to furnish the machines, or any extras thereto, they shall not be liable for any damages whatever.” No cause for the failure of the company to supply the defendant with all the machines ordered is apparent, other than- such unusual demand. This alone, under the evidence, would create no liability. Again, before the defendant could recover because of the failure of the plaintiff to fill any order, he must show that such order was for a machine sold to a person to whom he was authorized to sell by the terms of the contract; that is, that the proposed purchaser was a person of well-known responsibility and of good reputation as to the payment of his debts, and against whom, after allowing for homestead and for all lawful exemptions, collection of the amount could have been made by judgment and execution. Such showing was not made. On the contrary, the defendant was unable to state upon the trial, with few exceptions, who the proposed purchasers were.
There was no evidence tending to show who they -.-ere, where they lived, or what their financial con dition was. The only evidence introduced on the subject was the testimony of the defendant, who, speaking in' a general way of the 100 unfilled orders, said that they were given by persons of good reputation for the payment of their debts, and who were financially able to pay for the machines. This testimony was objected to, and should not have been admitted in this wholesale manner. The error is especially prejudicial in view of the fact that no information was given of the names of more than a small part of the persons who gave the orders, and no opportunity was afforded the plaintiff to controvert the evidence of the defendant.
Complaint is also made of the rulings of the court in admitting evidence of the statements of other agents of the plaintiff with reference to past transactions or transactions with which they were hot shown to have been personally connected. The declarations of an agent within the scope of his authority are admissible when made in connection with a transaction for his principal, as a part thereof. But his declarations with reference - to a past transaction are not admissible against the principal. (Swenson v. Aultman, 14 Kan. 273.)
We perceive no substantial error in the instructions of the court. We think they very fully and fairly presented to the jury the issues and the rules of law applicable to the case.
The judgment will be reversed, and the case remanded for new trial.
All the Judges concurring. | [
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